author: MANSFIELD, Circuit Judge:

text:
    SONESTA INTERNATIONAL HOTELS CORPORATION, Plaintiff-Appellant, v. WELLINGTON ASSOCIATES et al., Defendants-Appellees.
    No. 1055, Docket 73-1785.
    United States Court of Appeals, Second Circuit.
    Argued June 5, 1973.
    Decided July 3, 1973.

      Robert W. Sweet, New York City (Kurt Koegler, Henry P. Wasserstein, Thomas J. Schwarz, Skadden, Arps, Slate, Meagher & Flom, New York City, of counsel), for plaintiff-appellant.
    Jesse Climenko, New York City (Sheldon D. Camhy, Shea Gould Climenko & Kramer, New York City, of counsel), for defendants-appellees.
    Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
   MANSFIELD, Circuit Judge:

Sonesta International Hotels Corp. (“Sonesta”) appeals from the denial of a preliminary injunction sought against Wellington Associates, the latter’s partners Sol Goldman and Alex DiLorenzo, and all persons acting on their behalf (herein collectively referred to as “Wellington”), to enjoin Wellington, during the pendency of this action, from (a) acquiring or attempting to acquire in any manner any shares of stock of Sonesta, (b) voting any shares of Sonesta stock held or acquired after the initiation of the plan, combination or conspiracy of the defendants alleged by Sonesta in its complaint, (c) exercising, directly or indirectly, any influence upon the management of Sonesta, and (d) otherwise utilizing any such stock or shares of Sones-ta stock previously acquired as a means of controlling or affecting the management of Sonesta. Sonesta also sought an order directing Wellington to vote its shares of Sonesta stock in favor of Proposals Nos. 3 and 4 set forth in Sonesta’s Notice of Annual Meeting, dated April 16, 1973, which relate to shareholder authorization for the sale of Sonesta’s interests in two hotels and the distribution of the net proceeds of the sales to common shareholders, expected to amount to about $2 per share, subject to a favorable tax ruling and the adoption of a plan of partial liquidation by Sonesta’s Board of Directors.

The gravamen of Sonesta’s complaint, brought on by order to show cause before Judge Ryan, is that Wellington failed to disclose, in connection with its cash tender offer announced in the Wall Street Journal on May 9, 1973, for 1,000,000 shares of Sonesta common at $7 per share, several material facts which were necessary to make the cash offer, as published, and the Schedule 13D filed with the SEC on May 8 concerning the cash offer, not misleading, in violation of §§ 10(b), 13(d), 14(d), and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78m(d), 78n(d), and 78n(e) (1971). These laws are founded on the principle that full and fair disclosure of all material facts must be made to investors so that they may have the benefit of the facts in making their investment decisions. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); 1968 U.S.Code Cong. & Adm.News p. 2813.

Sonesta filed its complaint on May 14, 1973. Judge Ryan heard argument on May 17, and on May 22 he rendered a written decision denying Sonesta’s request for a preliminary injunction, finding no showing of irreparable injury on the part of Sonesta or likelihood of success on the merits, and specifically finding no false or misleading statements or omissions in the 13D statement or in the tender offer. The offer expired on May 21, according to its terms, with 419,623 shares having been tendered to Wellington. On May 23 Judge Ryan entered an order in accordance with his decision of the previous day. Sonesta thereupon sought and obtained a stay from another panel of this court, which also expedited the appeal. Sonesta’s Annual Meeting, scheduled for May 24, went forward as planned, and the necessary two-thirds shareholder approval was obtained for Sonesta’s Proposals 3 and 4, described above.

For reasons hereinafter stated we hold that Wellington failed to disclose material facts in its Schedule 13D filed with the SEC and in its Tender Offer announced to the public. We therefore reverse with directions to enter a preliminary injunction preventing consummation of the offer subject to the conditions of supplemental disclosure and rescission noted below.

Sonesta claims that in four respects Wellington omitted to state information material to an informed choice by Sonesta shareholders as to whether they should accept Wellington’s cash offer of $7 per share. More specifically, it is claimed that the Schedule 13D and the published offer failed to disclose (1) that Wellington owed Sonesta approximately $2.4 million, which amount might be compromised on terms adverse to Sonesta’s stockholders if Wellington should acquire control, (2) that Wellington’s plan to abstain from voting on Proposals 3 and 4 at the Annual Meeting could result in the defeat of these Proposals for failure to obtain the required approval of two-thirds of Sonesta’s issued outstanding shares, thereby causing Sonesta shareholders to be deprived of a partially tax-free cash distribution of about $2 a share, (3) that Sonesta might lose its listing on the New York Stock Exchange if Wellington should receive the number of tenders it sought, and (4) that a number of buildings owned by-Wellington had received adverse notoriety in certain publications which had described the buildings as havens of prostitution, illicit massage parlors, pornographic film theaters, and peep shows, and that this negative publicity could harm the business reputation and credit standing of Sonesta if Wellington should acquire control.

Before turning to consideration of the alleged omissions in greater detail, it is important to restate the standard to be applied in determining whether, at the instance of a target corporation, a preliminary injunction should be issued against the continuation of a proposed tender offer when it is claimed that the offer and supporting materials, such as a Schedule 13D required by 17 C.F.R. § 240.14d-1 (1972), fail to adequately disclose material information necessary to make the statements contained in the offer not misleading. The settled rule is that a preliminary injunction should issue only upon a clear showing of either (1) probable success on the merits and, possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Gulf & Western Industries, Inc. v. The Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-693 (2d Cir. Mar. 12, 1973); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Assuming that such a showing is made prior to consummation of the tender offer, a preliminary injunction will normally afford prompt relief against a violation of § 14(e), which makes it unlawful to make any untrue statement of a material fact in connection with any tender or to omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading. Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 547 (2d Cir. 1967). As the Supreme Court noted in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 383, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), in dealing with § 14(a), which makes it unlawful to solicit proxies in contravention of SEC rules, including Rule 14a-9 which prohibits solicitations containing misleading statements or omissions, “[u]se of a solicitation that is materially misleading is itself a violation of law, as the Court of Appeals recognized in stating that injunctive relief would be available to remedy such a defect if sought prior to the stockholders’ meeting.”

Where the foregoing standard has been met preliminary injunctive relief is a particularly useful remedy for prevention of probable violations of the disclosure requirements of the Act, for the reason that prior to consummation of the offer the court still has a variety of methods available to it for correction of the misstatements or omissions. See, e. g., Butler Aviation Int’l Inc. v. Comprehensive Designers, Inc., 425 F.2d 842, 845 (2d Cir. 1970). But once the tender offer has been consummated it becomes difficult, and sometimes virtually impossible, for a court to “unscramble the eggs.” Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947 (2d Cir. 1969); Gulf & Western Industries, Inc. v. The Great Atlantic & Pacific Tea Company, Inc., supra, 476 F.2d 687, 698. On the other hand, preliminary relief does not, in assuring that the offer will be lawfully made, sacrifice the legitimate desires of shareholders to accept the offer. If the offeror is subsequently vindicated after a trial on the merits, the offer may be renewed. Thus, in the normal situation, when it' appeal’s likely that the offer may contain materially misleading statements or omissions as made, the interest of the shareholders and of the public in full disclosure of relevant circumstances renders preliminary injunctive relief an appropriate method of remedying the deficiencies in disclosure before the offer is consummated.

The probability of success on the merits in any application for injunctive relief turns greatly upon whether the plaintiff has shown that the tender offer under attack has misstated or omitted material facts. The materiality of facts allegedly misstated or omitted depends, in turn, upon whether a reasonable investor might have considered them to be important in deciding whether to accept the tender offer. This standard was set forth by the Supreme Court in Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-154, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), where the Court, in finding that the withholding of a material fact established the requisite element of causation in fact, expressed itself as being concerned with materiality “in the sense that a reasonable investor might have considered [the misstated or undisclosed facts] important in the making of this decision [whether to sell shares].” See Butler Aviation International, Inc. v. Comprehensive Designers, Inc., 425 F.2d 842, 845 (2d Cir. 1970) (“inaccurate statements . . . which may have had some tendency to affect the decision of Butler stockholders with respect to the exchange offer”).

To be material a statement in a tender offer need not necessarily relate to a past or existing condition or event. It may refer to a prospective event, even though the event may not occur, provided there appears to be a reasonable likelihood of its future occurrence. Gulf & Western Industries, Inc. v. The Great Atlantic & Pacific Tea Company, Inc., supra, 476 F.2d at 697; Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1298 (2d Cir. 1973). A reasonable stockholder, once informed of the contingency, can then determine whether to assume the risk of its occurrence or non-occurrence in accepting or rejecting the tender offer. Where the event, if it should occur, could influence the stockholder’s decision to tender, the chance that it might well occur is a factor that should be disclosed to the investor for consideration in making his or her decision.

Applying these principles here, we are satisfied that Sonesta has made a clear showing, upon undisputed facts, that Wellington failed in violation of § 14(e) to disclose certain material facts in its tender offer. After making due allowance for the wide discretion normally permitted the district court in deciding whether to issue a preliminary injunction, Stark v. New York Stock Exchange, 466 F.2d 743, 744 (2d Cir. 1972), it appears that in this case the district judge plainly erred in applying an incorrect standard as to materiality and in concluding that certain of the omissions charged by Sonesta did not entitle it to preliminary relief.

