author: WISDOM, Circuit Judge:

text:
    BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, LOCAL UNION NO. 15, ORLANDO, FLORIDA, et al., Plaintiffs-Appellants, v. STUART PLASTERING COMPANY, INC., et al., Defendants-Appellees.
    No. 74-2087.
    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.

      Ronald G. Meyer, Richard H. Frank, Tampa, Fla., for plaintiffs-appellants.
    Plasterwalls, Inc., pro se.
    Before BROWN, Chief Judge, and MURRAH  and WISDOM, Circuit Judges.

       Senior Circuit Judge of the Tenth Circuit sitting by designation.

   WISDOM, Circuit Judge:

Section 302 of the National Labor Relations Act, 29 U.S.C. § 151 et seq., prohibits payments by an employer to labor organizations or to their representatives. One exception, Section 302(c)(5), 29 U.S.C. § 186(c)(5), permits an employer or association of employers to make specified payments to certain “trust [funds] established by such representatives”. Here, a collective bargaining agreement established a schedule of payments for participating employers to make health and welfare payments and pension payments to a union’s health and welfare fund. A trust agreement for the proposed health and welfare fund was drafted and executed by two employers engaged in the plastering business in Orlando, Florida, but it was not executed by any of the defendant employers. A pension fund trust agreement was also drafted, but it was not executed by any employer who was allegedly a party to the collective bargaining agreement. The question this appeal presents is whether the schedule of payments set out in the collective bargaining agreement, by itself and in the circumstances of this case, satisfies the requirements of Section 302(c)(5) and imposes on the employer an enforceable obligation to contribute the disputed health and welfare payments and pension payments. We hold that it does not.

I

The collective bargaining agreement at the heart of this dispute was signed by George Stuart, as representative of the Plasterers Association, and by Don Goad, as representative of Local 15, on December 15, 1968. The relevant section of that agreement is Article II, Section 4. This section sets forth a schedule of payments to be made by participating employers for health and welfare benefits and pension benefits, effective March 1, 1969, and continuing for the life of the contract, which expired on February 28, 1973. The agreement provides that “the following amounts [specified thereafter under the “health and welfare” benefits schedule and the “pension” benefits schedule] shall be paid into health and welfare fund”. The agreement also provides that “[s]uch fund shall be designated by Local No. 15, Plasterers International Union of America, Orlando, Florida”.

The collective bargaining agreement specifies that both types of payment be made to a single “health and welfare fund”. That provision, as is evident, is in violation of Section 302(c)(5)(C), requiring that payments made by employers for use as pension benefits “be made to a separate trust, which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities”.

Under the collective bargaining agreement, the health and welfare fund, to which payments should be made by participating employers, “shall be designated by Local No. 15”. Moreover, Section 302(c)(5) of the Act places the burden of going forward with the establishment of qualifying trust funds on the union representatives. Specifically, it provides an exception to the general prohibition of Section 302 for employer payments “paid to a trust fund established by such [union] representative, for the sole and exclusive benefit of the employees of such employer” (emphasis added). No trust agreement establishing a pension fund was executed by anyone, and the health and welfare trust agreement was not signed by any of the defendants. The union suggests, on an estoppel theory, that compliance with the strict requirements of Section 302(c)(5) is unnecessary because some contributions of health and welfare benefits and pension benefits were made. They contend that those contributions are sufficient proof of the existence of a trust fund to satisfy their obligation under the National Labor Relations Act.

The record demonstrates that Stuart made some payments, both for health and welfare benefits and for pension benefits, as set forth in the collective bargaining agreement schedule. Those payments were made to All State Administrators, Inc., a corporation organized by Stuart, Don Goad, the union representative, and David Foley, an insurance broker, for the purpose of administering these fringe benefit funds for their individual profit. All State Administrators was one of several corporations organized by Stuart and Goad, for their individual purposes, during the period that they were negotiating the collective bargaining agreement on behalf of their respective principals. Both Stuart and Goad later misused some of the fringe benefits money that the participating employers paid into All State. Stuart used part of the money to satisfy delinquent withholding taxes that were due from his plastering business. Goad used part of the money to finance his unsuccessful campaign for re-election as Business Manager of Local 15. The various infirmities and delinquencies connected with the administration of the fringe benefits money surfaced only after Goad’s defeat in the re-election campaign, when Goad crossed the aisle to join Stuart on the management side, and a new union administration uncovered the previous irregularities.

Francis Snider, Goad’s successor as Business Manager of Local 15, informed participating employers, on March 1, 1970, that they should make no further pension contributions to All State Administrators. He instructed them to make payments, instead, to an escrow account to be designated by the union. The reason for this change in method of operation, as stated in the letter, was that: “[implementation of the pension program, consistent with federal law has not occurred. The required trust agreement has neither been drafted or approved. In addition, it appears that trustees who will serve in the administration of the pension fund have not yet been appointed.” Snider did not give his reasons for believing that the pension fund was not lawfully organized after a year of its supposed operation, and he did not offer any legal authority for his instruction that the employers should make future payments to a union-designated escrow account. Without indicating any legal basis for a different approach to the health and welfare fund, he ordered the employers to continue making health and welfare payments to All State. By affidavit, Stuart testified that he paid pension fund contributions directly to his employees after March 1, 1970.

On September 25, 1970, Snider informed the participating employers, again cryptically, that the Local 15 membership had “voted down all fringe benefits at a special meeting” and that the employers, therefore, should withhold payments to both funds or, alternatively, make payments directly to their respective employees, until further notice by the union officials. By affidavit, Stuart set out the details of health and welfare payments, and alleged that he had attempted, in light of the confusion surrounding the propriety of payments to the fund, to follow the wishes of his employees, who sometimes wished payments to be made directly to them and, at other times, to the fund. These facts indicate the uncertainties of administration that Congress intended to eradicate in the enactment of Section 302.

In the first round of this litigation, the alleged trustees of the union’s health and welfare fund sought recovery of the money paid to All State Administrators and later misused by Goad and Stuart. See Snider v. All State Administrators, Inc., 5 Cir. 1973, 481 F.2d 387. The present suit, brought under Section 301, 29 U.S.C. § 185, to compel payments that Stuart allegedly owed and did not pay in due course, was initiated by Local 15 and the alleged trustees of the pension fund. The complaint was later amended to include the alleged trustees of the health and welfare fund. The union maintains that Stuart Plastering Co. and its alleged successors failed to comply with their duty under the collective bargaining agreement to make specified payments into the union health and welfare fund and the pension fund. Stuart contends that it had no obligation to make the disputed payments because the instruments relied on by the plaintiffs do not meet the necessary prerequisites for settling a qualifying Taft-Hartley Trust in accordance with Section 302(c)(5). Stuart insists, therefore, that such payments would be unlawful under Section 302(a) and would subject it to possible criminal liability under Section 302(d).

The district court granted Stuart’s motion for summary judgment, stating: “[t]here is no genuine issue of fact as to the non-existence of a written agreement signed by any of the defendants conforming to the requirements of 29 U.S.C. § 186 which is an absolute prerequisite to any obligation on the part of the defendants ... to make payments to a pension and/or health and welfare fund represented by the plaintiffs.” The appellants now contend that the district court improperly granted summary judgment for the defendants, because the writings in the record were sufficient to meet the requirements of Section 302 and thus imposed on Stuart an enforceable obligation to make such payments.

II

The district court granted the defendants’ motion for summary judgment when it found, on the basis of the record before it, that there was “no genuine issue of fact as to the non-existence of a written agreement signed by any of the defendants conforming to the requirements of 29 U.S.C. § 186”. The plaintiffs, as well as the defendants, moved for summary judgment. The court held two hearings on the defendants’ motion before it finally granted summary judgment.

Under Fed.R.Civ.P. 56(c), summary judgment shall be granted “if the pleadings, depositions, answers to interrogations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed. See 6 Moore’s Federal Practice ¶ 56.13, p. 2247 (1974); Volunteer State Life Insurance Co. v. Henson, 5 Cir. 1956, 234 F.2d 535. The rationale for this rule, of course, is that each party moving for summary judgment may do so on different legal theories dependent on different constellations of material facts. Indeed, cross-motions for summary judgment may demonstrate a genuine dispute as to material facts as often as not. Judge Jones discussed this principle in light of the facts in Henson;

“We need not say that the one affidavit contradicts the other, but each affidavit tends to and was intended to support the theory of the party offering it. Other affidavits offered by the one side or the other create or emphasize differences between the facts asserted and the legal theories advocated by the respective parties.”

234 F.2d 535, 537. Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive. The record here indicates that the only genuine issue in this case concerns the legal sufficiency of the documents to constitute a “writing” in compliance with Section 302.

The record contains all the relevant documents that the trial court considered in granting summary judgment. The collective bargaining agreement itself was appended to the complaint as “Exhibit A”, and the two trust indentures were attached as exhibits to the defendants’ requests for admissions. In response to those requests, the plaintiffs admitted that the Pension Trust Fund indenture is “genuine and the only document being relied upon by the Plaintiffs to prove their allegations . . . that the defendants were required to and failed to make payments to such pension trust fund besides the Collective Bargaining Agreement.” They admitted also that the Health and Welfare Fund indenture “is genuine and the only document being relied upon ... to prove their allegations . . . that the defendants were required to and failed to make payments to such Health and Welfare Fund, besides the Collective Bargaining Agreement”.

