author: JOHN R. BROWN, Chief Judge: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Errol B. RESNICK, Defendant-Appellant.
    No. 73-1320
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.
    Rehearing and Rehearing En Banc Denied July 12, 1973.
    Certiorari Denied Nov. 5, 1973.
    See 94 S.Ct. 370.

      James M. Russ, Orlando, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-ap-pellee.
    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.

   JOHN R. BROWN, Chief Judge:

Appellant challenges his sentence and conviction for melting silver from United States currency in violation of 31 U. S.C.A. § 395 on various grounds. We affirm.

Jury Selection Plan

Appellant, for the first time on this appeal, challenges the Plan for the selection of jurors in the Middle District of Florida on the basis that it excludes a substantial segment of the community, i. e., people between the ages of 18 and 25.

But not every omission of potentially qualified jurors is an error of constitutional proportions. Realizing this, appellant argues that the Plan for juror selection for the Middle District of Florida also fails to satisfy the Jury Selection and Service Act of 1968, 28 U.S.C. A. §§ 1861-1871, as amended in 1972 to allow eighteen year olds to serve. The plan adopted in August 1968 by the Reviewing Panel for the Middle District of Florida provided for the periodic refilling of the master jury wheel. Appellant argues, however, that at the time of his trial in 1972 only those people who were twenty-one years of age and otherwise qualified in August of 1968 when the wheel was initially filled were included in the venire. Thus, all those under 25 were excluded.

We have on several occasions had to pass on whether a jury selection Plan complied with the statute or the Plan had been violated. United States v. Blair, 5 Cir., 1972, 470 F.2d 331; United States v. Kuhn, 5 Cir., 1971, 441 F.2d 179; United States v. Pentado, 5 Cir., 1972, 463 F.2d 355; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425 [1973]; United States v. Arroyave, 5 Cir., 1973, 477 F.2d 157 [1973], We reaffirm our pragmatic statement in Blair, supra: “In the Constitutional— statutory goal of a fair cross section Congress had the right to consider practical problems of administrative necessity.” 470 F.2d at 336. Examining the Plan in detail, we cannot say that it fails to satisfy the statute or to afford the defendant due process.

At the time the Plan was put into operation, it called for the emptying/refilling of the master jury wheel every fifth year. Thus, because of administrative considerations, persons who would become otherwise newly qualified by virtue of their twenty-first birthday after August 1968 would not be put into the master wheel until 1973 when the wheel was refilled. But as we have previously held, this is not grounds for reversal. Congress itself, when it sanctioned jury service for eighteen year olds, extended the effective date to September 1, 1973 and required refilling of the master wheels by that date. See Blair, supra at 336 n. 10. And we too have recognized the administrative necessity of having some stability.

We cannot hold that appellant was deprived of a fair trial by operation of this Plan.

A Revoked Regulation

Resnick was prosecuted under the authority of 31 U.S.C.A. § 395. At the time of his indictment this section was explained by regulation. 31 C.F.R. § 82.1 (1967). By the time he was brought to trial, however, the regulation had been revoked, though a specific savings clause sought to protect pending cases.

In two separately designated points of error appellant contends that the Secretary of the Treasury (i) could not prosecute him under the authority of 31 C.F. R. § 82.1 (1967) after its revocation, because (ii) the Secretary is without authority to enact a savings provision for pending prosecutions.

These same arguments were presented by appellant in United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127, 1133-1134. Pretermitting the second issue we there held:

“Here the authorizing legislation has not been repealed nor has it expired. It is the Act and not the regulation which establishes the crime and fixes the penalty. Only the administrative rule was revoked, a power lawfully delegated to the executive ‘to fill up the details.’ The revocation of the regulation does not bar the prosecution of the defendants in this case.”

Obviously, this prior holding controls the same issue on this appeal. It is without merit.

A Dusty Apple

Appellant next contends that it was error for the trial judge to allow government witness Alex Forrester to testify because his identity had been disclosed to government agents in Resnick’s financial ledger, which we previously ordered suppressed. See United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127. Thus to use an outworn cliche, the identity of the witness was the fruit of the poisonous tree.

Of course a witness’ identity may be derived solely or principally from illegally obtained evidence and warrant a court in disallowing his testimony. Williams v. United States, 5 Cir. 1967, 382 F.2d 48, 51. See Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Harrison v. United States, 1968, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047; United States v. Whelan, 9 Cir., 1972, 463 F.2d 1093. But the taint of the unlawful search may be removed if there are independently sufficient “leads” by which the government may discover the identity. See Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.

The government here contends that Forrester’s identity was discovered, not from his clearly printed name on virtually every page of the financial ledger, but rather from his scrawled signature on four separate air freight bills acknowledging his receipt of the shipment of several bags of coins. Secret Service Agent Williamson testified that he had made an independent investigation of these air bills which predated the search which uncovered the ledger.

If we are left to our own capacity to decipher signatures other than our own we have much difficulty in accepting agent Williamson’s assertion on voir dire that he learned of the identity from the air bills (Ex. 26, 63) rather than the clearly revealed, but suppressed, Dome Book. The trial court erred in allowing Forrester to testify, but accepting that contention it does not end here, as we assess the record without Forrester’s testimony.

For not every error on the part of the district court will mandate reversal. If, taking the record as a whole, the error is “harmless beyond a reasonable doubt”, the conviction must be affirmed. Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705. We have made a thorough and independent examination of the entire record in the instant case and conclude that the admission of Forrester’s testimony was harmless error beyond a reasonable doubt.

Forrester was a long-time friend and confidant of Resniek. His testimony indicates that he Conferred with Resniek about the possibility of melting United States coins into silver bullion at a profit, and that he actually worked at the melting site for about three days and ran several errands for Resniek. But his testimony was merely cumulative.

The government introduced the testimony of several coin dealers and airline agents to establish the fact that large shipments of silver coins were made to Resniek and his agents. In addition to Forrester’s testimony, it also produced the testimony of three other “false friends” of Resniek who participated in the smelting operation at Resnick’s direction and who actually observed Res-nick himself participating in the operation. Viewing the record in its entirety, we do not believe that the exclusion of Forrester’s testimony • would have changed the verdict in any respect.

The Jencks Jinx

Appellant made several demands on the government for the production of prior Jencks Act, 18 U.S.C.A. § -3500 et seq., statements of Witness Forrester. Immediately after Forrester’s testimony the prosecuting attorney contacted another member of his office who had interviewed Forrester on a previous occasion. He was assured that no written statements were taken.

There has been no suggestion on this appeal that there are in fact any prior Jencks type statements. Rather the sole contention of the appellant is that it was error for the trial court not to directly inquire of the prosecuting, attorney as to the existence of prior Jencks Act statements. We find this claim most shallow. The prosecuting attorney, like defense counsel, is an officer of the court. Unless there are concrete facts or factors indicating that he has failed to comply with the mandate of the law the Judge could accept his assurances that he has. The prosecuting attorney does not have to be subjected to a third degree inquisition by the trial court.

The Quid Pro Quo

When the government decided to retry appellant after our reversal in United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127, both sides entered into plea negotiations. The Assistant United States Attorney who was handling the case agreed to recommend three year concurrent sentences on both counts of the indictment in exchange for a plea of guilty. The trial judge indicated that he would approve the bargain. But the defendant concluded that he would prefer to take his chances on a trial.

The trial resulted in a verdict of guilty, and the trial court then imposed two five year consecutive sentences on the two charges of the indictment. There is not the slightest suggestion that this was in any way a reprisal by the Judge because appellant opted for a trial under a not guilty plea. Reaching to the bottom of the barrel for his last contention on appeal, appellant suggests that he should be given the fruits of an abandoned bargain — in spite of the fact that he pleaded “not guilty”. To allow the imposition of the greater sentence, he argues, punishes him for exercising his Fifth and Sixth Amendment rights. Of course plea bargains are an accepted mode of resolving criminal trials, Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, and defendants who plead guilty are entitled to have the sentencing court know of them and to withdraw the guilty plea if the Judge declines to accept it. Santobello v. New York, 1972, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Fontaine v. United States, 1973, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169; Johnson v. Beto, 5 Cir., 1972, 466 F.2d 478. But it stretches our credulity to think that one who declines to plead guilty with a recommended sentence acceptable to the Court should nevertheless be given the benefits of a bargain available to, but rejected by, him.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

Resnick’s Petition for Rehearing urges that his two consecutive five year sentences are constitutionally infirm under the doctrine of North Carolina v. Pearce, 1961, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The point that this sentence is invalid because it is harsher than the two four year concurrent sentences imposed by the Court in Resnick’s second trial which we reversed in United States v. Resnick, 5 Cir. 1972, 455 F.2d 1127, was not raised in the trial court or in the briefs on appeal of this conviction.

Nevertheless there is clearly (albeit belatedly) raised the possibility of constitutional violation in the imposition of consecutive five year confinement sentences following Resnick’s last trial. We decline to consider this question until it is first passed upon by the district court. Rule 35, F.R.Crim.P., allows correction of an illegal sentence by a trial court at any time, and reduction of sentence by the trial court within 120 days of the going down of our mandate of affirmance. Without question then the issue based upon North Carolina v. Pearce may be presented to the district court upon remand.

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

      . Appellant was charged on a two count indictment on March 24, 1969. His first trial resulted in a mistrial. The second was reversed because of Fourth Amendment error. See United States v. Res-nick, 5 Cir., 1972, 455 F.2d 1127. Of course we are not bound to consider this eleventh hour contention at all. But taking the allegation as a charge of plain error, we have entertained the argument and found it wanting.

      . AVe also point out here, as in Blair, that Congress too was aware that administrative considerations must be given their due in effectuating thp rights of eighteen year olds to serve on juries. See 470 F.2d at 336 n. 10.

      . The name “Alex Forrester” is clearly .printed on nearly every page of Resnick’s business expense ledger — dubbed the “Dome Book” by the parties because it was published as a book of “Legal Deductions Allowable If You Are Engaged In A Trade, Business or Profession” by the Dome Publishing Company in Providence, R.I. — as the recipient of literally hundreds of thousands of dollars in cash.

