author: STUART, District Judge.

text:
    Dorothy A. GARDNER, Administratrix of the Estate of Dairl Dean Gardner, Deceased, Appellant, v. Richard L. MEYERS and Bill Anderson, Appellees.
    No. 73-1323.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided Feb. 8, 1974.

      Asa A. Christensen, Lincoln, Neb., for appellees.
    J. Arthur Curtiss, Lincoln, Neb., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   STUART, District Judge.

This is an appeal from a jury verdict which awarded plain tiff-appellant $107,-500 from defendant Anderson, but nothing against defendant-appellee Meyers. Following the return of the verdict, plaintiff moved to set aside the verdict and judgment as against Meyers and for a new trial. The court, the Honorable Warren K. Urbom, denied the motions, and plaintiff appeals as against defendant Meyers only.

Plaintiff’s decedent was killed outright when the car in which he was riding, being driven by defendant Meyers, hit the rear of a grain trailer owned by defendant Anderson that was parked on a country road near Bennet, Nebraska around midnight December 30, 1971. Decedent and Meyers, who was his cousin, had been visiting area taverns preceding the time of the accident, and had consumed some quantity of alcoholic beverage. Following the accident, a blood sample was removed from the decedent, and a blood-alcohol test was performed. No such test was performed on defendant Meyers, who was injured in the accident.

Plaintiff-appellant sets out six grounds for reversal in her appeal in this case. The six grounds are:

1. The issue of contributory negligence of the decedent was improperly submitted to the jury.

2. The issue of assumption of risk was improperly submitted to the jury.

3. The trial court erred in failing to give plaintiff-appellant’s requested instruction concerning concurrent negligence.

4. The blood samples were taken from decedent without authority of law or permission, and were therefore inadmissible at trial. The subsequent admission of the tests was reversible error.

5. The trial court erred in allowing counsel for defendant Meyers to ask Meyers leading questions during direct examination.

6. The Nebraska “guest statute” is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

We reject these contentions and affirm the trial court.

I. Appellant alleged and sought to prove Meyers’ intoxication and gross negligence to defeat the guest statute in order to recover from appellee. As the jury found against that proposition, appellant now claims the defenses of contributory negligence and assumption of the risk should not have been submitted to the jury as there was no proof of intoxication on the part of Meyers or that he was driving in a reckless manner, and thus decedent could neither have been contributorily negligent, or assumed any risk that was attendant to his riding with Meyers. Plaintiff further claims that even if it were shown that defendant Meyers was intoxicated, there is no proof that the plaintiff’s decedent knew it or should have known of it.

We are of the opinion that there was substantial evidence presented in the trial on which the trial judge could submit both the issue of contributory negligence and assumption of the risk to the jury. Raskey v. Hulewicz (1970), 185 Neb. 608, 177 N.W.2d 744; Kaufman v. Tripple (1966), 180 Neb. 593, 144 N.W.2d 201; Robins v. Sandoz (1964), 177 Neb. 894, 131 N.W.2d 648; Landrum v. Roddy (1943), 143 Neb. 934, 12 N.W.2d 82. No useful purpose would be served by reviewing the supporting evidence.

In any event any error would be without prejudice because the jury rejected defendant Anderson’s defense of contributory negligence by returning a verdict for plaintiff against Anderson. As assumption of risk requires more than contributory negligence, knowledge as contrasted with “should have known,” it is obvious that the verdict in favor of Meyers did not rest on either his defense of contributory negligence or assumption of risk.

We also reject appellant’s reliance on Mittlieder v. Chicago and Northwestern Railway Company (CA8, 1969), 413 F.2d 77. Mittlieder and this case are distinguishable on the facts.

In Mittlieder the record was not clear as to whether or not the deceased passenger saw the driver drinking, whether he showed the effects of drinking liquor or whether he had a chance to observe the actual intoxicated condition of the driver. In commenting on this issue in Mittlieder, Judge Bright noted at page 81:

* * * One can easily rationalize on the basis of the record in this case that Haney' did or did not show the effects of the liquor he had drunk; that Ochsner did or did not see his driver drinking; that Ochsner did or did not have a reasonable opportunity to learn of his driver’s actual intoxicated condition. Neither an affirmative conclusion attributing knowledge of the driver’s acts to Ochsner nor a contrary conclusion has evidentiary support. * * *

The record before us is clear; leaving no doubt as to appellant’s decedent’s opportunities to observe the actions and conditions of his drinking partner. The two had been drinking together for some hours in several local taverns. The driver, Meyers, had been shut off from service from the bar at the last tavern the two visited prior to the accident. Obviously there is no possibility to determine what went on in the decedent’s mind prior to the accident about Meyers’ condition.

However, we need not establish such a subjective test in this case. All that is necessary is that we find that the record was substantial enough for the jury to infer that appellant’s decedent did have the opportunity to observe Meyers drinking, that he could observe what effects the liquor had on him and that he had the opportunity to learn of his intoxicated state. We believe the record amply supports such a finding.

II. Appellant urges the trial court erred in giving the following instruction on concurrent negligence:

Instruction No. 18
Where the independent acts or omissions to act of two or more persons combine to proximately cause an injury indivisible in its nature, each such act or omission .to act is itself a proximate or concurrent cause, and any one or more of such persons may be held responsible for the entire injury.- This is true even though one may have been more negligent than the other.

He claims the italicized portion of the instruction was not applicable to this case because this action was against both parties claimed to be concurrently negligent and the court should háve given his requested Instruction No. 8 which provided:

You are instructed that if you find from the preponderance of the evidence that the injuries and damages sustained by the plaintiff resulted from the concurrent negligence of the defendants, you would be justified in finding against the defendants for all the damages sustained notwithstanding you might believe that one of the defendants was more negligent than the other. * * *

Plaintiff states:

It can readily be seen that plaintiff’s tendered instruction would require a jury to find against both defendants whereas the instruction given by the trial court allowed the jury to pick and choose as between the two defendants and to bring in a verdict against one or the other or both.

Plaintiff is in no position to complain because the court gave Instruction No. 18. It is identical to her requested Instruction No. 12.

Requested Instruction No. 8 could not have been given in addition to Instruction No. 18, because it is not entirely correct and would have been misleading to the jury. A party cannot claim error in the refusal to give a requested instruction which is not entirely correct, or which it is not possible to give without qualification, or which is so framed as to be capable of being misunderstood. Cherry v. Stedman (CA8, 1958), 259 F.2d 774, 777, 778; Baltimore & Ohio R. Co. v. Felgenhauer (CA 8, 1948), 168 F.2d 12, 18. Anderson’s liability was based on negligence. Meyers’ liability was based on gross negligence or negligence coupled with intoxication. The requested instruction does not recognize this distinction and could have been confusing to the jury and cause a decision based upon a misapprehension as to the law. In addition, it conflicts with Instruction No. 18 mentioned above.

Instructions must be considered as a whole and particular instructions, and requests for instructions, are to be taken in the framework of the entire charge. Marshall v. Ford Motor Co. (CA10, 1971), 446 F.2d 712, 715. In our opinion the instructions as a whole correctly stated the law of concurring negligence without including the substance of requested Instruction No. 8.

'III. The fourth alleged error pertains to the blood sample taken from appellant’s decedent. We do not believe that there was a physician-patient relationship present here. Such a relationship must arise knowingly. The fact appellant’s decedent was dead before Dr. Shapiro removed the blood forecloses any possibility of the formation of such a relationship. There was no evidence that the relationship existed prior to that time. Assuming, arguendo, such a relationship had been in existence, the relationship would have ceased at the time of appellant’s decedent’s death. See, Travelers Insurance Co. v. Bergeron (CA8, 1928), 25 F.2d 680, cert. denied, 278 U.S. 638, 49 S.Ct. 33, 73 L.Ed. 553 (1928).

Dr. Shapiro was acting within the scope of his authority as coroner’s physician when he removed the blood sample. He was summoned by the Lancaster County Sheriff’s Office which requested that he perform the services of a coroner’s physician. When he arrived at the hospital where the appellant’s decedent had been taken, it was not known who had been the driver of the car. While that issue was resolved later, we are of the opinion that Dr. Shapiro acted properly and competently in drawing a blood sample for a blood-alcohol test under the circumstances. Appellant’s claim that there was no “authority” for such examination is refuted by the Nebraska statute stating the scope of duty of a coroner’s physician. Dr. Shapiro would not have carried out his statutory duties, in our opinion, had he not examined the deceased and drawn the blood sample.