That the evidence in a case consists mainly of documents is, of course, insufficient by itself to warrant summary judgment. Commercial Metals Co. v. Walker, 5 Cir. 1971, 439 F.2d 1103. The district court was justified in determining that the only issue to be resolved was that of the legal sufficiency of the documents in light of the requirements of Section 186. Summary judgment was appropriate under Fed.R.Civ.P. 56 because there was no genuine issue as to any material fact.

Ill

The question at issue turns on the proper construction of Section 302.

The design of Section 302 discloses two basic congressional concerns. First, Congress intended to subject to close regulation the administration of union funds providing employee fringe benefits such as pensions and health and welfare payments. Congress wished to remove these funds from the absolute control of union officials by giving employers a co-ordinate responsibility for their administration. Second, Congress intended to prohibit special payments by employers and employer associations to employees, employee organizations, and officers of such organizations, except on conditions carefully prescribed by law. One of these exceptions to that general prohibition permits employers to make payments to a trust fund established for the sole and exclusive benefit of their employees and families, for the purpose of paying for medical or hospital care, pensions, compensation for employment-related injuries and illnesses, unemployment benefits or life insurance, disability and sickness insurance, or accident insurance. The requirements that must be met in establishing a valid Taft-Hartley trust are prescribed in Sections 302(c)(5)(B) and 302(c)(5)(C).

Section 302(c) is a narrow exception to the general prohibition of employer-employee payments contained in Sections 302(a) and 302(b). Strict compliance with the terms of Section 302(c) is required to settle a qualifying TaftHartley trust. As Judge Waterman said in Moglia v. Geoghegan, 2 Cir. 1968, 403 F.2d 110, 115: “[a] reading of the legislative history of Section 302 shows that Congress intended to prohibit the establishment of any union funds by means of employer payments unless the funds conformed in all respects with the specific dictates of Section 302(c)”.

Section 302 requires adherence, in the settlement of Taft-Hartley trusts, to a purposefully rigid structure of design to insure that employer contributions are made only for proper purposes and that fund benefits reach only proper parties. Senator Ball, one of the managers of this legislation in the Senate, aptly expressed the legislative purpose when he said that “unless . . . such funds, when they are established, are really trust funds and are actually used for the benefit to employees specified in the agreement, there is very grave danger that the funds will be used for the personal gain of union leaders, or for political purposes, or other purposes not contemplated when they are established, and that they will in fact become rackets.” 93 Cong.Rec. 4678 (1947). Judge Waterman reiterated this congressional concern, and the co-ordinate need for its strict judicial enforcement, when he said in Moglia that “[a]ny erosion of the strict requirements of the section could provide an unintended loophole for the unscrupulous, and could result in a diversion of funds away from the proper parties as had occurred before Section 302 was enacted.” 403 F.2d 110, 116.

The Section 302(c) exception to the general prohibition of employer-employee payments requires that an employer’s payments be made “to a trust fund.” This requirement that payments be made to a trust fund presupposes the execution of formalities that prevent the allocation of trust assets for purposes not contemplated when the trust fund is established. By incorporating the trust mechanism into the design of Section 302, Congress clearly intended to draw uppn established principles of state trust law as a means of regulating employer-employee payments. Consequently, the courts have narrowly construed the federal civil remedy provided in Section 302(c). Judge Simpson of this Court, surveying this difficult intersection of state and federal law, has pointed out:

Trust funds for the benefit of union members are established under the laws of the respective states. Federal law affects union trust funds only to the extent that Congress has elected to exempt employer contributions to such funds made under the terms of a labor-management contract from the general prohibition on employer payments to employee organizations. While Congress thought it necessary to prevent potential abuse of this exemption to stipulate the conditions under which payments can be legally made, State authority remains the legal foundation upon which such funds are constructed. Snider v. All State Administrators, Inc., 5 Cir. 1973, 481 F.2d 387, 390.

The objective of this legislation was to guarantee that payments made by employers were used to provide employees with the benefits to which they were entitled under a collective bargaining agreement. Congress chose to effectuate this purpose by providing for trust funds in which employees, as trust beneficiaries, would have a legal right to supervise the administration of the funds to the extent of enforcing the provisions of a trust agreement against faithless fiduciaries. Senator Taft, a principal architect of the legislation, explained in the debates that “the purpose of the provision is that the welfare fund shall be a perfectly definite fund, that its purposes shall be that each employee can know what he is entitled to, can go to court and enforce his rights in the fund, and that it shall not be, therefore, in the sole discretion of the union or the union leaders and usable for any purpose which they may think is to the advantage of the union or the employee.” 93 Cong. Rec. 4876 (1947) (emphasis added). The Supreme Court acknowledged this aspect of the congressional intent: “Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetuate control of union officers, for political purposes, or even for personal gain.” Arroyo v. United States, 1959, 359 U.S. 419, 426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915.

It is impossible, of course, to ascertain at the establishment of a fixed contribution type employee benefit plan what precise payments will be available for distribution to beneficiaries at some future date. The level of those payments can be established with certainty only by reference to general economic conditions, investment yields, the relative strength of a particular established fund, and the actual and projected levels of demands made upon the fund for payments at any specific time. Because of this confluence of complex economic considerations, trustees of a fixed contribution trust fund must, in most circumstances, be accorded some discretion in determining questions of eligibility and the precise contours of benefits to be awarded. See D. Fellers, A General Theory of the Collective Bargaining Agreement, 61 Calif.L.Rev. 633, 732-33 (1973); R. Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Q. 911 (1970). In a fixed contribution plan, and unlike a fixed level of payments plan, the employee’s primary source of protection lies in the rigorous standard of fiduciary duty owed by a trustee to the trust beneficiaries. In the absence of a valid trust agreement, or at least the appointment of trustees, this important source of protection is lost.

The existence of a trust fund that meets the requirements of applicable state law is a prerequisite to lawful employer payments to a trust fund under Section 302(c)(5). In addition, however, Section 302(c)(5) sets forth its own special requirements. The first of these is that the burden of establishing a qualifying trust fund must be met by the employee organization representative; the statute clearly prescribes that payments may be made “to a trust fund established by such representative”. It may not be assumed, therefore, that the employer’s obligation to make payments specified by the collective bargaining agreement exists in the absence of a trust agreement.

A writing is not categorically required to settle a viable trust. G. G. Bogert and G. T. Bogert, Handbook of The Law of Trusts § 21 (1973); 1 A. Scott, The Law of Trusts §§ 17 & 17.1 (2d ed. 1956). Section 302(c)(5), on the other hand, specifically requires that employee payments must not only be held in trust, but that “the detailed basis on which such payments are to be made” must be “specified in a written agreement with the employer.” Moreover, the written agreement must provide a mechanism for resolving possible disputes between the employee representative trustees and their employer counterparts. The written agreement must also provide for an annual audit of the trust fund. Finally, under Section 302(d), payments earmarked for pension benefits must be segregated from payments intended for any other proper purpose, and a separate trust fund must be established for the purpose of safeguarding pension payments. Taken together, the state and federal requirements constitute a double-tiered system of purposefully rigorous regulation of union fringe benefit trust funds. Judicial adherence to the intention of Congress in enacting Section 302 requires strict enforcement of the purposefully rigid structure provided in this section.

Local 15 contends that an enforceable obligation to contribute to a “trust fund” was created by the collective bargaining agreement here. Essentially, the appellants contend that the mere existence of “a writing” is sufficient to comply with the requirements of Section 302. In their view, it is not necessary to determine whether the writing contains in fact the specific provisions that Section 186 explicitly requires such a writing to contain. The thrust of its argument is that the execution of a collective bargaining agreement anticipating the creation of a trust fund (which may or may not take place thereafter) is a sufficient written agreement to comply with the statutory requirements if it merely states a schedule of payments that an employer is required to make to the “trust fund” during the life of the contract. The flaw in this argument is that although the amount of required payments may form the focus of a union’s interest in fringe benefit funds, that limited perspective does not epitomize the congressional concern that led to the enactment of Section 302.

Alternatively, the appellants contend that the collective bargaining agreement was a sufficient writing because it incorporated by reference essential terms that were contained in other writings, although they were absent in the collective bargaining agreement itself.

The collective bargaining agreement here is clearly limited in its terms to a statement of payment amounts, required at various points in time. Article 2, Section 4, entitled “Fringe Benefits”, provides:

In addition to above wage scales as outlined in Article 2, Section 1 & 2 above, the following amounts shall be paid into health and welfare fund. Such fund shall be designated by Local No. 15, Plasterers International Union of America, Orlando, Florida. These amounts shall begin March 1, 1969, and continue for life of this contract as dates indicate. [Hereafter follows a schedule of payments to be made biennially for two categories of benefits called, respectively, “Health and Welfare” and “Pension”.]

In terms, this provision of the collective bargaining agreement contemplates the creation of a single “health and welfare fund”. The purpose of that fund would be to hold both “Health and Welfare” and “Pension” funds. That scheme, of course, violates the plain language of Section 302(c)(5)(C), which requires that “such payments as are intended to be used for the purpose of providing pensions or annuities for employees [must be] made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities”. Moreover, the collective bargaining agreement makes no provision for any annual audit or for any mechanism that would effectuate the breaking of trustee deadlocks.