      . The point was preserved in this way:
      THE COURT: Mr. Russ, out of the presence of the jury, my recollection was that there was something you wanted to take up regarding witnesses.
      MR. RUSS: Well, I wanted to sort of challenge the cleanliness of some of the newly found witnesses, Your Honor. There is a suspicion that they are tainted by the — Put it this way: that because of dirty search, some of the dust has fallen off on them and consequently they fall in the area of rotten apples and poisoned fruit, or something like that.
      THE COURT: Sounds like Chief Judge Brown.

      . There are over fifty such freight bills evidencing the shipment of well over one million dollars in United States silver currency. Only four were signed by Forrester. Defendant does not challenge the fact that he received voluminous quantities of silver coin from various professional coin dealers.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis Frederick HOKER, Defendant-Appellant.
    No. 73-1810
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 8, 1973.
    Rehearing Denied Oct. 11, 1973.
    J. E. Tatum, Houston, Tex. for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before, JOHN R. -BROWN, Chief Judge, 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.

   SIMPSON, Circuit Judge:

Hoker appeals from his conviction and sentence after guilty verdicts in a jury trial for two violations of the Controlled Substances Act: Count One for knowingly and intentionally possessing a controlled substance under Schedule I, 446 pounds of marijuana with intent to distribute on September 16, 1972, and Count Two for knowingly and intentionally importing into the United States from Mexico a controlled substance under Schedule I (the same 446 pounds of marijuana). The appellant, a 20 year old male with no prior criminal convictions, but with a juvenile record of probation, was sentenced to four years confinement and a $2500 fine, with a special parol term of two years to follow, as to Count One. A suspended five year confinement sentence, followed by a two year term on special parole was imposed as to Count Two. We reverse because the trial judge took over the prosecution to an extent preventing a fair trial.

In essential particulars this case is governed by our decision in United States v. Lanham, 5 Cir. 1969, 416 F.2d 1140. Lanham involved a charge under the Dyer Act, Title 18 U.S.C. Section 2312, of interstate transportation into Texas of a stolen Volkswagen which had disappeared without the owner’s knowledge or consent from the French Quarter in New Orleans, Louisiana.

Proof of the defendant’s possession of the stolen car was based on its being found on a parking lot in Houston a day or so after it vanished in New Orleans. Lanham and a co-defendant, Larson, were arrested shortly thereafter in a white Volkswagen in Terrell County, Texas. ' The white VW in turn had been stolen from the Houston parking lot where the red VW was found. At Lan-ham’s separate trial both he and Larson testified that they had hitch-hiked to Houston in a black Ford with a Mr. Wilson, and were also hitch-hikers in the white VW. They disclaimed connection with the red VW.

We reversed because the “trial judge improperly injected himself into the trial below in such manner and to such extent as to deny the appellant a fair and impartial trial,” citing specifically Gomila v. United States, 5 Cir. 1944, 146 F.2d 372; Hunter v. United States, 5 Cir. 1932, 62 F.2d 217, and Adler v. United States, 5 Cir. 1910, 182 F. 464; and generally 23 C.J.S. Criminal Law § 987, p. 996; Bollenbach v. United States, 1946, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350, 354; Starr v. United States, 1894, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841; United States v. Link, 3 Cir. 1953, 202 F.2d 592.

The extent to which the trial judge took over the prosecution in Lanham was shown by actual count of the questions asked Larson and Lanham by defense counsel, prosecutor, and judge.

Despite court-appointed counsel’s failure to object in Lanham, we found that “plain error”, Rule 52(a), F.R.Crim.P. had occurred and reversed saying:

“ * * * The impartial trial atmosphere, the ‘cold neutrality of an impartial judge’, the defendant Lan-ham’s credibility, his presumption of innocence, and any chance whether guilty or innocent, that he had of a successful defense, all were demolished, along with his Fifth Amendment right not to be deprived of his liberty without due process of law.” * # *

The situation here presents a close parallel. to Lanham with the addition that, as noted infra, defense counsel twice preserved the point by objection to the court’s examination.

Hoker was stopped for inspection at the International Bridge in Laredo, Texas on September 16, 1972 travelling in a 1955 green Chevrolet pick-up truck with Texas plates. The Quarantine Inspector who initially halted Hoker called in U.S. Customs Inspector McManus, who advised him of his Miranda rights. At that point, Hoker said, according to the agent present, “Inspector, you are going to search my vehicle. If you find any hard stuff in that vehicle will it go harder with me than if they just find plain weed in it?”. The truck contained six concealed compartments under its fenders and body, from which the 446 pounds of marijuana were removed.

The appellant denied knowledge of the presence of the marijuana in the truck, both to Customs agents and at trial. His defense was that a chance acquaintance in a bar in Nuevo Laredo on the Mexican side offered him two hundred dollars to drive the truck to Houston. As his funds were low and he had no job, he accepted the offer.

Whether Hoker’s constructive possession of the marijuana was knowing and intentional with intent to distribute was the key issue before, the jury as to Count One. His possession, since he was alone and driving the truck, was not subject to dispute. As to Count Two, the importation count, inasmuch as he was seen driving the truck across the International Bridge and was in sole control of the truck, the central jury issue was whether or not the importation of the marijuana from Mexico was done knowingly and intentionally. Hoker’s credibility and the reasonableness of his testimony were thus pivotal to his attempt to defend against both charges. Guilty knowledge and intent were the only issues present.

Following 70 questions to Hoker by his counsel and 238 questions on detailed and tortuous cross-examination by the prosecuting attorney, the trial judge entered the fray with 79 searching questions of his own, in addition to seven or eight clarifying questions from the court during the government’s cross-examination. Midway in this examination, Hoker’s counsel objected, and was summarily overruled.

The only witnesses called by the defense, all of whom appeared on the stand before he did, were Hoker’s mother, Manual Martinez, who testified as to his former ownership of the truck and its sale to a man named Sam Perez, and Miss Garcia, a customs employee who had had custody of the truck and its parts. Mrs. Hoker corroborated her son’s testimony as to his age, his employment since finishing high school, and the fact that he had left Houston on September 15, 1972 as a hitch-hiker. Her testimony preceded that of the appellant.

After the defense rested, the government proceeded to call two rebuttal witnesses, the principal one being the night clerk of the El Rio Motel in Nuevo Laredo, where Hoker had testified he was registered in Room 128 on September 14, and again on September 15. This witness, Adolfo Fonseca, had some language difficulties. He testified in part without an interpreter and in part through an interpreter. He produced first a daily combined registration record from the motel which failed to show Hoker registered in Room 128 on September 14 at all. It was registered to Miguel Rascón. Hal Sparks of Houston was in Room 132, and several other young men were in adjoining rooms, all from Houston. Neither was the appellant registered for the 15th.

When Fonseca’s examination ended, the prosecuting attorney, still on rebuttal, called the appellant as a witness “for further cross-examination.” Permission for this procedure was not sought and its propriety was not questioned by the court or by defense counsel. 67 questions were put to the appellant by the prosecutor, probing the discrepancies between Hoker’s original testimony and that of Fonseca, and establishing appellant’s prior acquaintance with Sparks and his arrival at the motel with Sparks, among other matters. The trial judge again took over the inquisition for 47 questions before defense counsel interposed an unavailing objection. The objection and the ruling are set forth in the margin along with the court’s examination.

Following the objection, the court’s examination of Hoker proceeded for an-

other 27 questions as set forth in the margin. Six questions by the prosecutor followed and Hoker’s counsel was then permitted to attempt his rehabilitation in “redirect examination” consisting of 21 questions. The appellant related that he and Sparks were both Jehovah’s Witnesses, acquainted through church activities, and that since Sparks was in no way involved in the marijuana offenses, he was reluctant to bring Sparks’ name into his earlier testimony. At this point the jury was excused and the trial judge afforded defense counsel ah opportunity to expand his objections:

“THE COURT:
Now you may take any exceptions you wish to my interrogating the witness.
MR. TATUM (defense counsel):
I have nothing for the record, and I want the court to know that I have no disrespect, but it is a tremendous disadvantage to the defendant when there is no opportunity to make objections.
THE COURT:
I think you know that you have objections. I tried to ask innocuous questions.
MR. TATUM:
I do want to place a standing objection to continued interrogation by the court to which the defense’ may not have ample opportunity to object. We feel that it does bias the jury and there is no cure for it. Respectfully submitted.” (Emphasis added)
The brief of the United States, at page 5, in comparing this case with Lan-ham, asserts: “In the case at bar, the court asked Hoker only 51 questions as opposed to the 94 asked by defense counsel and 313 asked by the prosecutor. No other witness was examined by the court and the court called no witnesses of its own.”

This statement is incorrect in every particular save its assertion that the court called no witnesses of its own. The number of questions of the appellant asked by the court was 153, by our count, not 51, although there may be some mis-attribution by the court reporter. The tenor of the court’s questions rather than their bare number is the more important factor. One would be hard put to conceive a more inaccurate or inapt characterization than the trial judge’s reference to his questions as innocuous, (quoted, supra).

As we said in Hunter v. United States, supra:

“The assignments of error based on the district judge’s cross-examination of appellant are in our opinion well taken. While that method of cross-examination, if it had been conducted by the district attorney, might have been proper, a district judge ought never to assume the role of a prosecuting attorney and lend the weight of his great influence to the side of the government. It is the judge’s duty to .maintain an attitude of unswerving impartiality between the government and the accused, and he ought never in any questions he asks go beyond the point of seeing to it, in the interests of justice, that the case is fairly tried.”

The exact number of questions by the defense counsel and by the assistant U. S. Attorney prosecuting is less significant, but here again we do not find record support for the figures given by the brief of the United States of 94 questions by defense counsel and 313 by the government attorney. Our count is respectively 91 and 411 questions. Further, mainly for clarification of their testimony, the court interrogated briefly several other witnesses, both government and defense.