The possibility that appellant’s decedent might have been the driver of accident vehicle does much to persuade us of the correctness of Dr. Shapiro’s actions. Nebraska, as do many other states, has an implied consent law pertaining to operators of motor vehicles. Nebraska Revised Statutes § 39-727.03 (1972 Cumulative Supplement). In brief, the statute requires one who has been operating a motor vehicle to submit to a chemical test of his blood, breath or urine to determine alcoholic content of his body fluids at the direction of a police officer, etc. In addition under Nebraska Revised Statutes § 39-727.05, the consent of a person incapable of refusal is not withdrawn.

There is no direct evidence that Deputy Coleman directed or authorized Dr. Shapiro to remove a blood sample from the deceased. We are convinced, however, that the jury could properly infer that confusion over the identity of the driver of the accident vehicle had been communicated to Dr. Shapiro after his arrival at the hospital. It is not necessary to have direct evidence of a request by the deputy sheriff to Dr. Shapiro, because such could be implied from the nature of the events as they transpired after the appellant’s decedent had been brought to the hospital. In our opinion Dr. Shapiro was well within accepted standards in withdrawing the blood sample pursuant to the implied consent statute, § 39-727.03. The fact appellant’s decedent obviously was incapable of consent or refusal was sufficient to trigger operation of § 39-727.05.

We hold that Dr. Shapiro was authorized to withdraw the blood sample from the deceased, and that permission or authority from the deceased’s family or relatives was not needed.

We now consider the admissibility of the blood test performed on the blood sample removed by Dr. Shapiro. The record indicates that the tests performed for blood-alcohol were done by a competent chemist, using accepted procedures and facilities. We are of the opinion, therefore, that Judge Urbom correctly admitted the blood test, which showed .33 percent alcohol, as being material and relevant to this issue.

Appellant’s contention that the taking of the blood sample was in violation of the Fourth Amendment of the United States Constitution, forbidding unreasonable searches and seizures, is not a valid one. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. We do not believe the drawing of the blood sample under the circumstances here violated the deceased’s constitutional rights.

Appellant’s further assignment of error pertaining to the trial court’s failure to sustain an objection to a hypothetical question asked Dr. Shapiro also lacks substance. The question sought the opinion of the witness as to the sobriety or intoxication at the last intake of alcohol of a man of the approximate age, size and weight of the deceased. We are satisfied from the record in the trial, that the facts contained within the question were in evidence and properly includable in the hypothetical. The fact that the question called for his condition “at the time of his last intake of liquor” is not fatal to the question. There was dispute as to the time at which the last drink was consumed. In any event it is only a relatively minor point which would not result in a material variance in Dr. Shapiro’s calculations. Stated otherwise, a variation of even one hour, at the rate of metabolism calculated by Dr. Shapiro, would not have had a significant effect on the condition of appellant’s decedent at the time of the accident.

IV. The fifth issue appellant raises on appeal is that counsel for defendant Meyers' asked his client leading questions about 81 times. In particular, appellant cites as an example to the court to a question asked concerning Meyers’ recollection of the drinking he and the appellant’s decedent were doing. A review of the trial transcript reveals to the court that appellant failed to object at the time the question was asked or move to strike after the answer was given. We find no reason to seriously consider appellant’s contention at this level when she has failed to make record at the trial level. Such procedure cannot constitute plain error. The trial court has no obligation to stop leading questions if counsel makes no objection.

V. Appellant’s final claimed error is that the Nebraska guest statute, § 39-740 of the Nebraska Revised Statutes, is unconstitutional. Briefly, appellant argues that because plaintiffs in guest passenger tort cases must prove gross negligence in order to establish liability, and plaintiffs in non-guest passenger tort cases need establish only ordinary negligence in order to recover, there is a denial of the Equal Protection provisions of the Fourteenth Amendment of the United States Constitution.

Many states in the United States presently have some form of the “guest statute.” Appellant relies on a recent ruling in California to buttress her argument that the Nebraska statute is unconstitutional. In Brown v. Merlo (1973), 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, the Supreme Court of California struck down that state’s similar guest statute. This is the first instance of which we have knowledge that a guest statute has been held unconstitutional by an appellate court.

This issue is one that was never raised at trial. Appellant argues that this should not deter us from deciding the. question now, because the Brown decision was not handed down until the day the jury returned in the case below. This fact goes to the weight of the appellant’s authorities, not as an excuse for not raising the issue below. Appellant was not restricted from arguing this point at trial, only in supporting her argument. It is a well-established rule in this circuit that defenses not raised or litigated in the trial court cannot be urged for the first time on appeal. White v. Chicago, Burlington & Quincy R. R. (CA8, 1969), 417 F.2d 941, 946. See also, Booth v. Seaboard Fire & Marine Ins. (CA8, 1970), 431 F.2d 212, 216.

For the reasons stated herein, the trial by jury in the court below is affirmed.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Jackson DUCKER, Jr., Defendant-Appellant.
    No. 73-3210
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      Andrew B. Dennison, Cincinnati, Ohio, for defendant-appellant.
    John L. Briggs, U. S. Atty., Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

Thomas Jackson Ducker, Jr. was found guilty by a jury of passing a counterfeit $20 bill, in violation of 18 U.S.C. § 472. A codefendant, Conover, was acquitted. Ducker alleges that there was insufficient evidence to warrant a guilty verdict. He also contends that evidence, counterfeit notes and medicine bottles bearing his name, which was found in inventory searches of a car driven by Conover, should have been excluded at trial. We affirm.

Conover borrowed his girl friend’s car, and he and a hitchhiker drove from Kentucky to Jacksonville, Florida. After arriving there on March 18, 1973, they went to a local shopping center. Conover made a purchase and went outside to wait for the hitchhiker. The latter, however, had been stopped by the store manager after tendering a counterfeit $20 bill. When informed that the police would be asked to examine the bill, the hitchhiker left the store.

Trial testimony indicates that the store manager told police that the two individuals had entered the store together. He pointed out Conover, who was waiting outside, as the person who had accompanied the man who attempted to pass the counterfeit bill. Police asked Conover for identification, which he had to obtain from his car. During this time, the store manager found another counterfeit $20 bill in the cash register at which Conover had made his purchase. Conover was arrested and placed in custody in the back of the patrol car. The contents of the car Conover was driving were inventoried for recordation in a vehicle storage report. During the inventory, a sack of 415 counterfeit $20 bills with the same serial number as the two detected in the store was found under the passenger’s seat. The following day, the car was turned over to Customs officials, who also made an inventory of its contents. They found two pill bottles bearing the name Tom Ducker. The discovery of this evidence led to the arrest of appellant Ducker as the unidentified hitchhiker who attempted to pass the counterfeit bill.

At trial, Officer Durgin, who arrested Conover, testified that pursuant to Jacksonville Sheriff’s Office regulations, any time an arrest is made of someone who is in possession of an automobile, an inventory must be made of the contents and the car must be towed for storage. Durgin explained that the inventory was particularly necessary in this case because the car was from out of state and was not registered to the driver. Moreover, Durgin did not feel that the car, which was still packed with clothing and other articles, should be left unattended in the shopping center parking lot. He stated that the sole reason for the search of the car was to inventory its contents; there was no probable cause to search for evidence, and no expectation that evidence might be found. The Customs agent who subsequently inventoried the car testified that it is standard procedure for Customs agents to inventory an automobile upon taking custody of it.

At trial, Conover testified that he did not know defendant Ducker and that Ducker was not the hitchhiker who traveled to Florida with him. Ducker testified that on March 18, 1973, he was in Kentucky with friends, became ill, and got a ride back to his own car with Con-over’s girl friend, owner of the car Con-over drove to Florida. He theorized that he must have lost the two pill bottles on that occasion since it was the only time he had ever been in the car. However, Ducker did not produce any alibi witnesses to confirm his testimony that he was in Kentucky on March 18.

The store manager positively identified Ducker as the man who had tried to cash the counterfeit bill with him. His identification placed Ducker in Florida on March 18 and implicated him in the crime.

A Government agent testified that Conover, after the pill bottles were found, had told him that Ducker was the hitchhiker, but that he knew him only as “Jack.” This testimony was denied and contradicted by Conover at trial.

