author: ENGEL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy MAYES, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. L. C. COOK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest Frank FOWLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chester CRAWLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Donald NEWBERRY, Defendant-Appellant.
    Nos. 73-1988—1992.
    United States Court of Appeals, Sixth Circuit.
    Feb. 25, 1975.
    Certiorari Denied June 16, 1975.
    See 95 S.Ct. 2629.

      E. R. Gregory, Bowling Green, Ky., Philip Huddleston, Huddleston Brothers, Bowling Green, Ky., Don H. Major, Louisville, Ky., William C. Wilson, Nashville, Tenn., Jerry F. Safford, Bowling Green, Ky. (Court-appointed), Bob Scott, Sarver, Scott & Nussbaum, Little Rock, Ark., for defendants-appellants.
    George J. Long, U. S. Atty., James H. Barr, C. Fred Partin, Richard A. Dennis, Louisville, Ky., for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.

      . 18 U.S.C. § 371 provides:

   ENGEL, Circuit Judge.

In this case, nineteen defendants appeal from judgments entered upon a jury verdict, in which they were found guilty of violating the federal criminal conspiracy statute, 18 U.S.C. § 371. Their appeals raise a number of issues, including whether the government proved a single conspiracy, the sufficiency of the evidence as to certain defendants, the propriety of the judge’s jury instructions, peremptory challenge of jurors, severance, double jeopardy, and right of confrontation.

§ 371. Conspiracy to commit offenses or to defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. June 25, 1948, c. 645, 62 Stat. 701.

On August 15, 1972, a grand jury empanelled in the United States District Court for the Western District of Kentucky, returned an indictment, count one of which charged 28 persons with conspiracy to violate the Dyer Act (18 U.S.C. §§ 2312, 2313). The indictment charged that the named defendants and thirteen others (named but unindicted) conspired to transport, receive, conceal, store, barter, sell and dispose of stolen motor vehicles, moving in interstate commerce. The multi-state stolen car operation was alleged to have been based in Kentucky, and to have involved activities in a total of at least ten states including Tennessee, Indiana, Ohio, Alabama, North Carolina, Arkansas, Georgia, Missouri, and Mississippi. The thirty-seven page indictment generally outlined the elements of the alleged illegal arrangement, and included in its original form a list of seventy-one overt acts allegedly taken in furtherance of the conspiracy.

On April 2, 1973, twenty-four of the named defendants came on for trial to a jury. One of the defendants, William Belvy Barbee, pled guilty during the trial, and another, Charlotte Mayes, was acquitted by direction of the trial judge at the conclusion of the government’s proofs. On May 23, 1973, after eight weeks of trial, and consideration of the testimony of several hundred witnesses, the jury returned a verdict acquitting defendants Billy D. Miller, Charles Adams and Ronald Kinser, and finding the remaining nineteen defendants guilty as charged. They appeal.

In our review of a case involving so many individuals claimed to have participated in so many incidents covering a broad geographical area, it has been particularly necessary to examine the trial as a whole for any errors which might affect the fairness of the entire proceedings. Similarly, it has been necessary to examine closely the specific evidence which is claimed to support the conviction of each individual defendant. Thus, our review has included a complete examination of more than 9,000 pages of transcript, keeping in mind the admonition of Justice Rutledge in Kotteakos v. United States, 328 U.S. 750, 772, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946):

“Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass.”

THE CONSPIRACY

The government alleged that the named defendants were all a part of a conspiracy wherein certain co-conspirators would either steal or cause to be stolen automobiles in the ten-state area. In certain instances wrecked automobiles or parts thereof were purchased, the registration papers and other indicia of vehicle identification so obtained being then transferred to the similar stolen autos. The original identification of the stolen autos would then be destroyed or altered so as to provide a completely new and apparently legitimate identity to the stolen vehicles. In addition to such alteration and substitution, the conspiracy involved a complicated scheme to obtain false motor vehicle registration certificates and bills of sale.