The most persuasive claim by Sonesta is that Wellington did not sufficiently disclose that it owed more than $2.4 million to Sonesta and that this debt might be compromised on terms adverse to So-nesta shareholders if Wellington should succeed in acquiring control of Sonesta. Wellington’s offer neglected to mention that Sonesta had obtained a judgment in New York State Supreme Court against Wellington in the sum of $1,896,584.32 arising out of a property dispute concerning the land underlying the Plaza Hotel, which is owned 50% by each of the parties, and that Sonesta had asserted against Wellington a claim for over $500,000 in back real estate taxes which has not been disputed. Wellington’s tender offer limited itself to informing Sonesta’s stockholders of the existence of a dispute between it and Sonesta over the valuation of the land underlying the Plaza Hotel, which had resulted in a decision fixing the value of that land (upon which the rental formula was dependent) at $18,500,000, from which Wellington had appealed, claiming that the value should be materially greater.

Judge Ryan concluded that “while it might have been better to have stated the actual dollar figure [of the judgment] . . . this is not a major or deceptive omission” and that the disclosure of the dispute “was more than adequate.” We disagree. Disclosure of the dispute over the valuation of the land, while a step in the right direction, hardly put Sonesta’s stockholders on notice that Sonesta had obtained an $1,896,584 judgment against Wellington which, when supplemented by a separate claim for over $500,000, brought Wellington’s total indebtedness to Sonesta up to more than $2.4 million, an amount equal to nearly 10% of Sonesta’s equity and nearly $1 per Sonesta share. By describing the dispute in more general terms, Wellington deprived Sonesta’s shareholders of the knowledge of just how much was actually at stake in litigation which admittedly might be resolved on terms less favorable to Sonesta shareholders if Wellington should succeed in its takeover bid. As Judge Friendly observed in Gerstle v. Gamble-Skogmo, Inc., supra, 478 at 1298 “the English language has sufficient resources that the draftsman could have done better than he did”. Here a simple reference in relevant Arabic numerals to the money judgment in favor of Sonesta and to its claim for back taxes (which the tender offer did not even mention) would have alerted Sonesta stockholders to the potential significance of the possible compromise of the judgment and of the tax claim. The standard of materiality was not whether the non-disclosure was “major,” as Judge Ryan indicated, but whether a reasonable stockholder might have attached importance to the omitted facts. If these simple facts had been disclosed in the present case, we have no hesitancy in concluding that a reasonable shareholder, contemplating a sale of all or part of his shares, might well have considered the information to be of considerable importance in making his decision.

We turn next to Sonesta’s claim that Wellington failed to disclose certain material facts with respect to the possible effect of its decision to abstain from voting on Propositions 3 and 4 at Sones-ta’s Annual Meeting scheduled for May 24, 1973. These resolutions, if affirmatively approved by two-thirds of Sones-ta’s issued and outstanding shares, called for liquidation of its leasehold interest in two hotels for approximately $5,150,000. Subject to a favorable income tax ruling from the Internal Revenue Service and adoption of a plan of partial liquidation and approval by So-nesta’s Board of Directors, the net proceeds of the sale were to be distributed to Sonesta stockholders, who would receive nearly $2 per share (or approximately 28.5% of the $7 tender offer price), partially free of income tax. Although Wellington’s tender offer stated that it would abstain from voting on the two proposals, it failed to disclose that if its offer to purchase 1,000,000 shares (out of Sonesta’s 2,393,817 outstanding common shares) should be reasonably successful and result in its acquiring more than 767,440 shares, the defeat of the proposals would be certain, since the remaining shares outstanding, even if voted in favor of the proposals, would be less than the two-thirds required for approval.

Judge Ryan concluded that it was unnecessary for Wellington to have pointed out that a successful completion of its tender offer could defeat the liquidation proposals because it was “purely hypothetical and an ‘if’ situation” since it was unknown at the. time of the offer how many shares would be tendered and whether other shareholders would vote for the proposals. We disagree. The test of materiality is not whether a possible consequence of the offer was contingent or hypothetical, Gerstle v. Gamble-Skogmo, Inc., supra, but whether it was a factor that might be considered of some importance by a Sonesta stockholder in making his decision. We believe that it was. It is true that Wellington’s offer has not been as successful as it had hoped (undoubtedly due in part to So-nesta’s opposition) and that the two proposals have since been approved by a small margin at Sonesta’s Annual Meeting. But this post-offer occurrence does not render the offer any the less misleading. Section 14(e) prohibits omissions which are misleading “in the light of the circumstances under which they are made.” In an analogous situation, we have recently concluded that the “facts that, at the time it announced its tender offer, an antitrust action had not been commenced against G&W, and that its liability was uncertain, does not excuse G&W’s failure to disclose all these relevant circumstances so that A&P shareholders could weigh them in reaching their decision whether or not to tender their shares.” Gulf & Western, supra, 476 F.2d at 697. See also Bath Industries, Inc. v. Blot, 427 F.2d 97, 112 (7th Cir. 1970). No sound reason appears why the full circumstances of the possible defeat of the proposals (which might have yielded the shareholders an amount equal to approximately 28.5% of Wellington’s $7 offering price) should not have been set forth in the offer in the first instance.

Nor do we have any difficulty in concluding that Wellington should have disclosed the prospect that if its offer should be fully successful Sonesta common stock could have lost its listing privileges on the New York Stock Exchange. Judge Ryan concluded that the possibility of delisting was too speculative to make this omission material. We disagree. Section A-16 of the Exchange Rules permits but does not require removal or suspension of a listed security if the publicly held shares number less than 600,000 and their aggregate market value is less than $5 million. Of Sones-ta’s 2,393,817 outstanding shares, 1,572,839 were publicly held according to the Exchange’s definition, the balance of 820,978 being owned by officers and directors of Sonesta and their immediate families. If Wellington had achieved its goal of acquiring 1,000,000 shares, the publicly held stock would have been reduced below the Exchange standards in both number and aggregate value. Wellington again suggests that it could not know in advance how many Sonesta shareholders would accept its offer. Sonesta counters, by affidavit of its general counsel, that the Exchange had advised Sonesta that it could lose its listing privileges if Wellington’s offer was successful. Under these circumstances the risk of delisting was sufficiently appreciable to require disclosure. As we stated in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969):

“[W]hether facts are material when the facts relate to a particular event . . . will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.”

Loss of listing on the Exchange would deprive Sonesta shareholders of a ready market for their shares and of the protection of certain Exchange requirements, including its disclosure rules. The possibility of losing these advantages could certainly have been of importance to a Sonesta shareholder in deciding whether to retain some Sonesta shares or to tender all. Although Wellington has not received as many tenders as it sought and there does not now appear to be a prospect of immediate de-listing as a result of the immediate offer, the consequences of Wellington’s nondisclosure cannot on that account be dismissed as moot since there remains the possibility of further offers which could have the cumulative result of subjecting Sonesta common to the possibility of delisting.

Finally, Sonesta complains that Wellington should have disclosed that it has been the subject of adverse comment in the New York Post and other publications for allegedly owning properties which have been used by prostitutes, illicit massage parlors, pornographic film theaters, and peep shows. Sonesta notes that Wellington has instituted an action for libel against the Post and others for alleged damage to its reputation and suggests that Wellington was under an obligation to state that, should it acquire control of Sonesta, Sonesta’s reputation might be similarly impaired. On this issue we agree with Judge Ryan’s conclusion that Sonesta’s claim lacks an adequate basis. Indeed the record would indicate that the claim emanates more from overzealousness than from proof indicating any substantial risk of damage to Sonesta’s reputation.

It is not disputed that Wellington filed a Schedule 13D with the SEC on the day before making public its offer which furnished such information regarding its “background” as was required by § 13(d) of the Act and 17 C.F.R. § 240.13d-101 (1972). Nor is it denied that Wellington is the owner of a number of well-respected hotels which it operates in New York City and elsewhere. On the basis of what is before us, we see no reason why Wellington should have described the allegations of unsavory conduct which it had not only denied but has claimed to be libelous in a suit instituted by it against the New York Post. Sonesta does not assert that the allegations are true but only that they have given Wellington notoriety. But Wellington owes no duty to repeat what it considers to be false statements about itself, thereby giving currency to the allegedly libelous matter and increasing the risk that it might unjustly incur notoriety.

Wellington attempts to excuse its failure to disclose the facts we have found material on the grounds (1) that although Sonesta published a message to its shareholders on May 14 (five days after the offer was first made) it did not refer to the money judgment, to the effect of abstention or to 'the possibility of delisting, from which we are asked to infer that Sonesta did not consider these facts material, and (2) that any deficiencies have been overcome by the generosity of Wellington’s $7 offer, which exceeded the prices at which Sonesta common had been trading in previous weeks. While the failure of a target company to seize an opportunity to rectify claimed omissions may have some bearing on their materality, General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 162 (2d Cir. 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969), and while it would have been in the interests of disclosure for Sonesta itself to have drawn its stockholders’ attention to the possible consequences of their tendering Sonesta shares, which Wellington had omitted, it would emasculate the purposes of the Williams Act to allow the offeror to look to the target company to remedy the offeror’s own material deficiencies in disclosure. The obligation is placed squarely on those making the offer in the first instance to disclose all material factors necessary to make their offer not misleading. That duty cannot be shifted to the shoulders of others. As for the suggestion that the generosity of the offer should reduce Wellington’s obligation to inform the shareholders of all relevant circumstances, we must reject any such nullification of the disclosure requirements of the Act, as did the Supreme Court in a similar situation with respect to proxy violations in Mills v. Electric Auto-Lite, supra, 396 U.S. at 381-385, 90 S.Ct. 616.

As the tender offer has not yet been consummated and the interests of all parties may be protected in allowing only a lawful offer to be completed, we reverse and remand with directions to enter a preliminary injunction enjoining the consummation of the offer unless Wellington makes a supplemental disclosure to Sonesta stockholders setting forth (1) the facts concerning the money judgment Sonesta presently has against it and Sonesta’s claim against it for back real estate taxes, and (2) the possibility of delisting of Sonesta’s common stock by the New York Stock Exchange if Wellington should receive a greater number of shares on any future offer, and unless Wellington offers to those tendering shareholders who responded to its current offer an opportunity within a reasonable period of time to rescind their tenders. See Butler Aviation International, Inc. v. Comprehensive Designers, Inc., supra, 425 F.2d at 844-845.