The conflicting testimony concerning Ducker’s involvement raised an issue to be resolved by the jury. In determining the sufficiency of the evidence, the test is whether, taking the view most favorable to the Government, a reasonably minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Jeffords, 5 Cir., 1974, 491 F.2d 90; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353; Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir., 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881. As this was clearly a jury question, denial of Dueker’s motion for judgment of acquittal was not error.

The evidence gathered in the two inventory searches of Conover’s car was properly admitted at trial. Inventory searches have two purposes: to protect the vehicle and the property in it, and to safeguard the police or other officers from claims of lost possessions. The Supreme Court and this Court have upheld inventory searches where it is clear that the procedure used is a valid inventory and is not merely a pretext for a search, whether or not there is some suspicion that contraband or other evidence may be found. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); United States v. Grill, 5 Cir., 1973, 484 F.2d 990; United States v. Kelehar, 5 Cir., 1972, 470 F.2d 176, 177-178; United States v. Edwards, 5 Cir., 1971, 441 F.2d 749, 754; United States v. Pennington, 5 Cir., 1971, 441 F.2d 249, 251-252, cert. denied, 404 U.S. 854, 92 S.Ct. 97, 30 L.Ed.2d 94; United States v. Boyd, 5 Cir., 1971, 436 F.2d 1203, 1205; United States v. Lipscomb, 5 Cir., 1970, 435 F.2d 795, 799-801, cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331.

Affirmed.


author: PHILLIPS, Chief Judge.

text:
    TEE-PAK, INC., Defendant-Appellant, v. ST. REGIS PAPER COMPANY, Plaintiff-Appellee.
    No. 73-1369.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 6, 1973.
    Decided Feb. 14, 1974.

      James W. Clement, Chicago, Ill., for defendant-appellant; Ernest Cheslow, Chicago, Ill., on brief; Victor DeMarco, Jones, Day, Cockley & Reavis, Cleveland, Ohio, of counsel.
    Charles R. Rust, Cleveland, Ohio, for plaintiff-appellee; Bruce B. Krost, Wodling, Krost, Granger & Rust, Cleveland, Ohio, on brief; Clyde H. Haynes, New York City, of counsel.
    Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
   PHILLIPS, Chief Judge.

Tee-Pak, Inc. (Tee-Pak) appeals from a grant of partial summary judgment holding claims 5 and 7 of Reissue Patent No. 24,992 invalid under 35 U.S.C. §§ 102(b) and 251. We reverse.

For an extensive- discussion of the facts of this case reference is made to the opinion of the District Court, reported at 352 F.Supp. 309 (N.D.Ohio 1973). A summary of the pertinent facts will be stated in this opinion to the extent necessary to dispose of the issues presented on appeal.

Tee-Pak is the owner of Reissue Patent No. 24,992, reissued May 30, 1961, on an application filed August 11, 1960. The original patent, No. 2,847,313, was issued August 12, 1958, on an application filed December 1,1955.

St. Regis Paper Co. (St. Regis) filed three motions for summary judgment of invalidity and one for summary judgment of non-infringement. These motions were based on: i) 35 U.S.C. § 251, 2) 35 U.S.C. § 102 and § 103, 3) 35 U. S.C. § 112 and 4) 35 U.S.C. § 271, respectively. The District Court granted partial summary judgment and held claims 5 and 7, the only claims in issue, invalid under 35 U.S.C. §§ 102(b) and 251. We reverse. In so holding, we do not reach the questions presented by St. Regis’ remaining motions for summary judgment. These were not decided by the District Court, and, in view of our disposition of the case, we also decline to rule on them.

The Invention

The patent in issue is entitled “Method of Treating Fresh Meats” and relates to a method of wrapping fresh ground meat, such as beef, with a wrap so as to extend shelf life by postponing the formation of a bright red pigment.

Claims 5 and 7 are in issue. The essential steps of the patented method as set forth in independent claim 5 are:

1) Wrap fresh ground meat within about 30 minutes after comminution in a film having an oxygen permeability of about 0.01 x 10 (-10) to 1.0 x 10(-10) cc.mm./sec./cm.Vcm. Hg. at 30 °C.
2) Maintaining the wrapped meat chilled for a period in excess of that which unwrapped meat would lose its attractive appearance.
3) Unwrapping the meat.

Claim 7 is dependent on claim 5 and recites that the meat is beef. The crucial aspects of this appeal revolve around step 1.

The theory behind the invention is to control the color cycle in fresh ground meat by optimizing its reaction kinetics. It is known that fresh cut meat has a purplish color which is not attractive to the consumer. Within about thirty minutes after cutting, the meat changes to a bright red color. This is known as “bloom”, and it is this color which is attractive to the consumer. Continued exposure to the air causes the meat to take on a brown-grey appearance.

The chemistry and reaction kinetics of these changes are widely understood. Meat contains purple-red pigments called myoglobin and hemoglobin. When meat is exposed to the air, these pigments combine loosely with oxygen (oxygenation) to form oxymyoglobin and oxyhemoglobin. These pigments are scarlet-red and account for the “bloom.” Continued exposure to the air causes these pigments to undergo an oxidation reaction, thereby forming metmyoglobin and methemoglobin which are brownish-grey in color.

These reactions are dependent on time, temperature, oxygen concentration and the presence of bacteria and enzymes. The patented method wraps the meat before the oxygenation reaction is completed. When the meat is ready for sale or consumption, the package is unwrapped. Shortly after opening, the meat turns a bright red color.

Summary Judgment

A prerequisite to a grant of summary judgment is that there be no genuine issue as to material fact and that the moving party be entitled to a judgment as a matter of law. Rule 56, Fed.R. Civ.P.

In Bohn Aluminum and Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962), this court, speaking through Judge Weick, stated the guidelines governing motions for summary judgment:

“In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated. 6 Moore’s Federal Practice Par. 56.-15(3), pp. 2123-2126.
“It has been stated that: ‘The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute * * *.’ 6 Moore’s Federal Practice Par. 56.-11(1), p. 2057. See also: Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).”

In appropriate circumstances when the invention is easily understood and there is no need for expert testimony, summary judgment may be a useful tool in cases where the validity of a patent is involved. This court has upheld summary judgments of invalidity. See, e. g., Ballantyne Instruments and Electronics, Inc. v. Wagner, 345 F.2d 671 (6th Cir. 1965); Bobertz v. General Motors Corp., 228 F.2d 94 (6th Cir. 1955), cert. denied, 352 U.S. 824, 77 S.Ct. 32, 1 L.Ed.2d 47 (1956).

This tool, however, is to be used sparingly. In S. J. Groves & Sons Co. v. Ohio Turnpike Commission, 315 F.2d 235, 237 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963), this court, speaking through Judge Shackelford Miller, stated:

“This Court has on several occasions expressed the view that a trial judge should be slow in disposing of a case of any complexity on a motion for summary judgment, that while such a judgment wisely used is a praiseworthy and timesaving device, yet such prompt dispatch of judicial business is neither the sole nor the primary purpose for which courts have been established, and that a party should not be deprived of an adequate opportunity to fully develop his case by witnesses and a trial, when the issues involved make such procedure the appropriate one. Knapp v. Kinsey, 249 F.2d 797, 801-803, C.A. 6th; Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427, C.A. 6th; Begnaud v. White, 170 F.2d 323, 327, C.A. 6th; Estepp v. Norfolk & W. Ry. Co., 192 F.2d 889, C.A. 6th; Bellak v. United Home Life Ins. Co., 211 F.2d 280, 283, C.A. 6th; Hoy v. Progress Pattern Co., 217 F.2d 701, 704, C.A. 6th. See: Sartor v. Arkansas Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967; White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738.”

See also Hart v. Johnston, 389 F.2d 239 (6th Cir. 1968).

Moreover, in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), the Supreme Court stressed the importance of a patentee having a full and fair opportunity to litigate the validity of his patent. In view of this decision and the possibility of in rem invalidity, it is imperative that the court, in the words of Judge Weick, “construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant.” Bohn, supra, at 427.

