author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eldson McGHEE, Amelia Kendricks and Robert Lee Bunner, Defendants-Appellants.
    No. 73-1273.
    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Rehearing Denied March 11, 1974.

      R. Rabider, Markwalter, Macon, Ga. (court-appointed), for McGhee.
    William T. Exum, Macon, Ga. (court-appointed) , for Kendricks.
    Manley F. Brown, Macon, Ga. (court-appointed), for Bunner.
    William J. Schloth, U. S. Atty., O. Hale Almand, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

      Before GODBOLD, DYER and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

Bunner, Kendricks, and McGhee were convicted on three counts of aiding and abetting the commission of a'bánk robbery, 18 U.S.C. §§ 2, 2113, and one count of conspiracy, id. § 371. Each received life for bank robbery and five years for conspiracy, sentences to run consecutively. All claim that the bank robbery counts, Counts I — III, were fatally defective because of the omission of an essential element of the crime — a taking “from the person or presence of another” within the terms of 18.U.S.C. § 2113(a). Although we agree with defendants as to Count I, we hold that Counts II and III were sound, and finding their other contentions without merit, we affirm.

I. The indictment issue.

The contours of the omitted element doctrine are uncertain. Supreme Court decisions elaborating on the requirements of the liberal federal pleading standards appear to recognize a difference between, on the one hand, indictments that omit an essential element and thus fail to charge an offense and, on the other hand, indictments that suffer from nonprejudicial technical deficiencies. In Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861, 865 (1932), the Court set out the “true test” of the sufficiency of an indictment:

whether it contains the elements of the offense intended to be charged, and “sufficiently apprises the defendant of what he must be prepared to meet, and, in ease any other proeeed-ings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” [Citations omitted; emphasis added.]

The Court reemphasized that “[i]t, of course, is not the intent of § 1025 [a forerunner of Rule 52(a), F.R.Crim.P.] to dispense with the rule which requires that the essential elements of an offense must be alleged; but it authorizes the court to disregard merely loose or inarti-ficial forms of averment.” Id. at 433, 52 S.Ct. at 420, 76 L.Ed. at 866.

Hagner itself was a “merely loose or inartificial forms of averment” Case. Charged with mail fraud, the defendant challenged the indictment for failure to state that the allegedly fraudulent letter had been knowingly caused “to be delivered by mail according to the direction thereon.” Since the indictment did state that defendant had deposited the letter, addressed, at a post office, no omitted element was found and the conviction was affirmed.

United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), demonstrated the proper scope of the Hagner fairness test. A perjury indictment was sustained over the objection that it had failed to specify the name and oath-giving authority of the person who had sworn the defendant. The Court held that the name and authority were not essential elements. For a crime to have occurred, however, it was essential that the oath had been authorized by a law of the United States. The indictment stated that the oath had been “duly taken.” Employing the fairness test, the Court concluded that “duly taken” amounted to “authorized by a United States law.”

Our past decisions rigidly observe the all-elements requirement. In Walker v. United States, 342 F.2d 22 (CA5), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L. Ed.2d 97 (1965), we considered a check forgery indictment averring that defendant acted with intent to defraud. The statute under which defendant was charged specified that the forgery must be committed with intent to defraud the United States. We held the indictment defective, and rejected the Government’s argument that the defect was somehow curable by the “implications” of other language in the indictment. See also Honea v. United States, 344 F.2d 798 (CA5, 1965); United States v. Randolph, 460 F.2d 367 (CA5, 1972); United States v. Leigh, 487 F.2d 206 (CA5, 1973); United States v. Pollard, 486 F. 2d 190 (CA5, 1973).

This circuit’s purist view of the need to state all elements of an offense leads us to conclude that Count I of the bank robbery indictment against Bunner, Kendricks, and McGhee should have been dismissed. Subsection (a) of 18 U.S.C. § 2113 is as follows:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
■ Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

The two parts of the subsection are separable.' The first criminalizes the usual gun and mask form of bank robbery, while the second covers, for example, nighttime bank break-ins not involving danger to employees or customers. Our decision in United States v. Cook, 443 F.2d (CA5, 1971), made clear that when the asserted crime is a violation of the first part of subsection (a), a taking from the person or presence of another is an essential emement.

The words of Count I show that the Government was relying solely on the first part of subsection (a). There was no allegation, however, that defendants took money from the person or presence of another. The omission is fatal to Count I.

Count II is not defective. It reads: ■ ■

[Defendants] aided and abetted by one another, willfully, unlawfully and with felonious intent, did take from the First State Bank, Marshallville, Georgia, the sum of $34,173.84, more or less, in money belonging to and in the care, custody, control, management and possession of The First State Bank, Marshallville, Georgia, the deposits of which were then insured by the Federal Deposit Insurance’ Corporation; and [defendants] aided and abetted by one another, in committing the aforesaid acts, did assault Mrs. Marian Peterson, Mrs. Leona Lay-field, and Miss Barbara Pritchett and others, and thus did put in jeopardy the lives of Mrs. Marian Peterson, Mrs. Leona Layfield, and Miss Barbara Pritchett and others, by the use of dangerous weapons, to-wit: a revolver and a shotgun; all in violation of 18 USC § 2, i/c/w/ 18 USC § 2113

(d). [Emphasis added.]

The material in the count referred to by the words, “the aforesaid acts,” although insufficient to allege a subsection (a) offense, properly states a subsection (b) offense. • Since § 2113(d) penalizes

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device . . .,

Count II sufficiently alleges a subsection (d) crime.

Count III sets out to allege a subsection (e) violation. Subsection (e) reads:

Whoever, in committing any offense defined in this section, or in avoiding - or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

In the present context the necessary elements are (1) the taking of a hostage (2) in the course of committing some other § 2113 offense. The operative part of Count III is as follows:

[Defendants,] aided and abetted by one another, and while committing and attempting to commit the offense charged herein, did force Barbara Pritchett to accompany them from the First State Bank, Marshallville, Georgia, without consent of the said Barbara Pritchett; all in violation of 18 USC § 2, i./c/w/ 18 USC § 2113(e). [Emphasis added.]

“Herein” refers to the other bank robbery counts in the indictment. Since Count II adequately alleges a subsection (d) offense as discussed above, the requirement that the hostage be taken in the course of committing some other § 2113 offense is met.

II. In-court identifications.

Bunner challenges the admission of certain in-court identifications. There was no formal showup, but three witnesses, Nassamer, Pritchett, and Lay-field, saw him with other defendants in handcuffs and chains at a pretrial hearing. Bunner argues, as did the defendant in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), that in the circumstances the pretrial viewings were so conducive to mistaken identification that he was denied due process of law. Although we are inclined to think that in the totality of the surrounding circumstances there was no substantial likelihood of irreparable misidentification, there is no need for us to decide that issue here. The unchallenged testimony of at least two other eyewitnesses provided ample evidence to support Bunner’s conviction.

Kendricks’ challenge to the in-court identifications made by witnesses Rowland and Howell rests on essentially the same ground as Bunner’s objections, except that she complains of a display of photographs viewed by the witnesses a few days before the trial. She argues that the photographs were highly suggestive in that all except the one of her were of poor quality, out of focus, blurred, and blotched. We have scrutinized the photographs with great care and we conclude that the display, taken as a whole, was not overly suggestive.

Bunner and Kendricks seem to suggest that the government’s failure to display them to the witnesses before trial in a properly-conducted lineup was somehow violative of their rights. In actuality no lineup or formal showup was held and no right to a lineup exists. Cf. Stanley v. Cox, 486 F.2d 48 (CA4, 1973).