But the brief and cursory questions put to other witnesses tended the more strongly to emphasize to the jury that the judge’s concern with credibility, indeed his expressed doubts as to credibility, were limited to the defendant. This refutes the comment in the government brief at page 6:

“In Hunter v. United States, 62 F.2d 217 (C.A. 5, 1932), this court found reversible error in the trial judge’s severe cross-examination of the defendant and his lengthy comments on defendant’s credibility without comments on the credibility of the state’s witness. Such one-sidedness was not present in the case at bar.”

Further parallel exists between this case and Hunter in that in the present case also the charge to the jury centered on Hoker’s credibility without questioning that of the government witnesses. What we noted in Hunter, supra, applies with equal force to the situation in the trial below:

“The judge’s charge was not as objectionable as was his cross-examination of appellant, but it was erroneous in that it was one sided, and placed undue emphasis on the testimony of appellant which the judge himself had brought out by his questions. If the trial judge comments on the evidence, as he has a right to do so, he should call attention to the evidence in favor of as well as that against the accused. O’Shaughnessy v. United States (C.C.A.Ala.) 17 F.2d 225. That the district judge did not intend to be unfair is beside the question. The case was tried in such a way that the jury, in considering as a whole the judge’s questions and charge, might well have reached the conclusion that he was not impartial, but was insisting upon a conviction. It is vastly more important that the attitude of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted. It is too much to expect of human nature that a judge can actively and vigorously aid in the prosecution and at the same time appear to the layman on the jury to be impartial.”

We think we have written enough to reflect our conclusion that the trial judge formed an opinion that the appellant was lying and set out to demonstrate that this was so. The position of a trial judge carries such overpowering weight before a jury that we can not be certain that the verdict was that of the jury uninfluenced by a desire to bring in a verdict calculated to please the judge. No amount of boiler plate instructions to the jury — not to draw any inferences as to the judge’s feelings about the facts from his asking questions, or that they are free to disregard factual comment by the judge, or as to the presumption of innocence — could be expected to erase from a jury’s mind the part taken in this trial by the district judge. Hoker is entitled to be retried in an atmosphere where the impartial neutrality of the presiding judge is not open to serious question.

As to the further issue appellant raised on appeal, the trial judge’s refusal either to permit defense counsel to question the prospective jurors with reference to prior service in criminal cases, or to propound such questions himself, we suggest simply that the voir dire examination was rather severely restricted, and that more latitude should be allowed upon retrial. This point standing alone would probably not rise to the level of reversible error, and requires no discussion in this opinion. The exact situation presented is unlikely to recur in the trial of this or another case.

Reversed.

      . Title 21, U.S.C. Section 841(a)(1).

      . Title 21, U.S.C., Sections 952(a) and 960(a) (1).

      . As to the witness Larson, Lanham’s counsel asked him 36 questions on direct, the prosecuting attorney asked 55 questions on cross-examination, whereupon the trial judge asked 119 questions in a probing, searching, type of examination. The defendant Lanham received the same treatment. His counsel asked him 23 questions, the government attorney 17 questions, and the trial judge followed with 66 questions.
      Unlike what happened in the case at bar, the trial judge examined an FBI agent extensively and also called in rebuttal as a court witness, Louis Teal, a co-inmate of Lanham and Larson in the Harris County Rehabilitation Center, the thrust of whose testimony was to impeach the defendant Lanham by statements allegedly made to him at the Center. But this simply added fuel to the fire. The crucial judicial conduct requiring reversal was the close and extended court cross-examination of Lanham and Larson.

      . Hoker had ten $20 bills, a $5 bill, a $10 bill and some silver on his person when arrested.

      . AVe quote the colloquy from the record: MR. TATUM:
      Excuse me, Your Honor. I have a matter to take up with -the court at this time in the absence of the jury.
      THE COURT:
      You can come up and tell me.
      (The following (124) proceedings were had without the hearing of the jury)
      MR. TATUM:
      At this point, the court has taken over the function of the prosecutor.
      THE COURT:
      You object to my asking the questions?
      MR. TATUM:
      For clarification, all right. But for cross-examination, we do object.
      THE1 COURT:
      Okay, you have made your objection.

      . The other rebuttal witness was Customs Inspector McManus, who testified Hoker was not intoxicated when he was stopped at the border, and also that in searching the 1955 Chevrolet truck he failed to find a spare T-Shirt, described by Hoker as his only luggage.

      . Later, on further cross-examination by defense counsel, after the extended examination of Hoker related infra, Fonseca brought into court the actual registration cards for Room 128, Room 132, and adjoining rooms for September 13 through September 16. The card for Room 132 showed Hoker’s name added for September 14 as an additional occupant to Sparks’. But Hoker’s presence in the motel on the night of September 15 was not indicated by any registration record. When this testimony was concluded, government counsel sought, but was denied, leave to recall the appellant once again, “in view of the circumstances that developed”.

      . The flavor of this examination and its stern prosecutional tone is best shown by quoting it, including counsel’s objection and the court’s ruling:
      THE COURT:
      You roomed with Sparks, is that what you said?
      THE WITNESS :
      Yes, sir.
      THE COURT:
      Why didn’t you tell us that earlier, Mr. Hoker?
      THE WITNESS:
      I wasn’t asked.
      THE COURT:
      Go ahead.
      (161) Q (by the Assistant U.S. Attorney, Mr. Alfaro) So now, let’s start all over again, what room did you stay in, Mr. Hoker?
      A I’m not sure. I came in both nights drunk. I was just kicking around. I can’t even tell you the motel room that I’m staying in right now.
      Q You cannot, Mr. Hoker?
      THE COURT:
      Are you coming in drunk every night now?
      THE AVITNESS:
      Just those two nights.
      THE COURT:
      You told us you cannot tell us the hotel room you were in right now.
      THE WITNESS:
      No, sir.
      THE COURT:
      I might say, Mr. Hoker, it seem strange to me when I was asking you about how you got to El Rio Motel, where you had been dropped off by the person who gave you a ride into Laredo, and you told me out here at the intersection of two highways, and that you walked principally from there to the bridge and across into Mexico, did you not?
      THE WITNESS:
      (No response)
      THE COURT:
      Did you tell me that or not?
      THE WITNESS :
      Could you repeat that again, please. THE COURT:
      When I was inquiring of you, is it not a fact that you told me you had gotten a (162) ride into Laredo by someone who dropped you off at the intersection of 35 and 59?
      THE1 WITNESS:
      Yes, sir.
      THE COURT:
      And you had gotten to the bridge, I believe you said, principally by walking? THE AVITNESS:
      Yes, sir.

        THE COURT:
      You walked across the International Bridge?
      THE AVITNESS :
      Yes, sir.
      THE COURT:
      AVhat is the fare for pedestrians?
      THE AVITNESS :
      Fifteen cents, I believe. I’m not sure. THE COURT:
      AVere you drunk or sober at the time you went across the bridge?
      THE AVITNESS :
      I was sober.
      THE COURT:
      Okay. You got across the bridge. Incidentally, do you pay the money to a person or do you drop it in a coin box or anything of that sort, this fare at the bridge?
      THE AAUTNESS :
      I’m not sure. I can’t remember what I did.
      THE COURT:
      Did you walk across the bridge, and in doing so, you then proceeded to inquire, you told me, of several persons who you simply met on (163) the street, “AVhere is a good place to stay”, something to that effect.
      THE AVITNESS:
      Right.
      THE COURT:
      And someone told you El Rio Motel. THE AVITNESS :
      Yes, sir.
      THE COURT:
      And that is how you happened to go to El Rio, because some stranger on the street had recommended it as a nice place. Is that what you told me earlier?
      THE AVITNESS:
      Did I say it was a stranger on the street? I believe I testified that it was the first person I met that spoke English.
      THE COURT:
      AVas it not a stranger?
      THE AVITNESS:
      No, sir, it was not a stranger.
      THE COURT:
      AVlio was it?
      THE AVITNESS:
      It was Sparks.
      THE COURT:
      Did you meet him on the street when you and he were walking on the sidewalk or was he giving you a ride in his ear?
      THE AVITNESS:
      He was giving me a ride.
      THE COURT:
      AVhere did he pick you up?
      THE AVITNESS :
      Pardon?
      THE COURT:
      AVhat (sic) did he pick you up? (164) THE AVITNESS:
      On the other side.
      THE COURT:
      You have told us that. How far from the International Bridge?
      THE AVITNESS:
      Quarter-mile, half-mile, something like that. I can’t really say.
      THE COURT:
      You had walked that quarter or half-mile from the bridge before you were picked up?
      THE AVITNESS:
      Yes, sir.
      THE COURT:
      And Mr. Sparks is the one that stopped for you?
      THE AVITNESS:
      Yes, sir.
      THE COURT:
      You asked him then for directions to a motel ?
      THE AVITNESS:
      Yes.
      THE COURT:
      That is the first person that you had asked directions to a motel?
      THE AVITNESS:
      It is the first one that I got hold of that spoke English.
      THE COURT:
      So in truth and in fact, you (165) had not asked anyone, during this quarter-mile walk or half-mile from the bridge, had you, Mr. Hoker?
      THE AVITNESS:
      Attempted.
      THE COURT:
      You passed any number of motels during that walk, did you not, or hotels?
      THE AVITNESS:
      Mostly liquor stores.
      THE COURT:
      You did not pass three or four hotels?
      THE AVITNESS :
      None that really appealed to me, because I was just there kicking around.
      THE COURT:
      So it was Sparks, then, that recommended the El Rio ?
      THE AVITNESS :
      Yes, sir.
      THE COURT:
      And you and he then drove together and you both registered?
      THE AVITNESS :
      Yes, sir.
      THE COURT:
      You personally signed a card both the night of the 14th and the night of the 15th “D. F. Hoker, Houston, Texas”?