An additional consideration that is present in patent cases is the statutory presumption of validity. A patent is presumed valid and the burden of proving its invalidity rests squarely on the party challenging it. 35 U.S.C. § 282. Even though this presumption may be weakened by the failure of the Patent Office to consider all pertinent art, the degree by which it is weakened depends on a balancing of the pertinence of the newly cited art with the pertinence of the art considered by the Patent Office. Thus, unless the presumption has been destroyed, it is a relevant factor for the court to consider in ruling on a motion for summary judgment. See Ballantyne, supra, at 674.

Anticipation

We have held that a description of a patented invention within the meaning of 35 U.S.C. § 102(b) must be in “such full, clear and exact terms as to enable any person skilled in the art or science to which the invention appertains, to practice the invention. Vague and general representations are not sufficient in law to support the defense of anticipation under 35 U.S.C. § 102(b).” Ballantyne Instruments and Electronics, Inc. v. Wagner, supra, 345 F.2d 671, 673-674 (6th Cir. 1965). See also Allied Wheel Products, Inc. v. Rude, 206 F.2d 752, 759-760 (6th Cir. 1953).

With these considerations in mind, we turn now to the issues of this case. A comparison between claim 5 and the prior art relied on by the District Court in its opinion is as follows:

Food Industries Article at page 22
“Even more important is the length of time the cut beef has been exposed' to air before packaging. When cut, fresh beef has a purple-red hue—the true color of the flesh. But this color rapidly changes to a bright red, due to oxygenation of myoglobin present in the meat. If the meat is wrapped directly after it is cut—before the formation of oxymyoglobin—some wraps will never permit this reaction to occur. Others that are slightly permeable to oxygen will eventually allow this reaction to take place. (Emphasis added).”
Claim 5
“A method for controlling the development of the incipient bloom, color and organoleptic characteristics of comminuted fresh meats which comprises enclosing comminuted fresh meat within about 30 minutes after comminution in a flexible film which has a permeability of oxygen through said film ranging from about 0.01 x 10(-10) to 1.0 x 10(-10) cc.-mm./sec./ cm./cm. Hg. at 30° C., maintaining the said comminuted meat in the said film chilled for a period in excess of that at which unwrapped fresh meat loses a significant part of its red color after comminution, and then removing the said meat from its encasement in the said film for exposure to the atmosphere.”
DuPont Article
“After fresh beef is cut, it should be exposed to the air from 15 to 30 minutes before packaging This allows the meat to attain the bright red color commonly associated with fresh beef.
* * * * * *
Tight, well-sealed packages will maintain the color and freshness of red meats for 72 hours.”

A comparison between claim 5 and the two publications relied on by the District Court shows substantial differences between them. Neither publication explicitly pertains to ground meat nor explicitly discloses an oxygen permeability range. Thus, the publications do not describe the invention in full, clear and exact terms. In short, these publications are not anticipatory within the meaning of 35 U.S.C. § 102(b). Ballantyne, supra. See also Cee-Bee Chemical Co., Inc. v. Delco Chemicals, Inc., 263 F.2d 150, 153 (9th Cir. 1958).

In so holding, we do not make any conclusions, express or implied, as to the obviousness of the claimed inventions. We hold merely that a comparison of the publications with the claims in issue convinces us that there are genuine issues of material fact.

An undisputed affidavit and art of record show that ground meat presents different problems in storage. Not only is bacteria intimately mixed with the meat, but also a greater surface area for reaction is presented. Because the color cycle is dependent on bacteria and oxygen concentration, the subtle difference between ground and cut meat may become substantial. This can only be ascertained at trial through the testimony of experts in the field.

Moreover, the failure of either reference to specify an oxygen permeability for the wrap presents a real factual issue as to what the publication in fact teaches one skilled in the art as to the characteristics of the wrap. For example, what is the meaning of “slightly permeable” in the Food Industries article? To hold that “slightly permeable” anticipates the claimed range is either to equate the two or to ignore the oxygen permeability limitation. We sanction neither technique.

The difference between the DuPont publication and claim 5 also is striking. A reasonable reading of the DuPont publication would seem to teach away from the claimed invention. This article teaches away from the patented method by allowing meat to develop full bloom and thereafter wrapping. The instant claims are directed to the postponement of the bloom until the meat is unwrapped. Tee-Pak’s affidavit introduced in opposition to St. Regis’ motion for summary judgment raises a factual issue as to whether the art taught away from the patented invention.

We find, therefore, that it was error for the trial judge to grant St. Regis’ motion for summary judgment of invalidity on the grounds of anticipation under 35 U.S.C. § 102(b).

For the guidance of the District Court on remand, we add that another ground of error requiring reversal is the reliance by the District Court on a combination of references to anticipate the claimed invention. The District Court was of the opinion that invalidity under § 102(b) may be sustained if the elements of a claim are found in a collection of references. 352 F.Supp. at 312. The court also stated that the section implicitly contains the obviousness test although in a more limited way. Id. With this as rationale the District Court stated:

“If this passage [Food Industries article] is read in conjunction with a 1951 DuPont publication, submitted with plaintiff’s briefs, the thoroughness of the anticipation is even more evident.” Id. at 313.

This court has stated:

“In order to anticipate an invention, it is necessary that all of the elements of the invention or their equivalents be found in one single description or structure, where they do substantially the same work in substantially the same way.” Allied Wheel Products v. Rude, supra, 206 F.2d 752, 760 (6th Cir. 1953).

To like effect see Ceramic Tilers Supply, Inc. v. Tile Council of America, 378 F.2d 283, 284-285 (9th Cir. 1967); Soundscriber Corp. v. United States, 360 F.2d 954, 960, 175 Ct.Cl. 644 (1966); Preformed Line Products Co. v. Fanner Mfg. Co., 328 F.2d 265, 271 (6th Cir.), cert. denied, 379 U.S. 846, 85 S.Ct. 56, 13 L.Ed.2d 51 (1964); Firestone v. Aluminum Co. of America, 285 F.2d 928, 930 (6th Cir. 1960).

Recapture

The District Court also invalidated the claims of the reissue patent under 35 U.S.C. § 251 as being a recapture of subject matter that had been abandoned during prosecution of the original patent. Abandoned claim 12 defined the wrapping material only in terms of its oxygen permeability. This claim was cancelled, and claims defining the wrap in terms of both oxygen permeability and moisture vapor permeability were subsequently added and allowed. Reissue claims 5 and 7, although substantially the same as abandoned claims 12 and 13 differ in a material aspect. Claims 5 and 7 recite the temperature at which the oxygen permeability is measured, whereas claim 12 did not. The temperature limitation was added to make the claims more definite.

It has long been the rule in this Circuit that a patentee may not recapture what he has abandoned intentionally at the insistence of the Patent Office in order to secure a patent. Such a devious practice does not constitute “error without any deceptive intention.” See, e. g., Quikey Mfg. Co. v. City Products Corp., 409 F.2d 876 (6th Cir. 1969); Nickerson v. Bearfoot Sole Co., 311 F.2d 858 (6th Cir. 1962), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963); Union Switch and Signal Co. v. Louisville Frog, Switch and Signal Co., 73 F.2d 550 (6th Cir. 1934). This rule applies regardless of whether the claims were broadened or narrowed, or whether the rejection was based on prior art or other grounds. 73 F.2d at 552. In Union Switch, supra, we stated:

“They fully understood the holding of the Commissioner, acquiesced in it, and through their attorney abandoned the claims and intentionally substituted those of the original patent. The mistake, if any, was in the failure of the applicants to appeal.” Id.
In Nickerson, supra, this court stated: “It is well settled that the deliberate withdrawal of a claim in order to obtain a patent does not involve inadvertence or error and is not a mistake of the kind which will justify the reissue of the patent including the matter previously withdrawn.” 311 F.2d at 872.

The reissue statute, 35 U.S.C. § 251, provides, in pertinent part, as follows:

“Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Commissioner shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.”

Assuming arguendo, that the reissue claims are for the same invention as the original claims, the propriety of the recapture doctrine depends on certain factual determinations: 1) Are the reissue claims substantially identical to the abandoned claims? and 2) Were the critical limitations added or withdrawn at the insistence of the Patent Office? Both questions must be answered in the affirmative before the recapture doctrine can be applied.

The District Court held that reissue claim 5 was identical to original claim 12. The thrust of this holding was based on the finding that since the temperature limitation was needed to make the claim operative, it did not limit the claim in any way.

Tee-Pak contends that abandoned claim 12 was operative when read in light of the specification and by one skilled in the art and that reissue claim 5 is narrower in scope than claim 12.