      . If less than 1,000,000 shares were tendered, Wellington agreed to purchase all such shares, and it reserved the right to purchase any tendered shares over that amount,

      . On this appeal, Sonesta does not press another claim it raised in the District Court — that Wellington failed to disclose its intent to change Sonesta’s business.

      . The test of materiality has elsewhere been stated in terms of whether the decision of a reasonable investor “would” have been affected had the true circumstances been properly disclosed, rather than whether it “might” have been so affected. Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 363 (2d Cir. 1973) ; Gulf & Western, supra, 476 F.2d at 696; and especially Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1301-1303 (2d Cir. 1973). Whatever difference that phraseology may make, we are satisfied that the omissions in Wellington’s offer would be materially misleading under either of the standards expressed above and under the Supreme Court’s understanding of the definition of materiality applied by it in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) ; and Affiliated Ute Citizens v. United States, supra.

      . “Wellington owns one-half of the land (acquired by it in 1965) at Fifth Avenue and 59th Street, New York 10022 where The Plaza Hotel (hereinafter ‘Plaza’) is located. Sonesta owns the other half of the land and the building, operates the Plaza and leases one-half of the land from Wellington. There is a long standing dispute between Wellington and Sonesta as to the proper application of . the lease formula fixing the rentals payable by Sonesta. Litigation commenced several years ago has not been finally resolved. Wellington is presently appealing a decision fixing the value of the land (upon which the rental formula is dependent) at $18,500,000 which it claims should be materially greater. If Wellington acquires control of Sonesta, it will be able to influence the position taken by Sonesta in the dispute so that Sonesta’s position becomes such that Wellington deems it fair and equitable and consistent with Wellington’s fiduciary obligations to all shareholders of Sonesta. In such an event, it is possible that Sonesta will receive less than it would if Wellington does not acquire control of Sonesta.”

      . Wellington had previously acquired 30,500 shares of Sonesta which, if added to 767,440 or more shares received pursuant to the tender offer, would amount to more than one-third of the 2,393,817 total outstanding shares.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Zella Mae GRAHAM, etc., Plaintiff-Appellant, v. Robert R. COLE, etc., et al., Defendants-Appellees.
    No. 73-1309
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.

      Douglas R. Larson, Ed J. Polk, Dallas, Tex., Warren Burnett, Odessa, Tex., Edward W. Dunbar, Dallas Legal Services Federation, Inc., Dallas, Tex., for plaintiff-appellant.
    Lonny F. Zwiener, Asst. Atty. Gen. of Texas, Austin, Tex., Earl Luna, Robert W. Porter, Gerald Weatherly, Asst. Dist. Atty. of Dallas County, Frank L. Skil-lern, Jr., Richard J. Corbitt, III, Dallas, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Having reviewed the record in this case we find that at least one defendant, District Attorney Wade of Dallas County, still has pending against him in the District Court so much of the lawsuit as seeks declaratory and injunctive relief. No certificate under F.R.Civ.P. 54(b) has been or could properly have been made on this record which is sparse and fails to provide a factual basis for the Court’s findings, there being neither testimony nor affidavits present.

While the complaint is dismissed with respect to all relief sought as to defendant Sheriff Jones, this is a multi-count, multi-party complaint and under Rule 54(b) unless the court enters the certificate there is no appealable order. In the absence of such a certificate, which for the reasons pointed out above would be administratively inappropriate in this vague case, no order is a final and ap-pealable order. Hence, as to all the appeal must be dismissed. We reiterate our frequent warning that “reversal does not necessarily foreshadow a trial, partial or full blown. That depends on the facts as developed and tested, not what the lawyers say they are in opposing affidavits.” Smith v. St. Paul Fire & Marine Insurance Company, 5 Cir., 1972, 471 F.2d 840, 842. Accordingly, finding that the appeal is not yet ripe, we dismiss the appeal and remand to the trial court.

Appeal dismissed.

      . See also Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505, 511; Mizell v. North Broward Hospital District, 5 Cir., 1968, 392 F.2d 580; Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320; Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 5 Cir., 1958, 257 F.2d 162, 167; Chagas v. Berry, 5 Cir., 1966, 369 F.2d 637, 642; Barber v. Motor Vessel “Blue Cat”, 5 Cir., 1967, 372 F.2d 626.


author: SIMPSON, Circuit Judge:

text:
    Harry Walter McCUTCHEON, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 72-2123.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 5, 1973.

      Crawford Martin, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

      Harry H. Walsh, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellee.
    Before GEWIN, BELL and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

This appeal requires that we review a judgment below granting McCutcheon’s petition for the writ of habeas corpus. We reverse for reasons we will state.

In 1962, a jury in Harris County, Texas, convicted the petitioner, Harry W. McCutcheon, of assault with intent to rob. The indictment alleged two prior felony convictions for enhancement purposes under Vernon’s Ann.Texas Penal Code, Article 63. The two prior felony convictions were both proved to the jury, which returned a verdict of guilty with enhancement. As required by the enhancement statute, McCutcheon was sentenced to confinement for life in the state penitentiary. His conviction was affirmed on direct appeal, McCutcheon v. State, Tex.Crim.1962, 363 S.W.2d 457.

Following the decision of the Supreme Court in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, McCutcheon sought habeas relief in the Texas courts on the grounds that Leary had invalidated one of the two convictions which had been proven for enhancement purposes at his 1962 trial, and hence that his assault with intent to rob conviction could not be enhanced to life imprisonment. The conviction which McCutcheon’s habeas petitions attacked was a 1946 federal conviction for violations of the Harrison Narcotics Act. Following denial of relief by Texas courts McCutcheon sought habeas corpus in the court below.

The 1946 Federal Conviction

On October 1, 1946, McCutcheon pled guilty in the United States District Court for the Southern District of Texas to two counts, Count One and Count Eight of an eight count indictment alleging violations of the Harrison Narcotics Act. The charges to which Mc-Cutcheon pled guilty were as follows:

Count One alleged a conspiracy in violation of former Title 18, U.S.C., Section 88 (now Title 18, U.S.C., Section 371) to violate former Title 26, U.S.C., Sections 2553(a) and 3224(a).

Count Eight alleged that Mc-Cutcheon violated former Title 26, U. S.C., Section 3224 by selling narcotic drugs without having registered and paid the special tax imposed by law.

In Leary v. United States, supra, the Supreme Court held that the privilege against self-incrimination was an absolute defense to prosecution under then Title 26, U.S.C., Section 4744(a), the marijuana registration and tax analogue to former Title 26, U.S.C., Section 3224, the substantive offense to which McCutcheon pled guilty in Count 8, as well as one of the three object offenses of the conspiracy to which McCutcheon pled guilty in Count 1. The respondent-appellant contends that Section 4724 (former Section 3224) does not contain a mandatory self-incrimination feature comparable to that contained in Section 4744(a), which was condemned in Leary. This contention is without merit. Title 26, U.S.C., Section 4775 required the Internal Revenue Service to furnish upon written request to any person a list of any and all persons registered as special taxpayers under Title 26, U.S.C., Sections 4721 through 4726, inclusive. Such lists would also include any person required to register under Title 26, U.S.C., Section 4702(a)(2)(C), which requires registration and payment of the tax if the person dealing in narcotics is othei'wise ineligible for registration and payment of the tax. In either event, McCutcheon would have been punished for failure to disclose self-incriminating information by prosecution under Section 4724 (former Section 3224). The self-incrimination feature of Section 4724 (former Section 3224) operates in the same fashion as the statutory scheme condemned in Leary, and hence self-incrimination is an equally valid defense to prosecution under Section 4724 (former Section 3224).

Finally, in Harrington v. United States, 5 Cir. 1971, 444 F.2d 1190, this Court held that the Supreme Court’s holding in Leary that self-incrimination was an absolute defense to prosecution under Section 4744 was to be afforded retroactive effect, and that a conviction under the marijuana tax and registration provision, Title 26, U.S.C., Section 4744(a) obtained prior to Leary on a plea of guilty was void and of no effect. Since former Section 3224, to which McCutcheon pled guilty in 1946 contains the self-incrimination feature invalidated in Leary, it is clear that the retroactivity principle enunciated in Harrington must also apply to former Section 3224. Therefore, Count Eight of Mc-Cutcheon’s 1946 federal conviction, as well as one of the three object offenses of Count One, the conspiracy count, are no longer constitutionally valid federal offenses.

The remaining two object offenses of the 1946 conspiracy count (Count One) charged that two purposes of the conspiracy were violation of former Title 26, U.S.C., Sections 2553 and 2554. These object offenses, which Mc-Cutcheon pled guilty to conspiracy to violate, involved (1) purchase or sale of narcotic drugs not in the original stamped package (former Title 26, U.S. C., Section 2553), and (2) transfer of narcotic drugs to a transferee not in accordance with a written order form issued by the Secretary of the Treasury (former Title 26, U.S.C., Section 2554).

The Supreme Court has held that self-incrimination is not available as a defense to a charge of selling narcotics without the required order form in violation of former Title 26, U.S.C., Section 2554 (recodified as Title 26, U. S.C., Section 4705). Minor v. United States, 1969, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283. In addition, former Title 26, U.S.C., Section 2553 (recodified as Title 26, U.S.C., Section 4704) contained a provision that the possession of narcotic drugs without the required tax stamps was prima facie evidence that the drugs were not in or from a stamped package as required by law. In Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, the Supreme Court ruled that this presumption was constitutionally invalid in connection with prosecutions involving only a small quantity of cocaine as opposed to a large quantity of heroin. We need not, however, consider the effect of the Turner holding on the former Section 2553 portion of Count One of McCutcheon’s 1946 federal conviction. McCutcheon pled guilty to that count. As this Court held in Ochoa v. United States, 5 Cir. 1972, 469 F.2d 86, a plea of guilty does not raise the problem of the unconstitutional presumption because a guilty plea is obtained without the aid of the impermissible presumption. Accord, Yohey v. United States, 5 Cir. 1970, 429 F.2d 1279.