III. Constitutionality of the punishment provision of 18 U.S.C.

§ 2118(e).

All three defendants contend that Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), rendered the punishment provision of § 2113(e) wholly unconstitutional by invalidating the subsection’s death penalty clause. The short answer is that in Pope the Supreme Court specifically stated that the defendant, who had been sentenced to death, was to be resen-tenced. Had the Court deemed the non-death portions of subsection (e) nonsep-arable and therefore invalid, such a disposition would have been improper.

Defendants argue further that if pruned to avoid constitutional offensiveness, subsection (e) must fall, because by setting no maximum term it leaves too much power over sentencing in the trial court — power that should reside with Congress. We find no merit in this argument. While the punishment provision in subsection (e) as judicially trimmed may be unusual in its wording, it does not offend the Constitution or traditional notions of separation of powers.

Defendant Kendricks complains of the discrepancy between the life-plus-five sentence she received and the term imposed on one of her partners in crime, Crawford, who pleaded guilty. Crawford’s misdeeds may have been more atrocious than hers, but absent some statutory or constitutional infirmity, neither of which is present here, sentencing is within the discretion of the trial judge.

IV. SUFFICIENCY OF THE EVIDENCE

A. McGhee’s participation.

Defendant McGhee insists that the evidence was insufficient to convict him on Counts I — III. Viewing the evidence in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942), we conclude that the jury was justified in finding him guilty beyond a reasonable doubt. According to the uncontradicted and largely unimpeached testimony, he was an active participant in the planning of the crime. He performed several acts to aid in putting the plan into effect, for example, placing a rifle in the putative get-away van, registering at a motel near the scene of the crime on behalf of all the robbers, and accompanying the robbers while the van was being hidden outside the town where the crime took place. He also accompanied them into town in a Cadillac, and consistent with the plan that he was to act as get-away driver, he took over the wheel of the Cadillac and drove at least twice around the block after the other robbers had disembarked. Finally, he was apprehended while heading out of town in a car with defendant Kendricks shortly after the robbery, under circumstances that would justify the inference that he was making for the cached get-away van. He falsified his identity upon being. stopped and questioned and (inferably) lied about his destination and purpose.

B. Bunner’s sanity.

Bunner, who waived his right to jury trial, raised the defense of insanity, and now contends that as a matter of law the evidence established a reasonable doubt as to his sanity at the time of the commission of the crime. The chief bulwarks of his argument are the testimony of his psychiatrist, Dr. Bullock, a document relating to his 13-month sojourn in a Florida mental hospital ending 30 months before the crime, and a document showing that the Social Security Administration had awarded him payments based on mental impairment. The government presented its own psychiatrist, Dr. Eardlay, who created a conflict in the evidence by testifying that in his opinion Bunner was sane. It was proper for the District Judge, as fact-finder, to resolve the conflict, and we are not able to say that he erred.

V. Trial errors.

In the course of the charge to the jury the following exchange occurred :

THE COURT: Now, of course, the fact that these two defendants who are on trial — and their names I remind you, are Eldson McGhee and Amelia Ken-dricks — have entered pleas of guilty forms the issue that you ladies and gentlemen are trying.

MR. EXUM: Your Honor, excuse me, I may have misunderstood you but I thought you said these defendants have entered pleas of guilty.

THE COURT: I may have inadvertently said that. I didn’t mean to. The fact they have entered pleas of not guilty, obviously, forms the issue that you ladies and gentlemen are to try.

No prejudice could possibly have flowed from this Obvious slip of the tongue, which was corrected quickly. Nor does the record support Kendricks’ contention that the trial judge prejudiced defendant’s ease by intervening on behalf of the government. Compare United States v. Hoker, 483 F.2d 359 (CA5 1973), in which the judge asked defendant more than 150 probing questions and projected a hostile, disbelieving attitude toward him.

Affirmed.

      . The District Court sentenced under only the most serious of the bank robbery counts, which alleged the taking of a hostage in the course of a robbery.

      . Under the interpretation this court has placed on F.R.Crim.P. 12(b) in Walker v. United States, 342 F.2d 22 (CA5), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965), defendants may raise the omitted' element challenge oven though they failed to object at trial.

      . The italicized “and” in the quotation in text lends support to the proposition that the all-elements requirement is separate from the specificity requirement.

      . The decision rested in part upon the repeal by Congress of an earlier version of the perjury statute.

      . Language in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, 250-251 (1962), may east some doubt on the purity of the distinction between the all-elements requirement and the requirement of sufficient specificity to put a defendant on notice and protect against double jeopardy. In Bussell the Court seemed, at least syntactically, to employ a unitary fairness test in measuring adherence to both requirements. On the other hand, the Bussell holding arguably shored up the distinction by drawing a line between indictment insuffi-ciencies that can be corrected by amending and those that go to an essential element of the crime and therefore are uncorrectable except by resubmission to a grand jury.
      At least one scholar has suggested that the “requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test . . . . ” Wright, Federal Practice and Procedure § 125 at 234 (footnotes omitted).

      . “[Defendants,] aided and abetted by one another, willfully and unlawfully and with felonious intent, by force, violence and by intimidation, did take from the First State Bank, Marshallville, Georgia, the sum of $34,173.84, more or less, in money belonging to and in the care, custody, control, management and possession of the First State Bank, Marshallville, Georgia, the deposits of which were then insured by the Federal Deposit Insurance Corporation; all in violation of 18 USC § 2, i/e/w/ 18 USC § 2113(a).”

      . Section 2113(b) - essentiálly criminalizes bank larceny.

      . Pritchett was taken hostage and before her escape spent twelve hours with Bunner and two of his fellow bank robbers who are not parties to this appeal. Nassamer and Layfield had ample opportunity to observe Bunner face to face during the course of the crime, which occurred in broad daylight. Although Bunner wore no mask, he wore a wig during part of the crime. Most of Pritchett’s observation of him, however, occurred during his flight, when he was wig-less.

      . The Pope decision, which rested on the same ground as United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), invalidated the death penalty clause as placing an impermissible burden on the right to jury trial. Before Pope a defendant willing to waive jury trial was assured of not being sentenced to death, since the statute as it stood gave a jury, but not the judge, power to assess the death sentence.

      . Striking out the death penalty clause, we are left with the command that a convicted person “shall be imprisoned for not less than ten years.”

      . Crawford received 30 years for bank robbery and five for conspiracy, sentences to run concurrently.

      . Under Rule 35, F.R.Crim.P., Kendricks is free to move for reduction of sentence in the District Court within 120 days after the issuance of this court’s mandate affirming her conviction.

      . In a post-trial memorandum the District" Judge noted that he credited Dr. Eardlay over Dr. Bullock. Dr. Bullock had painted Bunner as a dependent personality with deep» inferiority feelings and a general inability to perform in a positive, goal-oriented manner. Yet the evidence adduced at trial pertaining to the crime showed that Bunner was capable of sustained and positive, if not brilliant, executive action.


source: Caselaw Access Project

author: PICKETT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie Joe WILLIAMS, Defendant-Appellant.
    No. 73-1450.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 16, 1973.
    Decided Dec. 13, 1973.
    James M. Dunn, Asst. U. S. Atty., Salt Lake City, Utah (C. Nelson Day, U. S. Atty., Salt Lake City, Utah, with him on the brief), for plaintiff-appellee.
    John W. Horsley, Moyle & Draper, Salt Lake City, Utah, for defendant-appellant.
    Before PICKETT, SETH and DOYLE, Circuit Judges.
   PICKETT, Circuit Judge.