The success of the conspiracy was largely due to the participants’ ability to sell stolen cars which appeared, on all but the closest examination, to have been legitimately acquired and registered. Thus, the papers of a wrecked automobile as well as the forged papers purportedly issued elsewhere were presented to a county clerk to obtain new and seemingly valid papers matching the numbers and description of the stolen vehicle. This was made possible by the decentralized nature of the Kentucky registration system, whereby registrations were issued out of each of some 35 different county clerks’ offices. By constantly moving from county seat to county seat and appearing at rush hours, the possibility of detection was minimized. Further laundering was accomplished by having the newly created vehicle subjected to a vehicle safety inspection usually at the automobile agency of acquitted defendant Billy D. Miller, thus providing additional evidence of legitimate identification.

Evidence at the trial indicated that as many as 1800 stolen automobiles may have been involved during the period of the claimed conspiracy. Most proof at trial was confined to evidence of the overt acts included in the indictment, originally seventy-one, but later reduced to sixty-five.

Evidence as to each overt act generally included the testimony of the original owner, testimony regarding the particulars of the theft, followed by testimony by the ultimate and usually innocent purchaser of the stolen and altered vehicle. The chain of evidence of ownership was carefully presented through presentation of the certificates filed with the county clerks, and was then shown to be authentic or forged. Evidence was introduced, as to forged vehicles, showing that the serial number assigned was issued to the owner of a completely different automobile.

In this manner, the government took the jury step-by-step through the maze of facts which were to prove the overt acts and the existence of a conspiracy.

ISSUES ON APPEAL

While all nineteen appellants were tried together, four separate appeals were docketed, reflecting appellants’ representation by four separate counsel or groups of counsel. To avoid repetition, while assuring careful attention to the claims of each individual, we have reorganized the issues and will treat, first, those of a general nature which could, if meritorious, affect the right of all defendants. We shall then proceed to those issues which are claimed to affect particular defendants.

I. COMMON ISSUES

A. Was more than one conspiracy shown?

It is claimed that the government failed to prove the existence of a single conspiracy of which all of the defendants were a part, but in fact proved two or more conspiracies, in consequence denying the defendants’ right “not to be tried en masse for the conglomeration of distinct and separate offenses committed by others”. Kotteakos v. United States, supra, 328 U.S. at p. 775, 66 S.Ct. at p. 1253.

While we treat later in this opinion the question of the sufficiency of the evidence to connect each defendant with the conspiracy alleged, we conclude that the existence of a single conspiracy was in fact proved.

The government established the formation of a central organization, masterminded by such individuals as Billy Mayes, Shirley Basham and William Albert Hudson. It further proved that these leaders secured the services of car thieves, such as co-conspirator James Cecil Wilson, defendant William Henry Wilson, co-conspirator Claude Dillon and others. The interstate transportation of the cars, the forging and alteration of identification, and the fencing of the cars were proved. These activities were shown to involve both the unindicted coconspirato’rs and the defendants.

While the government did not prove that each defendant knew or was involved with all of the activities of all other defendants, this is not an essential element of proving a single conspiracy. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968). Indeed in any large organization, legal or illegal, it is common for willing participants not to be acquainted with all of the members of the organization, or even to know the nature of every aspect of the operation. Nor does the fact that the conspiracy continued over a long period of time and contemplated the commission of many illegal acts transform the single conspiracy into several conspiracies. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); United States v. Goble, et al., 512 F.2d 458 (6th Cir. decided and filed March 5, 1975). A conspiracy is completed when the intended purpose of the conspiracy is accomplished. But where a conspiracy contemplates a continuity of purpose and a continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has terminated; and its members continue to be conspirators until there has been an affirmative showing that they have withdrawn. United States v. Ethridge, 424 F.2d 951, 964 (6th Cir. 1970).