The appellants acknowledge these infirmities. Indeed, Local 15 Business Manager Francis Snider, in a letter dated March 1, 1970, informed participating employees that no pension fund had been established that conformed to legal requirements, and that the employees should discontinue payments to the pension fund until a qualifying trust could be established. Of course, he did not refer to the language of the collective bargaining agreement, which would cast doubt on the possibility of establishing a qualifying fund. Later, on September 25, 1970, Snider informed them that Local 15 had “voted down all fringe benefits at a special meeting” and that the employers should hold payments to both funds until further notice. He also told them that “[i]f you are now paying these benefits directly to the employee as part of their wages you may continue to do so”. This assumption of control by the union business manager and his direction to pay fringe benefits directly to the union members would seem to constitute a plain violation of Section 302. Yet, the appellants contend that a schedule of amounts to be paid into “the fund” constitutes the only essential element that is practically subject to negotiation and agreement in the collective bargaining context. All other matters, they suggest, must be left to future negotiation.

In this view, the establishment of a payment schedule is sufficient both to fasten upon the employer a duty to contribute the specified amounts and to protect him from criminal liability for doing so. This argument, of course, raises a serious question as to how the prophylactic policy of Section 302(c) is to be implemented if, as here, an employer has a duty to make specified payments to a trust fund whose existence in specific terms is an entirely independent event and not logically prior to the employer’s duty to contribute. It is difficult to square the language of Section 302(c)(5), which makes the employer’s right to contribute to such funds contingent on their establishment by union representatives, with such a theory of employer liability. Presumably, the establishment of such funds entails compliance with the specific requirements set out in the statute itself.

In short, the policies of the section, with regard to a careful delineation of trustee powers and duties, cannot be accomplished if an employer’s duty to make payments arises in anticipation of the creation of a trust fund that, as here, may never be created in fact. To adopt the appellants’ liberal construction of Section 302(c) would subvert the intent of Congress and license the loose management of fringe benefit funds. This, Congress specifically sought to prevent. It occurred here with respect to those amounts that were in fact paid into “the fund” only to be used by Stuart and Goad for their individual purposes. See Snider v. All State Administrators, Inc., 5 Cir. 1973, 481 F.2d 387.

Alternatively, the appellants contend that the collective bargaining agreement was a sufficient written agreement under Section 302(c) because it incorporated by reference the terms of other writings that did, in fact, supply the essential provisions required by statute. We cannot accept this approach. First, an instrument may incorporate by reference only the terms of an instrument already in existence. Scott states this principle as it applies to the law of wills:

In some states, it is held that an unattested instrument can be incorporated in a will by reference to it in the will, with the effect that it becomes a part of the will. This doctrine is rejected in many states; and in the states in which it is accepted it is essential that the unattested instrument should be in existence at the time of the execution of the will and should be referred to in the will as an existing document.

1 A. Scott, The Law of Trusts § 54.1, p. 362 (2d ed. 1956). Second, the chronology of the instruments renders that approach impossible. The collective bargaining agreement was signed in December 1968. The pension trust agreement, though never signed, is dated 1970. The health and welfare trust agreement is dated 3 February 1969. Neither instrument, therefore, could have been incorporated by reference into the collective bargaining agreement.

Other substantial obstacles exist. First, the collective bargaining agreement “anticipates” the creation of only a health and welfare fund; it does not even “anticipate” the creation of a pension trust fund that would conform to the requirements of Section 302(c)(5)(C). Second, the pension trust indenture in the record, which appears to be dated 6 October 1970, was not executed and was not signed by any of the defendants. Moreover, the appellants do not now contend, nor did they offer to prove in the district court, that the defendants ratified or assented to this particular agreement by making any payments that were consistent with its terms after the apparent date on its face. Indeed, they maintain in their brief that the defendants made no pension fund contributions after March 1, 1970, the date that Snider informed participating employers of the non-existence of any lawful pension fund. Third, the health and welfare trust indenture was not signed by any of the defendants. That indenture specifically provides that it will be binding only among the union, signatory employers, “and such other employers who may hereafter become parties to this Agreement by executing the agreement to be bound by this Agreement”. The appellants did not produce, nor did they offer to produce, nor did they allege the existence, either in the district court or in this Court, of any such agreement signed by any of the defendants. See N. Levin, Labor-Management Benefit Funds 33-35 (1971).

In the face of this language, we do not think that the mere fact that some payments were made can supply the element of definiteness that Congress prescribed. As Justice Brennan noted, “[c]ommon practice cannot change the law and make into bargaining unit ‘employees’ those who are not”. Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 1971, 404 U.S. 157, 176, 92 S.Ct. 383, 30 L.Ed.2d 341, 356. Similarly, we are not at liberty to bind an employer to make payments that, if made voluntarily, would violate Section 302.

Finally, Local 15 contends that the district court “may have attributed a controlling significance” to Moglia v. Geoghegan, 2 Cir. 1968, 403 F.2d 110. The facts of that case are distinguishable from those presented here. We find no evidence in the record, however, that the district court found Moglia “controlling” or attributed improper significance to Judge Waterman’s able discussion of the statutory history and intent.

The decision of the district court is affirmed.

      . Considerable doubt was initially cast on the payment procedures when the alleged trustees of the health and welfare fund brought suit in Snider v. All State Administrators in October 1969.

      . Section 301 of the National Labor Relations Act, now codified as 29 U.S.C. § 185, provides in relevant part that:
      (a) Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
      The plaintiffs also sought a declaratory judgment under 28 U.S.C. § 2201 and further necessary or proper relief under 28 U.S.C. § 2202.

      . The successorship question is not relevant to our disposition of this case. For the sake of simplicity, we will hereafter refer to the respondents as “Stuart” or “the employer”.

      . Stuart is apparently unable to bear the financial burden of this appeal; it did not file a brief in this court and was not represented by counsel at oral argument. We have stated Stuart’s position here by restatement of the contentions it raised in the court below.

      . 29 U.S.C. § 186(c)(5) provides in relevant part that:
      (c) The provisions of this section shall not be applicable * * * (5) with respect to money . . . paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer . . . Provided, That (A) such payments are held in trust (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally represented in the administration of such fund, together with such neutral persons as the representatives of the employers and the representatives of employees may agree upon . . and shall also contain provisions for an annual audit of the trust fund, a statement of the results of which shall be available for inspection by interested persons at the principal office of the trust fund and at such other places as may be designated in such written agreement; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities.

      . 29 U.S.C. § 186(a) provides that:
      It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
      (1) to any representative of any of his employees who are employed in an industry affecting commerce; or
      (2) to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce; or
      (3) to any employee or group or committee of employees of such employer employed in an industry affecting commerce in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing; or
      (4) to any officer or employee of a labor organization engaged in an industry affecting commerce with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization.

      . 29 U.S.C. § 186(d) provides that:
      (d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both.

      . In the admissions filed November 26, 1973, the plaintiffs qualified their admission concerning the Pension Fund indenture by stating that it is “an unexecuted copy of the declaration of trust which was formally adopted and executed by the proper trustees of the Fund” (emphasis added). This qualification was probably intended to create a genuine issue of material fact. See Local Union No. 529, United Brotherhood of Carpenters v. Bracy Development Co., W.D.Ark.1971, 321 F.Supp. 869, 876; Dunbar v. Painters & Glaziers District Council No. 51, D.D.C.1955, 129 F.Supp. 417, 422. That qualification has long since been abandoned; the plaintiffs now admit that the declaration of trust was never executed in fact. The plaintiffs do not allege in their brief on appeal that the declaration of trust was executed, and counsel for the plaintiffs admitted at oral argument that the declaration of trust was not signed. They now take solace from the dictum rather than the holding of Dunbar. See 129 F.Supp. 417, 422-423 and 312 F.Supp. 869, 876. Francis Snider, Goad’s successor as Business Manager of Local 15, wrote to participating employees on March 1, 1970, and directed them to make future pension fund payments to an escrow account because the “required trust agreement has neither been drafted or approved.” This letter is in the record.

      . Plaintiffs qualified this admission by stating that it is a genuine document but they questioned “the circumstances surrounding its ereation and adoption”. The Health and Pension Fund trust indenture was not signed by Stuart or by anyone connected with Stuart Plastering. The employers who signed the instrument were Claud McCullogh and W. S. Pyne. In terms, the instrument bound only “[t]he undersigned Employers [McCullogh and Pyne] and such other Employers who may hereafter become parties to this Agreement by executing an Agreement to be bound by this Agreement.” By qualifying their admission, the plaintiffs may have wanted to leave open the avenue to proving that Stuart delegated to Pyne and McCullogh the power to bind Stuart Plastering to the agreement. They made no further offer of proof. “If the non-existence of any genuine issue of material fact is established by such credible evidence that on the facts and the law the movant is entitled to judgment as a matter of law, the motion should be granted, unless the opposing party shows good reason why he is at the time of the hearing unable to present facts in opposition to the motion.” 6 Moore’s Federal Practice [I 56.15[3], p. 2339 (1974). On appeal, the plaintiffs shift their attack and allege only that “[a]lthough Stuart did not sign the declaration of trust establishing the health and welfare trust fund, he, for a period of time, contributed the prescribed amounts to the employee health and welfare fund in accordance with the fringe benefit schedule established by the collective bargaining agreement.” This language would suggest a ratification or adoption theory.