        THE WITNESS:
      The night of the 15th. The night of the 14th I imagine that he put my name on the card.
      THE COURT:
      Did you not tell us earlier that you had registered and paid for the first night and then you had to register again and pay for the (166) second night?
      THE WITNESS:
      To the best of my knowledge, I paid.
      THE COURT:
      Did you not so testify earlier?
      THE WITNESS :
      I paid both nights. Both nights I paid. Whether or not my name was on the registration slip the 14th, I’m not sure. But to the best of my knowledge, it is.
      THE COURT:
      I did not ask you if it was on there. Did you personally sign your name on the night of the 14th when you first arrived with Sparks?
      THE WITNESS:
      No, sir.
      THE COURT:
      Why did you tell us earlier that you had, Mr. Hoker, if that is not true?
      THE WITNESS:
      I don’t remember saying that.
      THE COURT:
      Why did you not tell us earlier that in truth and in fact you were here with a friend ?
      THE WITNESS:
      Because I didn’t want to involve anybody else that wasn’t necessary.
      THE COURT:
      Of course from what you have told us there was no crime involved here.
      (167) THE WITNESS :
      Bringing an innocent man’s name into the picture.
      THE COURT:
      Let me ask you another question or two. The night of the 14th when you drove up to the El Rio Motel, did you get out and go into the office?
      THE WITNESS :
      Yes, sir, I did.
      THE COURT:
      Sparks get out and go in the office?
      THE WITNESS :
      Yes, sir, he did.
      THE COURT:
      You were sober at that time?
      THE WITNESS:
      Yes, sir.
      THE COURT:
      You had never been there before?
      THE WITNESS :
      No, sir.
      THE COURT:
      Do I not recall that you told us that you had selected El Rio because it was close to the club that you wanted to patronize? THE WITNESS :
      Yes, sir. That’s the same reason Mr. Sparks selected it also. We went there together.
      THE COURT:
      But you didn’t know where the club was when you registered at the El Rio ?
      THE WITNESS:
      No. He did.
      MR. TATUM:
      I would like to perfect the (168) bill in the absence of the jury at this time.
      THE COURT:
      You can wait until I get through.
      MR. TATUM:
      Your Honor, at this point, I want to perfect my bill in the absence of the jury. THE COURT:
      And I told you to sit down until we get through with the witness.
      MR. TATUM:
      As long as I can object to it, object to the proceedings at this time of the court .taking over the rule of prosecution.
      THE COURT:
      All right, sir.

      . BY THE COURT:
      Q Didn’t you tell us that the taxi driver told you where the club was?
      A He was the one that told us where the club was.
      Q On the 14th, you and Sparks both went into the motel at the time of registration?
      A Yes.
      Q You are confident that Sparks registered?
      A Yes, sir.
      Q You do not remember whether you registered?
      A I know I didn’t sign my name. I figured that he put my name on the registration slip. But it is definitely, I signed it on the 15th, I definitely signed it, because he wasn’t there. He had left the morning of (169) the 15th.
      Q And you and he occupied the same room?
      A Yes sir.
      Q You had known him in Houston?
      A Yes, sir.
      Q Did I understand you say at school?
      A Bible School.
      Q Bible School?
      A Yes.

        Q He was a close friend so that you agreed to share a hotel room?
      A Yes.
      Q He was going back to Houston on the 15th?
      A I do not know.
      Q You do not know where he was going?
      A No, sir.
      Q You did not ask him where lie was going when he left you?
      A No.
      Q He is your roommate, you have been out drinking together on the night of the 14th. Having done that, you did not ask him when he was going back to Houston or where he was going from there?
      A No, sir. He didn’t ask me, either.
      Q Did you know without asking him where he was going?
      A No, sir.
      Q He left you without your knowing it?
      A More or less. I was kind of half asleep.
      Q And that was approximately what hour, Mr. Hoker, if you know?
      A There is no way to tell you.
      Q Sometime, apparently, in the early morning hours of the 15th?
      A I couldn’t say that, either.
      Q You do know what date it was?
      A Yes, sir.
      Q Were you in bed when he left?
      A Yes, sir.
      Q You cannot be any more specific than that?
      A No, sir.
      Q Now, the 15th, what time of day was it that you registered, Mr. Hoker?
      A On the 15th, I imagine it was right around two or 3:00.
      Q In the afternoon?
      A Yes. As a matter of fact, the manager called and said that we were going to have to reregister if we were going to stay there that night.
      Q Had your friend left by that time?
      A Yes, sir.
      (171) Q You were alone?
      A Yes, sir.
      Q And I take it you walked from your room over to the motel office and signed in?
      A Yes, sir.
      Q Paid them ?
      A Yes, sir.
      Q In cash?
      A Yes, sir.
      THE COURT:
      Anything else?
      Mr. Alfaro:
      A couple of questions.

      . Such confusion was eminently possible. The questions of both court and government attorney were marked by similar prosecutorial zeal, and often as well by thinly veiled intimation of disbelief.

      . At one point in the cross-examination of Mr. McManus, the U.S. Customs Inspector, a question was propounded regarding a conversation with Martinez, who reportedly said he had formerly owned the Chevrolet truck and sold it to a man in Dallas: “Did he tell you the man’s name?” The court interrupted to inquire of government counsel, “Are you going to object to hearsay, Mr. District Attorney?”, but was told that the testimony was not objectionable to the government. This incident, perhaps trivial in itself, indicates a degree of court willingness to intercede in the conduct of a trial ordinarily not manifested.

      . The jury instructions, insofar as they touched on the testimony, were as follows :
      “Now, what are the facts in the case? You heard it all yesterday afternoon and today elicited from the witnesses by the lawyers, and I do not purport to dwell on it at length.
      The government’s case tends to show that the young man came across the bridge in an old, 17 or 18-year-old vehicle, alone, no luggage. The inspector at the primary station where he asked ‘are you an American Citizen, what are you bringing from Mexico’, almost immediately became'suspicious and referred the vehicle to secondary. The young man was examined. Nothing was found in his pockets or in his personal effects— no contraband, I mean. But it was apparent that the vehicle had at least one or more secret compartments. They put it up on a hoist or lift and took it apart and the evidence shows six secret compartments loaded with marijuana.
      The young man, when he learns that the (192) vehicle is to be dismantled or carefully searched, states or asks of the customs officer there, as I understood his testimony, ‘Will it go harder for me if they find hard stuff in there than if it is only grass?’ or possibly “Weed” was the word. He did not use “Marijuana” as I recall it, but if it is just grass or just weed.
      He denied any knowledge of the contraband in the vehicle. He has testified in his own behalf as a witness. Briefly, his testimony, as I recall it, was that he is a young man who had a good job and worked for a good company in Houston. He left of his own accord and before going back to work in a new position, he decided to take a vacation.
      When interrogated as to why a young man of that age would take a vacation of this sort alone, wouldn’t it have been more fun if he had a friend or buddy to accompany him, his answer was that this roommate got married and the defendant decided to come down by himself.
      He hitchhiked, he brought no luggage except one T-shirt. He hitched a couple or three rides and got to Laredo. He walked most of the way, I believe he said, from the highway intersections north of the city down to the bridge, paid his fare (193) and walked across the bridge and walked a quarter or half-mile south where he again was hitchhiking and purely by coincidence and accident the man that picked him up was a man from Houston whom he had gone to church with and apparently knew fairly well, at least from that source. They go to the motel and take a room. There has been much argument from the lawyers as to whether or not the defendant testified truthfully and accurately about his registration and when he registered and what room he was in and if he tried to secret the fact that this friend was with him and if so, why.
      All of which I leave to you in your own weighing and consideration of your testimony.
      In any event, he is caught at the bridge, his reason or his explanation was that he had met a stranger in the bar the second night, as I recall it. The acquaintance came about simply because they were sitting at the same table having drinks and the defendant commented that he was about out of money and the friend said, T will give you a job, you can make $200. I have a truck I want driven to Houston.’ Without further discussion or inquiry, as I understood it, they made a deal.
      So, as I see the evidence, the real question for you ladies and gentlemen to decide is (194) that of knowledge.
      Without in any way undertaking to tell you what you should determine, it seems to me you might consider first whether any portion of the defendant’s testimony about the trip is accurate, whether perhaps he may have come down with Sparks with the express purpose of bringing back a load of marijuana, whether his luggage may not have been in Sparks’ car the whole time and that is why it was not with him when he was caught.
      Second, is his testimony accurate insofar as the method of his coming, meeting the stranger in the bar and if so, whether circumstances surrounding the arrangement for the defendant to drive the truck back, were they such that he must have known in his heart that he was bringing contraband back across the river.
      On the other hand, is his testimony true that he had no knowledge and that the circumstances were not such that he actually knew in his heart that he was doing anything wrong.
      I instruct you that knowledge in the sense that I have defined it to you is an essential element. The government must prove it beyond a reasonable doubt. If you have a reasonable doubt, (195) you should acquit. If you find beyond a reasonable doubt that he did what he did, driving the truck with the marijuana in it, and that this was done knowingly and intentionally and that he had it in his possession with the intent to distribute it knowingly and intentionally, if you so find beyond a reasonable doubt, then it would be your duty to convict.”

      . We reproduce the court’s jury instructions in these respects:
      In this court, I should tell you, too, that the judge is permitted, if he elects to do so, to comment upon the evidence, by that, I mean I am allowed to tell you what I think about the witnesses (185) or their credibility or what I think the facts are, or even to tell you what verdict I think you should return.
      I have no expectation of doing that, but I instruct you now, that if from the course of my remarks, you draw some feeling as to my own — you draw some conclusions or inferences as to my feelings about the facts of the case,
      I do not intend it as an effort to tell you or to direct you as to what your verdict should be. Anything I say about the facts or about the credibility of the witnesses is intended only to be of help to you in your consideration.
      It is not binding on you in any respect, and you are at perfect liberty to disregard anything I say about the facts or the witnesses or their credibility.
      The law of the case you will take from the Court’s Charge and be governed thereby.
      Ineidentally, and in connection with that same matter, I will instruct you that in the course of the examination of the witnesses I have seen fit to ask certain questions of certain witnesses.
      I do that on occasion when I think that certain matters need to be further explored, in areas that perhaps the lawyers have not touched. You should not draw any inference or conclusion about my feelings about the facts of the case because I chose to ask certain (186) questions of witnesses. But you should simply consider the answers made in the light of any other answers made and give the testimony of that witness in that regard such credit as you think it is entitled to.
      Now, this defendant, ladies and gentlemen, as is true of every defendant brought to trial in this court, is presumed at the outset to be innocent. The defendant starts off with a clean slate, and by pleading not guilty as he has done here, has imposed upon the government the burden of proving his guilt beyond a reasonable doubt.
      In another setting, these charges would be unobj ectionable.