Williams was convicted on two counts of an Information charging him with possession and sale of heroin, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (1970). He was sentenced to serve two concurrent six-year terms. On appeal he contends that the record establishes the defense of entrapment as a matter of law and that the trial court should have dismissed the Information because of the failure of the government to produce a paid informer as a witness during the trial.

Early in September 1972 Jerry Dis-muke, a drug addict, came to the Salt Lake City office of the Federal Bureau of Narcotics and Dangerous Drugs, together with representatives of the Salt Lake City Police Department. Dismuke indicated that he knew people in the area who were trafficking in narcotics and that he was willing to assist the Bureau in its narcotics investigations. He was employed as an informant and assigned to work with Special Agent Chism, who had recently arrived in Salt Lake City. After the employment Dis-muke visited with defendant Williams alone, and on the following day he and Chism went to the Williams home for the purpose of making a purchase of narcotics. Chism told Williams that he was in town to visit Dismuke, his cousin, who was a heroin addict and in bad shape financially. He advised Williams that he was in the heroin business and wanted to purchase substantial quantities from him for resale by himself and Dismuke at a profit. Williams said that he could not arrange for a large transaction since a “Black Syndicate” controlled drug traffic in Salt Lake City. He did, however, advise Chism that he had 64 capsules of heroin which he would sell to him for $10 each. After some negotiation Williams offered to sell 13 capsules for $100. This offer was accepted and the purchase consummated. The-following day Chism and Dismuke returned to the Williams residence and Chism purchased 20 capsules of heroin for $170. This transaction was in the presence of Dismuke and an unidentified person. During this visit Williams suggested to Chism that they both go to California where Williams said he could arrange a large narcotics transaction. The first two counts of the Information arose out of the first transaction, and the third and fourth counts from the second purchase. The third and fourth counts were dismissed as a result of evidence disclosed at the trial.

It is apparent from the record that Williams possessed the narcotic capsules and was ready and willing to sell them to Chism. The only misrepresentation made to Williams during the transactions was Chism’s representation that Dismuke was a cousin. There was no special inducement made to Williams to make the sales and the offer to purchase merely afforded the opportunity for the transactions to be made. To constitute entrapment the deception must be such that it actually implants the criminal design in the mind of the accused and his criminal conduct must be the product of the action of the government officials. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Gibson, 446 F.2d 719 (10th Cir. 1971); Martinez v. United States, 373 F.2d 810 (10th Cir. 1967). “When a person is shown to be ready and willing to violate the law, the providing of an opportunity therefor by undercover agents or police officers is not entrapment.” United States v. Jobe, 487 F.2d 268 (10th Cir. 1973); see also Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L.Ed.2d 462 (1963); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971).

The name of the informant was known and the court directed the government to produce him at the trial. Apparently the defense knew during the trial that the informant was not available as counsel for the defendant, on cross examination, made inquiry of the acting agent-in-charge of the Salt Lake office concerning his whereabouts. Following an objection to this cross examination, there was an unrecorded colloquy at the bench between the court and counsel. Thereafter the subject was pursued no further. After the prosecution rested, the demand for the production of the informer was renewed. When the prosecution offered to explain the failure, the court stated:

“Well, you won’t need to do that. What the Government says is they don’t know where he is; they have tried to find him and can’t find him. Theré is one report that he is dead. That is what happens to informers sometimes, they end up dead. At any rate, the Government doesn’t know where he is. I don’t know how I am going to compel the Government to produce a witness when they don’t know where he is.”

It is clear that the court was satisfied with the unrecorded explanation of the government concerning its failure to produce the witness. The defense did not question the validity of the explanation and made no request for further hearing on the reasonableness of the efforts of the prosecution to obtain the presence of the informer. As a general rule in eases of this kind, the government must identify an informant who participates with undercover agents in transactions which are for the purpose of obtaining evidence of crimes and whose testimony might be relevant to the defense. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Martinez, 487 F.2d 973 (10th Cir. 1973); Garcia v. United States, 373 F.2d 806 (10th Cir. 1967). In addition to requiring the disclosure of the informant’s identity, the trend of the decisions has been, upon demand of the defendant, to require the prosecution to produce the informer at the time of trial. If the informer is not available, it is incumbent upon the government to show reasonable diligence in its effort to produce him. United States v. Pollard, 479 F.2d 310, on remand, 483 F.2d 929 (8th Cir. 1973); United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972). In United States v. Hayes, 477 F.2d 868 (10th Cir. 1973), a case quite similar to the instant case, this court said:

“Under various circumstances the courts have held the government to a duty to produce an informant or make a showing of a reasonable effort to do so. We are, however, persuaded to agree with the trial court that in this ease the government was not obligated to call Ellerton as its own witness. The court accepted as sufficient the undertaking of the prosecution to seek his present location and furnish it to the defense. We feel this was the proper measure of the government’s duty in this case. The government is not the guarantor of the appearance of its informant at trial, but is required to accord reasonable cooperation in securing his appearance where a timely request is made and his testimony might substantiate a claim of the defense. [Citations omitted]"

We do not hold that the government would be excused in all cases for failure to produce an undercover agent even after due diligence to locate him had failed. If, in an appropriate ease, the facts disclosed that the accused could not obtain a fair trial without the presence of an informer, the result could be a lack of due process. 8 Moore’s Federal Practice H 16.06(4) (2d ed. 1965, 1973 revision). Cf. United States v. Walton, 411 F.2d 283 (9th Cir. 1969). The instant case is not of that kind. The only evidence in the case is that the informer’s activity was limited to the introduction of the undercover agent to Williams. He was present but took no part in the transactions.

Affirmed.


author: HILL, Circuit Judge.

text:
    CAROLINA CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. TRANSPORT INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 73-1461.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 15, 1973.
    Decided Dec. 10, 1973.

      Ray R. Christensen, Salt Lake City, Utah, for plaintiff-appellant.
    Leonard H. Russon, Salt Lake City, Utah, for defendant-appellee Transport Indemnity Co.
    Before HILL and BARRETT, Circuit Judges, and SMITH, District Judge.

       Honorable Talbot Smith, Eastern District of Michigan, sitting by designation.

   HILL, Circuit Judge.

This is a dispute between two insurance companies as to which is the primary insurer on the accident here under consideration.

Andieo, Inc., is a Utah corporation having its office and principal place of business in that state. Ringsby Truck Lines, Inc., is a Nebraska corporation having its office and principal place of business in Colorado. Ringsby’s principal business is the transportation of goods for hire throughout the United States, and as such operates under authority granted by the Interstate Commerce Commission to transport goods in interstate commerce. Andieo and Rings-by entered into a written lease whereby Andieo leased a truck tractor and a trailer to Ringsby for the purpose of hauling certain cargo from Salt Lake City, Utah, to Los Angeles, California. The lease provided, inter alia, the following :

Lessor agrees to be responsible for and pay driver’s salary, workmen’s compensation coverage, and all taxes, state, federal or local, based on payroll, and all other expenses incident to driver’s employment. Lessor agrees to indemnify and save harmless Lessee against any loss resulting from the injury or death to such drivers. The Drivers of the said equipment shall at no time be an employee of lessee.
Lessor agrees to indemnify and save harmless the Lessee from any loss, damage or happening giving rise to any claim from Third parties against Lessee.
It is understood that the leased equipment under this agreement is in the exclusive possession, control and use of the Lessee during the period of this lease, and the Lessee assumes full responsibility in respect to the equipment operation to the public, the shippers, the Interstate Commerce Commission and other concerned state and regulatory bodies. It is agreed, however, that Lessor shall carry acceptable Public Liability and Property Damage Insurance in sufficient amounts to indemnify, hold harmless and reimburse Lessee for any and all losses incurred and sustained by Lessee which may result from the use of the said equipment.