It should be apparent, then, that Mc-Cutcheon’s 1946 federal narcotics conviction is defective only insofar as it concerned violations of former Title 26, U.S.C., Section 3224. Thus, Count Eight and one of the three object offenses to the Count One conspiracy are offenses which are retroactively immune from prosecution as a matter of federal constitutional law. The other two object offenses of the Count One conspiracy, the violations of former Title 26, U.S.C., Sections 2553 and 2554 remain valid, however.

Despite the fact that one of the three object offenses specified in the conspiracy count (Count One) has become constitutionally void, Count One itself retains viability as stating a valid offense against the laws of the United States. As the Supreme Court made clear in Braverman v. United States, 1942, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23, it is the illegal agreement to violate the laws of the United States which constitutes the gravamen of an illegal conspiracy. The mere fact that one of the statutes alleged as an object offense to the 1946 conspiracy count can no longer be prosecuted because self-incrimination is a complete defense does not vitiate the fact that McCutcheon pled guilty to agreeing to violate two still valid federal criminal statutes. The fact that one of the objects of the conspiracy is no longer subject to prosecution does not mean that the crime of conspiracy itself is no longer an offense against the United States. Cf. United States v. Albanese, 2 Cir. 1955, 224 F.2d 879, 881.

The foregoing analysis leads us to conclude that Count One of the 1946 conviction remains a valid federal offense, while Count Eight is void as a matter of federal constitutional law.

The Effect of the Admission of the 1946 Conviction at the 1962 Trial

The lower court ordered that Mc-Cutcheon be returned to the state trial court for resentencing without use of the 1946 federal conviction for the purposes of enhancement. To support the order of the lower court, McCutcheon places heavy reliance upon Beto v. Stacks, 5 Cir. 1969, 408 F.2d 313. Stacks was an extension by this Court of the doctrine of Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed.2d 319. In Burgett, the Supreme Court held that the introduction of pre-Gideon convictions of uncounseled defendants for the purposes of enhancement Un a Texas one-stage recidivist trial was inherently prejudicial and required a new trial on the issue of guilt or innocence. Beto v. Stacks extended the Burgett rule to the introduction at a one-stage Texas recidivist trial of a conviction which was subsequently determined to have been obtained in violation of the Fourth Amendment. Mc-Cutcheon’s position, then, is that any subsequent constitutional invalidity in a conviction which was previously introduced at a Texas one-stage recidivist trial renders that trial inherently prejudicial and that hence a new trial is constitutionally mandated.

Spencer v. Texas, 1967, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, the immediate predecessor of Burgett v. Texas, supra, emphasized that the state in a one-stage recidivist trial has a valid interest in introducing evidence of prior convictions for the purpose of enhancement of punishment that outweighs the latent prejudice in such “other crime” evidence. Thus, only when a conviction which is definitely or presumptively void as a matter of federal constitutional law is introduced at a one-stage recidivist trial does the jury’s knowledge of the void conviction become such an infectious influence on the determination of guilt or innocence that a new trial must be awarded. Burgett v. Texas, supra; Beto v. Stacks, supra.

Since the 1946 conviction is still valid as to the conspiracy count (Count One), we are unwilling to extend the per se rule of Burgett v. Texas, supra, and Beto v. Stacks, supra, to this case. We read Burgett and Stacks as requiring no more than that the introduction at a one-stage Texas recidivist trial of a conviction which is subsequently and retroactively determined to be totally void as a matter of federal constitutional law mandates a new trial on the issue of guilt. On the other hand, Spencer v. Texas, supra, affirmed the basic interest of the state in the introduction of valid prior convictions in a one-stage recidivist trial.

Here, the presentation to the jury of the 1946 federal conviction apprised the jury that in 1946 McCutcheon had pled guilty to a felony violation of the laws of the United States. Because the conspiracy count of the 1946 conviction has continuing validity, the basic fact before the 1962 assault to rob jury remains unchanged: in 1946 McCutcheon pled guilty to a federal felony. It was this basic fact of a federal conviction which the state of Texas was entitled to present to the jury in 1962, Spencer v. Texas, supra. The subsequent determination of constitutional infirmity of one segment of that conviction does not subsequently negate that state interest. We do not have here a situation where Mc-Cutcheon suffered anew from a deprivation of his federal constitutional rights, Beto v. Stacks, supra, at 318. Rather, the 1962 jury was apprised only as to a basic fact which the state was entitled to present- — that McCutcheon had pled guilty to a valid federal felony. For the reasons stated, we reject the fundamental holding of the district court that “it is clear from the record that there is a constitutional defect in both the conspiracy and substantive counts of the indictment in the prior federal felony conviction used for enhancement.”

McCutcheon also contends that without Count Eight, the conviction under Count One alone in the 1946 federal narcotics trial cannot be used to enhance his sentence as a matter of Texas law. We do not view this proposition as rising to the level of a federal constitutional deprivation. It should be advanced to the courts of Texas. We have determined that while the conviction under Count Eight of the 1946 federal indictment was void, the conviction under Count One stands as a valid federal offense. The Texas courts are qualified to state authoritatively whether under Texas law the conviction under Count One standing alone could properly be utilized to enhance McCutcheon’s 1962 sentence.

Reversed.

      . At the time of McCutcheon’s trial in 1962, Texas procedure provided that prior felony convictions offered by the state for the purpose of enhancement of sentence were to be proven to the jury before a determination of guilt or innocence. The prior felony offenses were also alleged in McCutcheon’s indictment, which was read to the jury at the commencement of trial. See Vernon’s Ann.Texas Code Crim.Proc., Art. 642 (1941). Since that time, Texas has modified its procedure so that except in capital cases the jury is not given the recidivist issue until it has first found the defendant guilty under the principal charge. Vernon’s Ann.Texas Code Crim.Proc., Art. 36.01, effective January 1, 1966. See generally, Spencer v. Texas 1967, 385 U.S. 554, 556, fn. 2, 87 S.Ct. 648, 650, fn. 2,17 L.Ed.2d 606, 610, fn. 2.

      . This is the second appearance of Mc-Cutcheon’s ease before us. We remanded the lower court’s denial of McCutch-eon’s habeas petition for reconsideration in light of our decision in Harrington v. United States, 5 Cir. 1971, 444 F.2d 1190, that Part I of Leary is to be afforded retroactive effect. McCutcheon v. Beto, 5 Cir. 1972, 460 F.2d 1018.

      . Former Title 26, U.S.C., Section 2553 (a) , recodified as Title 26, U.S.C., Section 4704, repealed October 27, 1970, Public Law 91-513, Title 3, Section 1101 (b) (3) (A), 84 Stat. 1292, provided :
      § 2553. Packages — (a) General requirement
      It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession same may be found; and the possession of any original stamped package containing narcotic drugs by any person who has not registered and paid special taxes as required by sections 3221 and 3220 shall be prima facie evidence of liability to such special tax.

        Former Title 26, U.S.C., Section 2554(a), recodified as Title 26, U.S.C., Section 4705, repealed October 27, 1970, Public Law 91-513, Title 3, Section 1101(b) (3) (A), 84 Stat. 1292, provided:
      § 2554. Order forms — (a) General requirement
      It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.
      Former Title 26, U.S.C., Section 3224, recodified as Title 26, U.S.C., Section 4724, repealed October 27, 1970, Public Law 91-513, Title 3, Section 1101(b)(3) (A), 84 Stat. 1292, provided:
      § 3224. Unlawful acts in case of failure to register and pay special tax
      (a) Trafficking. It shall be unlawful for any person required to register under the provisions of this part or section 2551(a) to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away narcotic drugs without having registered and paid the special tax as imposed by this part, or section 2551 (a).
      (b) Transportation. Except as otherwise provided in this subsection, it shall be unlawful for any person to send, ship, carry, or deliver any of narcotic drugs from any State or Territory or the District of Columbia, or any insular possession of the United States, into any other State or Territory or the District of Columbia, or any insular possession of the United States. Nothing contained in this subsection shall apply—
      (1) to any person who shall have registered and paid the special tax as required by sections 3220 and 3221;
      (2) to common carriers engaged in transporting narcotic drugs;
      (3) to any employee acting within the scope of his employment for any person who shall have registered and paid the special tax as required by sections 3220 and 3221, or to any contract carrier or other agent acting within the scope of his agency for such registered person;
      (4) to any person who shall deliver any such drug which has been prescribed or dispensed by a physician, dentist, veterinarian, or other practitioner required to register under the terms of this part or section 2551(a) and employed to prescribe for the particular patient receiving such drug;
      (5) to any person carrying any narcotic drug or compound of a narcotic drug which has been obtained by the person from a registered dealer in pursuance of a written or oral prescription referred to in section 2554(c)(2), issued for legitimate medical uses by a physician, dentist, veterinary surgeon, or other practitioner, registered under section 3221, if the bottle or other container in which such drug or compound of a narcotic drug is carried bears the name and registry number of the druggist, serial number of prescription, name and address of the patient, and name, address, and registry number of the person issuing such prescription.
      (6) to any person carrying any such drug which has been obtained by the person as a patient from a registered physician, dentist, or other practitioner in the course of his professional practice if such drug is dispensed to the patient for legitimate medical purposes ; or
      (7) to any United States, State, county, municipal, district, Territorial, or insular officer or official acting within the scope of his official duties.
      (c) Possession. It shall be unlawful for any person who has not registered and paid the special tax as provided for by this part or section 2551(a), to have in his possession or under his control narcotic drugs; and such possession or control shall be presumptive evidence of a violation of this subsection and subsection (a), and also a violation of the provisions of sections 3220 and 3221: Provided, That this subsection shall not apply to any evidence of a registered person, or to a nurse under the supervision of a physician, dentist, or veterinary surgeon registered under this part or section 2551(a), having such possession or control by virtue of his employment or occupation and not on his own account; or to the possession of narcotic drugs which has or have been prescribed in good faith by a physician, dentist, or veterinary surgeon registered under this part or section 2551 (a) ; or to any United States, State, county, municipal, District, Territorial, or insular officer or official who has possession of any said drugs, by reason of his official duties, or to a warehouseman holding possession for a person registered and who has paid the taxes under this part and subchapter A of Chapter 23; or to common carriers engaged in transporting such drugs: Provided further, That it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment, or other writ or proceeding laid or brought under this part or subchapter A of chapter 23; and the burden of proof of any such exemption shall be upon the defendant.
      Repeal of these provisions did not, however, affect the validity of McCutcheon’s convictions, Public Law 91-513, Title 3, Section 1103(a), 84 Stat. 1292.