Appellants here, however, do not claim that the conspiracy ended and another began. They assert the existence of more than one conspiracy existing at the same time, arguing that the government has attempted to tack together several “parallel” conspiracies. Viewing the evidence in the light most favorable to the government, Ethridge, supra, we conclude that the government succeeded in showing that the many acts occurring over a long period of time and involving many people were all a part of a single conspiracy. The conspiracy shown was quite long lived and very successful until it was detected. It spread over a large geographical area. It appears that because of the very success and widespread nature of the organization, defendants now claim that it was not one unified undertaking, but a series of disjointed and separate activities which might have enjoyed some commonality, but which lacked the essential continuity and singleness of purpose necessary to prove one conspiracy. We cannot agree. United States v. Goble, supra.

While not passing at this point upon the question of whether each of the named appellants was in fact a part of the conspiracy, we conclude, upon an examination of the entire record, that the evidence supported a conclusion by the jury that one continuous conspiracy was proved.

B. The Jury Instruction Generally

Common to all appeals here is the claim that the trial court’s charge to the jury was, as described by one appellant, “so vague and nonspecific as to leave the battered and confused minds of the laymen who composed the jury in a state of confusion as to what they were to determine” and “lacked sufficient clarity and precision to enable the jury to perform its function of finding the relevant facts and applying law to them”. It was further claimed that the instructions, which covered 113 pages of transcript, failed to protect the right of each defendant to an individual examination by the jury of his guilt or innocence. Finally, it was claimed that they did not make sufficiently clear that the defendants were on trial for conspiracy and not for any substantive offenses shown to have been committed by proof offered in support of the overt acts alleged.

The instructions were indeed long. They were repetitious, probably intentionally so, to impress upon the minds of the jury the importance of certain principles of law. The instructions were delivered in a colloquial fashion by an experienced judge who took pains to employ the “common speech of man”. Downie, et al. v. Powers, 193 F.2d 760, 767 (10th Cir. 1951). The trial judge frequently employed the technique of explanation by way of illustration and example to heighten the meaning of difficult legal concepts.

Contrary to the assertion of the appellants, the court did emphasize that the charge was conspiracy and not auto theft:

“This is not a charge of stealing automobiles; it’s a charge that a conspiracy existed for the purpose of stealing them and transporting them in interstate commerce.”

The trial judge also properly instructed the jury more than once that a conspiracy must first be proved before the jury could consider which, if any, of the defendants were a part of it. We also find that the trial judge was particularly sensitive to the danger of loss of individual identity and consequent guilt by association. He instructed the jury numerous times that guilt or innocence must be determined on an individual basis for each defendant. He instructed the jury on the law of conspiracy not only with technical accuracy, but as well followed the advice of Lord Bacon that “you should be a light to open their eyes, but not a guide to lead them by the noses.”

While the danger of confusion is indeed present in any case of this magnitude, we were impressed by the overall lucidity, balance and fairness of the trial judge’s charge here. This charge was clearly not ambiguous and confusing to the point of plain error. Cf. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

C. Peremptory Challenges

Under Rule 24(b) of the Federal Rules of Criminal Procedure, a defendant or defendants are entitled to a total of ten peremptory challenges. It is further provided that “If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly”.

Here, the trial judge allowed a total of twenty-four peremptory challenges to be exercised by the twenty-four defendants. Defendants-appellants urge that the trial judge abused his discretion in the manner in which he permitted the challenges to be exercised. The claims of the several groups of counsel on appeal are somewhat inconsistent. Counsel for defendant Billy Mayes and several others complains that the trial judge erred in requiring “that all attorneys for defense agree to the exercise of each of the twenty-four peremptory challenges granted to the defendant”. On the other hand, counsel representing only one defendant, such as the attorneys of Ernest Frank Fowler and L. C. Cook, felt themselves unfairly limited to a single peremptory strike.

The record reflects that the method employed in the exercise of the peremptory challenges was somewhat informal. Most challenges were exercised separately following a conference of the counsel. When the number of challenges remaining was reduced to three, difficulty did develop which was resolved by a mutual agreement to exercise those remaining in a joint manner.

In the selection of jurors, the district court is accorded a wide latitude of discretion. As Professor Wright has observed:

“It is well established that the federal court is not bound to the particular method of selecting a jury that is required by state law, and where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court. The rules do not prescribe any particular method of exercising peremptory challenges, and the practice varies widely from district to district, regulated only by local rule or custom.” 2 Wright, Federal Practice and Procedure: Criminal § 387.