      . At the time of the enactment of the TaftHartley Amendments, Congress was particularly concerned with the control John Lewis exercised over the United Mine Workers’ welfare fund. See II Legislative History of The Labor Management Relations Act of 1947, pp. 1304-1313 (1948). See also A. Cox, Some Aspects of The Labor Management Relations Act, 1947, 61 Harv.L.Rev. 1, 291-292 (1947).

      . See especially I Legislative History of The Labor Management Relations Act of 1947, pp. 458, 798-799.

      . See II Legislative History of The Labor Management Relations Act of 1947, pp. 1304, 1311. Cf. J. Welch & H. Wilson, Applicability of Traditional Principles of Trust Law To Union And Management Representatives Administering Taft-Hartley Trusts, 22 Lab.Law J. 671, 674-75 (1972).

      . For a discussion of the differences between fixed contribution and fixed benefits plans, see J. Williams ed., Labor Relations And The Law 628-29 (3d ed. 1965).

      . The paucity of material detail in the collective bargaining agreement should be considered in light of the thorough attention that Goad and Stuart, the union and employer representatives, gave, at the same time, to the task of setting up seven corporations for the purpose of managing the trust funds for their personal profit. See Snider v. All State Administrators, Inc., 5 Cir. 1973, 481 F.2d 387, 388.

      . As a practical matter, this position is subject to serious doubt because of the already complex and sophisticated character of modern collective bargaining agreement. See Inland Steel Co. v. N.L.R.B., 7 Cir. 1948, 170 F.2d 247, 248-49, in which the Seventh Circuit held that the complexity of pension fund provisions would not remove them from the area of mandatory collective bargaining subjects. The appellants contend that the custom in collective bargaining is to agree only on the amount of contributions that employers are required to make under the terms of the agreement. Obviously, this may be the case when union and management have engaged in previous rounds of collective bargaining that have resulted in the establishment of a qualifying trust fund. After the initial round of collective bargaining, when a trust instrument memorializes agreement on factors that must be included for the trust to conform to the requirements of state and federal law, and the instrument itself forms a legal basis for the fiduciary duties of trustees, the only subject for negotiation may be the schedule of payments to be made. In that case, the terms of the existing trust may be incorporated by reference in the collective bargaining agreement. The same procedure may be followed in cases of initial collective bargaining, as here, by drafting and executing the trust agreement before the execution of the collective bargaining agreement. The entirety of this approach assumes, of course, the creation of a fixed contribution plan rather than a fixed level of benefits plan. See Kirkland, Negotiation and Administration of Health and Welfare Programs, 80 Mo.Lab. Rev. 576-79 (1957). The appellants do not, at any rate, attempt to explain their view in light of the union representative’s burden to go forward with the establishment of a qualifying trust fund that is set out in Section 302(c)(5).

      . See N.L.R.B. v. St. Louis Cordage Mills, 8 Cir. 1970, 424 F.2d 976, 980-81, n. 2: “We are at a loss to understand how monies can be paid into a fund which has failed to materialize. The Board seems to argue that the language of the section permits a distinction between ‘the fund’ and ‘the welfare fund program as conceived’. We think that that interpretation stretches the clear import of the terms used . . . The language compels the conclusion that the welfare fund either exists or it does not; it has either met all prerequisites set forth in the contract or it has not.” Although the facts in the present case are distinguishable because of the added contractual requirements in St. Louis Cordage Mills, the reasoning is equally applicable. When Snider notified the employers, on March 1, 1970, that no pension fund existed in fact, what was his legal justification for requiring continued payments into an escrow account?

      . In the proposed pension trust indenture, the binding effect of the instrument is not limited to the signatories, but is alleged to encompass “several individual employers . . . who are parties to a collective bargaining agreement.”

      . Of course, this case is to be distinguished from Lewis v. Benedict Coal Corporation, 1960, 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442. In Lewis, the Court held that an employer may not assert a union’s breach of other provisions of the collective bargaining agreement as justification for nonpayment of its trust fund contributions. In this case, the controversy goes to the validity of the trust provis*on itself.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Atkin F. SELTZER and Helen Seltzer, his wife, Plaintiffs-Appellants, v. William W. CHESLEY, Jr., as Special Administrator of the Estate of Linda Joyce Berryhill, Deceased, et al., Defendants-Appellees.
    No. 73-2786.
    United States Court of Appeals, Ninth Circuit.
    March 3, 1975.

      Richard E. Skousen (argued) Mesa, Ariz., for plaintiffs-appellants.
    Michael A. Beale (argued) Phoenix, Ariz., for defendants-appellees.

       The Honorable Jack R. Miller, Judge United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

Before BARNES and SNEED, Circuit Judges, and MILLER, Judge, U. S. Court of Customs and Patent Appeals.

MILLER, Judge.

This appeal is from a judgment of the United States District Court for the District of Arizona in favor of defendantsappellees in a diversity action brought by plaintiffs-appellants to recover for personal injuries suffered in an automobile accident in 1969. We affirm.

THE CASE

Plaintiffs-appellants instituted this action in the Superior Court of the State of Arizona in and for the County of Maricopa to recover damages for personal injuries resulting from collision of their automobile with one driven by Linda Joyce Berryhill and owned by Adrian Berryhill and Gladys Berryhill. The action was removed by defendants to the District Court for the District of Arizona and tried before a jury. At the close of plaintiffs’ case, motion was made for a directed verdict in favor of Adrian Berryhill and Gladys Berryhill on the ground that no liability had been established under the family purpose doctrine. The trial judge reserved ruling on the motion until both sides had rested, at which time the motion was granted, leaving for the jury the case against defendant Linda Joyce Berryhill.

Pertinent portions of the instructions to the jury are set forth below:

Don’t single out any one thing I may say as stating the law, but consider my instructions as a whole.
Now the defendant [Linda Joyce Berryhill] here claims as a defense that even if you should find that she was negligent in the operation of her automobile, the claim then is that the plaintiff was likewise negligent, guilty of contributory negligence. Now whether or not the plaintiff was so contributorily negligent is to be determined by you under the same rules as I have given you already with reference to the question of negligence and proximate cause.
Contributory negligence then is negligence on the part of the plaintiff which, combining with the negligence of the defendant, contributes in proximately causing the injury to the plaintiff.
If the conduct of both plaintiff and defendant was negligent and if the negligence of each, considered separately, was a proximate cause of the accident, then in such a case the plaintiff should not recover.
On the other hand, if you should unanimously find from a . preponderance of the evidence in the case, that the plaintiff was guilty of some contributory negligence and that plaintiffs’ fault contributed as a proximate cause of any injuries which plaintiffs may have sustained, you will not then be concerned with the issue as to damages, but will return a verdict for the defendant.
And so if you find that the plaintiffs were negligent and that such negligence contributed as a proximate cause, your verdict should be for the defendant.
Contributory negligence then is negligence which, co-operating in some degree with the negligence of another, contributes in proximately causing the accident. The one who is contributorily negligent should not recover from another no matter how negligent the other may have been.
If you find that Atkin Seltzer was negligent, then such negligence, under the law, is imputed to his wife, Helen Seltzer, and she may not recover from the defendant in that event; in other words, she cannot recover in the event Mr. Seltzer was contributorily negligent or was the sole cause of the accident. [Emphasis supplied.]

Appellants’ counsel objected to the judge’s instructions on the ground that they contained the mandatory terms “will” and “cannot” in discussing contributory negligence; whereas Arizona law requires the permissive term “should.” Counsel also stated that he felt the error could not be corrected without emphasizing contributory negligence to the jury. Thereafter the trial judge instructed the jury:

Ladies and gentlemen, in the course of my instructions with you in connection with the question of contributory negligence, I may have made a misstatement as to what the law is in the State of Arizona.
I should have said to you that if you find that Mr. Seltzer was contributorily negligent, then you should not— should not find a verdict for Mrs. Seltzer. [Emphasis supplied.]

Appellants’ counsel again objected on the ground that the corrected instruction omitted the instruction of proximate cause. Thereafter the trial judge instructed the jury as follows:

In connection with the instruction on contributory negligence, it is necessary, of course, that if you find there was contributory negligence, that you further find that that contributory negligence was the proximate cause of the injuries — a proximate cause of the injuries. And so if you find that there was contributory negligence and that that contributory negligence proximately caused the injury, then you would not find, or you should not, rather, I should say, under the Arizona law, you should not find a verdict for Mrs. Seltzer. [Emphasis supplied.]

The jury returned a verdict for defendant Linda Joyce Berryhill, and judgment was entered in favor of all appellees.

Appellants contend that the trial judge committed incurable error requiring an automatic mistrial when he gave the jury mandatory instructions on contributory negligence (“will return a verdict for the defendant” and “cannot recover in the event Mr. Seltzer was contributorily negligent”), rather than the permissive instructions required by Arizona law (“should find for the defendant”). Error is also asserted for unduly emphasizing contributory negligence to the jury because of the two curative instructions. Finally, appellants argue that the evidence viewed most favorably to them adequately supports the application of the family purpose doctrine to this case; that, therefore, the trial judge erred in directing a verdict for defendant Linda Joyce Berryhill’s parents.

OPINION

Arizona Law

The Constitution of Arizona, Article XVIII, § 5, A.R.S., contains a rather unusual provision which appears to have its only counterpart in Article XXIII, § 6 of the Oklahoma Constitution:

The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.