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John C. DORAN, Jr., Defendant-Appellant.
    No. 72-1210.
    United States Court of Appeals, First Circuit.
    Aug. 13, 1973.

      William P. Homans, Jr., Boston, Mass, with whom Featherston, Homans, Klu-bock & Griffin and Francis C. Lynch, Jr., Boston, Mass., were on brief, for de-fen dant-appellant.
    Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

John C. Doran appeals from his conviction on two counts of a four count indictment charging him with conspiring to distribute and distributing heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition to challenging the district court’s denial of his motion for a judgment of acquittal, Doran asserts that he was prejudiced by an erroneous statement of the evidence during the prosecutor’s summation to the jury, and by the trial judge’s frequent and allegedly hostile questioning of himself and other defense witnesses. We find no error in the proceedings below and accordingly affirm the judgment of the district court.

The somewhat complicated facts of this case involve' three distinct narcotics transactions which took place in appellant’s house during late November and early December 1971. Appellant’s basic defense at trial was that these transactions occurred either without his knowledge or without his active participation, and that at no time did he intend to aid in the distribution of heroin in the sense of affirmatively seeking to bring about such a distribution. See Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Specifically, appellant contended that the events in question took place at the instigation of codefendant George Tucker, who was then living at Doran’s residence as his tenant. The indictment alleged the appellant’s participation, with Tucker and several others, in a conspiracy to distribute heroin between November 29 and December 6, 1971, and also his actual distribution of the drug on December 2 of that year. The relevant facts concerning the three incidents involved in this case are as follows.

The November 29 Transaction

On November 29, 1971, federal agents Lemon and Maloney, acting pursuant to information received from a government informant, met one Michael Principe (also a codefendant in this case) in Cambridge, Massachusetts for the purpose of arranging a heroin transaction. At Principe’s direction, the two agents and the informant drove to appellant’s house in Arlington, Massachusetts, where the sale was to take place. On the way to Arlington, Principe described his “connection” as being a radar engineer who owned a $30,000 house and a new Cadillac. Upon arrival at their destination, Lemon and Principe left the ear and entered appellant’s house with Tucker. After some general conversation with Tucker concerning the heroin to be purchased, Lemon overheard one end of a telephone conversation between Tucker and an individual whom the latter referred to as “Jack.” This conversation was to the effect that Tucker was still waiting for a person named “Jimmy” to arrive at the house. When Tucker hung up, Lemon asked him whether he had been talking to his “connection.” Tucker denied this, saying instead that he had been speaking with the owner of the house who was upset because a drug transaction was going to take place there. Sometime later, one James Hill (also a codefendant) arrived and was admitted by Tucker. Hill and Tucker then entered the kitchen, and when they returned to the living room, Tucker gave Lemon a tinfoil package containing an ounce of heroin and the agent in turn handed Hill $1,000. As Lemon and Principe were about to depart, Doran entered the house through the front door. There was no conversation between appellant and Lemon at this time.

During the return trip from Arlington, however, there was a further discussion between Lemon and Principe. In the course of this eonverstion, Principe outlined the various roles of the above-mentioned individuals in the narcotics business. According to Principe, Tucker and Hill were merely underlings of Dorán, who was the overall supplier of heroin. Principe also claimed that a “stash” of narcotics was kept in Hill’s apartment and that the rent for this apartment was paid by appellant.

The December 2 Transaction

On December 2 Tucker called Lemon to tell him that another heroin sale had been arranged and that he and Maloney should come to Doran’s house at 11 a. m. on that day. The two agents arrived at the house in accordance with these instructions and were admitted by Tucker. Shortly thereafter, Doran entered the living -room where the two agents and Tucker were awaiting the arrival of Hill. Lemon asked Doran whether he objected to Lemon’s “doing business” in his house. According to the agents, Doran replied that he did not mind, but that he objected to a lot of people coming into the house since his neighbors were “very suspicious.” Lemon then asked Doran whether his sister, who lived next door, was aware of his “involvement,” presumably with heroin. As recounted by the agents, appellant asnwered that his sister knew of his past involvement with narcotics, but was unaware that he was “still in the traffic.” At sometime during this conversation, Agent Lemon asked Tucker to call Hill in order to determine whether he had left yet. Doran then stated that he had just called Hill and gotten no answer, and that he therefore assumed that he was on his way. Doran added that Hill had probably had to stop somewhere to pick up the heroin.

At about 12:30 p. m. Hill arrived and was admitted by Doran who advised him in rather strong language that he was late. Doran, Tucker, Hill and Lemon then entered the kitchen, where Hill produced two tinfoil packages containing heroin, handing one to Doran and one to Lemon. Doran immediately removed a “cooking” device from a cabinet and, after measuring a quantity of heroin from the package which Hill had given him, left the kitchen to enter his bedroom. Tucker commented that the heroin given to Doran was for their own use (presumably Tucker’s and Doran’s) and did not belong to Lemon. After appellant had left the kitchen, Lemon gave Hill $1,000 and the agents left.

The December 6 Incident

On December 6 Lemon received a telephone call from Tucker informing him that Hill was on the way to Doran’s house for the purpose of another heroin transaction, and that he and Maloney should therefore proceed to Arlington. The two agents then went to appellant’s house where they found Tucker and. one Ralph Arcieri. The four men engaged in a general conversation concerning narcotics until about 3 p. m. when Hill arrived followed directly by Doran. Hill immediately announced that he “had the stuff,” and showed a tinfoil package to Lemon. All present, including the appellant, were then arrested by the agents.

I

Appellant contends that, on the above evidence, the district court erred in denying his motion for judgment of acquittal. We do not agree. Admittedly, this case was a very close one. Nevertheless, we think that the evidence as a whole, considered in the light most favorable to the government, together with all legitimate inferences to be drawn therefrom, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Parker v. United States, 378 F.2d 641, 644-645 (1st Cir.), cert. denied, 389 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967), was clearly sufficient to sustain appellant’s conviction. While it is true that appellant did not directly participate in the events of November 29, the jury could have inferred, on the basis of Tucker’s telephone conversation with an individual named “Jack,” who owned the house in which Tucker lived, that Doran had prior knowledge of the November 29 transaction and was anxious to be kept informed as to its progress. Similarly, appellant’s attempted phone call to Hill on December 2, his remark that Hill had probably stopped to pick up the heroin, and his apparent annoyance at Hill’s tardiness were all susceptible to the inference that appellant was an active particpant in the sale of heroin which took place on that date. This inference is strengthened when considered in connection with Doran’s statement to the agent that he was “still in the traffic,” his expressed lack of objection (beyond some worry about the suspicions of his neighbors) to a drug transaction being conducted in his house, and his simultaneous arrival with Hill on December 6. Moreover, this independent evidence of appellant’s particpation in a criminal conspiracy was sufficient to justify the admission of the agent’s hearsay testimony as to Principe’s incriminating statements about Doran’s involvement. See United States v. Johnson, 467 F.2d 804, 807 (1st Cir. 1972), cert. denied,. 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973). Finally, the jury would have been warranted in finding that the use of appellant’s house as the scene of successful or abortive drug sales on three separate occasions was not entirely without significance. We conclude that the above evidence was sufficient to allow the jury to fairly find the appellant guilty beyond a reasonable doubt, both as., to the conspiracy count and the substantive offense.

II

Appellant also argues that he was unfairly prejudiced by the prosecutor’s misstatement of a portion of the evidence during his summation to the jury. As noted above, appellant’s primary defense at trial was that 'Tucker had arranged the drug sales in question, and that the extent of his own involvement had not gone beyond mere acquiescence. In support of this theory, appellant testified that he had been enraged upon his discovery of the November 29 transaction, and had ordered Tucker to leave his house as a result. According to Doran, he had allowed Tucker to return only upon the latter’s promise that there would be no more drug sales conducted in the house, and that Tucker, an addict, would enter a drug rehabilitation program. Appellant also testified that he had been similarly angered by the December 2 sale; but had allowed Tucker to remain because he was scheduled to enter a drug clinic in a few days. During the government’s attempt to discredit this testimony on cross-examination, the following colloquy occurred:

“Q. Well, Tucker had been an addict to your knowledge for at least 18 months, had he not?
A. Yes, sir.
Q. And had there ever been representations or discussions between the two of you about going into a clinic?
A. Yes, sir.
Q. Had he ever suggested that he was going to go into a clinic prior to the early part of December 1971?
A. I took him one time myself.
Q. You took him to a clinic ?
A. Yes, sir. More than one time.”

In his closing argument to the jury, the United States Attorney made the following statements:

“There was the conversation or the testimony by Mr. Doran in which he presumably would have you believe that he let Tucker return to 63 Edmund Road [Doran’s address] because of a promise to enter a clinic and because no more deals would take place. But what about the 18 months prior to that that he and Tucker had lived together? What about the months in which he didn’t make this sort of commitment to or exact this sort of promise from Mr. Tucker?”