We find that the trial judge did not abuse his discretion in the application of Rule 24(b) in this case.

D. The Separate Trial Issue; Loss of the Right to Control One’s Defense.

Throughout these appeals, it is contended that the court should have granted the several pretrial motions for severance made by the defendants. Appellants claim that because they were required to be tried en masse, they were prejudiced by evidence relating to some defendants and not to others, they were deprived of the right to control their own defense; and they were unduly burdened by the length and expense of the trial. Specifically, defendants Newberry and Crawley objected to testimony elicited by counsel for certain other defendants which implied that a threat and a demand for money had been conveyed to the defendant William Hudson by counsel for Max Bayer, an unindicted co-conspirator. Similarly, several defendants complain that they were prejudiced by the appearance of one Joseph Goldman who, when called by other defendants, was completely discredited as a witness in front of the jury.

Defendants Fowler and Cook complain primarily that their own alleged involvement in the conspiracy was at best peripheral and the proof relevant thereto could have been presented in a very short time. Thus, they claim, to have involved them in a trial of this length was an unfair and onerous burden upon their time and resources, subjecting them to the dangers pointed out in Kotteakos v. United States, supra:

“But as it [the conspiracy] is broadened to include more and more, in varying degrees of attachment to the confederation, the possibilities for miscarriage of justice to particular individuals become greater and greater. At the outskirts they are perhaps higher than in any other form of criminal trial our system affords.” 328 U.S. at 776, 66 S.Ct. at 1253.

The decision of whether to grant a severance to co-defendants lies within the sound discretion of the trial court, Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Goble, supra. See also Metcalf v. United States, 195 F.2d 213 (6th Cir. 1952); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956). We note that the trial court did sever the conspiracy trial from the substantive auto theft charges as to all defendants. Thus these defendants fared better than those in Poliafico, supra, wherein eighteen defendants went to trial on both conspiracy and substantive counts.

Moreover, we are not persuaded that these defendants were prejudiced by the joint trial. The testimony to which Crawley and Newberry objected was impeachment testimony which backfired, but it was not inadmissible and its impact was reduced by the disavowals of their counsel at the time. Likewise, some of the individual defendants urge that severance of their trials would have spared them the expense and inconvenience of the longer trial. While this practical consideration merits our careful attention, it assumes that the prosecution was entitled to prove only the actual involvement of each defendant charged, and not the scope of the entire conspiracy. Whether the trials were joint or separate, the government could prove the entire scope of the conspiracy, though one defendant’s role in it was limited. We find no error in the refusal of the trial judge to grant any of the motions for a severance.

II. SUFFICIENCY OF EVIDENCE

A number of defendants claim that even if the government has proved the conspiracy, evidence of their participation in it was insufficient to sustain conviction. While we have already held that the jury could properly have found the existence of a single conspiracy here, this of course does not dispose of the issue of sufficiency as to each defendant convicted. Kotteakos, supra. In reviewing for sufficiency of the evidence, we view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

A. Houk, Basham and Hudson.

William Houk claims that the evidence showed him to be no more than a supplier of stolen automobiles and failed to demonstrate any knowledge of the conspiracy on his part. Shirley Basham and William Albert Hudson claim that their sole connection with the other defendants was limited to the occasional use of a common outlet for automobiles. We find it unnecessary to discuss in depth the issue of these three defendants’ involvement in the conspiracy. Our careful review of the record completely satisfies us that their involvement in the conspiracy was amply supported by the proof in this case.

B. Tabor, Bewley and Cook.

The involvement of defendants Fred Tabor, Lewis H. Bewley, and L. C. Cook was less extensive and has merited close scrutiny. We conclude, however, that under applicable law the extent of their involvement was sufficient for the jury to have found them to be a part of the conspiracy.