We hold that the District Court’s finding of claim identity was improper because it rested upon the resolution of disputed issues of material fact. It has been stated that the purpose of a hearing on a motion for summary judgment is not to resolve factual issues, but to determine if there is any genuine issue of material fact in dispute. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). Furthermore, even if the basic facts are not in dispute, summary judgment is still improper when the parties disagree as to the inferences to be drawn from these facts. As we said in S. J. Groves and Sons, supra:

“It is often the ease that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts, or whether an estoppel or a waiver of certain rights admitted to exist should be drawn from such facts. Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.” [citations omitted] 315 F.2d at 237, 238.

See also Hart v. Johnston, 389 F.2d 239, 242 (6th Cir. 1968).

In deciding that reissue claim 5 was invalid as an attempted recapture of abandoned claim 12, the District Court drew the following conclusions: 1) Tee-Pak admitted that the moisture vapor permeability limitation was inserted at the insistence of the Patent Office. 2) Tee-Pak admitted and the submitted materials show that abandoned claim 12 was inoperative and indefinite. 3) The temperature limitation in reissue claim 5 did not limit abandoned claim 12 in any way.

We have examined the record and are convinced that these three conclusions involve the resolution of genuine issues of material fact, and were therefore improper. See Bohn Aluminum, supra.

The District Judge relied on the following statements to show that Tee-Pak allegedly admitted that the moisture vapor limitation was inserted at the insistence of the Patent Office:

Patentee’s Deposition at 103-04
“Q When you refer to the limits being much closer than needed to have the invention succeed, what do you mean by that ?
“A Well, as I have stated previously the concept that I had in mind, that I considered basic, and was the focal point of the invention, was the impermeability to oxygen. The moisture impermeability and the time factors were put in as a guide toward the practical limitations that should give the best results, and I did not discover these necessary changes. Those were discovered by the technical people. My discontentment with the patent as originally issued was that the claims that were in the application that were confined only to the oxygen impermeability were not allowed as such. They were tied into moisture impermeability.”
Statements by Tee-Pak’s Counsel at Hearing on Motion for Summary Judgment, Tr. at 23
“Now then, when the patent was issued, there was added a moisture-permeability limitation.
“And by the way, in your third question, your Honor, it was added obviously, knowingly added by the applicant, and after it was added, the patent was issued.
“But the question still remains thereafter as to whether it was error without deceptive intention. And this, by the way, is a question that can only be decided, we feel, at a full trial unless, indeed, the fact that St. Regis has failed to respond at all to the affidavits we have filed means they concede this point, and then if there is a summary judgment entered, it should be entered in favor of TeePak on the reissue question.”

These statements do not constitute an admission that the moisture vapor permeability limitation was inserted at the insistence of the Patent Office. Counsel for Tee-Pak had specifically stated that the insertion was “error without deceptive intention.”

St. Regis contends, by citing correspondence between Tee-Pak’s attorneys, that the insertion was deliberate and intentional. Unquestionably this is true. However, a deliberate and intentional amendment to a claim may be error without deceptive intention. Thus, the amendment could have been made through accident, mistake or inadvertence. This issue can be resolved at trial by a careful study of the complete file wrappers of both the original and reissue patent applications and such other evidence as may be adduced.

We hold that it was error for the trial judge to infer that the moisture vapor permeability limitation was inserted at the insistence of the Patent Office.

The District Court also found abandoned claim 12 to be inoperative and indefinite without a temperature limitation for the oxygen permeability, and, therefore, addition of a temperature to claim 5 did not limit the subject matter of claim 12 in any way.

We do not agree with the trial judge’s conclusion that the patentee admitted in his reissue oath that the original patent was inoperative without a temperature reference. The reissue oath states that the original patent was “inoperative to protect his invention fully and properly.” This is a far cry from an admission that the patent was inoperative per se. The District Court also relied on statements made by Tee-Pak’s counsel at the oral hearing on the motions for summary judgment to the effect that the original patent was somewhat indefinite. In the context of the overall record, we do not find this statement to be an admission that abandoned claim 12 was indefinite per se within the meaning of 35 U.S.C. § 112.

This court has held that claims are to be read in light of the specification as by one skilled in the art. Tillotson Mfg. Co. v. Textron, Inc., Homelite, 337 F.2d 833 (6th Cir. 1964); Sun Ray Gas Corp. v. Bellows-Claude Neon Co., 49 F.2d 886 (6th Cir. 1931). As we stated in Tillotson:

“There is" nothing vague or confusing about this claim to a person skilled in the carburetor art. It must be interpreted in the light of the specification and drawings. The test is whether the disclosures make the invention clear to a mechanic skilled in the art so that he could construct the carburetor and use it. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 61 S.Ct. 235, 85 L.Ed. 132 (1940).” 337 F.2d at 840.

A judge may not interject his personal opinion to resolve such issues. As stated by Judge Learned Hand:

“To judge on our own that this or that new assemblage of old factors was, or was not, ‘obvious’ is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it.” Reiner v. I. Leon Co., Inc., 285 F.2d 501, 504 (2d Cir. 1961), cert. denied, 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961).

In opposition to St. Regis’ motion for summary judgment, Tee-Pak introduced an affidavit by Donald Bridge-ford, an expert in the art. This affidavit raises questions of fact as to: 1) the meaning of oxygen permeability without a temperature reference point to one skilled in the art, and 2) whether reissue claim 5 is more limited in scope than abandoned claim 12.

We find, therefore, that it was error for the trial judge to grant St. Regis’ motion for summary judgment of invalidity as to reissue claims 5 and 7 under 35 U.S.C. § 251.

This case is reversed and remanded for proceedings not inconsistent with this opinion.

      . See generally Note, Patents—Collateral Estoppel—Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 60 Geo.L. J. 1126 (1972).

      . 35 U.S.C. § 102(b) provides in part:
      “A person shall be entitled to a patent unless—
      *****
      “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States . ”

      . Reissue claim 5 corresponds to abandoned claim 12, while reissue claim 7 corresponds to abandoned claim 13. Therefore, the validity of claim 7 depends upon the validity of claim 5.

      . Identity of invention has not been argued on appeal.

      . Absolute identity between the abandoned claim and the reissue claim is not required. See Union Switch, supra at 552. The test was succinctly stated in Riley v. Broadway-Hale Stores, Inc., 217 F.2d 530, 532 (9th Cir. 1954), as follows: “[W]hen the chief element added by reissue has been abandoned while seeking the original patent, the reissue is void.”


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Enrique Leonel GONZALEZ, Jose Antonio Suarez and Jose Enrique Mendez-Galbart, Defendants-Appellants.
    No. 73-2193.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.
    Rehearing and Rehearing En Banc Denied May 14, 1974.

      Sidney A. Soltz, Miami, Fla., for Mendez-Galbart.
    Ronald J. Fath, Miami, Fla., for Gonzalez and Suarez.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Jose Antonio Suarez, Enrique Leonel Gonzalez and Jose Enrique Mendez-Galbart appeal from their convictions for conspiracy to violate and various substantive violations of 21 U.S.C. § 841(a)(1), which proscribes the sale or distribution of heroin and cocaine, and 18 U.S.C. § 2. Suarez and Gonzalez were charged and convicted on all counts of the seven count indictment, and Mendez was charged and convicted on three counts. The defendants raise numerous points of error, all of which we find meritless and therefore affirm.

Defendants first argue that the trial court improperly admitted into evidence testimony of a rebuttal witness regarding alleged prior misconduct for which no conviction had been obtained. During the trial Gonzalez took the stand and testified, in response to questions asked by his counsel on direct examination, that he had never dealt in cocaine or heroin. On cross examination the government asked the defendant whether he had “ever dealt in cocaine or heroin,” had “ever negotiated with anyone for the sale of any cocaine or heroin,” or had ever “discussed the sale or purchase of heroin with anyone.” Gonzalez replied that he had never “dealt in” or “done any business” in cocaine or heroin and had not “talked about” the sale of heroin to anybody. Subsequently, the prosecution called a rebuttal witness, Emilio. Garcia, who testified that in 1965 Gonzalez allegedly dealt in marijuana and that in 1973 he had negotiated with Gonzalez regarding an ultimately unconsummated purchase of one-half kilogram of cocaine.