Appellant’s attorney immediately objected to this argument, characterizing it as a misstatement of the evidence. While this objection was overruled, the district court instructed the jury at the close of the case that it was to disregard all arguments of counsel not based on the evidence, illustrating this principle by saying: “If, for example, you find no evidence to support the argument of government counsel that Doran never did anything to get Tucker into a clinic . obviously you have got to disregard that argument.” Appellant maintains that this belated instruction was inadequate to cure the prejudice which he had suffered, emphasizing particularly the weakness of the government’s case against him and the tentative phrasing of the court’s charge, which he contends allowed the jury to consider the prosecutor’s comments if it chose to do so. We think, however, that the instruction was more than generous. The prosecutor had talked about the absence of the exaction of a commitment or a promise from Tucker by appellant. The evidence showed merely that there had been discussions between the two and that appellant had taken Tucker to a clinic more than once. The court, in instructing the jury that it must disregard the goverment’s argument if the evidence failed to show that appellant “never did anything to get Tucker into a clinic,” was establishing a more stringent test than the challenged remarks merited. There was no error.

Even if our interpretation of the prosecutor’s comments were incorrect, however, the circumstances of this case still would not warrant reversal. If, as appellant contends, there was a misstatement of the evidence by the United States Attorney, it concerned a matter clearly collateral to the main issue before the jury. Thus, the present situation is distinguishable from cases such as Corley v. United States, 124 U.S. App.D.C. 351, 365 F.2d 884 (1969) where the prosecutor’s misrepresentations touched upon matters directly relating to the question of guilt or innocence. In view of the collateral nature of the testimony here involved, as well as the district court’s instruction to the jury, we are confident that the verdict was not influenced by any possible error in the prosecutor’s final argument. See Marks v. United States, 260 F.2d 377 (10th Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed. 2d 302 (1959); see also Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1078-1080 (1969).

Ill

Appellant also seeks reversal on the ground of the district court’s allegedly improper questioning of himself and other defense witnesses. First, we note that no objection was taken to the court’s questioning prior to the completion of the testimony of witnesses Doran and Tucker, during which all of the now complained of colloquies occurred. The question thus arises whether we are to be governed by the “plain error” standard on appeal. Appellant contends, citing United States v. Wyatt, 143 U.S. App.D.C. 136, 442 F.2d 858 (1971) and United States v. Hill, 332 F.2d 105 (7th Cir. 1964), that he should not be strictly held to the requirement of an express objection in this situation, since such an objection could have conveyed to the jury the impression that the judge was hostile to the defendant’s ease. To the extent that the above cases may be read as supporting this view, we decline to follow them under the circumstances here presented. But cf. In re United States, 286 F.2d 556, 561 (1st Cir. 1961), rev’d on other grounds sub nom. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). The requirement of prompt objection to possible errors by the trial court is designed to prevent counsel from allowing the record to be seeded with error as a hedge against a possibly' unfavorable jury verdict. In the present case, had appellant immediately made known his objections to the district court’s interrogation of defense witnesses, it is quite possible that much of what is now alleged to have been prejudicial might never have occurred. Moreover, if counsel was concerned about the effect of such objections on the jury, the mechanism of a bench conference was available. As the transcript clearly indicates, this device provided an adequate means of raising the issue, outside the hearing of the jury, when appellant belatedly decided to place his objections on the record.

Notwithstanding the abov% we-have carefully examined, transcript to determine whether the district court maintained tthe necessary; ura of impartiality” in conducting this case. Our review convinces. us that there is little support appellant’s assertion trial judge questioned defense with “hostility” or in a maderisive of defendant’s cause. United States v. Fry, 304 F.2d 296, 298 (7th Cir. 1962). It is established beyond peradventure that, in federal. jury (trials, “the judge is not a mere moderator,” Querica v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933), but may in his sound discretion question witnesses “in aid of truth and in furtherance of justice.” Gomila v. United States, 146 F.2d 372, 374 (5th Cir. 1944). See, e. g., Glasser v. United States, supra at 83 of 315 U.S., 62 S.Ct. 457; United States v. Barbato, 471 F.2d 918, 922 (1st Cir. 1973); O’Brien v. United States, 411 F.2d 522, 523 (5th Cir. 1969); United States v. DeFillo, 257 F.2d 835, 839 (2d Cir. 1958), cert. denied, 359 U.S. 915, 79 S.Ct. 591, 3 L. Ed.2d 577 (1959); United States v. Rosenberg, 195 F.2d 583, 592-595 (2d Cir.), cert. denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952). The fact that some of the questions asked by the court in this case may have opened new lines of inquiry, see United States v. Taglianetti, 456 F.2d 1055 (1st Cir. 1972), or, in a few instances, cast doubt upon the credibility of certain witnesses, see United States v. DeFillo, supra, at 839-840 of 257 F.2d, does not in itself call for réversay Especially in view of the court’s curesul instruction to the jury on this mbttef we conclude that nothing even a¡ n'óáching plain erroi was comibiU'Vi 1 ¡fe. On the contrary,, there was

      . Doran denied having made either of these replies to Lemon’s queries. In answer to the first question, appellant testified that he told the agents that they were in his house and might as well stay, but that they should take their business elsewhere in the future. With regard to the question concerning his sister, Doran maintained that he had merely answered that she did know of his former addiction to heroin, but that he had said nothing which would imply his past or present involvement in the business of selling narcotics.

      . Having so stated, we shall make no attempt to recount here all of the considerable testimony which supported appellant’s version of the events in question. In this ease, as in every case where conflicting testimony and the credibility of witnesses is involved, “the jury could have disbelieved all.” Colella v. United States, 360 F.2d 792, 803 (1st Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966).

      . Appellant’s citation of Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608, 612-613 (1957) in an apparent challenge to this standard of review is clearly inapposite, since Garter dealt with an erroneous jury instruction rather than with an appellate court’s review of the denial of a motion for judgment of acquittal.

      . We therefore reject appellant’s contentions of error directed at the district court’s refusal to strike this evidence as against Doran.

      . In Corley, for example, the prosecutor erroneously argued to the jury that all three of the defendant’s alibi witnesses had fixed the date of his attendance at a party as being on the Saturday preceding his arrest, which was not the date of the crime in question. In fact, only one of these witnesses had arguably so testified. In reversing defendant’s conviction, the court referred to the “highly prejudicial” nature of the prosecutor’s misstatements, noting that they “made the difference between a strong alibi and no alibi.” 365 F.2d at 885. The differences between Corley and the present case should require no further elaboration. Compare also United States v. Achtenberg, 459 F.2d 91 (8th Cir. 1972); United States v. Stanley, 455 F.2d 644 (4th Cir. 1972); King v. United States, 125 U.S.App.D.C. 318, 372 F.2d 383 (1966).

      . Since appellant has placed such emphasis on the evidence tending to show that he objected to heroin transactions being carried on in his house, we note parenthetically at this point that such displeasure would not necessarily be inconsistent with an inference, based on the testimony discussed in Part I, supra, that appellant was an active member of the conspiracy alleged in the indictment. To paraphrase our statement in a different context, such behavior could as easily reflect the “circumspection of the criminal” as the “conscience of the upright.” Kadis v. United States, 373 F.2d 370, 374 (1st Cir. 1967). What the situation was here was for the jury to say.

      . The following language from Simon v. United States, 123 F.2d 80, 83 (4th Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941), is instructive:
      ■‘‘It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. He sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such a way as to be understood by the jury, as well as by himself. He should . not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other.”

      . The court instructed the jury as follows: “You are the judges of the facts, however, just as completely as I am the judge of the law. You are the sole and exclusive judge of the facts. . If during the trial or during my instructions that I am now giving the Court intimates any opinion as to the facts, you are not bound by any opinion of mine as to the facts. During the course of the trial, I have occasionally in this case, as in every case, asked questions of a witness in order to bring out facts not at that juncture fully covered by the testimony. Do not assume that I hold any opinion on matters to which my questions may have related. Remember at all times that you as the jurors are at liberty to disregard all comments of the court in arriving at your own findings as to the facts.”


author: CLARK, Circuit Judge: AINSWORTH, Circuit Judge PER CURIAM: AINSWORTH, Circuit Judge

text:
    Edward PARKER, Plaintiff-Appellee-Cross Appellant, v. S/S DOROTHE OLENDORFF, Defendant-Cross Appellee, Egon Olendorff, Defendant-Third Party Plaintiff-Appellant-Cross Appellee. HOLLAND-AMERICA LINES, INC., Defendant-Third Party Plaintiff-Appellant-Cross Appellee, v. J. P. FLORIO & COMPANY, Third Party Defendant-Fourth Party Plaintiff-Appellee, International Paper Company, Fourth Party Defendant.
    No. 72-2112.
    United States Court of Appeals, Fifth Circuit.
    July 24, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 8, 1973.

      John A. Bolles, Francis Emmett, New Orleans, La., for Egon Oldendorff.
    Robert C. Leininger, Jr., George B. Matthews, New Orleans, La., for Holland America.
    Walter F. Gemeinhardt, New Orleans, La., for Parker.
    George W. Healy, III, James Hane-mann, Jr., New Orleans, La., for Florio.
    Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Edward Parker was injured while loading cargo on board the S/S DOR-OTHE OLDENDORFF. The injury occurred when a wire band broke as a fellow longshoreman attempted to lift a bale of pulp paper by means of pulling against the band with a hand-held metal J-hook. The loose bale fell on Parker’s leg. Seeking third party damages in addition to longshoremen’s compensation, Parker sued the vessel, its owner (Egon Oldendorff), and the time charterer (Holland-America Line). The three primary defendants completed the usual triangle by joining as a third-party J. P. Florio & Co., the stevedore contractor which employed the plaintiff. Florio thereupon brought in as a fourth-party defendant International Paper Company, the packager of the bale of pulp paper which struck the plaintiff.

Parker’s claims against the three primary defendants, based on negligence and unseaworthiness, were tried to a jury. The third party actions for indemnity were reserved for the court sitting without a jury. At the end of the plaintiff’s case the court granted the motion of Holland-America Line for directed verdict. The plaintiff’s remaining claims against the vessel and its owner were submitted to the jury which found for the defendants. Subsequently, the court held that neither Florio nor International Paper had breached any warranty owed to the primary defendants and denied all claims for indemnity.