Fred Tabor: It is contended that there was no evidence of any direct involvement on stolen car activity on the part of Fred Tabor, nor any evidence linking him to the conspiracy. The evidence showed that Tabor arranged with Max Bayer and Shirley Basham to have Tabor’s car stolen. The proofs showed that Tabor drove his 1970 Buick Electra to a basketball game in Dayton, Ohio, where it was parked outside the arena and “stolen”. Unindicted co-conspirator Max Bayer testified that it was planned that Tabor would then file an insurance claim, and that he would also receive some money from the others after the car was disposed of. Bayer also testified that Tabor was part of a scheme whereby it was arranged that in advance of the “theft”, Basham would obtain a set of Tabor’s keys, and a changeover of the serial number and license plates to Bayer’s name would take place.

The evidence showed that Bayer and Basham were both deeply involved in the conspiracy charged in this case. While the means by which Tabor’s automobile was acquired could be characterized as fraud rather than theft, in all other respects its handling and processing through the car theft ring matched procedures generally used by the ring for stolen automobiles. It was intended to and did produce the same result for the conspirators. Bayer further testified that he delivered a check to Tabor in addition to whatever amount he ultimately received from the automobile insurance.

Lewis H. Bewley: The evidence established that Bewley had been in possession of a stolen 1970 Volkswagen, which was fully identified as having been processed through the conspiracy after having been stolen in Indianapolis. The proofs further showed that while possessing the vehicle ip the summer of 1970, Bewley had a conversation with a neighbor, Marine Captain William R. Higgins, in which the 1970 yellow Volkswagen was discussed. Higgins testified that Bewley said he had purchased the car in the Bowling Green area. Higgins also testified:

“He did not use the term stolen. He used the term hot and the term warm . that it could have come from Indianapolis.”

He further testified that Bewley mentioned the

“fact that it was legally registered and I believe the term if it was warm, I don’t have to worry because I do have a legal registration to the vehicle.”

Higgins further quoted Bewley as mentioning that other Volkswagens were available to buy and that the “vehicle could not be serviced at a VW dealer and that, of course, the guarantee was not good on the vehicle.” Captain Higgins reported this incident to the Louisville Police which resulted in Bewley’s arrest and indictment. The evidence revealed that upon his arrest, Bewley gave what proved to be a false story of how he had acquired the car.

The evidence revealed that Bewley’s 1970 Volkswagen had been stolen in Indianapolis and was processed in much the same manner as the other vehicles proved to be involved in the conspiracy, and that the bill of sale evidencing Bewley’s purchase of the vehicle had been forged. The evidence was sufficient to support a jury finding that Bewley knew of the existence of the conspiracy and its goals when he knowingly purchased the stolen vehicle.

L. C. Cook: Cook contends that he was nothing more than a customer of the conspiracy and not a member of it.

In his brief on appeal, Cook concedes: “The government showed that the 1969 Chevrolet pickup truck listed in overt act number 10 in the indictment was stolen in Monrovia, Indiana in January, 1970. The truck came into L. C. Cook’s possession on July 22, 1970, by Cook’s admission and it was found in his possession in Louisville, with a new motor and some alteration of a serial number plate, on November 4, 1970.” He further acknowledges that unindicted co-conspirator Max Bayer testified to having seen Cook on an unspecified date at a restaurant in Bowling Green, and that in Cook’s presence Bayer, Shirley Basham, and Willie Hudson discussed stolen vehicles, including a pickup truck. Cook concedes that “the jury could infer . that Cook knew the co-defendants Basham and Hudson and knew they dealt in stolen vehicles”, and that “L. C. Cook knowingly purchased the car and services of Billy Mayes and his associates”.

Discussion: It has been held that once a conspiracy has been established, only slight evidence is necessary to connect a defendant with it. United States v. Chambers, 382 F.2d 910 (6th Cir. 1967); Poliafico, supra. We conclude that there was sufficient evidence to support a jury determination that, beyond a reasonable doubt, these three defendants were connected with the conspiracy.