Prior to the execution of the lease Carolina Casualty Insurance Company, a Florida corporation qualified to engage in the insurance business in the State of Utah, had in force and effect a policy of public liability insurance issued in the name of Andico. The policy afforded public liability insurance coverage for certain vehicles owned by Andico, including the truck tractor and trailer leased to Ringsby. The policy contained an endorsement in the language of ICC form B.M.C. 90, required by the ICC rules and regulations to be attached to all policies issued to motor carriers. That endorsement provides:

In consideration of the premium stated in the policy to which this endorsement is attached, the Company hereby agrees to pay, within the limits of liability hereinafter provided, any final judgment recorded against the insured for bodily injury to or death of any person, or loss of or damage to property of others . . . resulting from negligence in the operation, maintenance, or use of motor vehicles under certificate of public convenience and necessity or permit issued to the insured by the Interstate Commerce Commission. .
Within the limits of liability . it is further understood and agreed that no condition, provision, stipulation, or limitation contained in the policy . . . shall relieve the Company from liability hereunder. .

The policy issued by Carolina contained two other clauses pertinent to this case. The first is an excess insurance clause which provides:

With respect to any automobile of the commercial type while leased or loaned to any person or organization, other than the named insured, engaged in the business of transporting property by automobile for others the insurance shall be excess insurance over any other valid and collectible insurance.

The second clause of importance is an omnibus coverage clause which provides that an insured under the policy includes not only the named insured but also includes any person or organization legally responsible for the use of the automobile, if the use is with the named insured’s permission.

At the same time, Transport Indemnity Company had in force and effect a policy of public liability insurance naming Ringsby as the named insured. Transport’s policy contained no omnibus coverage clause, but did contain an excess insurance clause and an endorsement in the language of ICC form B.M. C. 90 (identical to Carolina’s). Transport had filed a certificate with the ICC certifying the issuance of the policy.

It is in this setting that Lamoine Freeze, an employee of Andico, while driving the truck tractor and trailer leased to Ringsby, was involved in a collision with other vehicles on U.S. Highway 91 near Levan, Utah. As a result of the accident several persons sustained severe injuries and others were killed. The heirs of the deceased persons threatened to sue Ringsby, Freeze and Andieo to recover for the wrongful death of their decedents. Persons injured threatened to sue the same parties to recover damages for personal injuries.

Both Carolina and Transport deny all coverage on the accident. Both have refused to enter into negotiations for settlement and both have declared they will refuse to defend any action which may be commenced against Ringsby, Freeze, or Andieo, or to pay any damages which may be awarded. Each contends the other has the primary insurance and the responsibility to negotiate for settlement and defend any actions.

Carolina subsequently brought this declaratory judgment action for an adjudication of the relative rights and duties of itself and the several defendants. After the facts were stipulated to by the parties, Carolina and Transport moved for summary judgment. The trial court granted judgment for Transport, holding Carolina’s policy to be primary. Carolina appeals.

Carolina’s position on appeal is as follows: (1) Freeze was not a permissive user under the omnibus clause and thus not an insured under its policy, and the policy provides no coverage for Ringsby; and (2) neither the excess coverage provision in its policy nor the indemnifying provision in the lease between Andieo and Ringsby can exonerate Transport because under Argonaut Insurance Co. v. National Indemnity Co., 435 F.2d 718 (10th Cir. 1971), and Hagans v. Glens Falls Insurance Co., 465 F.2d 1249 (10th Cir. 1972), the required ICC endorsement makes Transport the primary insurer.

Transport contends Carolina’s policy is primary because its own policy, containing no omnibus clause, insures only Ringsby. Contending Freeze is an im sured under Carolina’s policy, Transport claims Ringsby’s liability, if any, is derivative based upon the negligence of” Freeze. Transport then claims Ringsby has a right of indemnification from Freeze, Andieo and their insurer, Carolina, for any judgment against Ringsby. Since Carolina would be the insurer ultimately liable, Transport urges Carolina’s policy should be held primary to avoid circuity of action.

Both Argonaut Insurance Co. v. National Indemnity Co., supra, and Hagans v. Glens Falls Insurance Co., supra, involve disputes between two insurance companies over coverage. In Argonaut, Argonaut’s named insured was Auto Driveaway Company and National’s named insured was Executive Car Leasing Company. Executive hired Driveaway to transport a vehicle from one state to another and in the process of so doing Driveaway’s driver was involved in an accident. Both insurance companies denied primary coverage because both policies contained excess coverage provisions. Argonaut was held to be the primary insurer because its policy contained the ICC endorsement stating no condition, provision, stipulation or limitation in the policy would relieve the company from liability.

In Hagans, Far-Go Van Lines leased equipment from Ryder Truck Rental, Inc. The lease required Ryder to procure insurance for the vehicle naming Far-Go as an additional insured. Far-Go also agreed to indemnify Ryder. Liberty Mutual Insurance Company insured Ryder, and the policy afforded additional coverage for Far-Go. Glens Falls insured Far-Go and its employees; the policy contained an ICC endorsement. Relying upon Argonaut, this Court held Glens Falls to be the primary insurer because of the endorsement.

In Argonaut and Hagans, however, only one insurance policy contained an ICC endorsement. In the case before us, both insurance policies contain ICC endorsements. Carolina contends its endorsement is not applicable, thus seeking to come within Argonaut and Hagans. The endorsement requires Carolina to pay any final judgment recovered against the insured for negligence in the operation of a motor vehicle under certificate of public convenience or permit issued the insured. Carolina contends the truck tractor and trailer under lease from Andico to Ringsby were being operated under Ringsby’s ICC permit, and that Ringsby was not an insured under Carolina’s policy. Thus, urges Carolina, its endorsement is inapplicable, leaving only Transport’s endorsement to be considered.

Is Ringsby an insured under Carolina’s policy? Transport looks to the provision in the lease requiring Andico to obtain acceptable public liability and property damage insurance, and answers in the affirmative. However, the primary insurer should be determined by looking to the insurance contracts and not by relying upon terms and provisions found not in them but in a lease agreement between the named insureds. Hagans v. Glens Falls Ins. Co., supra. Rather, the omnibus provision of Carolina’s policy makes Ringsby a Carolina insured. The provision names as insureds not only Andico, the named insured, but also any person or organization legally responsible for the use of the vehicle, if such use is with the permission of the named insured. The lease between Andico and Ringsby establishes the fact that Ringsby’s use of the truck tractor and trailer was permissive. And 49 C. F.R. 1057.4(a)(4) establishes Ringsby’s legal responsibility. This regulation requires that every agreement leasing a truck to an interstate carrier:

Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee. . . .

Freeze also was an insured under Carolina’s omnibus coverage provision. Carolina contends Andico could not give Freeze permission to use the unit because it was in the exclusive possession and control of Ringsby. But Freeze’s use was permissive, implied if not express. Freeze was an employee of Andico. The lease between Andico and Ringsby required Andico to provide a driver. Clearly, Freeze was a permissive user, and Freeze was insured only under Carolina’s policy. Transport’s policy contained no omnibus coverage clause.