Parker appeals from (1) the directed verdict granted to Holland-America Line and (2) the jury verdict in favor of the vessel and its owner. We affirm the directed verdict for Holland-America Line, but reverse the jury verdict for the other defendants. The vessel, its owner, and Holland-America appeal from the denial of indemnity against Florio. We affirm this ruling.

I.

As pointed out above, the motion for a directed verdict made by the time charterer, Holland-America Line, was granted at the conclusion of the plaintiff’s case. To this point in the trial, there was absolutely no evidence upon which a jury might find Holland-America liable for operational negligence. None of the plaintiff’s witnesses offered testimony which showed that Holland-America or its agents exercised control over the methods employed in loading the pulp bales. In view of the complete absence of evidence of operational negligence by Holland-America, a directed verdict at the close of the plaintiff’s case was proper. See, e. g., Louisville & N. Ry. v. Chatters, 279 U.S. 320, 329-33, 49 S.Ct. 329, 332-33, 73 L.Ed. 711 (1929); 5A Moore, Federal Practice § 50.02(1), n. 7.

II.

Parker seeks reversal of the jury verdict for the vessel and its owner for failure to properly instruct the jury in regard to the application of the warranty of seaworthiness to the wire bands which bound the bales of pulp paper. In response to separate interrogatories the jury found that the ship was not unseaworthy and that the shipowner, through its officers and employees, was not negligent. The adverse finding on negligence is not contested on appeal. Because the charge taken as a whole failed to give the jury adequate guidance for the resolution of the factual issues presented by the evidence, we reverse the judgment entered for the defendants on the finding of seaworthiness.

The mechanics of Parker’s injury are undisputed. A fellow longshoreman had placed his J-hook under the band around a 500-pound bale of pulp paper and pulled the bale off of a pallet. The band broke causing the heavy bale to tumble down on Parker’s leg. Parker claimed that the band which broke was inadequate for its use in moving the bale during loading and that this constituted an unseaworthy condition for which the vessel owner was liable. The vessel owner offered no evidence indicating that the wire band was adequate for this purpose, its defense being directed almost exclusively to establishing its own right of indemnity against the stevedore contractor who was in immediate control of the loading operation.

At the pre-argument conference, Parker requested the following jury charge:-

If you find the wire [with] which the bales were bound was too light for one of its purposes, namely its use in dragging the bales of wood pulp after longshoremen’s hooks had been connected therewith, that this wiring would be defective and defective wiring would constitute unseaworthiness.

The defendants did not object to the form or substance of the requested instruction and the trial court informed counsel for Parker that this requested charge would be given. However, after counsel had argued, the court omitted the proposed instruction from its charge to the jury. When Parker took exception to the failure to give the instruction, the court stated that it had decided that the requested charge “was not a correct statement of the law” and therefore would not be given.

We cannot agree with the court below that Parker’s requested instruction misstates the applicable law. The proposed charge has two distinct purposes. First, it directs the jury’s attention to the legal principle, recognized by the Supreme Court in Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), that a vessel’s warranty of seaworthiness extends to the containers in which cargo is stored. As the Court explained in Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213-214, 83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963), Ellerman and prior cases establish

. that things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used. When the ship owner accepts a cargo in a faulty container . ... he assumes the responsibility for injury that this may cause to seamen or their substitutes on or about the ship.

See Lucas, Flood Tide: Some Irrelevant History of the Admiralty, 1964 S.Ct. Rev. 249, 250-56. After Ellerman and Gutierrez, there is no doubt that an inadequate or defective cargo container renders a vessel unseaworthy as a matter of law. See Noble v. Lehigh Valley Railroad Co., 388 F.2d 532 (2d Cir. 1968) . Second, the requested charge instructs the jury that one of the intended purposes of the band which broke was to serve as a point of attachment for longshoremen’s hooks during loading. This part of the instruction is crucial because it establishes the legal standard by which the strength of the bands is to be judged. While a vessel warrants that every cargo container is adequate to protect the cargo and to prevent spillage, common sense indicates that a shipowner does not warrant every part of any cargo container is strong enough to serve as a point of attachment for longshoremen’s hooks or other lifting devices. Thus, the vessel owner is not an insurer against accidents resulting from lifting cargo by metal straps which are not -intended for such use. Reed v. M. V. Foylebank, 415 F.2d 838 (5th Cir. 1969), cert. denied, 397 U.S. 910, 90 S. Ct. 909, 25 L.Ed.2d 91 (1970). On the other hand, with some types of cargo the use of bale bands for lifting and dragging may be an operating condition which should be reasonably anticipated. If it is, the vessel as a matter of law warrants the bands sufficiently strong for this purpose. See Marshall v. Ove Skou Rederi A/S, 378 F.2d 193, 197-198 (5th Cir.), cert. denied, 389 U.S. 828, 88 S.Ct. 86, 19 L.Ed.2d 84 (1967); Mills v. Mitsubishi Shipping Co., 358 F.2d 609, 612-613 (5th Cir. 1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1474,. 18 L.Ed.2d 600 (1967); Walker v. Harris, 335 F.2d 185, 191 (5th Cir.), cert denied, 397 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342 (1964). The evidence before the trial court, including the testimony of expert stevedores called by the defendants, showed that as a matter of long standing custom the normal method by which paper pulp bales are moved during final stowage is by inserting longshoremen’s hooks under the bale bands. Pulp bales cannot be manhandled without hooks because the exterior is slick and smooth. The alternative of inserting J-hooks directly in the bales damages the cargo and is universally considered unacceptable by shippers. Since undisputed testimony showed that it was reasonably foreseeable that the bands would be used as points of attachment for longshoremen’s hooks, the plaintiff was entitled to a limited peremptory instruction that the shipowner warranted the bands to be safe as appliances for handling the bales. See United States Lines Co. v. King, 363 F.2d 658, 660-661 (4th Cir. 1966).

The court’s last minute change of heart not only denied the plaintiff a correct charge which he reasonably expected to be given and upon which he based his argument to the jury, see F. R.Civ.P. 51, it also left the jury unguided on a very crucial point of their deliberations — the known or intended use of the bands. Since intended purpose establishes the standard by which warranty of seaworthiness is to be judged, instructions on this issue were central to the correct resolution of the question of whether the bands were “adequate.” The court’s general charge contains absolutely no reference to the application of the warranty of seaworthiness to the bands. The only part of the charge which directed the jury’s attention to the fact that the bands constituted a part of the ship’s gear which could play a role in determining unseaworthiness came in an instruction the court read as being given “at the request of the defendant” which stated:

The shipowner does not warrant the seaworthiness of the cargo per se, but does warrant the seaworthiness of the cargo container; that is the bands in this case. If you find that the bands in this case were reasonably fit for the purpose for which they were to be used, the vessel would not be unsea-worthy.

But this instruction was not the equivalent of the charge promised to the plaintiff and later withdrawn. While it told the jury that the bands were within the warranty of seaworthiness it gave them no clue whatsoever that the purpose of the bands was the key to deciding whether the warranty was sustained or breached. Bands reasonably fit to keep a bale bound together could be patently too weak for use in moving the bale from place to place.

In Marshall v. Isthmian Lines, Inc., a case similar on its facts to the one sub judice, this court held that, where the central issue for the jury was the standard of care applicable to the decision of a vessel to accept cotton bales with defective bindings, the trial court was under an affirmative obligation to explain the effect of certain federal regulations bearing on the duty of the shipowner. In reversing the jury verdict, we pointed out:

Under these conditions, it was not enough to leave the whole thing within the vague contours of a general charge with the inescapable boilerplate instructions on negligence and the like. . . . We and other Courts have held that the duty is to give instructions which are meaningful and translated — not in terms of some abstract ease — but into the facts of this particular case. [W]hen the jury undertakes to resolve [a disputed issue of fact], they are entitled to be told what the dispute is all about.

334 F.2d 131, 138 (5th Cir. 1964). In the present case, the plaintiff requested an instruction which was a correct statement of the law and was factually in accord with the undisputed evidence. The request was central to the plaintiff’s case and the subject matter was not adequately covered elsewhere in the court’s charge. We are left with the firm conviction that the jury verdict must be reversed. Boothe v. Holmes, 399 F.2d 495, 499-01 (5th Cir. 1968); Lind v. Aetna Casualty & Surety Co., 374 F.2d 377, 380-81 (5th Cir. 1967). A new trial of the unseaworthiness issue under procedures not inconsistent with our opinion here is required.

In addition to his complaints about the jury charge, Parker contends that he was entitled to a directed verdict against the vessel and its owner since the method of stowage created an unsafe place for him to work as a matter of law. Since a favorable decision on appeal on this issue would require us to render a judgment on liability for Parker, we must reach the merits of this contention. The evidence showed that Parker was injured while working on top of a high pile of pulp bales and that at the edge of the pile was a deep trench, running across the entire width of the ship, which had been purposefully left open during the loading at the ship’s direction to protect the pulp paper cargo from contamination by an adjoining load of carbon black. Assuming arguendo that this open gap in stowage created an unseaworthy condition, there was a dispute of fact whether the existence of the trench contributed to Parker’s injury. See Wilson v. Societa Italiana de Armamento (Sidarma), 409 F.2d 484 (5th Cir. 1969). While Parker argues that the trench prevented his escape from the tumbling bale, two of his own witnesses testified that the bale struck Parker, pinning him against another bale, before he had any chance to move. Whether the trench constituted an unseaworthy condition, and whether its existence was a proximate cause of the injury, were undoubtedly jury questions and a directed verdict on this claim was properly denied.

III.