Under this provision, the jury has not only the right to determine the facts, but also to apply or not apply, as it sees fit, the law of contributory negligence as a defense. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); Arizona Supreme Court: Contributory Negligence— Confusion Out of Compromise, 13 Ariz.L. Rev. 556 (1971). A mandatory charge on contributory negligence is “fundamentally defective.” Chavez v. Pima County, 107 Ariz. 358, 488 P.2d 978 (1971). It is such a fundamental error that it is not waived by failure to object. Bland v. Bock, 8 Ariz.App. 97, 443 P.2d 704 (1968). The proper charge is permissive, employing a word such as “should.” Purchase v. Mardian Constructipn Co., 21 Ariz.App. 435, 520 P.2d 529 (1974).

Appellants have cited no case and we have discovered none, holding that a mandatory instruction on contributory negligence under Arizona law is an incurable error requiring an automatic mistrial. However, appellants argue that the following statement in Heimke suggests that an automatic mistrial is required:

At the conclusion of the court’s instructions to the jury, counsel for plaintiffs[] indicated to the court that he did not know how the instruction could now be corrected but that he wished to renew his objection. Counsel for defendant then suggested that the instruction be repeated in a corrected form; to which plaintiffs stated that this would only emphasize that particular aspect of the litigation. We think it sufficient to say that a party cannot be put to a choice of two evils, neither of which is of his making. We do not find a waiver of the error under these circumstances.

In that case, which involved an automobile collision, the plaintiffs refused to let the trial judge read the corrected instruction, and the defendant argued that this constituted waiver of the right to claim error on appeal. Although the court found no waiver, the important point is that the corrected instruction was never given to the jury. Thus, the jury was sent out for deliberations with the incorrect instruction, leaving the Supreme Court of Arizona no choice but to reverse. Accordingly, the statement regarding “choice of two evils” is dictum at most. See Kelch v. Courson, 7 Ariz.App. 365, 439 P.2d 528 (1968), where the court indicated that, if proper objection had been made to the contributory negligence charge, the trial court would presumably have corrected any errors in the form of the instruction.

Applicability of Federal Procedural Rules and Law

The U. S. Supreme Court has made it clear that under the Erie doctrine state law is not controlling over the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Accordingly, state law is not controlling on matters covered by Rule 51. 5A Moore’s Federal Practice, f 51.04 n 3. Federal courts also follow their own rules, regardless of state legislation and practice, in the manner and method of giving instructions to the jury. Wright & Miller, Federal Practice and Procedure: Civil § 2555. Thus, the Eighth Circuit, in Stafford v. Southern Farm Bureau Casualty Ins. Co., 457 F.2d 366 (1972), held that the trial judge was not bound to follow a particular Arkansas Model Instruction; that he was only required to properly instruct the jury on all elements of the case in light of controlling Arkansas law. In the context of a trial judge’s refusal to give a requested instruction, that court stated that how an instruction is to be given or conveyed is a procedural matter which is for the federal trial judge. County of Todd v. Loegering, 297 F.2d 470, 480-81 (8th Cir. 1961). See also Palmer v. Miller, 145 F.2d 926 (8th Cir. 1944), where the court said that “[t]he question [of reiterating statements on burden of proof] is one relating to federal procedure and is not controlled by state decisions.” The Seventh Circuit, in Odekirk v. Sears Roebuck & Co., 274 F.2d 441 (1960), rejected the contention in a diversity case that Illinois law was controlling on the manner of instructing the jury on burden of proof and held that federal procedural rules controlled. The Second, Sixth, and Tenth Circuits have stated that the granting or denial of instructions in diversity cases is controlled by federal laws and federal rules. McNamara v. Dionne, 298 F.2d 352 (2d Cir. 1962); Lones v. Detroit, Toledo and Ironton R.R., 398 F.2d 914 (6th Cir. 1968); Smith v. Mill Creek Court, Inc., 457 F.2d 589 (10th Cir. 1972)..

We are persuaded by the foregoing authorities and hold that federal procedural rules and law control the manner and method of instructing the jury in federal courts.

Were the Trial Judge’s Erroneous Instructions on Contributory Negligence Cured by His Subsequent Instructions?

In Mercer v. Theriot, 377 U.S. 152, 84 S.Ct. 1157, 12 L.Ed.2d 206 (1964), the Supreme Court held that certain erroneous instructions of the trial judge on circumstantial evidence were corrected by a specific and subsequent curative instruction in response to an objection. This underscores the purpose of Rule 51 of the Federal Rules of Civil Procedure, which is to give trial judges an opportunity to correct their instructions. Cosper v. Southern Pacific Co., 298 F.2d 102 (9th Cir. 1961).

Erroneous instructions can be corrected by the trial judge only by expressly correcting them and by directing the members of the jury to expunge the erroneous statements from their minds. Puget Sound Navigation Co. v. Nelson, 59 F.2d 697, 700 (9th Cir. 1932); Cummings v. Pennsylvania R.R., 45 F.2d 152, 153 (2nd Cir. 1930). The correction must be clear and specific. Hansen v. St. Joseph Fuel Oil & Mfg. Co., 181 F.2d 880 (8th Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 89, 95 L.Ed. 633 (1950). See United Verde Copper Co. v. Jordan, 14 F.2d 299 (9th Cir.), cert. denied, 273 U.S. 734, 47 S.Ct. 243, 71 L.Ed. 865 (1926); Seaboard Airline R.R. v. Bailey, 190 F.2d 812 (5th Cir. 1951); Keller v. Brooklyn Bus Corp., 128 F.2d 510 (2d Cir. 1942); Patterson Transfer Co. v. Schlugleit, 252 F. 359 (6th Cir. 1918).

It is well settled that instructions must be considered as a whole. Russo-Chinese Bank v. National Bank of Commerce, 241 U.S. 403, 415, 36 S.Ct. 652, 60 L.Ed. 1065 (1916); New York, Lake Erie & Western R.R. v. Estill, 147 U.S. 591, 614, 13 S.Ct. 444, 37 L.Ed. 292 (1893); Spring Co. v. Edgar, 99 U.S. 645, 659, 25 L.Ed. 487 (1879); Sweet Milk Co. v. Stanfield, 353 F.2d 811 (9th Cir. 1965). However, erroneous instructions are not cured by correct instructions in other portions of the main charge because the jury may be misled. Schroble v. Lehigh Valley R.R., 62 F.2d 993, 996 (2d Cir. 1933); Louisville & N. R.R. v. Johnson, 81 F. 679, 681 (7th Cir. 1897). Although the trial judge has discretion regarding emphasis on instructions, Flintkote Co. v. Lysfjord, 246 F.2d 368, 389 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957), undue emphasis may constitute reversible error. Grill v. Manuel, 488 F.2d 799, 802 (9th Cir. 1973); Flentie v. American Community Stores Corp., 389 F.2d 80, 83 (8th Cir. 1968); White Auto Stores v. Reyes, 223 F.2d 298, 305 (10th Cir. 1955). And curative instructions must not emphasize the error. Moreau v. Pennsylvania R.R., 166 F.2d 543, 545 (3rd Cir. 1948); Baer Bros. Land & Cattle Co. v. Palmer, 158 F.2d 278, 281 (10th Cir. 1946); Chicago, B. & Q. R.R. v. Kelley, 74 F.2d 80, 84-85 (8th Cir. 1934).

In the case before us, the initial instructions employed the proper permissive term “should,” but they also used the improper terms “will” and “cannot,” which rendered them erroneous under the substantive law of the Arizona Constitution. The jury could have been misled or confused over whether contributory negligence was a mandatory or permissive consideration. Subsequently, the trial judge specifically called the jury’s attention to the error and to the correct law of the State of Arizona. He distinctly and particularly pointed out what the law was and, in our opinion, left no doubt in the minds of the members of the jury on that point. Clear and unmistakable words were used in his curative instructions, and the error itself was not repeated or emphasized.

Accordingly, we hold that the trial judge’s erroneous instructions were properly and effectively cured. To follow appellants’ advocacy of a rule of absolute incurability of an erroneous instruction on contributory negligence would not only frustrate the purpose of Rule 51 of the Federal Rules of Civil Procedure, but would also diminish the integrity of the federal jury trial system.

Further, we are not persuaded that the curative instructions of the trial judge unduly emphasized contributory negligence to the jury. The first curative instruction, although necessary to properly state the Arizona law, was concise in pointing out the error in one sentence and correcting it in another. The second curative instruction was also concise and repeated the correct statement on contributory negligence merely in the context of an instruction on proximate cause, the instruction having been requested by appellants. It may be observed that there is no requirement that a charge on proximate cause accompany each charge on contributory negligence. Bass v. Dehner, 103 F.2d 28, 35 (10th Cir.), cert. denied, 308 U.S. 580, 60 S.Ct. 100 84 L.Ed. 486 (1939). Considering the instructions as a whole as they were finally presented to the jury, we find no error.

Family Purpose Doctrine

The remaining contention of appellants is that the trial judge erred in directing a verdict in favor of the defendant-driver’s parents on the basis that the defendant-driver’s parents were entitled to judgment as a matter of law under the family purpose doctrine. That doctrine places derivative liability upon a family head who controls the use of or furnishes an automobile to a member of the family. Pesqueira [sic] v. Talbot, 7 Ariz.App. 476, 441 P.2d 73 (1968). However, in the absence of primary liability, there can be no derivative liability. Thus, the propriety of the directed verdict has been rendered moot by our affirmance of the judgment of no primary liability.