Carolina contends Freeze, although a general employee of Andico, was a special employee of Ringsby. We agree. See Pacific Nat’l Ins. Co. v. Transport Ins. Co., 341 F.2d 514 (8th Cir. 1965). No cases from this circuit or from Utah appear to be contrary. Ringsby had full control over the truck tractor and trailer, and over Freeze. Ringsby’s liability, if any, is vicarious; if Ringsby should be found liable it would have the right to proceed by indemnification against Freeze. As Ringsby’s subrogee, Transport could then sue Freeze, a permissive user under Carolina’s policy, ultimately recovering against Carolina. Based on the above, and to avoid circuity of action, we hold Carolina’s policy to be primary. The judgment of the trial court is affirmed.


author: ADAMS, Circuit Judge.

text:
    In the Matter of CONTEMPORARY APPAREL, INC., Debtor. Frank O’CONNELL, Substituted Receiver of Contemporary Apparel, Inc. and the Petitioner in Contempt Proceedings Certified to the Court by a Referee, Appellant, v. Zelman SCHECK, Appellee.
    No. 73-1256.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 11, 1973.
    Decided Dec. 4, 1973.

      M. E. Maurer, Philadelphia, Pa., for appellant; Leon S. Forman, Wexler, Weisman, Maurer & Forman, Philadelphia, Pa., of counsel.
    Robert Howard, New York City, for appellee.
    Before HASTIE, VAN DUSEN and, ADAMS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The question here is whether, in a contempt proceeding arising from the failure to comply with a referee’s turnover order, a district court may allow a purchaser of goods from a receiver a credit for counsel fees incurred in attempting to resolve difficulties relating to the handling of a check not conforming to the receiver’s requirements.

Contemporary Apparel, the debtor, filed on April 29, 1970, a petition for an arrangement under Chapter XI of the Bankruptcy Act. Shortly thereafter, Zelman Scheck offered to purchase from the receiver a quantity of slacks for an agreed price of $3,565.00. The bankruptcy court authorized this sale, among others, by an order in which it expressly retained jurisdiction over “any buyer.” The purchase price was to be paid by certified check payable to the receiver and given to the common carrier delivering the goods. However, Scheck obtained a certified check made payable to his order, rather than to the order of the receiver, and failed to endorse it in blank or to the receiver. Scheck gave the check to the common carrier, the receiver did not acknowledge receipt of it, and the check was not presented to the bank for payment.

After being notified of the non-receipt of the check, Scheck contacted his counsel who attempted to secure the release of the funds earmarked by the bank for payment of the certified check. In the meantime, while seeking to dispel the uncertainty created by the check’s apparent disappearance, Scheck refused to forward the purchase price to the receiver. When the receiver pressed for payment, Scheck then sought to set-off against the purchase price the expenses he incurred while endeavoring to avoid possible adverse consequences resulting from the disappearance of the certified cheek.

After a hearing, the referee issued a turnover order that required Scheck to pay to the receiver the purchase price of $3,565.00 and disallowed any deduction for counsel fees. Despite the turnover order and his failure to take an appeal therefrom, Scheek persisted in his refusal to pay the moneys. The referee then filed a certificate of facts showing contempt. At the hearing on contempt, only counsel for Scheck appeared; counsel for the receiver, because of illness, was unable to be present. The district court, nonetheless, proceeded with the hearing and ordered that upon Scheek’s payment of $2,600.00 to the receiver, not the $3,565.00 mandated by the referee, the order to show cause why he should not be held in contempt would be discharged. Thus the district court allowed Scheck a $965.00 credit, apparently for counsel fees. It is from the order of the district court providing for the, $965.00 credit that the receiver appeals.

The receiver contends that Scheck’s failure to appeal the referee’s turnover order in accordance with 11 U.S.C. § 67(c) made that order res judicata for. purposes of the subsequent contempt proceeding. Hence the district court, the receiver asserts, was without authority to modify the referee’s order. Relying on Penfield Company v. Securities & Exchange Commission, the receiver suggests that it was the district court’s duty to impose sanctions to compel compliance with the referee’s turnover’ order.

Scheck sets forth a series of contentions in support of the district court’s action. First, he challenges the authority of the referee to issue the turnover order itself, stating that “ . . . never before has this type of summary jurisdiction been permitted to extend to an .innocent purchaser of goods from a bankrupt estate who did, in fact, pay out the money for the purchase, with no intention of ever not to pay for the goods.” Second, Scheck contends that the purchase price was not a proper object of a turnover order because the moneys designated for payment of the purchase price were subject to adverse claims and, therefore, could not be regarded as part of the debtor’s estate. Third, Scheck points out that the district court had the power to determine whether a contempt exists, and it follows that it was within the authority of the district court to modify the turnover order in the manner done here because Scheck had presented evidence that the fund, represented by the certified check, was depleted. Finally, Scheck states that the legal fees he incurred were for the benefit of other persons having claims against Contemporary Apparel and, therefore, were properly chargeable against his $3,565.-00 debt.

We initially address the two issues raised by Scheek that ostensibly related to the jurisdiction, or authority, of the referee to issue the turnover order in the circumstances present here.

First, the issuance of a turnover order directed against a person allegedly owing a debt to a receiver may be beyond the competence of the referee, thereby constituting jurisdictional error. However, we need not determine the extent of a referee’s authority when eon-fronted with a contested debt because Scheck’s situation is not merely that of an alleged debtor of the receiver. Rather, Scheck’s counsel conceded at the hearing on the contempt petition that Scheek, in fact, owed $3,565.00 Thus the dispute here relates not to Scheek’s obligation to the receiver for the full purchase price, the subject of the turnover order, but to the receiver’s potential liability for expenses incurred by Scheek in connection with the mistransmission of the certified check.

Second, we fail to see how the acquisition of a certified check — that allegedly segregated the moneys owed to the receiver from Scheck’s general funds —thereby rendered the legal services provided at Scheck’s behest an obligation of the alleged fund and not of Scheek himself. Even if we were to conclude that the receiver’s claim was limited to moneys represented by the certified check, no one has contended that Scheck’s counsel must be content with whatever recovery he receives from the fund, or that counsel must first look to the fund before seeking the balance from Scheek. Certainly Scheck’s counsel has a personal claim against Scheek. If, in fact, there were adverse claims to the $3,565.00 — for example, another party claims the slacks sold to Scheek belong to him rather than to the receiver — the referee would not be able to enter a turnover order. No one, however, has interposed a claim that he, instead of the receiver, is entitled to the proceeds from the sale of these slacks.

Before dealing with Scheck’s third contention, it is necessary briefly to outline the district court’s role when asked, in a contempt proceeding, to impose sanctions for non-compliance with a turnover order. It is well established that issues decided in the turnover proceeding and not appealed pursuant to 11 U.S.C. § 67(c) may not be relitigated. Maggio v. Zeitz represents the Supreme Court’s most comprehensive statement concerning the parameters of the district court’s inquiry in a contempt proceeding when asked to enforce a turnover order through the application of sanctions. In large part, to foster efficient and speedy progress toward the goal of equitably adjusting the financial situation of insolvent persons, a district court, in a contempt proceeding to enforce a turnover order, has quite limited power to review factual and legal conclusions, aside from questions dealing with jurisdiction, that led to the issuance of the turnover order:

It is clear . . . that the turnover proceeding is a separate one and, when completed and terminated in a final order, it becomes res judicata and not subject to collateral attack in the contempt proceedings.
It would be a disservice to the law if we were to depart from the longstanding rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbid-ing an act should not be so inconclusive as to foster experimentation with disobedience.

Maggio also establishes that the district court is to satisfy itself that the person against whom the turnover order is directed still possesses the property, or, as here, is able to pay the admitted debt, that is the object- of the order. The district court, in other words, is not to command anyone to do the impossible and then apply sanctions pursuant to such command.