That defendant Tabor’s specific conduct involved fraud instead of theft does not mean that he could not be a part of the conspiracy. It is sufficient if his actions were taken with a knowledge of the conspiracy and its purpose, United States v. Chambers, supra, and that they were taken with a view toward furtherance of the “common design or purpose” of the conspiracy. United States v. Bostic, 480 F.2d 965, 968 (6th Cir. 1973). Defendant Tabor did not merely participate in a single act of insurance fraud. By committing his car to the conspirators for compensation in addition to any insurance he might recover, he acquired a “stake” in the “outcome”. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). 'Thus, he acted to further the conspiracy.

Both Bewley and Cook were shown to have knowingly purchased stolen vehicles from members of the conspiracy with knowledge of the conspiracy and its purposes. Indeed, Cook concedes this much. They claim that they were customers only, acting in their own individual interests, and cannot be held as conspirators. In United States v. Ford, 324 F.2d 950, 952 (7th Cir. 1963), it was held that:

“The relationship of buyer and seller absent any prior or contemporaneous understanding beyond the mere sales agreement does not prove a conspiracy to sell, receive, barter or dispose of stolen property although both parties know of the stolen character of the goods. In such circumstance, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective.”

The Supreme Court has also held that “one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy, and the inference of such knowledge cannot be drawn merely from the knowledge that the buyer will use the goods illegally.” Direct Sales v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943), interpreting its previous decision in Falcone v. United States, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940) (emphasis added).

There was proof these defendants had a “prior or contemporaneous understanding of the conspiracy beyond the mere sales agreement”. United States v. Ford, supra, 324 F.2d at 952. Moreover, their knowledge of the conspiracy need not be inferred from mere knowledge of illegality (the stolen nature of the vehicles). Direct Sales, supra. L. C. Cook’s presence at a meeting of three of the leading co-conspirators when “stolen vehicles” were discussed, prior to his purchase, was a sufficient basis for a finding that he knew of the conspiracy and not simply that the truck he purchased was stolen. As to Bewley, testimony established that he knew far more than merely that his Volkswagen possessed a questionable pedigree. His conversation with Captain Higgins revealed that he appeared fully aware of the salient features of the conspiracy itself.

We conclude that there was evidence from which the jury could find that all three of these defendants knew of the existence and purposes of the Bowling Green conspiracy at the time of their alleged involvement. They benefited from it and they contributed to its success. This is sufficient.

III. ISSUES AFFECTING INDIVIDUAL DEFENDANTS

A. Ernest Frank Fowler: Right of confrontation

Appellant Ernest Frank Fowler claims that his Sixth Amendment right of confrontation was denied by the persistent and leading questions put by the government attorney to three witnesses, notwithstanding the assertion of their Fifth Amendment privilege against self-incrimination.

In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), an alleged accomplice of the defendant, one Loyd, invoked his Fifth Amendment privilege when called by the government. Under the guise of cross-examining a hostile witness, the prosecutor, over objection, read in the presence of the jury the accomplice’s purported confession which implicated the defendant on trial. Three law enforcement officers then identified the document as a confession which was signed by the accomplice. The result of this prosecutorial misconduct, held the Supreme Court, was to deprive the defendant of his Sixth Amendment right to confrontation:

“ • . . effective confrontation of Loyd was possible only if Loyd affirmed the statement as his. However, Loyd did not do so, but relied on his privilege to refuse to answer. We need not decide whether Loyd properly invoked the privilege in light of his conviction. It is sufficient for the purposes of deciding petitioner’s claim under the Confrontation Clause that no suggestion is made that Loyd’s refusal to answer was procured by the petitioner, see Motes v. United States, supra, 178 U.S. [458], at 471 [20 S.Ct. 993, at 998, 44 L.Ed. 1150] on this record it appears that Loyd was acting entirely in his own interests in doing so.” Douglas v. Alabama, supra, at p. 420, 85 S.Ct. at p. 1077.