The trial court properly admitted the rebuttal testimony. The Supreme Court in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), recognized that, when the defendant on direct examination initiates an inquiry regarding specific prior conduct other than a criminal conviction, the prosecution may bring forth extrinsic evidence in an attempt to establish prior conduct contrary to the defendant’s assertion. In Walder the defendant took the stand and, in response to questions propounded on direct examination, broadly asserted that he had never possessed, sold, handled as a conduit or given without compensation any narcotics to anyone. The Supreme Court held that the trial court properly admitted the rebuttal testimony of two witnesses establishing defendant’s dealings in narcotics from evidence obtained in an unlawful search and seizure of defendant’s home some years earlier. Likewise, only after the defendant in the case at hand opened the inquiry on direct examination did the trial court admit testimony to specifically rebut defendant’s general denial of ever dealing or negotiating for the sale of such proscribed substances.

Relying on United States v. Masino, 275 F.2d 129 (2nd Cir., 1960), and United States v. Sweeney, 262 F.2d 272 (3rd Cir., 1959), the defendants argue that proof of prior acts of misconduct other than a criminal conviction may not be shown by extrinsic evidence such as rebuttal testimony. Instead, they assert that the examiner is limited to the answer that is elicited from the witness on cross examination. See C.McCormick, Evidence, § 42, at 84 (2d Ed.1972); 3A J.Wigmore, Evidence, § 979 (Chadbourn Rev.Ed.1970). But at least one recognized limitation on this principle is that when the inquiry is initiated on direct examination rather than cross examination, the prosecution may bring forth extrinsic evidence to demonstrate the mendacity of the witness’ statements. Jackson v. United States, 311 F.2d 686, 690 (5th Cir., 1963); see White v. United States, 317 F.2d 231, 233 (9th Cir., 1963).

Second, the defendants contend that the trial court erroneously admitted evidence of criminal conduct other than the specific sale of narcotics alleged in the indictment. At trial Special Agent William Hudson testified, over defense counsel’s objection, that while meeting with defendants Luis Inchausti-Lopez, who plead guilty and testified for the government, and Suarez, Inchausti stated that Suarez had access to three kilos of cocaine and that this cocaine was to be sold to customers in Detroit. Additionally, Agent Hudson related that during a subsequent meeting with Gonzalez in February 1972, Gonzalez mentioned that he had been dealing in narcotics for some time.

The trial court properly admitted Hudson’s testimony concerning such closely related activities. In our recent opinion of United States v. Nakaladski, 481 F.2d 289 (5th Cir., 1973), we reiterated the view that “although evidence of criminal conduct not charged in the indictment may not be admitted if it serves solely to show the defendant’s bad character or criminal propensities, the testimony . . . was not admitted for that purpose.” Id. at 296. In Nakaladski we held certain testimony relevant and admissible “because it established that appellants had entered into a conspiracy” to engage in extortionate credit transactions. Id. Like the testimony in Nakaladski, Hudson’s testimony was not admitted to establish the defendant’s propensities to commit the charged crimes, but was properly admissible to establish the existence of a conspiracy to distribute narcotics. See United States v. Restrepo, 417 F.2d 927, 928 (5th Cir., 1969).

Additionally, the trial court, when admitting the' evidence concerning transactions not the subject of the indictment, was careful to instruct the jury that it was admissible against all of the defendants only if it concluded that a conspiracy existed. On at least three occasions during the trial, the court suspended the presentation of the case and orally instructed the jury of the reason for admitting the evidence, and no one on the jury indicated that he did not understand. At the conclusion of the case, the court in its general instructions again instructed the jury of the limited use of this evidence. The rights of the defendants were fully protected from any possible prejudice resulting from the admission of this evidence.

Defendants’ third contention is that, assuming a conspiracy existed, the principal objective of the conspiracy was achieved by December 30, 1971, when the final sale of one-half kilo of heroin was consummated, and that at this point the conspiracy terminated. Accordingly, the defendants reason that any evidence of discussions and meetings subsequent to this asserted point of termination was improperly admitted as against all the defendants. More specifically, Mendez argues that, since the conspiracy had terminated, the trial court erred in failing to instruct the jury that these subsequent occurrences could only be admitted as against the particular person who committed the act or made a declaration and not against him because his participation terminated on December 30. The defendants further urge that the evidence introduced at trial supports the existence of two conspiracies instead of only one, and thus the admission of evidence relating to the second conspiracy was prejudicial to the participants of the first.

In order to determine the validity of this contention, we turn to the record. The evidence introduced at trial demonstrated that there were two controlled purchases of narcotics in December of 1971. The first purchase was set up by the government informant, Armando Monnar, after he was solicited by Luis Inchausti-Lopez to sell drugs. Inchausti’s source of supply apparently was the defendant Gonzalez. The first sale was made at a meeting at the Holiday Inn in Miami when Inchausti and Monnar sold Agent Hudson an initial one-half kilo of cocaine. Monnar testified that immediately prior to the sale defendants Suarez and Raul Villareal-Reyes, who arrived shortly before the transaction, stepped outside so as not to be noticed. Although it was necessary for Inchausti to leave in order to obtain an additional one-half kilo, after several hours the total purchase of a kilo of cocaine was finally completed. When Hudson left, Suarez and Villareal entered the room, Lopez handed them the money, they counted it, gave Monnar $500 and left.

On December 30, 1971, Monnar contacted Villareal concerning a second purchase of narcotics, this time of heroin, and a transaction was arranged for the following day. On the day of the purchase, Gonzalez, Villareal and Monnar met at a Citgo filling station operated by Gonzalez. Gonzalez told Villareal to get the merchandise, and approximately twenty minutes later Villareal returned with two boxes filled with heroin. Heroin in hand, Monnar and Villareal went to a Howard Johnson’s where they met with Agent Peter Scroeca. Because Villareal arrived late, Scrocca refused to purchase the whole kilo, but purchased instead only a half kilo. After this second sale was completed, Villareal and Monnar returned to the Citgo gas station where Monnar explained to Gonzalez why only one-half of the heroin had been sold. At this time defendant Mendez entered the station, walked into the back room, and according to Monnar’s testimony, asked “How did the heroin deal come out?” Gonzalez responded that he had the money and, as Monnar testified, allegedly told Gonzalez to retain it “until we straighten the bill with you.”

Significantly, after the sale on December 30th, the evidence demonstrates that there were meetings between several of the defendants. Approximately two weeks after the second sale, Villareal, Gonzalez, Suarez and informant Monnar met and generally discussed the possibility of future narcotic sales. On February 9, 1972, March 2, 1972 and April 14, 1972, government agents met with Gonzalez and discussed, not surprisingly, ad-‘ ditional sales of narcotics. More conversations were had with Suarez concerning narcotics on February 29, 1972, May 10, 1972 and October 29, 1972. Shortly thereafter, in November, the defendants were indicted.

Our review of the evidence compels the conclusion that there was only one conspiracy that existed up until the date of the indictment, and consequently the evidence concerning subsequent meetings and discussions was properly admitted. The Supreme Court has formulated the standard for determining when there are one or more conspiracies as whether “a common end or single unified purpose” is to be achieved by the conspirators. United States v. Morado, 454 F.2d 167, 171 (5th Cir., 1972); United States v. Lloyd, 425 F.2d 711, 712 (5th Cir., 1970); see Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The common end or single purpose of the conspiracy in the case at hand was the unlawful sale of narcotics, particularly heroin and cocaine. Furthermore, persons so associating and forming organizations for furthering such illicit purposes do not normally conceive of the association as engaging in one unlawful transaction and then disbanding. Rather the nature of such organizations seems to be an ongoing operation, engaging in the enduring and profitable business of supplying drugs and grimly reaping large sums of money from society to the detriment of our country in general and the narcotics used in particular. The sales of narcotics in the instant case appear to be only two sales within a much larger scheme of conducting a continuing and profitable trade in illicit narcotics.

Moreover, the same persons were engaged in the initial sales of narcotics as were involved in the subsequent meetings and discussions. Simply because one defendant, Mendez, was absent from the meetings or his name was not mentioned does not establish his disassociation from the presumably continuing operation. There is sufficient evidence in the record to support the court’s conclusion that a single conspiracy existed up to the date of the indictment, and thus evidence of meetings and discussions occurring after December 30, 1971, was properly admissible. Jolley v. United States, 232 F.2d 83, 88 (5th Cir., 1956).