With the district court’s role in contempt proceedings, as expressed in Maggio, in mind, we now turn to Seheck’s third contention. Had Scheck been unable to comply with the turnover order of the referee at the time of the contempt proceeding, the district court would have committed error if it had attempted to enforce compliance. But since we cannot subscribe to the view that the mere acquisition of the certified check limited the receiver’s right to moneys represented by that check and that the claims of Scheck’s counsel were similarly limited to such moneys, we reject Scheck’s contention that the district court’s order is supported by his assertion that the “property” subject to the turnover order, the “fund,” was depleted. In addition, no evidence has been presented indicating that Scheck was, or is, unable to pay the $3,565.00 debt.

Scheck’s final contention that the legal services were performed for the benefit of other claimants was not open for consideration by the district court and, therefore, may not be used on ■ this appeal to justify the district court’s order. The principle enunciated in Maggio precludes such reconsideration, since' the referee addressed and disposed of this argument in his opinion supporting the turnover.

Thus, none of Scheek’s claims sustains the allowance of a $965.00 counsel fee from the funds due the receiver. Although the district court has broad discretion in choosing among sanctions to impose upon the contemnor, such discretion does not extend to modification of a turnover order unencumbered by jurisdictional defects, once the time for appeal from the order has expired. If Scheck had established his inability to pay more than $2,600.00, the district court could, no doubt, condition the imposition of sanctions on the nonpayment of that amount. But absent proof relating to an incapacity to make full payment, the district court may not relieve Scheck of his obligation. The district court must, therefore, reconsider the referee’s certificate of facts showing contempt, and then provide whatever remedy it believes, in its sound judgment, is warranted.

Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion.

      . It is not clear from the record which of the parties is responsible for the difficulties surrounding the attempted payment by certified check. The referee found that Scheck failed to follow the receiver’s instructions and that the check did not reach the hands of the receiver. The district court in its order requiring Scheck to pay to the receiver the purchase price less $965 counsel fees stated that the “legal problems [were] caused by errors in the instructions in the bill of lading from the receiver regarding the manner in which the certified check paying for the goods should be made out, and the misplacing of the check by the receiver.” In re Contemporary Apparel, Inc., No. 70-281 (E.D.Pa. Feb. 13, 1973).

      . Section 67 (c) provides, in part, as follows: A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court upon petition filed within such ten-day period may for cause shown allow, file with the referee a petition for review of such order by a judge and serve a copy of such pe-' tition upon the adverse parties who were represented at hearing.

      . 330 TJ.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 ' (1947).

      . Brief for Appellee at 9-10.

      . See 11 U.S.C. § 69.

      . We have some question whether Scheck’s objections to the jurisdiction of the referee were timely raised as required by § 2(7) of the Bankruptcy Act, 11 U.S.C. § 11(7). Since, however, the issue was neither briefed nor argued, we decline to dispose of Scheck’s jurisdictional contentions on the basis of this section.

      . See In re Dickens, 175 F. 808, 811 (S.D. Ala.1909).

      . In re Contemporary Apparel, Inc., No. 70-231 ( E.D.Pa. Feb. 13, 1973 ).

      . See Mueller v. Nugent, 184 U.S. 1, 15, 22 S.Ct. 269, 46 L.Ed. 405 (1902).

      . 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948).

      . Id. at 68-69, 68 S.Ct. at 407.

      . Id. at 72, 68 S.Ct. 401.

      . Id. at 68-69, 68 S.Ct. 401.

      . 11 U.S.C. § 69(b).

      . Cf. O’Hagan v. Blythe, 354 F.2d 83 (2d Cir. 1965).

      . Cf. Penfield Co. v. SEC, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117 (1947).


author: PER CURIAM:

text:
    Donald T. GILL and Marie Gill, Plaintiffs-Appellants, v. Deputy Sheriff Charles MANUEL et al., Defendants-Appellees.
    No. 71-2555.
    United States Court of Appeals, Ninth Circuit.
    Nov. 9, 1973.

      John Francis Carroll (argued), Wilmington, Cal., for plaintiffs-appellants.
    Michael H. Dougherty (argued), Deputy County Counsel, Los Angeles, Cal., for defendants-appellees.
    Before BROWNING and HUFSTEDLER, Circuit Judges, and TAYLOR, District Judge.

       District of Idaho, sitting by designation.

   PER CURIAM:

This is an appeal from the final judgment made and entered, after a jury trial, in favor of defendants-appellees, Deputy Sheriffs Charles Manuel and Michael Currin, and against the plaintiffs-appellants, Donald Gill and Marie Gill, husband and wife. The Gills brought this action to redress the alleged deprivation of their civil rights secured to them under Title 42 U.S.C., § 1983.

A brief synopsis of the facts is that at or about 9:30 PM on. October 19, 1970, Deputy Sheriffs Manuel and Cur-rin, wearing plainclothes, arrived at the Gill residence in an unmarked sheriff’s car to arrest Donald Gill on a misdemeanor warrant. The facts as to what happened when they attempted to serve the warrant are in complete conflict. The appellants claim they were awakened by intruders, abused and threatened, and that Donald Gill received a severe beating. The appellees contend they used only necessary and reasonable force to subdue the 128 pound Donald Gill under the circumstances.

Appellants have assigned numerous errors, only three of which merit discussion for the purposes of this opinion. First, it is alleged that the trial court erred in not instructing the jury on the. issue of punitive damages.

During the trial, Mrs. Gill testified that she observed two men standing over her husband, beating him while he lay on the floor of their small living room. She then observed Deputy Currin pick her husband up and throw him into the bathroom where she witnessed the appel-lees beat her husband as he lay on the floor. She also testified that her husband was handcuffed while in the bathroom and then thrown outside the house. Mr. Gill also testified to this alleged beating. The record reveals the presence of blood in the small living room and all over the bathroom. Mr. Gill’s physical condition, immediately after being arrested, attests to the fact that he did receive severe injuries as a result of his altercation with the appellees. Although the testimony of appellees refutes some of the facts recited above by the Gills, the final determination of whether punitive damages should be awarded has to be left to the discretion of the trier of fact. See Lee v. Southern Home Sites Corporation, 429 F.2d 290, 294 (5th Cir. 1970), wherein it is stated:

“The allowance of such damages [referring to punitive damages] inherently involves an evaluation of the nature of the conduct in question, the wisdom of some form of pecuniary punishment, and the advisability of a deterrent. Therefore, the infliction of such damages, and the amount thereof when inflicted, are of necessity within the discretion of the trier of the fact.”

The trial court refused to give the appellants’ requested punitive damages instruction on the theory that “there has to be a personal animosity or involvement to get the malice required for punitive damages. Just a mere professional overreaction is not sufficient.” (R.T. page 661)

While we agree with the trial judge that a showing of a personal animosity or involvement between the parties may present a stronger ease for the awarding of punitive damages, we do not agree that it is a prerequisite to instructing the jury as to punitive damages or to the granting of such damages. An instruction on punitive damages is appropriate when the facts are such that the jury could find the action and conduct of police officers to be willful and malicious apart from any showing of personal animosity between the parties. See generally 14 A.L.R.Fed 608, Civil Rights Acts — -Punitive Damages. The testimony presented by the Gills contains the factual basis from which the jury could have found the malice required for the awarding of punitive damages if they found the witnesses to be credible. The questions in regard to the credibility of the witnesses and the determination of whether the facts presented were sufficient for an award of punitive damages are issues reserved for determination by the trier of fact. See Lee, supra.