      . See footnote 3, supra.

      . Repealed, October 27, 1970, Public Law 91-513, Title 3, Section 1101(b)(3)(A), 84 Stat. 1292.

      . See footnote 3, supra.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Joan SUBECZ, Plaintiff, Appellant, v. David M. CURTIS, Defendant, Appellee.
    No. 71-1383.
    United States Court of Appeals, First Circuit.
    April 24, 1973.
    On Reconsideration July 13, 1973.

      Albert P. Zabin, Boston, Mass., with whom Schneider & Reilly, Boston, Mass., was on brief, for appellant.
    Lionel H. Perlo, Boston, Mass., with whom Jacob J. Locke and Ficksman & Conley, Boston, Mass., were on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Laszlo Subecz, husband of the plaintiff-appellant, entered Cape Code Hospital on Saturday evening, June 29, 1968, coming under the care of the defendant-appellee, a general surgeon. He had suffered a head injury, was disoriented, restless and perhaps periodically unconscious. He died at the hospital thirty-seven hours later.

In this diversity action for his alleged wrongful death and conscious suffering, plaintiff appeals from a judgment for the defendant entered pursuant to the jury’s verdicts. We affirm.

The sole question arises from the testimonial equivocation of one of plaintiff’s two experts, a neurosurgeon, concerning the existence of a causal connection between defendant’s failure to call a neurosurgeon and Subecz’s death. The witness, Dr. Humphreys, testified that not calling a neurosurgeon after twenty-four hours was a mistake, but, on both direct and cross examination, he testified that it was “problematic” and “speculative”, from the hospital record, whether there would have been a different end result. On redirect, counsel tried to ask Dr. Humphreys if he had not told him before trial that “the probabilities were that prompt surgical intervention would have saved this man’s life.” Before the witness could answer, the court called counsel to the bench. Plaintiff’s counsel vigorously asserted a right, under M.G.L. c. 233 § 23, to elicit prior statements. See F.R.Civ.P. 43. The court then ordered a voir dire to see “what if any foundation for impeaching Dr. Humphreys” plaintiff’s counsel could lay.

At the voir dire, Dr. Humphreys testified to telling counsel that there were obvious errors made in clinical judgment. He said, “[I]f the blood clot could have been drained, probably the patient would have lived, if it had, but this, again, I used the word — the word today that was brought up was speculation, and all medical judgments actually are to me speculation. . . .” He also testified that “the whole picture, all pulled together . . . as to whether or not having neurosurgical procedure accomplished . . . contributed to the patient’s death.” He explained the causal relationship between death and failure to call a neurosurgeon as based on the possibility that if the neurosurgeon had examined the patient he might “have seen something that has not been revealed in the record which would lead him to operate, and this is why it is speculation, my trying to put myself in another neurosurgeon’s mind.” Dr. Humphreys said he had not mentioned to the jury certain of the clinical errors because he had not been asked about them, and because concentrating on the mistake of not calling a neurosurgeon, he had forgot to do so. Towards the end of the voir dire, the court ruled that it would not permit impeachment, stating that “what we want here is the doctor’s best opinions such as they are today.” It concluded that it would permit only some “small” questioning, limited to the doctor’s use of the word “speculation” and “maybe something along the lines of causal relationships.” No objection to its rulings were registered by plaintiff’s counsel.

Thereafter, the jury having been brought back, plaintiff’s counsel proceeded with redirect, asking, among other questions, for Dr. Humphreys’ opinion “as to the probable relationship between the patient’s death and. what you have termed the doctor’s error of judgment.” Dr. Humphreys replied that if drainage of the blood clot had taken place, “probably you would have had a live patient. The condition of this live patient, I cannot say what it would be or what the residuals would be or [of] such a procedure.”

On recross, Dr. Humphreys gave further testimony favorable to plaintiff: that patients with big blood clots go on to death unless there is neurological intervention; that while even if with intervention they may die, it is “giving the patient a chance”; that “I still say if consultation had been called by a neurological surgeon, the probability of something being done would be great as far as this patient was concerned;” that “one cannot foretell the end result, but the patient should be given the benefit of whatever should happen to him.” The force of this testimony was at the end diminished, however, by the doctor’s agreeing with defendant’s counsel, “You can only speculate as to the end result. You cannot foretell, because that is in the hands of God.” Plaintiff’s counsel, to offset this final, telling lapse, arose and asked (on what the record reflects as “further redirect examination”),

“Well, Doctor, with respect to the result of prompt neurological treatment; you have testified in this courtroom in the absence of the jury that the probabilities are that prompt neurosurgical treatment would have saved this man’s life, haven’t you?”

The court excluded the question. Plaintiff’s counsel saved his rights and stated that his offer of proof was “my examination of the doctor on this subject matter and during the voir dire.”

Plaintiff’s objection and offer of proof relating to the above question came too late to save for appeal her present attack on the court’s broad rulings, made at the voir dire, forbidding impeachment of the doctor. Counsel did not object to these earlier, controlling rulings. That he had initially claimed a right to show prior inconsistent statements did not preserve the point. The court had thereafter held the voir dire in order to secure pertinent information; it had then ruled. At that point, if counsel was dissatisfied with the stated testimonial restrictions, he should have so indicated on the record. Instead, he proceeded without complaint through the remainder of redirect and through recross. Beyond presenting and arguing a point, an objecting party has a further duty to make clear, after the ruling, that he is still pressing it. Krause v. Chartier, 406 F.2d 898, 901 (1st Cir. 1968). Otherwise, unaware of the party’s continuing objection, the court is deprived of the opportunity, or at least of any good reason, to reconsider its ruling See Welch & Corr Construction Corp. v. Harris E. Wheeler, Jr., et ah, 470 F.2d 140, 141 (1st Cir. 1972).

Plaintiff did, it is true, preserve her rights as to the single question excluded on further redirect. But even if several of the court’s grounds for exclusion were incorrect, we would find no material prejudice. Nothing in the doctor’s voir dire testimony leads us to believe that the witness’s response would have added anything new or different. The court itself said — besides declining to permit impeachment, “[H]e has testified on this topic I think now before the jury at least twice and maybe three times ... he has done as much clarifying as I am going to permit.” The court’s discretion to curtail or prevent further examination after redirect is substantial. We would find error here only if plaintiff had been deprived of the opportunity to answer new matter suddenly introduced for the first time. The doctor’s testimony upon reeross had raised no such new matter. We thus find neither error nor material prejudice in the court’s ruling to exclude the question.

We do not, however, leave the matter there. Even had the plaintiff objected to the earlier key rulings, we would affirm. We would do so even though we disagree with the district court to the extent it may have believed that prior inconsistent statements of an expert may never be shown by the party calling him. (As to that question, we see no reason, and are aware of no authority, for limiting the Massachusetts statute to “fact witnesses”. Also see Liddle v. Old Lowell Nat. Bank, 158 Mass. 15, 32 N.E. 954 (1893); McGrath v. Fash, 244 Mass. 327, 139 N.E. 303 (1923), and 3A Wigmore on Evidence, § 1041 at 1055 (1970 Chadbourn Rev.).)

While Massachusetts permits prior statements to be shown by the party calling a witness, the statements must be “inconsistent” and, even if inconsistent, may not be received for their truth. Wheeler v. Howes, 337 Mass. 425, 427, 150 N.E.2d 1, 2 (1958), and see cases cited in Wigmore, supra, § 1018 at 998, n. 3. We think the threshold need to show inconsistency is greater where a party is examining his own rather than an adversary witness, for the risk is greater that the party will get before the jury statements which the jury will improperly receive for their truth and as rehabilitative, not contradictory, of the witness. See Wigmore, supra, § 1043 at 1059-1061.

In the present case, we think the court could have believed that what was sought was not impeachment in its proper sense — i. e. undermining the doctor’s credibility by showing that he had authored different tales at different times —but rehabilitation and supplementation —i. e. placing before the jury, for its truth, a hopefully stronger expression of opinion than the witness was now willing to give. Further, plaintiff could not point to any previous written statements of the witness (other than a cryptic letter, introduced at the voir dire, which did not deal with causality). Hence plaintiff’s “impeachment”, if allowed, would have to consist of leading questions from counsel (“Doctor, at that time, didn’t you tell me that. .”), permitting, in effect, testimony by counsel as to what the neurosurgeon had supposedly once told him.