Fourth, defendants argue that the trial court improperly refused to separately instruct the jury to carefully scrutinize an informer’s testimony because of the inherent possibility of untruthfulness. Government informer Monnar testified at trial and related in detail the events that surrounded and culminated in two sales of narcotics in December of 1971. While there was other testimony associating defendant Mendez with the co-defendants and placing him on several occasions at the Cit-go gasoline filling station operated by Gonzalez, Monnar’s testimony is essentially the only evidence that seriously implicates Mendez as a participant in the charged crimes. The defendants submitted to the court a proposed instruction that would have informed the jury to closely scrutinize informer testimony, but the court declined to give this particular instruction. Instead, the trial court instructed the jury, in addition to the general instruction regarding witness credibility, that “[t]he testimony of an accomplice or an informer who provides testimony against a defendant under grant of immunity from punishment or with a promise of reward should be viewed with great caution and weighed with great care.” Counsel timely objected to the court’s charge.

Because the judiciary has recognized that a criminal conviction may stand when based solely on the uncorroborated testimony of an informant or accomplice, it has been careful to fully apprise the jury of the inherent possibility of such testimony’s untruthfulness. United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566, 570 (1972). Although the giving of an accomplice or informant credibility instruction is largely within the discretion of the trial court, there are instances in which the defendant is entitled to such an instruction. United States v. Collins, 472 F.2d 1017, 1018-1019 (5th Cir., 1972) ; Tillery v. United States, 411 F.2d 644, 648 (5th Cir., 1969); Williamson v. United States, 332 F.2d 123, 132-133 (5th Cir., 1964). The defendants in the case at hand were entitled to an informer credibility instruction because they specifically requested it, and the testimony implicating defendant Mendez’s guilt was elicited solely from a government informer.

But while the defendants were entitled to such an instruction under the circumstances of this case, the trial court was not obligated to give an instruction regarding accomplice testimony and also separately instruct the jury on an informer’s testimony. The defendants argue that the substance of the two instructions would be significantly different, and therefore the court should have given an additional instruction. We cannot agree. The purpose of giving the instruction in both instances is to inform the jury of the witness’ self-interest and therefore the possibility of fabrication. Because the reason underlying the giving of the instruction is the same in both instances, irresistible logic compels the conclusion that the sub-stance of the instruction is essentially the same. While the trial court, in the exercise of its discretion, could instruct separately in order to more fully protect the rights of the defendants, we feel sure that the combined instruction concerning accomplices and informers in the instant case adequately informed the jury to carefully examine such testimony.

This conclusion is supported in two significant respects. First, although the specific portion of Monnar’s testimony that implicates Mendez in the charged crimes is uncorroborated, his testimony was corroborated in several other significant particulars, thus tending to establish its reliability. See Davis v. United States, 411 F.2d 1126, 1128-1130 (5th Cir., 1969); Joseph v. United States, 286 F.2d 468, 469 (5th Cir., 1960). Testimony of other witnesses established that the initial meeting between the informant and Inchausti was on December 6th, that there was a sale of a kilo of cocaine on December 10th, and a sale of one-half kilo of heroin on December 30th. Additionally, other agents who conducted surveillance testified that Mendez was seen at the Citgo station on several occasions. Second, the informant’s testimony was not unbelievable or facially insubstantial. United States v. Morales, 477 F.2d 1309, 1312-1314 (5th Cir., 1973). Monnar testified inconsistently regarding the compensation he received for his services, prior instances of his acting as an informer for the government, and the return to Hudson of $500 given him by Villareal when the first narcotics transaction was completed. But such inconsistencies do not render the whole of his testimony completely unreliable or incredible. Monnar’s testimony related in detail the events and circumstances surrounding the two sales of narcotics, and as noted previously this testimony was specifically corroborated in several instances. Consequently we are unable to conclude that his testimony was so incredible or insubstantial as to be incapable of belief.

The defendants’ fifth contention is that the government suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court in Brady plainly proscribed governmental suppression of evidence that exculpated the defendant. Construing Brady, this court in Williams v. Dutton, 400 F.2d 797 (5th Cir., 1968), concluded that Brady “imposed an affirmative duty on the prosecution to provide at the appropriate time requested evidence which is materially favorable to the accused as direct or impeaching evidence.” Id. at 800; see United States v. Harris, 458 F.2d 670, 675 (5th Cir., 1972). More recently, the Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), clearly articulated three criteria for measuring when the Brady rule has been violated as follows; “(a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” Id. at 794-795.

Measured against these criteria, we conclude that there has been no Brady violation. Nothing in the record indicates that the government was attempting to suppress any evidence. Prior to Monnar’s testimony, the government delivered all statements to the defense. During trial, when Agent Hudson was testifying, the defense asked-for a daily activity report that Hudson might have made at his first meeting with the informant Monnar. The government responded that it had no information of-this nature, defense counsel apparently accepted this answer, and the matter was not further pursued.

Additionally, defense counsel became fully aware during trial that Monnar had made inconsistent statements in light of Agent Hudson’s subsequent testimony. Counsel had ample opportunity, indeed an obligation to the defendants, to bring the contradictions to the attention of the jury by recalling Monnar to the witness stand and reexamining him, or in closing argument, or both, and presumably they did so. See United States v. Cawley, 481 F.2d 702, 709 (5th Cir., 1973); United States v. Tashman, 478 F.2d 129, 131 (5th Cir., 1973). Consequently, we are unable to conclude that the government has suppressed evidence.

Finally, there is no merit to defendant Mendez’s contention that his twelve year sentence and $15,000 fine was improper. This term and fine is well within the maximum authorized by statute. See United States v. Rojas-Colombo, 462 F.2d 1091 (5th Cir., 1971).

The judgments of the district court are affirmed.

      . The indictment in pertinent part reads as follows: Count I charges that Gonzalez, Suarez and Mendez conspired from December 6, 1971, up until the date of the indictment in November 1972 to violate 21 U.S.C. § 841 (a) (1) and 18 U.S.C. § 2; Count II charges that on December 10, 1971, Gonzalez and Suarez knowingly and intentionally possessed with intent to distribute 514 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count III charges that on December 10, 1971, Gonzalez and Suarez knowingly and intentionally distributed 514 grams of cocaine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2; Count IY charges that on December 10, 1971, Gonzalez and Suarez knowingly and intentionally possessed with intent to distribute 508 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Y charges that on December 10, 1971, defendants Gonzalez and Suarez knowingly and intentionally distributed 508 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count VI charges that on December 30, 1971, Gonzalez, Suarez and Mendez knowingly and intentionally possessed with intent to distribute 523 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Count VII charges that on December 30, 1971, Gonzalez, Suarez and Mendez knowingly and intentionally distributed 523 grams of heroin in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2.

      . Mendez was indicted for conspiring to violate 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 under Count I, knowing and intentional possession with intent to distribute 523 grams of heroin under Count VI, and knowing and intentional distribution of 523 grams of heroin under Count VII.

      . Each appellant adopts the asserted points of error of the others. Our ruling on these points in no way determines each appellant’s standing to raise the particular issue.

      . Villareal was charged in all seven counts of the indictment, but apparently was not tried because he is a fugitive.

      . Also with regard to requested jury instructions, the defendants contend that the trial court improperly denied counsel’s request to give a particular instruction concerning witness credibility in light of prior inconsistent statements. We agree with the trial court, however, that this instruction was covered in the court’s general charge regarding witness credibility.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Herbert Lee ROLLERSON, Defendant-Appellant.
    No. 73-2363.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.

      James R. Harris, Corpus Christi, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   DYER, Circuit Judge:

Rollerson was convicted for knowingly possessing an unregistered firearm in violation of 26 U.S.C.A. §§ 5845(a) and 5861(d). In this appeal, he raises three points of claimed error. First, he argues that the firearm was improperly admitted into evidence since it was obtained by police officers who unlawfully stopped his ear solely on the basis of a complaint by a citizen, previously unknown to the police, that Rollerson had used the weapon to threaten the complainant’s life. Second, he contends that the district court should have granted his motion to suppress a confession obtained by a federal agent because, of unreasonable delay in being brought before a magistrate. Finally, he asserts that he is entitled to inspect his presentence report and to have a hearing to correct erroneous factual information relied upon by the court in the imposition of his sentence. We affirm.