Appellants also contend that the trial court’s repeated instructions to the jury, in regard to appellants’ claim for punitive damages not being an issue in the case, prejudiced the appellants and misled the jury.

The record reflects that on three separate and distinct occasions, during the court’s instructions to the jury, reference was made to punitive damages. The court’s first such reference was as follows:

“Now it is further alleged that Plaintiff Gill further alleges that he is entitled to some punitive and exemplary damages. But the Court has held outside the hearing of the jury that this issue is out of the case and you may not consider oral or any punitive or exemplary damages in addition to any actual — you may not award any punitive — you may not even consider any punitive or exemplary damages in addition to any actual or compensatory damages claimed by the plaintiff, if you should find that he is so entitled to any such actual and compensatory damages.” [R.T. pages 729-730] Later, the court again instructed the

jury concerning punitive damages:

“And they also deny that plaintiffs are entitled to any punitive — as I say, punitive or exemplary damages, but now as I have said, that is not an issue. Punitive or exemplary damages is not an issue. You are not to consider it any way and you are not, of course, to award any punitive or exemplary damages.” [R.T. page 733]

The trial court’s third reference to punitive damages occurred near the close of the instructions:

“Now if you find the defendants are liable, then you must assess what damages are plaintiffs entitled to recover.
Nothing which I have indicated to you —only actual or compensatory damages are permissible. No punitive damages.” [R.T. page 747]

This court is in agreement with the rule announced in Flentie v. American Community Stores Corporation, 389 F.2d 80, 83 (8th Cir. 1968): “Repetitious instructions which place undue emphasis on matters favorable to either side constitute reversible error.”

Since the trial court decided not to instruct the jury on the issue of punitive damages, the repeated emphasis in regard to that matter by the court gave undue prominence to the court’s feeling of liability and could have easily minimized the effect of the court’s instructions concerning compensatory damages. See White Auto Stores v. Reyes, 223 F. 2d 298, 305 (10th Cir. 1955) and Halladay v. Verschoor, 381 F.2d 100, 113 (8th Cir. 1967).

It is the appellees’ contention that since the question of liability was decided in their favor, the jury never considered the question of damages and thus any error in the court’s instructions concerning damages is harmless. We do not argue with this principle in circumstances which justify its application. However, we are of the opinion that the total effect of the trial court’s failure to affirmatively instruct on the question of punitive damages, together with the repeated emphasis placed on the fact that the jury was not to consider the issue of punitive damages, could have had considerable adverse effect on the jury’s determination of liability in the first instance. It should also be noted that an award of compensatory damages is not a necessary prerequisite to an award of punitive damages. See Basista v. Weir, 340 F.2d 74, 88 (3rd Cir. 1965).

Appellants contend that Robert Thomas, Deputy Los Angeles City Attorney, should have been permitted to testify in regard to communications he had with Deputy Sheriff Currin for the purpose of impeachment.

Since we are of the opinion that the appellants should be afforded a new trial, we believe the question of whether the communications between Deputy Sheriff Currin and the Deputy Los An-geles City Attorney, Robert Thomas, are privileged under the provisions of the California Evidence Code, § 1040(b)(2) should be considered here.

Criminal charges were brought against appellant Donald Gill as a result of the incident which is the subject of this lawsuit. In preparation for that criminal trial, Currin presented information to Thomas concerning his (Cur-rin’s) version of what happened in the Gill residence at the time of the arrest.

During the early part of the present action, Thomas was privately questioned by the appellants’ trial counsel concerning the criminal case against Donald Gill. During that conversation, Thomas divulged to trial counsel for appellants the contents of information given by Currin in regard to what happened inside the Gill residence on the night in question.

Thomas was called by the appellants as a rebuttal witness and his testimony was offered to impeach the testimony of Currin as to prior inconsistent statements made by him to Thomas at the time of the criminal prosecution.

The appellees objected to Thomas testifying on the ground that any conversation between Thomas and Currin was privileged under Section 1040(b)(2) of the California Evidence Code. The pertinent portions of § 1040 are as follows:

“(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”
“(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and:”
“(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

It seems clear that before the privilege can be exercised, the public entity claiming that privilege must show the necessity for preserving the confidentiality of the information and that it outweighs the necessity of disclosure. The appellees did not present any evidence to the court on this issue. To the contrary, the record reveals that Mr. Thomas merely informed the court that the City Attorney’s office wanted to exercise the privilege and that he was authorized by the city attorney to do so. At the time the privilege was exercised in the present action, all criminal proceedings against Donald Gill had been terminated favorably to him and no further prosecutions were pending. In these circumstances, it is difficult for this court to understand how or in what way the public interest would suffer by permitting Mr. Thomas to testify as to the alleged contradictory statements of defendants. It would seem that the public interest would suffer more if law enforcement officers were permitted to make contradictory statements without fear of impeachment.

In applying § 1040(b)(2) to the communication in question, the appellees are claiming that unless law enforcement officers can be assured that discussions and conferences held with a prosecuting attorney are confidential, they will be justifiably hesitant to fully disclose all the facts relevant to the prosecution of the crime, involved. We do not believe that § 1040 is intended to provide a shield behind which law enforcement personnel may seek refuge for possible wrongdoings. It seems reasonable that law enforcement officers are obligated to reveal the true and complete facts of any investigation to those responsible without any special immunity. It must also be remembered that the privilege was only exercised in this civil suit and any public interest requiring the confidentiality of the information appears to be completely lacking.

It is impossible for this court to determine on the record before us what the authority of Mr. Thomas was at the time he freely volunteered the information to appellants’ counsel. If he had authority in the criminal case, it would seem that he would be in a position to authorize the release of this information as he did. He was fully aware of the reason for the inquiry and that the Gills were bringing the present action.

Upon the retrial of this case, the questions we have raised, concerning the use of the privilege under § 1040(b)(2), must be answered to determine if that privilege is proper in this case. On the record before us, we are of the opinion that the trial court erred in allowing the appellees to exercise the privilege without a proper foundation or justification for doing so.

Reversed and remanded.


text:
    UNITED STATES of America, Appellant, v. SALUDA COUNTY SCHOOL DISTRICT NO. 1 OF SALUDA COUNTY, SOUTH CAROLINA, et al., Appellees.
    No. 73-2129.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 13, 1973.
    Thomas M. Keeling, Atty., U. S. Dept, of Justice (J. Stanley Pottinger, Asst. Atty. Gen., Brian K. Landsberg, John H. Newman, Ross L. Connealy, and Walter W. Barnett, Attys., U. S. Dept, of Justice and John K. Grisso, U. S. Atty., on brief), for appellant.
    Robert McC. Figg and Terrell L. Glenn, Columbia, S. C. (Thomas H. Pope, Eugene C. Griffith, Newberry, S. C., Daniel R. McLeod, Atty. Gen. of S. C., Hardwick Stuart, Jr., Asst. Atty. Gen. and Joseph O. Rogers Jr., Manning, S. C., on brief), for appellees.
    Before HAYNSWORTH, C. J., and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.
   PER CURIAM:

This suit was instituted by the United States in May of 1969 under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6, against the Saluda County School District No. 1 of Saluda County, South Carolina, to require the defendants to afford equal educational opportunity to all students in the Saluda County School District without regard to race and to disestablish the dual system of schools then existing in the county.