The three witnesses involved here were Pruitt and Arnold Fowler, brothers of defendant Ernest Frank Fowler, and Terry Fowler, son of Pruitt Fowler and nephew of Frank. Their privilege against self-incrimination was in each case asserted not by them personally, but by the attorney for Ernest Frank Fowler who, when the witness was called to the stand, announced to the court that he represented the witness as well. The witness was thereupon declared a hostile witness, and the government attorney was permitted to pose leading questions as on cross-examination. In turn, upon request of Frank Fowler’s attorney, the court instructed the witness not to answer the question until the Fifth Amendment objection was made and ruled upon. Most of the challenged cross-examination involved Pruitt Fowler, who was called by the government four times. Arnold was called twice and Terry once. Generally the questions went to the witness’ knowledge of certain vehicles named in the overt acts of the indictment, their own activities regarding those vehicles, and Frank Fowler’s activities. Because of the invocation of the Fifth Amendment privilege, little testimony was actually elicited.

A careful examination of the questions put to the witness confirms the defense claim that the factual assertions in the leading questions were indeed suggestive of Frank Fowler’s involvement, in the conspiracy. As such, they are not unlike those questions which brought about reversal of the defendant’s conviction in United States v. King, 461 F.2d 53 (8th Cir. 1972).

Several distinctions between the facts here and those in Douglas v. Alabama are apparent. In Douglas v. Alabama the full confession was read to the jury as the statement of the witness and the giving of the confession was confirmed by three other witnesses. Here, of course, no statement as such was read, and any injury must come from the inference that “resort to privilege in each instance is a clear confession of crime.” 8 Wigmore, Evidence, § 2272 at 426 (McNaughton rev. 1961). Further, the trial judge repeatedly admonished the jury not to consider the government’s questions as having “any evidentiary value whatsoever”. Finally, there is upon the record here, at least some merit in the government’s assertion that invocation of the privilege came as a surprise in view of the earlier disclosed willingness of the witnesses to testify.

The Fifth Amendment privilege against self-incrimination is a privilege personal to the witness. United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964). As such, it is not the property either of his attorney or of the defendant on trial. 8 Wigmore, supra, § 2270; Goldfarb, supra. While the witness is entitled to the advice of counsel before determining whether he should invoke the privilege, United States v. Compton, 365 F.2d 1 (6th Cir. 1966), and while it is within the discretion of the trial judge to permit counsel for the witness to invoke the privilege on his behalf, 8 Wigmore, supra, § 2270, the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself. In short, Ernest Frank Fowler possessed no right to have Pruitt, Arnold or Terry assert the privilege. Neither did defendant Frank Fowler’s attorney. United States v. Goldfarb, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969); United States v. Skolek, 474 F.2d 582 (10th Cir. 1973).

We recognize that it is not possible always to know in advance if the privilege will in fact be invoked when a given question is asked, and further whether, if invoked, the question is properly subject to the privilege. Since the government has the obligation to present such relevant testimony as the witness may possess, it must in turn have a reasonable opportunity to test whether that testimony will be forthcoming, and if not, whether it can be compelled. Nor do we go so far as to hold that in testing the privilege the government must do so out of the presence of the jury. Experience shows that apprehended difficulties with proof often evaporate when put to the actual test of the trial. There may be a constitutional privilege against testifying and at the same time be a powerful incentive to get on the stand and tell the truth. The alternatives for the witness are seldom easy.

Bearing in mind all of the foregoing considerations, we are nevertheless unable to approve the conduct of the government in its questioning of the witnesses, particularly Pruitt Fowler. In short, it went too far and exceeded the reasonable bounds which might have been necessary to test the privilege. We need not decide whether the Confrontation Clause, as applied in Douglas v. Alabama, should extend to this form of interrogation. The extensive nature of the questioning, after determining that the witness would continue to invoke the privilege, was in any event an unfair trial tactic on the part of the prosecution. Thus, we would seriously consider reversal of Frank Fowler’s conviction, were it not that the entire circumstance appears to have been the contrivance of the defendant himself.

When Pruitt Fowler was first called to . the stand, Mr. Scott, the attorney for defendant Frank Fowler, addressed the court:

“Your honor, on behalf of the witness Pruitt Fowler, I am respectfully instructing the witness Pruitt not to answer any questions on the basis of his constitutional right to remain silent.”