The vessel, its owner, and the time charterer appeal from the denial of indemnity against the stevedore contractor. At the conclusion of the non-jury phase of the trial, the court found that the “third-party plaintiffs have failed to show by a preponderance of the evidence that any of the activities of the third-party defendant constituted a breach of any warranty which may have been owed or that any of the actions of the third-party defendant constituted negligence. On the contrary, the evidence established that J. P. Florio and Company, Inc., conducted its work in a safe and workmanlike manner.’-’

If it were not clear at the time of the decision below, it has now become settled law that a third-party action for indemnity under the Ryan doctrine must flow from negligence or a breach of the stevedore’s warranty of workmanlike performance; the stevedore is not an insurer either against affirmative liability or against costs and attorneys’ fees resulting from actions brought by injured longshoremen. Diaz v. Western Ventures, Inc., 467 F.2d 1361 (5th Cir. 1972), cert. denied, 410 U.S. 967, 93 S.Ct. 1445, 35 L.Ed.2d 702 (1973). Therefore, in order to receive indemnity against the stevedore, the third-party plaintiffs must demonstrate that the district court’s finding that they failed to prove negligence or breach of contractual warranty is clearly erroneous. Delaneuville v. Simonsen, 437 F.2d 597 (5th Cir. 1971).

As pointed out above, the testimony uniformly showed that the lifting and dragging of pulp bales from pallet boards to final stowage by inserting longshoremen’s J-hooks under the bale bands was the customary practice at the Port of New Orleans. The fact that a practice is customary does not, of course, prove that it is a safe or workmanlike method to handle cargo. Curtis v. A. Garcia Y Cia, Ltda., 272 F.2d 235, 237, 85 A.L.R.2d 1186 (3rd Cir. 1959); see also Salem v. United States Lines, 370 U.S. 31, 37, 82 S.Ct. 1119, 1123, 8 L.Ed.2d 313 (1962); Burns v. Anchor-Wate Co., 469 F.2d 730, 734-735 (5th Cir. 1972); June T., Inc. v. King, 290 F.2d 404, 405-406 (5th Cir. 1961). However, in the present case, stevedoring experts also testified that dragging pulp bales by the wire bands was a normally safe practice. Indeed, Florio’s stevedore superintendent, called by the Oldendorff parties, stated that in his 15 years of experience on the docks he had never known a band on a bale of wood pulp to break during loading prior to the day of Parker’s accident. The only proof to the contrary came from the witness, Percy Perry, a longshoreman who worked on the crew with Parker. He testified that the use of hooks in the movement of this type of cargo was necessary because the wire would make a man’s hands too sore to permit him to work for extended periods, and he further testified that small wire of the size used here tends to break frequently. In describing the experience in the Dorothe Olendorff on the morning of Parker’s injury, Perry variously stated the number of breaks in wire bands to be “a few”, “several”, “some”, “seven”, and “it might have been ten or twelve or it might have been two or three” (He saw “two or three”). It is obvious that the court as the trier of fact on this issue did not credit Perry’s testimony as establishing that the stevedore had engaged in an unsafe loading procedure.

The only specific evidence indicating that a popped band had caused an injury on this particular day related to another longshoreman, Tanner, who had been slightly injured when the wire band on another bale in the same load broke, causing him to fall off the bulkhead. The third-party plaintiffs argue that this earlier1 accident put the stevedore contractor on notice of the inadequate or dangerous nature of the bands on this load of pulp and that the failure to conduct an inspection of the bands on the remaining bales or to change to a different method of loading was a breach of the duty owed by the stevedore to the vessel. See Brock v. Coral Drilling, Inc., 477 F.2d 211, 215-217 (5th Cir. 1973); Burrage v. Flota Mercante Grancolombiana, S. A., 431 F.2d 1229, 1232-1233 (5th Cir. 1970); T. Smith & Son, Inc. v. Ekibs A/S Hassel, 362 F.2d 745, 747 (5th Cir. 1966).

The fact that a stevedore contractor continues to work a load of cargo by use of the bale bands with the knowledge that the band on a single bale caused injury when used for lifting does not as a matter of law constitute the continuation of this general practice a breach of the warranty of workmanlike performance. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., supra, 369 U.S. at 364, 82 S.Ct. at 786, reversing, Beard v. Ellerman Lines, Ltd., 289 F.2d 201, 207 (3rd Cir. 1961). In the present case, following the first accident involving a broken band, the stevedore contractor’s foreman took what the court could have found was adequate corrective action by warning his crew to be more cautious and to avoid standing near the open bulkhead while pulling on the bands. In light of his long experience that the breaking of wire bands while moving pulp bales was extraordinarily rare, his failure to stop the lifting of bales off of pallets by the bands was not unreasonable. On the facts disclosed by this record, we cannot conclude that the finding by the district court that the third-party plaintiffs failed to meet their affirmative burden of proving negligence or a breach of the warranty of workmanlike performance is clearly erroneous. Garner v. Cities Service Tankers Corp., 456 F.2d 476 (5th Cir. 1972); Scott v. S. S. Ciudad De Ibague, 426 F.2d 1105 (5th Cir. 1970); Humble Oil & Refining Company v. Philadelphia Ship Maintenance Company, 444 F.2d 727 (3rd Cir. 1971). Having had a full fair opportunity to try the indemnity issue to the court, the parties are not entitled to a second trial of that issue merely because we have reversed the jury-tried portion of the ease on unseaworthiness.

Affirmed, in part, reversed, in part, and remanded.

AINSWORTH, Circuit Judge

(dissenting) :

I cannot join the majority in the reversal of the judgment in favor of defendants, dismissing plaintiff’s suit, rendered on answers by the jury to written interrogatories, that the vessel was not unseaworthy and the shipowner was not negligent, where the basis assigned in the majority opinion is the stated inadequacy of an instruction of the trial judge to the jury on what constitutes unseaworthiness.

The trial judge did not give the instruction on unseaworthiness in the language proffered by plaintiff’s counsel, though he had agreed to do so. But the instruction which the Court gave was sufficient to cover what was reasonably necessary under the facts developed in the trial. Considering the instructions as a whole and the specific charge as to unseaworthiness in connection with the cargo bands, I believe the charge was sufficient under the law and prior holding in this court, and that the jury could and did intelligently decide the case on the evidence. We said in Delancey v. Motichek Towing Service, Inc., 5 Cir., 1970, 427 F.2d 897, 902:

“A litigant is entitled to have a trial judge advise the jury of his claims and theories of law, if, they are supported by the evidence and brought to the attention of the court. Nehr-ing v. Empresa Lineas Marítimas Ar-gentinas, 5 Cir. 1968, 401 F.2d 767; Marshall v. Isthmian Lines, Inc., 5 Cir. 1964, 334 F.2d 131; Oliveras v. United States Lines Co., 2 Cir. 1963, 318 F.2d 890. The court is not required to give instructions in the language and form a litigant’s lawyer fancies. The court has ‘considerable latitude in the choice of language used to convey to the jury in a clear and correct fashion the applicable law’. Kayo Oil Co. v. Sammons, 5 Cir., 1963, 321 F.2d 729, 730. See also Nowell v. Dick, 5 Cir., 1969, 413 F.2d 1204. If the instruction as given sufficiently covers the case so that a jury can intelligently determine the questions presented, the judgment will not be disturbed because further amplification is refused. United States v. Bayer, 1947, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654; Ohio & Mass. Ry. v. McCarthy, 1878, 96 U.S. 258, 24 L.Ed. 693.”

The district court’s failure to give the jury charge agreed upon was a matter of trial court discretion which I consider was not abused, and which does not require reversal. See M. H. Trawick v. Manhattan Life Ins., 5 Cir., 1973, - F.2d —.

Especially disturbing is the conclusion of the majority to foreclose the issue of indemnity against third-party plaintiffs, on remand and retrial of this case. Fundamental equity requires that the indemnity issue should likewise be retried. Third-party plaintiffs are deprived of basic fairness by the majority’s denial of the opportunity to develop facts and evidence in light of the majority opinion and to obtain a new ruling on the issue of indemnity. If plaintiff is to be accorded a new day on the question of unseaworthiness, evenhanded justice also requires a similar opportunity to third-party plaintiffs on the indemnity issue.

ON PETITION FOR REHEARING AND PETITION FOR REHEAR-EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

AINSWORTH, Circuit Judge

(dissenting) :

I dissent from failure to grant a rehearing, for reasons expressed in my dissent to the majority opinion.

      . The plaintiff has styled his suit as “Parker v. S/S Dorothe Olendorff”. The correct spelling of the name of the vessel and its owner is “Oldendorff”.

      . The record as supplemented clearly refutes the assertion made by counsel or Parker at oral argument that the trial court withheld its ruling on Holland-America’s motion for directed verdict until after all the evidence was in. The motion was granted at the conclusion of the plaintiff’s case and prior to the presentation of any defense witnesses.

      . The only testimony indicating that Holland-America’s superintendent of cargo bad directed that longshoremen move the bales by inserting their hooks under the wire straps came from witnesses called by the Oldendorff defendants subsequent to the granting- of Holland-America’s motion for directed verdict. Such later testimony, whatever its probative value in regard to Holland-America’s negligence, cannot be relied upon by the plaintiff to upset the directed verdict previously properly granted at the close of the plaintiff’s evidence.

      . Parker also appeals from the failure to give liis requested charge on the doctrine of res isa loquitur in addition to the lack of clarity in the charge on operational negligence. Since Parker failed to raise either of these points in his objections to the charge before the jury retired, the asserted errors were not preserved for appeal. F.R.Civ.P. 53. In light of the retrial by our decision above, we point out that in so far as the court’s instruction suggested that “continuing operational negligence” by the employees of the stevedore would not create an unseaworthy condition for which the ship would be liable, the charge was not a correct statement of the law. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971), distinguished between isolated, personal negligent acts of fellow longshoremen and conditions of unseaworthiness. Our subsequent opinion in Robinson v. Shown Kaiun K. K. makes clear, however, that a continuing series of negligent acts by longshoremen may become so related to the status of the vessel, that the longshoremen’s action following the negligent practice might give rise to liability under the unseaworthiness doctrine. 451 F.2d 688, 690 (5th Cir. 1971) ; see Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285. 289-292 (5th Cir. 3972).

      . Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 D.Ed. 133 (1956) ; see also Weyer-haeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed. 2d 491 (1958) ; Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Italia So-cieta ner Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964).