In any event, as the witness’s entire testimony on voir dire revealed (insofar as he would concede) no significant inconsistencies between his past and present opinions, we are not prepared to say that the court abused its discretion in refusing to permit a free-ranging examination more likely designed to shore up weaknesses in present testimony than to undermine the credibility of plaintiff’s sole neurosurgical expert.

And for the same reason, while we would not have found error had the testimony to some reasonable degree been let in, we are satisfied that there was no material prejudice. The opinions of the neurosurgeon were adequately presented.

Affirmed.

OPINION ON RECONSIDERATION

After our opinion, we learned for the first time of Asaro v. Parisi, 297 F.2d 859 (1st Cir. 1962), cert. denied, 370 U.S. 904, 82 S.Ct. 1250, 8 L.Ed.2d 400 (1962). That was an action by a seaman under the Jones Act and maritime law, not a diversity case. The district court there admitted, for impeachment only, a witness’s handwritten version of what another witness had earlier told him. We held, “There was no.error in admitting the statements into evidence as exhibits for the limited use [i. e. impeachment] permitted by the charge.” We went further, however, to negate the argument that allowing the jury to take the statements to the jury room made it almost certain that the jurors would disregard the charge and give them evidential weight. Judge Woodbury, writing for this court, expressed agreement with Dean Wigmore’s view that testimonial credit might properly be given to extra-judicial statements, saying the “orthodox rule is not realistic.” The court stopped there.

At our invitation the parties have submitted careful and competent briefs on the possible effect of Asaro v. Parisi upon our earlier opinion. We are not disposed to change our opinion.

In the present case, admissibility of the alleged prior statement was sought under M.G.L. c. 233 § 23, the rule “of evidence applied in the courts of general jurisdiction of the state in which the United States Court is held.” F.R.Civ.P. 43(a). As state law affords the rule which favors reception, we referred in our opinion to the corollary state rule, which in Massachusetts is the “orthodox” rule giving only “impeachment” effect to prior inconsistent statements. See Wheeler v. Howes, 337 Mass. 425, 427, 150 N.E.2d 1, 2 (1958). Moreover, we read the Asaro v. Parisi dictum less as a definitive adoption by this circuit of the Wigmore view than as an indication that we will not strain to find prejudicial error if prior inconsistent statements are admitted without orthodox constraints. In Asaro, the district judge had, in fact, charged the orthodox way. We do not think it can yet be said, in this circuit or in the nation, that the Wigmore view has achieved status as the rule “of evidence heretofore applied in the courts of the United States on the hearing of suits in equity” (F.R.Civ.P. 43(a)), hence compelling upon district courts even in diversity actions. Cf. Hope v. Hearst Consolidated Publications, Inc., 294 F.2d 681 (2d Cir. 1961), cert. denied, 368 U.S. 956, 82 S.Ct. 399, 7 L.Ed.2d 388 (1961).

The ruling below depended upon a number of factors, of which the rule in question was but one. As pointed out in footnote 5, we are not convinced that a different result would be indicated even under the Wigmore view. See e. g., United States v. Nuccio, 373 F.2d 168, 172 (2d Cir. 1967), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967). We are satisfied in light of all circumstances that the district court did not abuse its discretion, and that prejudicial error was not committed.

      . His testimony indicates that he reached this conclusion because of an absence of localizing signs in the hospital record which would have provided a neurosurgeon with information sufficient to cause him to decide to operate.

      . M.G.L. c. 233 § 23 allows the party producing a witness to “prove that he has made at other times statements inconsistent with his present testimony; but before proof of such inconsistent statements is given, the circumstances thereof sufficient to designate the particular occasion shall be mentioned to the witness, and he shall be asked if he has made such statements, and, if so, shall be allowed to explain them.”

      . The court said, prior to its ruling, “I would think that there may have been some lack of clarity because of the questions put or because of the circumstances.”
      Also, that the opinion as to causation should be submitted to the jury, “because I don’t think the jury understands that that is the doctor’s opinion.”

      . Earlier in the voir dire the court said that it would not permit any revival of the question of what the error of judgment was, or the errors of judgment, but would permit the doctor’s explaining of his understanding and use of the word “speculate”. Plaintiff’s counsel interjected “Fine”. After the court said, “I will not permit any impeaching of the Doctor,” counsel stated, “All right.”

      . The inconsistency requirement is usually self-regulating when an opposing witness is on the stand. If the prior testimony turns out to be consistent with present testimony, no one loses but the cross-examining party. It should be admitted so long as it fairly tends to control or qualify present testimony. See W. Leach & P. Liacos, Handbook of Massachusetts Evidence, 114 (4th ed. 1967). We do not say that the rule is or should be much different where the witness is the examiner’s own; however, we think the court in marginal cases has greater discretion to exclude where the impeaching purpose of the prior statements seems plainly subordinate to their rehabilitative and shoring-up aspect.
      Should prior statements be admitted for their truth, as under Rule 801 of the Rules of Evidence for the United States Courts, pending before Congress to be effective July 1, 1973, and as urged by several commentators, e. g., Wigmore, supra, § 1018 at 996 and n. 2, C. McCormick, Law of Evidence, § 251 at 601-604 (2d ed. 1972), the balancing of factors which we find to allow exclusion might be tipped more towards admissibility. See Rule 801, Advisory Committee’s Note, Subdivision (d) (1) (A), especially as to “turncoat” witnesses. Even so, we are not convinced that a different outcome would be indicated here. In any event, we cannot say the trend towards the proposed rule is now so unmistakable as to warrant our adopting it prior to the time that Congress acts upon the new rules, see generally cases cited in Wigmore, supra, § 1018 at 996-1007, notes 2-3; nor can we assume that Massachusetts must by now have adopted it. Cf. M. S. Walker v. Travelers Insurance Co., 470 F.2d 951, 952-953 (1st Cir. 1973). Compare F.R.Civ.P. 43(a) with 43(b).

      . We do not suggest that the prior statement need be in writing. The lack of writing was merely significant here as a further factor in borderline circumstances bearing upon the court’s exercise of discretion.


author: LEVIN H. CAMPBELL, Circuit Judge. COFFIN, Chief Judge

text:
    UNITED STATES of America, Appellee, v. Paul J. CHURCHILL, Defendant-Appellant.
    No. 73-1098.
    United States Court of Appeals, First Circuit.
    Heard June 5, 1973.
    Decided Aug. 15, 1973.

      Philip G. Koenig, Boston, Mass., by appointment of the Court, for defendant-appellant.
    Terry Philip Segal, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Appellant was convicted of eleven counts of a twelve-count indictment charging him with aiding and abetting misapplication of funds of a Small Business Investment Company, aiding and abetting in the participation in those funds, and conspiring to misapply and participate in the funds. 18 U.S.C. § 657, 18 U.S.C. § 1006. Two co-defendants, McCullough and Chisholm, were also convicted. The essence of the fraudulent scheme was that funds from American Capital Corporation (Capital), whose principal officer and owner was McCullough, were unlawfully diverted to four corporations controlled by appellant, and found their way back to Capital and McCullough, for the latter’s personal benefit.

While appellant lists in his brief eleven issues on appeal, he argues essentially three issues:

1. Was the indictment a result of the government’s improper use of civil proceedings to obtain evidence for a criminal prosecution?

2. Did the delays in bringing the indictment and in bringing appellant to trial violate his rights to due process and a speedy trial ?

3. Did the failure of the government to introduce evidence to prove one step in a transaction illustrated for the jury on a chart require the grant of defendant’s motion of a directed verdict as to one count and fatally prejudice his conviction on all other counts ?

I

Appellant’s contention that the government deliberately used civil proceedings to prepare a criminal case against him raises a question which has come up more frequently as investigations by government agencies implicate criminal as well as civil liability. Cf. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).

Capital was a Small Business Investment Company regulated by the Small Business Investment Act of 1958, 15 U. S.C. § 661 et seq. McCullough bought the company in 1965, and shortly thereafter, through the spring of 1966, he and the co-defendants allegedly committed the fraudulent transactions. In June, 1966, the Small Business Administration (SBA), having learned of possible violations of law by McCullough, began an investigation pursuant to authority conferred by § 687b. On the basis of this investigation, SBA officials suspected criminal violations as well as violations of its own regulations; it discussed the criminal aspects with the Justice Department and was told that, because of gaps in evidence, the case should not be referred for criminal prosecution.

The SBA in late 1966 initiated a civil action against Capital in the district court, alleging Capital’s failure to meet, interest payments and to file periodic reports. See 15 U.S.C. § 687c. The court awarded the SBA a money judgment of $306,377.08, appointed it receiver of the corporation, and appointed SBA attorney O’Donnell attorney for the receiver. Meanwhile, the SBA continued to seek certain bank records that would help close gaps in the evidence.

In 1967, unknown to the SBA, one Shepard Spunt brought an involuntary petition in bankruptcy against McCullough. Informed of the proceeding, O’Donnell applied for and was granted permission to enter an appearance in the so-called 21(a) hearings. See 11 U.S.C. § 44(a). Though suspicious of criminal conduct, O’Donnell’s purpose, he subsequently testified, was to discover where the money from Capital had gone and to collect it. He later filed a claim on behalf of the receiver against McCullough for $190,000.

McCullough and others, but not appellant, were subpoenaed and questioned at the 21(a) hearings by O’Donnell, Spunt, and the counsel for the trustee. They were not told that criminal conduct was suspected, nor advised of their right to remain silent. In June, 1968, before the hearings were completed, but after testimony had been elicited closing many of the evidentiary gaps, the SBA referred the ease to the United States Attorney, and the hearings were closed, at the SBA’s request. Attempts to obtain bank records continued. Indictments came down on November 23, 1970, shortly before the statute of limitations was to expire.