In the early morning hours of October 30, 1971, Albert Williams was awakened by a roommate’s report that Rollerson had come to shoot him. Rollerson circled Williams’ residence, told Williams to come outside to “get it over with,” and underscored his threats with two shots from a sawed-off rifle. Williams left his residence by a back door and called the police, but Rollerson had left by the time they arrived.

About 9:00 p. m. on the same date, Williams was driving home from work when he was warned that Rollerson, gun in hand, was sitting on Williams’ steps. Though Williams could not see Roller-son, he did see Rollerson’s white station wagon parked in front of Williams’ home. Williams immediately turned around and drove to the police station. While Williams was describing the situation to two Corpus Christi police officers, a white station wagon, identified by Williams as Rollerson’s, was seen driving by the police station. Although Williams was unknown to the policemen prior to his complaint, on the basis of the information supplied by him, the officers pursued and stopped the Rollerson auto. One policeman approached the car from the driver’s side, and the other from the passenger’s side. Directing a flashlight beam into the front of the car where Rollerson was sitting, one officer saw the barrel of a rifle protruding from beneath the seat. Since a local ordinance forbade carrying a weaon in a vehicle, the officers placed Rollerson under arrest. The ensuing police examination of the gun indicated a possible violation of the federal firearms law. A report was made to the United States Treasury Department, Division of Alcohol, Tobacco, and Firearms (ATF), and the next day a special agent examined the seized weapon, found it to be an inch shorter than permitted without federal registration, and filed a complaint against Rollerson.

A federal warrant for Rollerson’s arrest was issued the same day, November 1, 1971, and a detainer was placed on him as a state-held prisoner. The following day, the ATF investigator interviewed Rollerson. After being given Miranda warnings and being advised that a federal complaint had been filed against him for possession of an unregistered firearm, Rollerson admitted ownership of the weapon. On November 17, when the local authorities decided not to prosecute the city ordinance violation, Rollerson was turned over to federal authorities and was taken immediately before a United States magistrate.

After a jury trial, Rollerson was found guilty of violating the federal firearms law. During sentencing, the district judge stated: “All right, while you don’t have any convictions, you have been arrested several times with regard to matters pertaining to guns.” Roller-son made a motion for production of the presentence report pursuant to F.R. Crim.P. 32(e)(2) and for a hearing on a Rule 35 motion for reduction of sentence on the ground that the district court relied on inaccurate information in imposing sentence. Rollerson offered to show that although he had an arrest record, he had had no previous arrests involving guns. In denying the motions, the district judge said:

The Court has considered the motion of the Defendant and has concluded that the seriousness of the offense alone justified the two-year sentence and the very short five-months’ period of incarceration. Further, assuming the complained of statement was inaccurate, the Court is satisfied there is no reason to reduce the sentence given. Thus, nothing would be gained at this time in furnishing the pre-sentence investigation to Defendant.

Rollerson’s first contention on appeal is that the sawed-off rifle should not have been introduced into evidence since it was seized in violation of the fourth amendment. The firearm was in plain view once the police had stopped the auto and peered inside, hence the crucial question is whether the act of stopping the automobile was an unreasonable seizure. The thrust of Roller-son’s argument is that the police lacked probable cause to justify the stop because of the unproven reliability of the complainant’^ information. This is a sophistical contention. Neither the tests of reliability demanded for a showing of probable cause nor, indeed, a showing of probable cause is required to justify an investigative stop. Unlike an anonymous informant, the complainant in the case before us came forward personally to request a police investigation. Moreover, the person giving the information was himself the victim of threats on his life. Under these circumstances the police were not only justified in making their limited intrusion into Rollerson’s liberty by stopping his automobile to investigate the suspicion engendered by the complaint, Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; United States v. Allen, 5 Cir. 1973, 472 F.2d 145, but they would have been derelict in their duty had they failed to do so. What we said in United States v. West, 5 Cir. 1972, 460 F.2d 374, is apropos here:

We think that while the federal courts must * * * apply federal constitutional principles to searches and seizures made by state officers when evidence obtained thereby is offered in a federal prosecution, the federal courts should not lose sight of the fact that a local policeman is in a somewhat different position from a federal law enforcement officer. The duty of the federal officer is to enforce specific federal statutes; the local policeman, in addition to having a duty to enforce the criminal laws of his jurisdiction, is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.

Id. at 375-376, quoting Frye v. United States, 9 Cir. 1963, 315 F.2d 491, 494.

The second point raised by Rollerson is that the confession given to the federal investigator on November 2, 1971, should have been suppressed because Rollerson was not taken before a magistrate until November 17, 1971. In support of this position, he relies on Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 and 18 U.S.C.A. § 3501(c). Mallory and Section 3501(c) were carefully considered by the Sixth Circuit in United States v. Davis, 1972, 459 F.2d 167. There the court found that the delay in being brought before a magistrate must be measured from the beginning of federal detention. See also Grooms v. United States, 8 Cir. 1970, 429 F.2d 839. We agree. Since Rollerson was in state custody during the time of the interview by the federal investigator, for Rollerson to prevail it is incumbent upon him to demonstrate an illegitimate “working relationship” between the state and federal authorities. Anderson v. United States, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. That is, in order to invoke the protection of Section 3501(c), he must show that the state officials unlawfully detained him in order to allow the federal investigator to secure a confession. Kulyk v. United States, 5 Cir. 1969, 414 F.2d 139. Although the state authorities decided not to prosecute Rollerson for violating the city weapons ordinance, there is nothing to support Rollerson’s assertion that he was being held by state authorities to await the federal investigator. Rather, it appears that Rollerson was unable to post bond to obtain his release during the pendency of the local charge. When the decision was made on November 17, 1971, not to prosecute the ordinance violation, Rollerson was turned over to the custody of the United States Marshal, who immediately took him before a federal magistrate. Thus there was no delay which would necessitate suppression of the confession.

Rollerson’s final contention is that the district court should have permitted him to inspect the presentence report and should have given him an opportunity to rebut erroneous factual information relied upon in the imposition of his sentence. Clearly, it is a violation of due process to sentence a defendant on the basis of assumptions concerning his criminal record which are materially untrue. United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. As we pointed out, however, in Rogers v. United States, 5 Cir. 1972, 466 F.2d 513, cert. denied, 409 U.S. 1046, 93 S.Ct. 546, 34 L.Ed.2d 498, it is the burden of the one who challenges a sentence to demonstrate that it was founded upon a tainted record. In Rogers, the appellant was unable to make the requisite showing of the court’s reliance since the record failed to disclose explicit consideration of an allegedly invalid conviction. Similarly, this court in United States v. Trevino, 5 Cir. 1973, 490 F.2d 95 denied relief because the appellant failed to show reliance by the court on misinformation, and failed to show that the appellant either specifically denied the truth of the information or requested an opportunity for rebuttal. Assuming that such threshold requirements can be satisfied, our decision in United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854, demonstrates that once the possibility of reliance on erroneous information or reliance on an invalid conviction has been raised, an unexplained statement by the court that it would have imposed the same sentence regardless of the original error is insufficient to dispel the lingering doubt that the sentence was founded upon illegitimate considerations. In such cases the defendant must be given an opportunity to rebut the factual error, United States v. Espinoza, 5 Cir. 1973, 481 F.2d 553, or the Government must be required to carry its burden of showing the constitutionality of prior convictions, Mitchell v. United States, 5 Cir. 1973, 482 F.2d 289.

In Rollerson’s case, however, we think any factual error was harmless. He was sentenced to a mere five months in prison and four years’ probation when the maximum penalty for his offense was ten years’ imprisonment. We are satisfied that the seriousness of his offense, without more, was sufficient to justify the sentence given. Stated another way, even if Rollerson’s record was devoid of prior arrests for firearm-related offenses, his light sentence is amply justified.

Affirmed.

      . 26 U.S.C.A. § 5861(d) requires registration of firearms described in 26 U.S.C.A. § 5845 (a). It is not disputed that Rollerson’s weapon was within the definition of § 5845 (a).

      . 18 U.S.C.A. § 3501(c) provides in pertinent part:
      In any criminal prosecution by the United States ... a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer . . . shall not be inadmissible solely because of delay in bringing such person before a magistrate if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention. .

      . Because we reject the unreasonable delay argument, it is unnecessary to discuss the suggestion that the voluntariness of the confession was tainted by delay.