The judgment of the district court is affirmed.

Affirmed.

      . This first objection made appellants’ position sufficiently clear to avoid any need to repeat the objection. Union Pacific R.R. v. Owens, 142 F.2d 145 (9th Cir.), cert. denied, 323 U.S. 740, 65 S.Ct. 57, 89 L.Ed. 593 (1944).

      . Appellants’ argument that Arizona decisions upholding imputed contributory negligence of a husband-driver to wife-passenger should be abrogated was abandoned at oral argument.

      . It follows that if a verdict “should” be for the defendant, then it “should not” be for the plaintiff. Because the word “should” is conditional, the phrase “should not” is also conditional. Shaya v. Petzoldt, 21 Ariz.App. 91, 515 P.2d 1189 (1973). With regard to the trial court’s use of the term “should not,” appellants assert no error, presumably in view of Shaya.

      . Counsel for plaintiffs-appellants in Heimke and the instant case are identical.

      . Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . In a previous case the Court held that Rule 3 was not applicable and that a Kansas statute, requiring service of a summons on a defendant to commence an action, controlled. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). However, in Hanna, the Court said (at 470, 85 S.Ct. at 1143): “The Erie rule has never been invoked to void a Federal Rule.”

      . Rule 51 provides:
      At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. [Emphasis supplied.]

      . The Tenth Circuit, in Basham v. City Bus Co., 219 F.2d 547 (1955) went so far as to hold that the counterpart provision in the Oklahoma Constitution was not controlling in federal court trials. The Supreme Court itself has held that Article XVIII, § 5 of the Arizona Constitution is not binding on federal courts sitting in Arizona with respect to granting a directed verdict for defendants. Herron v. Southern Pacific Co., 283 U.S. 91, 51 S.Ct. 383, 75 L.Ed. 857 (1931).


author: STEVENS, Circuit Judge.

text:
    STREAM POLLUTION CONTROL BOARD OF the STATE OF INDIANA, Plaintiff-Appellee, and Zarko Sekerez, Proposed Intervenor, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
    No. 74-1244.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 20, 1975.
    Decided March 14, 1975.
    As Amended March 24, 1975.

      Zarko Sekerez, pro se.
    Theodore L. Sendak, Atty. Gen., Michael T. Schaefer, Deputy Atty. Gen., Indianapolis, Ind., Henry L. Pitts, Chicago, 111., G. Edward MeHie, Hammond, Ind., for appellee.

      Before STEVENS, SPRECHER and TONE, Circuit Judges.
   STEVENS, Circuit Judge.

Appellant, a private citizen, asks us to reverse an order denying his motion to intervene in a common law public nuisance action brought by the Stream Pollution Control Board of the State of Indiana against U. S. Steel Corporation. The questions presented are (1) whether the federal district court has jurisdiction of the underlying nonstatutory claim and, if so, (2) whether appellant has a statutory right to intervene pursuant to § 505(b)(1)(B) of the Federal Water Pollution Control Act Amendments of 1972.

The Board’s amended complaint invokes the district court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331(a). It characterizes this case as “an action to abate pollution of the Grand Calumet River, a navigable stream and tributary of Lake Michigan, a body of interstate water.” Specifically, the Board alleges that defendant’s industrial plant in Gary, Indiana, has discharged cyanide and ammonia nitrogen into the river in quantities which exceed the limits specified by the Board’s regulations. In its prayer for relief, the Board asks the federal court to order defendant to abate its pollution of the Grand Calumet River, to enter judgment in the amount of $80,000 (representing penalties authorized by Indiana statute), and to grant “all other proper relief in the premises.”

Appellant, a private citizen of Indiana, moved to intervene, alleging that his interests in the waters of Lake Michigan and the environment of the State of Indiana may be adversely affected by these proceedings. He adopted the Board’s allegations and, in addition, alleged that defendant was causing oil to accumulate in the river and that its discharges were polluting Lake Michigan. He claimed “an unconditional right to intervene” pursuant to § 505(b)(1)(B).

The district court denied the motion to intervene, holding that the nuisance action was not brought to require compliance with an effluent standard or limitation promulgated pursuant to the Federal Water Pollution Control Act Amendments of 1972 (hereinafter “the 1972 Act”), and therefore that § 505(b)(1)(B) of that Act did not grant appellant a right to intervene. The district court also denied U. S. Steel’s motion to dismiss, holding that the jurisdictional question was answered by the unanimous opinion of the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712. We affirm.

I.

Before reaching the question whether appellant has a statutory right to intervene we must decide whether the district court has jurisdiction of the underlying claim. For, as defendant argues, if it is apparent from the record that jurisdiction is lacking, we must order the action dismissed. Moreover, the jurisdictional question must be answered by reference to the allegations in the amended complaint, unaided by the additional allegations in pleadings submitted in support of the motion to intervene. See Pianta v. H. M. Reich Co., Inc., 77 F.2d 888, 890 (2d Cir. 1935).

The Board’s amended complaint, unlike appellant’s pleadings, contains no allegation of pollution of Lake Michigan. Nor do the pleadings contain any allegation that the interests of any sovereign, or of the citizens of any state other than Indiana, have been affected by defendant’s discharges. The jurisdictional question in this case is therefore not necessarily answered by the holding of the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712.

That case does, however, unequivocally confirm “ that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” Id. at 100, 92 S.Ct. at 1391. Moreover, that opinion expressly authorizes the federal courts to fashion a federal common law of public nuisance to resolve controversies involving the impairment of the environmental interests of one state by sources outside its domain.

Of greater relevance to this case are the repeated references to the controlling importance of federal law applicable to the pollution of “interstate or navigable waters.” Those references may-well imply that the federal common law of public nuisance extends to all of our navigable waters, and perhaps to all tributaries of interstate waters. We cannot tell from the Court’s opinion, however, whether, apart from statute, the federal interest in navigability would support a nuisance action without any allegation of interference with navigation, or whether the interest in the purity of interstate bodies of water is sufficient to justify nonstatutory federal protection of all tributaries. We need not, however, resolve such questions to decide the precise jurisdictional issue before us.

The question we must decide is not whether the amended complaint states a cause of action for which relief can be granted, but rather whether the complaint raises substantial questions which only a federal court may finally answer. As the Supreme Court held in Bell v. Hood:

Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. * * * The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

327 U.S. 678, 682-683, 66 S.Ct. 773, 776, 90 L.Ed. 939. , ..

The amended complaint in this case purports to state both a claim under Indiana law and a claim under federal common law. We may assume, as defendant argues, that the attempt to recover statutory penalties for violation of the Board’s regulations is not a “civil action” over which the federal court would have independent jurisdiction. Nevertheless, we cannot fairly conclude from the pleading itself that the federal claim is merely colorable and asserted solely for the purpose of conferring jurisdiction on the district court to decide the state law issues. Nor, in view of the broad language used by the Supreme Court in the City of Milwaukee opinion, with particular reference to its emphasis on the federal interest in uniformity in dealing with the pollution of interstate or navigable waters, can we characterize the Board’s federal claim as “wholly insubstantial and frivolous.” Surely enough has been alleged to give the district court jurisdiction to decide whether the Board is entitled to some relief as a matter of federal common law.

The district court correctly assumed jurisdiction of the controversy. Whether it correctly held that the amended complaint stated a federal cause of action is a question which is not properly before us on this appeal.

II.

Under 33 U.S.C. § 1365(b)(1)(B), appellant, as a private citizen, is entitled to intervene if, and only if, the underlying action was commenced and is being prosecuted to require compliance with a “standard, limitation, or order” within the meaning of the 1972 Act. We hold that an action to abate a nuisance as a matter of federal common law is not such an action and that the motion to intervene was therefore correctly denied.

The term “effluent standard or limitation under this chapter” is defined in subsection (f) to include “an unlawful act under subsection (a) of section 1311 of this title.” That subsection (i. e., § 1311(a)) provides that:

Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.

Appellant does not argue that defendant has failed to comply with any of the enumerated sections of the Act except the remaining portion of § 1311. The other sections are plainly inapplicable. The remainder of § 1311, in brief, provides a timetable for the promulgation of various effluent limitations to become effective, in some cases no later than July 1, 1977, and in others no later than July 1, 1983. Appellant argues that defendant could not possibly be in compliance with any such limitation before it has been promulgated; ergo, he argues, before an applicable limitation takes effect, defendant is totally prohibited from discharging any pollutant into the river. Since the amended complaint seeks abatement, he therefore contends that it is an action to require compliance with the 1972 Act.

On its face, § 1365(f) does not support Sekerez’ position. The term “effluent standard or limitation under this chapter” is defined as an unlawful act under subsection (a) of section 1311 of Title 33 only “effective July 1, 1973.” See n. 11, supra. The amended complaint herein refers to discharges by the Gary facility on April 12, April 19, April 26, and May 9, 1973, all well before the crucial July 1, 1973, date. Thus, § 1365(f)(1) is not available to Sekerez. As the relevant limitations, standards of performance, prohibitions, certifications, and permits referred to in § 1365(f)(2)-(6) either had not been promulgated as of the dates of the discharges or are not applicable here (see n. 12, supra), the underlying action cannot be one to require compliance with a standard, limitation, or order, the predicate for intervention under § 1365(b)(1)(B).