In United States v. Kordel, supra, the Food and Drug Administration brought a civil action against the defendants and obtained discovery, and thereafter initiated a prosecution. In sustaining the convictions against arguments that the government’s conduct was so unfair and wanting for justice as to violate due process and proper standards for administration of justice, the Court said, in dictum: “We do not deal here with a case where the Government has brought a civil action solely to obtain evidence for its criminal prosecution . . . . ” 397 U.S. at 11-12, 90 S.Ct. at 769.

Appellant argues, focusing on the SBA’s role in the 21(a) hearings, that this is such a case. The district court on appellant’s motion to dismiss ruled otherwise. It said:

“The record is clear that the United States did not initiate or instigate the bankruptcy proceedings and that it did not use or abuse its civil investigatory powers by using the bankruptcy hearings, as a ruse to obtain evidence for a criminal case. The record is clear that the Small Business Administration became a party to the bankruptcy proceeding in order to protect the Government’s financial interests due to loans made by that agency.”

We put aside the question of standing, since we think that the district court was warranted in finding that the SBA’s purpose was not improper. The SBA did not initiate the bankruptcy proceeding against McCullough. Its appearance and role in the 21(a) hearings were proper and perhaps mandatory, since as receiver it was charged with locating Capital’s assets it believed McCullough had fraudulently taken from Capital. It is true, of course, that it was wearing two hats at the time, since it was simultaneously pursuing its investigation of Capital, which it suspected might uncover criminal conduct as well as civil violations. But we cannot conclude on the record before us that its sole purpose in intervening in the 21(a) hearings was to gather evidence for a criminal prosecution.

It is, of course, difficult in cases where the government pursues civil and criminal investigations jointly to determine what the government purpose is, if there is any single purpose. The problem arises recurrently in income tax investigations that may lead to criminal as well as civil liability. In Donaldson, supra, it was urged that an Internal Revenue summons proceeding could not be used to aid an investigation that could result in a recommendation of a criminal prosecution against the taxpayer. The Court held that the government’s purpose was proper as long as the summons was used before the case was actually referred for prosecution. 400 U.S. at 533, 91 S.Ct. 534. In Kordel, too, the civil discovery, though occurring while the FDA contemplated initiating criminal proceedings, took place before the case was referred to the Justice Department for prosecution. See 397 U.S. at 4-6, 90 S.Ct, 763.

In Donaldson, the Court said that to prevent the IRS from pursuing joint investigations would “thwart and defeat the appropriate investigatory powers that the Congress has placed in ‘the Secretary or his delegate.’ ” 400 U.S. at 533, 91 S.Ct. at 544. Similarly here, to prevent the SBA from intervening in the 21(a) hearings would be to prevent it from carrying out its duties as receiver. We have said that, with respect to income tax summonses, where the purpose is “mixed” it is “proper”. McGarry v. Riley, 363 F.2d 421, 424 (1st Cir. 1966), cert. denied, 385 U.S. 969, 87 S.Ct. 502, 17 L.Ed.2d 433 (1966). The same proposition applies to the instant ease. But see United States v. O’Connor, 118 F.Supp. 248 (D.Mass. 1953).

II

Appellant contends that the pre- and post-indictment delays, and the combination of the two, violated his speedy trial and due process rights. We find merit in neither of his contentions.

The Sixth Amendment speedy trial provision does not apply to the period before indictment, at least until the defendant is arrested. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). See United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). Appellant argues, however, that his due process rights were violated, relying on the Supreme Court’s statement that

“the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this ease caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain a tactical advantage over., the accused.” 404 U.S. at 324, 92 S. Ct. at 465 (footnote omitted).

But deciding that the government did not improperly use the 21(a) proceedings, we find neither that the government delayed in order to gain a tactical advantage nor that its use of the evidence from the 21(a) hearings was prejudicial. Indeed, it is clear from the record that the delay between the commission of the crime and the indictment was due to the lack of sufficient evidence to prosecute. The government can hardly be faulted for not bringing an indictment on insufficient evidence.

The period between indictment and trial was over 26 months. We recognize that this was an inordinate delay. See United States v. Butler, 426 F.2d 1275, 1277 (1st Cir. 1970). However, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court held that the length of delay is only one of several factors to be weighed and balanced in determining whether the right to speedy trial has been denied. 407 U.S. at 530, 92 S.Ct. 2182. When we look to the other factors the Court mentioned, we conclude that the right has not been abridged.

First, the reasons for the delay. The appellant does not contend that the government deliberately delayed bringing him to trial. At most, it can be said that a crowded criminal docket and lack of judges may have contributed to the delay. This would be what the Court has described as “[a] more neutral reason [than deliberate government delay that] should be weighed less heavily but nevertheless should be considered . . . . ” 407 U.S. at 531, 92 S.Ct. at 2192. Other factors, however, contributed to the delay, not the least of which were the defendant’s discovery motions and the time necessary for response, and the fact that appellant had a change of counsel three months after the indictment. While the government’s own discovery motions contributed to the delay, we cannot attribute it solely to the government’s action or inaction. Indeed, on one occasion the government filed a motion to compel speedy filing of the defendant’s'pretrial motions brief.

Second, the defendant’s responsibility to assert his right. In Barker the Court said that failure to assert the right to a speedy trial does not constitute a waiver of the right. 407 U.S. at 528, 92 S.Ct. 2182. But it also said:

“The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 531-532, 92 S.Ct. at 2193.

The defendant did not assert his right until almost two years after the indictment was returned, and the case was tried three months afterwards. As late as nine months after the indictment was returned, appellant stated in a memorandum: “Defendant and his counsel are far short of completing their pre-trial investigation of the facts . . . . ” This statement, combined with silence on the part of defendant throughout most of the period of delay, indicates that appellant for most of the time was not averse to the protracted nature of the proceedings.

Third, prejudice to the defendant. The Court has identified three interests of the defendant which the Sixth Amendment is designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U.S. at 532, 92 S.Ct. at 2193 (footnote omitted). Appellant was not incarcerated prior to trial. He has pointed to no specific instances of prejudice resulting from the delay, saying only that “[a] full transcript of this trial . would reveal several instances where witness [sic] testified to loss of memory with respect to the transactions which were the subject of the indictment.” We cannot find prejudice to the appellant on the basis of such a vague reference as this. While we agree that “[l]oss of memory ... is not always reflected in the record because what has been forgotten can rarely be shown,” Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193 we cannot simply assume that the defendant was prejudiced by the delay here, especially where much of the evidence was documentary. We may assume that the delay did nothing to “minimize anxiety and concern” of the defendant, but even on this score appellant has shown little to evidence the effect of the delay on his personal life.

Balancing all these factors, we find that the length of the delay is the factor most favorable to the appellant’s contention; the other factors are not in his favor. Whether we view the pre-indictment and post-indictment delay separately or in combination, we conclude that appellant’s right to a speedy trial was not abridged.

Ill

In its opening and closing arguments, the government showed to the jury charts purporting to illustrate each step in the alleged fraudulent transactions. At a pretrial conference, when defendant objected to the use of the charts, the trial court warned the prosecution that failure to prove the transactions illustrated might prejudice the government's case. The charts were not admitted into evidence. During the trial, the government did, in fact, provide very extensive evidence, much of it documentary, supporting most of what was shown on the charts. However, it did not introduce direct evidence of a letter described in one of seven boxes detailing a sequence of transactions under Count 11. Using the chart, appellant during his closing strenuously argued to the jury the purported lack of proof on this point. Appellant now contends that the government’s failure to offer direct proof concerning one alleged step in the transaction under Count 11 required the grant of his motion for a directed verdict on that count. Moreover, he argues that the use of a chart combined with the failure to support an item shown thereon fatally prejudiced his conviction on all counts.

We view the evidence, of course, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). From the portions of the trial transcript provided us, see F.R.A.P. 10(b), which consist of part of the government’s opening argument and part of the closing arguments of both the government and defense counsel, we are unable to conclude that the evidence was insufficient as a matter of law to support appellant’s conviction under Count 11. It is not disputed that the prosecution introduced direct evidence tending to establish six of the seven essential parts of the alleged illegal transaction. By reference to this evidence and to the similar pattern of conduct proven with respect to the other counts, we think the jury could reasonably infer the missing element without having direct proof.

The abbreviated transcript limits our review of appellant’s contention of prejudice from the chart. We do not know whether cautionary instructions were requested or given. This is not, in any event, a situation, illustrated in cases cited by both appellant and appellee, where summaries of evidence, in chart form or otherwise, are themselves admitted as evidence. Cf., e. g., Holland v. United States, 348 U.S. 121, 128, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Lloyd v. United States, 226 F.2d 9, 16-17 (5th Cir. 1955); United States v. Goldberg, 401 F. 2d 644, 647-648 (2d Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed. 2d 790 (1969). See also United States v. Flynn, 481 F.2d 11 at 13 (1st Cir. 1973). In such cases, when the summary is not supported by underlying evidence, the danger of prejudice is especially great. Here, the jury did not take charts with them to the jury room and the alleged failure of proof concerned only one aspect of one of many counts. The government states that it supported its case by 105 exhibits. We are unpersuaded that display of the chart constituted prejudicial error.

Appellant was sentenced to be confined for three years under each of the eleven counts on which he was convicted, the sentences to run concurrently. He does not contend that the evidence was insufficient to convict under any of these counts, save Count 11. Even if there were a failure of proof or some prejudice connected with the conviction under Count 11, the argument that these factors might have so misled the jury as to cause it to convict the appellant under the other ten counts is implausible.

We have considered appellant’s other contentions on appeal and likewise find them to be without merit.

Affirmed.

COFFIN, Chief Judge

(concurring).