On October 2, 1969, the district court ordered implementation of a plan proposed by the Department of Health, Education and Welfare to be effective for the 1970-71 school year. At the time suit was instituted the school district was serving 1655 white and 1091 black students and was composed of three schools, each of which accommodated both the primary and secondary grades (1-12). Two of the schools, Saluda and Riverside, were located in the Town of Saluda in proximity to each other, Salu-da being predominantly white and Riverside being all black. The third school, Hollywood, located in rural Saluda County some ten miles from the Town of Saluda, had an all white enrollment of 340 students of which 87 were enrolled in grades 9-12. Under the plan proposed by HEW and approved by the district court, the school system would have been desegregated by pairing Riverside and Saluda and closing the Hollywood school.

On October 31, 1969, Harold Long-shore and others, parents of students in the Hollywood school, filed a motion to intervene together with a petition to amend the October 2nd order to permit Hollywood to continue to operate. Upon the representation of the intervenors that attendance zone lines for Hollywood were drawn on a nonracial basis, the Government did not interpose an objection to the petition, and on January 26, 1970, the district court amended its prior order and allowed Hollywood school to remain in operation to serve all students who lived within the zone as described on a map filed with the court. Under the plan, as amended, school enrollments in 1970-71 were as follows:

School Grades Black White Total Percent Black

Saluda Elem. K-4 355 376 731 48.6

Saluda H. S. 9-12 260 375 635 40.9

Riverside Middle 5-8 389 412 801 48.5

Hollywood Elem. 1-6 41 225 226 15.4

Hollywood H. S. 7-12 33 197 230 14.3

1058 1585 2663 39.7

As early as 1969, the educational viability of Hollywood school had been questioned by local, state and federal officials, and on April 4, 1972, a committee report was filed with the Saluda Board recommending the closing of grades 9-12 at Hollywood. This report was based upon a study of finances, recommendations by the State Department of Education, and a history of the enrollments, dropouts and limited curriculum. Shortly thereafter, a bill was introduced in the South Carolina Legislature and passed on May 22, 1972, as Act 1244 of the 1972 Legislative Session. Briefly stated, the Act provided for the establishment of Hollywood School District No. 4 in Saluda County to be governed by its own board of trustees, contingent upon approval by referendum of the electorate residing in the geographic area encompassing the proposed school district. The geographic area of the new district was described in the Act as coterminous with the Hollywood attendance zone theretofore recognized by the district court’s order of January 26, 1970. The referendum pursuant to the Act was held on May 23, 1972, and the proposed school district was approved by a vote of 661 to 100.

On August 4, 1972, the intervenors petitioned for approval of the new school district and on August 17 and September 1, 1972, protective orders were entered which in effect preserved the status quo pending a decision by the Attorney General of the United States on a submission of the legislation pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c. On November 13, 1972, the Attorney General entered an objection to the procedures used in the establishment of the new school district, and thereupon the Government filed its motion to dismiss the motion for approval. By order of February 23, 1973, the district court, finding the special legislative act to be unenforceable, granted the Government’s motion and reinstated its order of January 26, 1970, bringing the Hollywood school within the operation of Saluda County School District No. 1.

In July of 1973, the Saluda Board filed a petition with the district court which in effect sought approval of a plan which would close the Hollywood High School but continue to operate the Hollywood Elementary School with an expanded curriculum. The petition was accompanied by a comprehensive report of the Superintendent which pointed out the educational and financial desirability of the proposal. On July 17, 1973, over the objection of the Longshore intervenors, the district court entered an order recognizing the authority of the Board of Trustees of Saluda District over “any and all schools in Saluda County” and stating that “the transfer of Hollywood Grades 9, 10, 11 arid 12 are declared within the power of the movants.” In its order the court recognized that under the proposal Saluda High School would be the only high school in the county “so that discrimination in such school could not exist insofar as denial of any person’s rights to an equal public education because of race, creed or color would be concerned.” By order entered on August 3, 1973, the three individuals who had qualified as Trustees of the Hollywood District under the abortive procedure of Legislative Act 1244 were authorized to serve as Trustees of the Saluda District along with the six other members of that Board.

On August 20, 1973, the order which is the subject of this appeal was entered by the district court. In substance it stated that the Board of Trustees of the Saluda District “with the required legislative approval in writing” had adopted a resolution establishing the Hollywood School District as thereafter defined as a separate school district in accordance with the provisions of Section 21-112, Code of Laws of South Carolina — 1962. The order recited that this action fell within the purview of the order of July 17, 1973, and that such order was modified “to the extent necessary to permit this action.” It further retransferred the three Hollywood residents from the Saluda School Board to the Hollywood Board of Trustees. On its face the order indicated that it was entered with the consent of counsel for both the Saluda School District and the Hollywood group. Conspicuous by its absence, however, was any indication that counsel for the United States either saw the order prior to its entry or consented thereto. Shortly thereafter the Government filed a motion with the district court seeking a stay of this order, stating that it had received neither a notice nor the opportunity to be heard prior to the entry thereof. In its motion the Government raised the constitutional question with respect to the racial composition of the Hollywood School District and also charged that the creation of the new school district in this manner was subject to the preclearance provisions of Section 5 of the Voting Rights Act.

Thereafter on September 11, 1973, the district court conducted a hearing and entered an order directing the State Superintendent of Education to release both state and federal funds to the Hollywood School District prior to September 20, 1973. On the same date the court denied the motion of the United States to stay its order of August 30, 1973, pending appeal. This latter order stated:

“No order of this court has either authorized or condoned the creation of a new school district. This court has consistently refused to do so. Such issue is not before this court and was not before the court or passed on by the court in the orders of July 17, 1973, and August 20, 1973.”

Despite this disclaimer by the district court, it is clear that in the context of this litigation the order of August 20, 1973, did in fact authorize and/or condone the establishment of the new school district', and it is equally clear that such action was totally at odds with the principles of Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), and United States v. Scotland Neck Bd. of Educ., 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972). The attempt of the appellees to preserve the predominantly white Hollywood enclave in a county where a dual school system had long flourished is precisely the conduct condemned by the Court in those decisions, and there is even more in the present case. The district court had before it, indeed it had approved, a proposal which it recognized would have erased the last vestiges of segregation from the high schools of Saluda County. Additionally, the proposal espoused by the Superintendent and Board of the Saluda School District would have increased the quality of the education for all school children in the county. The creation of the Hollywood District utterly frustrated the implementation of these proposals and unquestionably was an impediment to “the dismantling of the dual system.” Wright v. Council of City of Emporia, supra, 407 U.S. at 460, 92 S.Ct. at 2203.

Counsel for the appellees urge upon us that the primary reasons for the creation of the new school district were non-racial in character. Even accepting this premise, however, it fails to pass constitutional muster for the “dominant purpose” test was specifically rejected in the Emporia case and the Court stated unequivocally “that splinter school districts may not be created ‘where the effect- — to say nothing of the purpose— of the secession has a substantially adverse effect on desegregation of the county school district.’ ”

Finding the creation of the Hollywood School District to be constitutionally impermissible, the order entered by the district court on August 20, 1973, is vacated, and the ease is remanded with directions to the district judge to take whatever steps may be necessary or-appropriate to reinstate the authority of the Board of Trustees of Saluda School District No. 1 over all schools in Saluda County and to effect the transfer of Hollywood Grades 9 through 12 to Salu-da High School.

Vacated and remanded with instructions.

      . Counsel discussed the issue of the Voting Eights Act in both their briefs and oral argument. However, we deem it unnecessary to deal with the somewhat tangential question under the Voting Eights Act, since we find the constitutional issue clearly delineated in the record and the conclusion thereon inescapable.

      . 407 U.S. at 462, 92 S.Ct. at 2203.