Even assuming, however, that the amended complaint can be read to refer to discharges continuing beyond July 1, 1973, and therefore into the time period to which § 1365(f)(1) applies, there are at least two reasons why appellant’s argument is unacceptable. First, § 1311(a) speaks in terms of compliance with sections of the statute, rather than compliance with an effluent standard or limitation. We think defendant is in compliance with the statute as long as it does not violate any of its provisions. Since its discharges cannot violate any effluent standard or limitation until after such a standard has become effective, defendant’s earlier discharges are not prohibited by the Act; defendant is therefore in compliance with the statute.

Second, appellant’s construction of the statute is dramatically at odds with the entire legislative scheme. Under appellant’s view, the promulgation of an effluent standard would be tantamount to a license to pollute, rather than a required curtailment of an existing industry practice. For, under his view, discharges are totally prohibited until the effluent limitation becomes effective, and thereafter permitted in amounts not exceeding the licensed level. It is manifest that Congress intended to require step-by-step improvement in the quality of discharged effluent, rather than a zigzag course with total purity demanded forthwith only to be succeeded by varying stages of impurity.

Judge Sharp’s order denying the motion to intervene is

Affirmed.

      . Pub.L.No.92 — 500, 86 Stat. 816. Section 505(b)(1)(B) is codified as 33 U.S.C. § 1365(b)(1)(B) (Supp. II, 1972). Because of their relevance, we quote subparagraphs (a) and (b) of § 1365 in full:
      “§ 1365. Citizen suits.
      (a) Authorization; jurisdiction.
      Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
      (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
      (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
      The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penal-' ties under section 1319(d) of this title.
      (b) Notice.
      No action may be commenced—
      (1) under subsection (a)(1) of this section' — ■
      (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
      (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
      (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,
      except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.”

      . That section provides:
      “(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”
      Paragraphs 1 and 3 of the amended complaint allege that the amount in controversy exceeds $10,000, exclusive of interest and costs.

      . For several years the Board has been trying to compel defendant to minimize these discharges. In 1967 it promulgated water quality standards which it claims U. S. Steel has violated. In 1970 the Board held an administrative hearing and ordered defendant to install new water treatment facilities; its order was set aside by the Indiana courts as not supported by adequate findings of fact.
      In 1973 the Board commenced this litigation. In its original complaint it invoked the jurisdiction of the federal court pursuant to 28 U.S.C. § 1332, alleging that the parties were of diverse citizenship. In that complaint, the Board alleged violations of its own regulations and asked the federal court to impose the statutory penalties authorized by Indiana law. Subsequently, the Board filed the amended complaint which is before us, which includes the “federal common law” nuisance claim discussed in the text.

      . For example, in his “Amended Pleading of Intervenor,” appellant alleged:
      “(12) Petitioner is a person having an interest in the waters of Lake Michigan in that he uses said waters for fishing and said interest is being adversely affected in that said waters are being polluted by the defendant and the fish are being poisoned by the defendant.
      “(13) Petitioner is a person having an interest which is or may be adversely affected in that the discharge of acids and other industrial wastes into the waters of Lake Michigan by the defendant is a threat to petitioner’s health and the health of his family.”

      . See Carson v. Allied News Co., 511 F.2d 22 (7th Cir. 1975).

      . See, e. g., the Court’s express approval of the decision in State of Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971). See 406 U.S. at 103, 107 n. 9, 92 S.Ct. 1385.

      . Id. at 99, 102, 104, 92 S.Ct. 1385.

      . “[I]t is not only the character of the parties that requires us to apply federal law. . . . As Mr. Justice Harlan indicated for the Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-427 [84 S.Ct. 923, 936-940, 11 L.Ed.2d 804], where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law.” 406 U.S. at 105 n. 6, 92 S.Ct. at 1393. (Citations omitted).

      . While U. S. Steel argues that the application of this federal common law depends on the existence of a conflict between sovereigns, we note that, with one exception, the federal district courts have permitted the federal government to utilize this federal common law as a basis for pollution-abatement actions. See United States v. Stoeco Homes, Inc., 359 F.Supp. 672 (D.N.J.1973); United States v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp. 145 (D.Vt.1972). Contra, United States v. Lindsay, 357 F.Supp. 784 (E.D.N.Y.1973). In United States v. Lindsay, the district court stated that City of Milwaukee was addressed to situations involving suits between states. 357 F.Supp. at 794. The court had announced earlier, however, that it was not deciding this question at this time. 357 F.Supp. at 793-794.

      . We need not decide, consequently, whether the 1972 Amendments and the regulations promulgated thereunder have acted to “preempt the field of federal common law of nuisance,” in Justice Douglas’ words. 406 U.S. at 107, 92 S.Ct. at 1395. Prior to the promulgation of effluent limitations, this possibility had been rejected by several courts. People of the State of Illinois ex rel. Scott v. City of Milwaukee, Wisconsin, 366 F.Supp. 298, 299— 301 (N.D.Ill.1973); United States v. Ira S. Bushey & Sons, Inc., 363 F.Supp. 110, 119-120 (D.Vt.1973); United States v. United States Steel Corp., 356 F.Supp. 556, 558-559 (N.D.Ill. 1973).

      . Subsection (f) reads as follows:
      “For purposes of this section, the term ‘effluent standard or limitation under this chapter’ means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 131-7 of this title; (5) certification under section 1341 of this title; or (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title).” 33 U.S.C. § 1365(f).

      . Section 1312 provides for the establishment of a stricter effluent limitation in areas where those defined by § 1311(b) are inadequate to maintain a water quality level “which shall assure protection of public water supplies, agricultural and industrial uses” and other important uses. No such stricter limitation has, to our knowledge, been established for this U. S. Steel facility. Thus, the reference in § 1311(a) to § 1312 is inapplicable here.
      Similarly inapplicable are §§ 1316, 1317, and 1328 which provide for effluent limitations for new point sources, special toxic pollutants, and for discharges associated with an approved aquaculture project. Nor would U. S. Steel have to obtain a permit containing the standards set forth in § 1344 for the discharge of dredged or fill material.
      Thus, the only sections with which U. S. Steel need comply are § 1311(b), which defines effluent limitations for existing point sources, and § 1342, which establishes a permit program to ensure the observance of § 1311(b)’s standards. The E.P.A. has, however, issued permits to major pollution sources even before the issuance of the relevant effluent limitations guidelines. See T. Arnold, Effluent Limitations and NPDES, 15 B.C.Ind. & Com.L.Rev. 767, 772-773 (1974); 33 U.S.C. § 1342(a)(1). Neither U. S. Steel nor Sekerez has informed us, however, that the Gary facility had in fact received a permit at the time of these discharges in early 1973. Thus, we assume that these discharges did not violate the terms of any federal permit. Similarly, as the record contains no allegation to the contrary, we assume that U. S. Steel has made proper application for a discharge permit, thus shielding it from liability for discharges in the absence of a permit under 33 U.S.C. § 1342(k). See generally, Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, at 696 (D.C.Cir., 1974).

      . Pursuant to 33 U.S.C. § 1314(b), the Administrator of the federal Environmental Protection Agency is responsible for promulgating guidelines to establish the effluent standards or limitations called for throughout the amendments. Section 1311(b) requires that existing point sources achieve, by 1977, an effluent limitation “which shall require the application of the best practicable control technology currently available” and, by 1983, an effluent limitation “which . . shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants.”
      The effluent limitations defined in § 1311(b) are to be incorporated into the discharge permits issued each point source under 33 U.S.C. § 1342(a)(1).
      At the time the underlying suit was brought by the Stream Pollution Control Board, the Administrator of the E.P.A. had not promulgated the effluent limitation guidelines that would establish the permissible emissions by the class or category of point sources of which this U. S. Steel facility is a member. Subsequently, on February 19, 1974, notice of proposed effluent limitation guidelines for the iron and steel manufacturing point source category was given. 39 Fed.Reg. 6484 (1974). These proposed limitations were adopted by the Administrator on June 28, 1974, as 40 C.F.R. Part 420. 39 Fed.Reg. 24114 (1974). We assume, arguendo, that these limitations are applicable to the source involved in this case. While 33 U.S.C. § 1314(b) had required the Administrator to adopt such regulations within one year of October 18, 1972, his failure to do so led to the issuance of a court order in Natural Resources Defense Council v. Train, 6 E.R.C. 1033 (D.D.C.1973), aff’d, 510 F.2d 692 (D.C.Cir., 1974).

      . Appellant’s argument assumes that the Board’s amended complaint seeks total cessation of defendant’s discharges of cyanide and ammonia nitrogen. Although this is, at best, a doubtful reading of the amended complaint, we assume arguendo that it is a correct interpretation of the Board’s prayer for relief.

      . Similarly, U. S. Steel cannot violate the terms of a discharge permit until one has been issued.

      . For a general review of the provisions of the 1972 amendments see Comment, The Federal Water Pollution Control Act Amendments of 1972, 1973 Wis.L.Rev. 893 (1973); Comment, the Federal Water Pollution Control Act Amendments of 1972, 14 B.C.Ind. & Com.L.Rev. 672 (1973).