I concur in the judgment of affirmance, but not without grave reservations. Were it not for the absence of a showing of any substantial prejudice from delay, I would strongly urge that the co-existence of (1) deliberate and extensive resort to civil investigatory powers with the prospect of ultimate criminal prosecution clearly in mind, (2) the absence of any notice to appellant that criminal prosecution was contemplated, and (3) a four-year delay between the alleged fraudulent transactions and indictment had risen to the level of a violation of due process.

While the government did not initiate the § 21(a) bankruptcy investigation and had a non-criminally motivated interest in trying to recoup SB A losses, thus not bringing “a civil action solely to obtain evidence for its criminal prosecution”, United States v. Kordel, 397 U. S. 1, 11-12, 90 S.Ct. 763, 769, 25 L.Ed.2d 1 (1970), it is hard to say that the delay in the criminal proceedings was not at least partly “an intentional device to gain tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L. Ed.2d 468 (1971), or “purposive”, even though not in bad faith. United States v. Parrott, 248 F.Supp. 196 (D.D.C. 1965). Here, the government made a deliberate choice to hold the criminal prosecution in abeyance during which time the fruits of the civil proceedings, regularly sent to the U. S. Attorney, were, in the words of SBA’s chief litigation counsel, “of tremendous significance” to the criminal case. Moreover, it is clear that the government “failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution.” Kordel, supra, at 11 of 397 U.S., at 769 of 90 S.Ct.

In the past we have not adopted the approach of some other courts in shifting the burden of proof as to prejudice from delay, see, e. g., United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823 (1972). I hesitate to recommend an arbitrary time limit which would trigger a shifting from a defendant to the government. But it seems to me that where the government is responsible for the deliberate tactical delay in the formal institution of criminal proceedings for almost the entire limitations period, without notice to the accused, we would well be justified in imposing on the government the burden of proving the absence of prejudice, difficult though that burden may be to sustain.

      . Appellant was not questioned at the 21(a) hearings. Normally, one cannot vicariously assert the rights of others victimized by alleged governmental misconduct. See Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

      . Donaldson, concerning the scope of the authority for issuing summonses con- . ferred by 26 U.S.C. § 7602, is not strictly on point. However, we think the principles stated there are equally applicable here.

      . We have not been provided a transcript of the testimony. See infra, part III.


text:
    Wilson M. PRICE, Plaintiff-Appellee, v. John MOSLER, Defendant-Appellant.
    No. 72-3358.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.

      Richard F. Ralph, Miami, Fla., for defendant-appellant.
    Martin Roth, S. Eldridge Sampliner, Arthur Roth, Miami, Fla., for plaintiff-appellee.
    Before GOLDBERG, CLARK and RO-NEY, Circuit Judges.
   PER CURIAM:

This is an appeal from an award of damages and maintenance and cure under the general maritime law. Having considered each element of defendant-appellant’s broad based attack on the judgment of the district court, we affirm.

On May 10, 1971, plaintiff-appellee, Wilson M. Price, was hired by defendant-appellant, John Mosler, to captain defendant’s yacht, SKIP JOHN III, on a voyage from Miami to New York. On May 12, 1971, plaintiff examined the yacht’s engine room and power plant in preparation for the trip to New York, and discovered that the yacht’s two banks of batteries needed restoring. One of the banks was located in a low and narrow passageway between the engines and the generator and was best reached by crawling or by walking bent over at the waist. , After making three tiring trips between the battery bank and the water supply, plaintiff attempted to grab the top of the engine for aid in turning around. As he reached up to do so, he slipped on some oil and grease and fell in a sitting position on a stringer, causing the injury to his back that is the subject of this litigation.

On October 18, 1971, plaintiff commenced this action seeking: (1) damages under the Jones Act, 46 U.S.C. § 688, and the general maritime law; and (2) maintenance and cure under the general maritime law. Before trial, plaintiff withdrew the count that alleged defendant was negligent and elected to proceed solely on his claim that his injuries were caused by the vessel’s unseaworthiness. Plaintiff’s unseaworthiness claim was tried to the jury, and his claim for maintenance and cure was simultaneously tried to the judge. Both the jury and the trial judge found in favor of plaintiff, awarding respectively $49,500.00 in damages, and $1,574.50 for maintenance and cure. On this appeal defendant contends that the district court erred in failing to grant a motion for new trial and in awarding an excessive amount of maintenance.

Defendant asserts that a new trial should have been granted because plaintiff responded falsely to interrogatories concerning a prior back injury. Without considering the willfulness of plaintiff’s misstatements, we hold that defendant’s contention is without merit. The jury was made aware of plaintiff’s prior injury from several sources: plaintiff’s hospital records and the testimony of an examining physician, both introduced by plaintiff; and the testimony of an agent of defendant concerning ^ a conversation that he had with plaintiff. Furthermore, when defendant discovered that plaintiff had previously experienced back trouble, he did not seek a continuance to investigate plaintiff’s prior medical history. Rather, defendant chose as a matter of trial strategy to attempt to impeach plaintiff’s credibility on the basis of his incomplete and inconsistent statements concerning his prior medical history. For these reasons, we hold that the district court did not abuse its discretion in refusing to order a new trial on this ground. See Armstrong v. Jones, 5 Cir. 1967, 376 F.2d 345, 346.

At trial defendant argued that plaintiff was contributorily negligent in neglecting to clean up the oil and grease that precipitated his fall. Defendant now contends that the jury’s verdict was contrary to the weight of evidence on this point and that the district court erred in refusing to grant a new trial. Of course, neither contributory negligence nor assumption of risk is an absolute maritime defense; rather these defenses are applicable only in conjunction with the maritime rule of comparative fault. See Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 431, 59 S.Ct. 262, 266, 83 L.Ed. 265, 270; Manning v. M/V Sea Road, 5 Cir. 1965, 358 F.2d 615, 617; Flowers v. Savannah Machine & Foundry Co., 5 Cir. 1962, 310 F.2d 135, 138. The jury was presented with all of the evidence concerning the events causing plaintiff’s injury and the condition of defendant’s yacht. The learned trial judge fully instructed the jury with regard to contributory negligence and the maritime rule of comparative fault, and the jury found in favor of plaintiff. In ruling on a motion for a new trial:

“Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”

Tennant v. Peoria & Pekin Union Ry., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520, 525. “[T]he jury’s verdict must be at least against the great weight of the evidence before a new trial may be granted. R. B. Co. v. Aetna Ins. Co., 299 F.2d 753, 758 (5th Cir. 1962); Marsh v. Illinois Cent. R. R., 175 F.2d 498, 500 (5th Cir. 1949).” Cities Service Oil Co. v. Launey, 5 Cir. 1968, 403 F.2d 537, 540. We hold that there was ample evidence to support the jury’s verdict, and that the district court did not err in denying defendant’s motion for a new trial.

Lastly, defendant contends that the trial judge erred in awarding plaintiff maintenance from July 1, 1971 to December 20, 1971, and that the jury verdict was excessive as a matter of law. We find no merit to defendant’s contention that plaintiff had abandoned treatment on September 21, 1971 and that the trial judge should have utilized that date in determining the maintenance award. The trial judge determined that plaintiff was entitled to maintenance until December 20, 1971, the last day prior to his achieving the maximum cure possible, and after considering the record before us, we hold that the trial judge was neither clearly erroneous in his fact findings nor mistaken in his application of the law. See Myles v. Quinn Menhaden Fisheries, Inc., 5 Cir. 1962, 302 F.2d 146, 150. Moreover, the jury award was not excessive as a matter of law, see Ohio Casualty Ins. Co. v. Brown, 5 Cir. 1957, 241 F.2d 795, 796, and the district court did not err in denying defendant’s motion for a new trial based on that ground. See City Service Oil Co. v. Launey, supra.

In ferreting factual disputations, our role, as an appellate court, is not that of a rigorous task master. The trial judge ably conducted the proceedings and sensing no disarray, in his rulings and findings, we affirm.

Affirmed.

      . A stringer is a longitudinal strengthening member which projects above the interior of the hull.

      . Although defendant does not argue the point at great length, by citing Bruszewski v. Isthmian S. S. Co., 3 Cir. 1947, 163 F.2d 720, 722; Byars v. Moore-McCormack Lines, Inc., 2 Cir. 1946, 155 F.2d 587, 588, and De La Pena v. Moore-McCormack Lines, Inc., S.D.N.Y.1948, 84 F.Supp, 698, 699-700, he indicates that he is raising an argument in addition to contributory negligence. He apparently relies on the
      “. . . general rule in both negligence and unseaworthiness cases that when a person employed to repair a defect in a machine, structure, or other thing, suffers personal injuries while making such repairs, caused by the very defect he is employed to repair, he may not recover damages for such injuries from his employer.”
      Lettsome v. United States, 5 Cir., 1969, 411 F.2d 917, 922.
      The general rule articulated in Lett-some is not applicable to the case before us. Plaintiff was hired to captain defendant’s yacht, and in performing his duties he undertook some routine maintenance functions. The Lettsome rule is limited to those occasions where the party seeking damages has been specifically employed to repair the defect or condition which caused the injury for which he seeks relief. If defendant’s position were to be adopted, no seaman employed to perform general shipboard duties could ever recover for injuries suffered as a result of the unseaworthiness of a vessel because the accident would be presumed to have been caused by his failure to correct the defect causing his injury. Moreover, the Lettsome rule generally has been applied only in those instances where an independent contractor has been hired to repair a specific shipboard defect. See e. g. Bruszewski v. Isthmian S. S. Co., supra; Byars v. Moore-McCormack Lines, Inc., supra; De La Pena v. Moore-McCor-mack Lines, Inc., supra; Armento v. United States, E.D.N.Y.1947, 74 F.Supp. 198.

      . For the same reasons, we reject plaintiff’s assertion that the trial judge should have granted maintenance and cure for a greater length of time.