      . The 1977 standard requires “the application of the best practicable control technology currently available,” 33 U.S.C. § 1311(b)(l)(A)(i). The 1983 standard requires “application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants,” 33 U.S.C. § 1311(b)(2)(A)(i).
      33 U.S.C. § 1251(a)(1) defines “the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”
      These provisions make it clear that Congress, which very carefully created a two-phased program for moving American industry toward the eventual goal of a total absence of all water pollution by 1985, did not intend that, until the Administrator promulgated the 1977 emission standards, any discharge was to be unlawful. It would be ironic indeed if the promulgation of such standards, incorporating as they must “the best practicable control technology currently available,” acted to move us away from, rather than nearer to, this eventual goal.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antonio QUESADA, Alfredo Flores, a/k/a Ali and Maritza Brezot, Defendants-Appellants.
    No. 74-2881.
    United States Court of Appeals, Fifth Circuit.
    May 7, 1975.
    Rehearing Denied June 11, 1975.

      Miguel A. Suarez, Miami, Fla., for Quesada.
    Ellis S. Rubin, Miami, Fla., for Flores.
    Barry L. Garber, Miami, Fla., for Brezot.
    Barbara E. Vicevich, Sp. Atty., U. S. Dept, of Justice, Crim. Div., Miami Strike Force, Robert W. Rust, U. S. Atty., Karen L. ' Atkinson, Samuel Sheres, Crim. Div., Dept, of Justice, Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Maritza Brezot, Antonio Quesada and Alfredo Flores were convicted of conspiracy to receive, conceal, buy and sell unlawfully imported heroin in violation of 21 U.S.C. §§ 173 and 174. Flores argues that because he was illegally kidnapped into the United States by federal agents the court does not have jurisdiction over him. Quesada argues that the evidence was insufficient to convict and that statements of coconspirators were erroneously admitted against him. All three appellants urge that the prosecutor erred in discussing the ease with a witness during a recess which occurred while the witness was on cross-examination. Finding no merit in these contentions, we affirm.

Appellant Flores, a Venezuelan, argues that the trial court lacked personal jurisdiction over him because he was kidnapped into this country from his homeland by federal agents. He first raised this issue of no jurisdiction at his removal hearing in Puerto Rico. His motion to quash was denied and he was ordered removed to Miami. He did not renew the motion before the trial court but that court granted his motion to supplement the record on appeal by filing the transcript of the removal hearing and his affidavit and offer to prove the kidnapping.

In this court Flores contends that his forcible abduction by government agents violates the federal Kidnapping Act, the treaty between the United States and Venezuela, and the Charter of the United Nations, thereby depriving him of due process and Fourth Amendment guarantees. In United States v. Winter, 509 F.2d 975 (5th Cir. 1975) and United States v. Herrera, 504 F.2d 859 (5th Cir. 1974), we considered contentions similar to those now being asserted by Flores, and held that under present Supreme Court decisions, as well as decisions of this court, these arguments lack merit. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2nd Cir. 1975); United States v. Toscanino, 500 F.2d 267, reh. denied (2nd Cir. 1974); United States v. Caramian, 468 F.2d 1370, 1371 (5th Cir. 1972); United States v. Vicars, 467 F.2d 452, 455 (5th Cir. 1972).

Appellant Quesada alleges there was insufficient evidence that the substance he was involved with and sold was in fact heroin or that he knew it to be such. The evidence shows, however, that during the course of two separate transactions in which Quesada was intimately involved the substance was continuously referred to as the “very best” heroin in his presence and described by him as heroin in his conversations with others. It was a white powder, on both occasions it was sold to him for 20,000 dollars per kilo (one thousand grams) and he resold it after the buyers tested it and pronounced it to be heroin for 22,000 dollars per kilo. The product never came into the possession of the government, so a specific assay was impossible.

The introduction of a chemical analysis of the substance is not essential to conviction. United States v. Graham, 464 F.2d 1073 (5 Cir. 1972). The nature of the substance as a narcotic need not be proved by direct evidence if the circumstantial evidence presented establishes, as it did here, that beyond a reasonable doubt the substance was heroin. E. g., United States v. Gregorio, 497 F.2d 1253, 1263 (4th Cir. 1974); United States v. Jones, 480 F.2d 954, 960 n. 4 (5th Cir. 1973), cert. denied, Stoekmar v. United States, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1974); United States v. Atkins, 473 F.2d 308, 314 (8th Cir. 1973), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1974); United States v. Fantuzzi, 463 F.2d 683, 689 n. 7 (2nd Cir. 1972); United States v. Agueci, 310 F.2d 817, 828 (2nd Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963); Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1955). The evidence also disclosed that Quesada helped others weigh and package the substance and thus had possession of the drug. In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, reh. denied, 397 U.S. 958, 90 S.Ct. 939, 25 L.Ed.2d 144 (1970), the Court held the government is entitled to an instruction that the jury may infer heroin which is within the United States was smuggled into the country and one who possesses heroin within the United States is charged with the knowledge that the drug was unlawfully imported. In addition to proof of constructive knowledge through possession, the government introduced testimony revealing that Quesada in fact had actual knowledge of the unlawful importation, i. e., testimony that in Quesada’s presence Flores stated that he had brought the heroin from Lebanon. The sufficiency of the evidence adduced against Quesada meets the test of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941).

Appellant Quesada further argues that the government split its conspiracy indictments, naming the three appellants in one and two other coconspirators, Jose Avalos and Rudolfo Castrillon, in a separate indictment, and then proceeded to introduce testimony in the trial of Quesada implicating him in an overt act not alleged in the conspiracy indictment under which he was tried. The declarations complained of were made among Avalos, Castrillon and Inehaustegui and were related by Inehaustegui at trial.

. [4,5] Quesada contends that the separate indictments of Avalos and Castrillon both rendered them unavailable to him as witnesses and constituted the conspiracy charged against them a separate conspiracy from that charged against Quesada and his codefendants, and thus created a single-multiple conspiracy variance between the charge laid and the proof. These contentions are specious. The evidence established that Avalos and Castrillon made a buy of heroin from Inehaustegui and Quesada during the course of the conspiracy charged to Quesada. That this overt act was the basis for a separate indictment against Avalos and Castrillon does not establish that the sale was not a part of a single heroin marketing conspiracy by Quesada and his codefendants. The proof shows it was. Nor does the fact that this sale was not alleged as an overt act in the indictment against the latter preclude proof of it at their trial. “We have held before that the government is not limited to overt acts pleaded in proving a conspiracy. It may show other acts of the conspirators occurring during the life of the conspiracy.” United States v. Perez, 489 F.2d 51, 70 (5th Cir.), reh. denied, 488 F.2d 552 (5th Cir. 1973); accord, United States v. Ayres, 434 F.2d 60 (5th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 930, 28 L.Ed.2d 217 (1971); Reese v. United States, 353 F.2d 732 (5th Cir. 1965); Finley v. United States, 271 F.2d 777 (5th Cir. 1959), cert. denied, 362 U.S. 979, 80 S.Ct. 1065, 4 L.Ed.2d 1014 (1960). Moreover, the mere fact that Avalos and Castrillon were separately indicted and separately tried does not demonstrate that they were unavailable to him as witnesses.

The proof furthermore established that Avalos and Castrillon were more than mere purchasers, they were shown to be actively engaged as coconspirators in the same conspiracy even though they were not named in the same indictment. Thus, their statements were admissible against Quesada.

Finally, all three appellants argue that they were so prejudiced by the conduct of the government’s attorney in talking to a witness that a mistrial should have been declared or the witness’ testimony stricken. At trial a named but unindicted coconspirator, Carlos Inehaustegui, and a convicted narcotics violator, Felix Olivera, testified against appellants. While Olivera was on cross-examination there was a recess during which he talked with the trial attorney representing the United States.

Citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and United States v. Johnson, 487 F.2d 1318 (5th Cir. 1974), defendants contest the government’s alleged failure to correct known false testimony, i. e., Olivera’s statement that he did not remember the part about the trap. Giglio and Johnson are inapposite. In the case at bar, the prosecutor had stated her recollection of the conversation before Olivera resumed his testimony. The defense used the information gained from this statement in their cross-examination. Olivera’s testimony as to his recollection of the same conversation, while different, was not shown to have been false.

Defendants further contend that the conversation violated the court’s rule and denigrated the right of cross-examination. The government urges United States v. Burke, 495 F.2d 1226 (5 Cir. 1974) should be applied. In that case, where the trial court allowed the prosecutor to work with a witness over the weekend on his upcoming cross-examination, we held that in the absence of a showing of prejudice the error was not reversible. In the circumstances of the case at bar the result is the same. Assuming arguendo that the actions of the trial attorney were erroneous, they were unknowingly so and did not affect any substantial rights of the defendants. Such an error would not dictate reversal, Fed.R. Crim.P. 52(a).

The convictions appealed from are Affirmed.

      . All witnesses in this case had been “placed under the rule,” a procedure intended to sequester a witness from the courtroom except when testifying. It is unclear, however, whether this conversation with counsel during cross-examination was expressly covered by “the rule.” At oral argument counsel were requested to furnish a copy of “the rule” invoked by the district court to this court if available, but that has not been done. A defense counsel observed this intercourse and protested to the trial judge. Upon subsequent questioning from the court concerning the substance of their conversation, the attorney stated she told Olivera he was doing a good job, and not to fall into the trap the defense was trying to lay for him in regard to a previous misdemeanor conviction. Defense counsel asked for a mistrial or, in the alternative, that Olivera’s testimony be stricken. The court chastised the attorney but denied further relief. When Olivera’s cross-examination resumed he testified that he did not remember any mention of a trap.