Thereafter, Scott closely guarded the witness and completely frustrated the government’s efforts to question him. Nowhere does it appear that Pruitt Fowler himself sought personally to invoke the privilege or even wanted to. On the contrary, when allowed the opportunity to answer questions held not subject to the privilege, Pruitt acknowledged that he had earlier told the government agents that he didn’t want an attorney, that he wanted to answer questions, and that when he arrived at the courthouse that morning from Arkansas that he had fully expected to testify for the prosecution.

It thus appears upon the record here that Pruitt Fowler’s refusal to testify was directly procured by the defendant, acting through his counsel, and the record is far from satisfying that the witness was “acting entirely in his own interests in doing so”, Douglas v. Alabama, supra.

It was argued before the trial bench that Attorney Scott, in asserting the privilege on behalf of the witness, was doing so solely as counsel for the witness and that consequently his conduct is not chargeable to the defendant. The unseemly conduct of Mr. Scott in purporting to “wear two hats”, (thus enabling him to appear to abandon the rights of the defendant he was bound to defend in favor of the rights of the witness) does not commend itself to us, nor should it have, we think, to the trial court. Nevertheless, Scott succeeded in protecting his client, the defendant, from the impact of the potential testimony of his client, the witness, and beyond that, succeeded in obtaining the blessing of a court instruction to the jury that he might properly do so.

The unfairness which amounts to a denial of the right of confrontation is the frustration of the accused’s right to face his accuser and challenge the truth of the accusation. Douglas v. Alabama, supra. The unfairness disappears when the accused deliberately brings about that denial in furtherance of his own interests.

It is apparent to us that here the conduct of the defendant’s own counsel, in which we must assume defendant concurred, was directed not to the protection of the witness, but rather to the protection of the defendant himself. Faced with the almost certain knowledge that Pruitt Fowler was about to testify against his own brother, counsel for Ernest Frank Fowler concluded, no doubt with good reason, that the best interests of the defendant lay in avoiding the impact of the brother’s testimony by invoking the Fifth Amendment privilege on his behalf. Thus, while there was indeed a risk to his client of creating in the jury’s mind an association between his client, the defendant, and his purported client, the witness and brother, it was no worse a risk than the potential prejudice which would come from the actual testimony of the brother on the stand.

The record convinces us that the refusal of each of the three witnesses to answer was, in fact, “procured” by the defendant through his own counsel. Douglas v. Alabama, supra, 380 U.S. at 420, 85 S.Ct. 1074. He cannot now be heard to complain that he was denied the right of cross-examination and confrontation when he himself was the instrument of the denial.

B. L. C. Cook: Hearsay to establish conspiracy

Defendant L. C. Cook contends that hearsay evidence was erroneously admitted to connect him with the conspiracy and that his conviction should, therefore, be reversed. He asserts that a prima facie case of the existence of the conspiracy and his connection with it must be established independently of hearsay testimony admitted under the co-conspirator exception to the hearsay rule, relying upon Glover v. United States, 306 F.2d 594 (10th Cir. 1962). He claims that such independent evidence was not presented, and that hearsay testimony of unindicted co-conspirator Barry Lynn Clayton was necessary to link him to the conspiracy.

Specifically, he objects to Clayton’s testimony that Billy Mayes had told him that he, Billy Mayes, was going to drive the car to the residence of L. C. Cook . the potential buyer of this altered vehicle. Clayton further testified that to the best of recollection “Mr. Mayes said that L. C. Cook had ordered this car for the purpose of an insurance fraud”.

We agree that a prima facie case of the conspiracy and the defendant’s connection with it must be established by evidence independent of that offered as an admission of a co-conspirator. South-East Coal Company v. Consolidation Coal Company, 434 F.2d 767 (6th Cir. 1970); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cited with approval in South-East Coal, supra. See also Glasser v. United States, supra, at 74, 62 S.Ct. 457. However, a prima facie case is less than proof beyond a reasonable doubt; indeed, it is less than a preponderance. South-East Coal, supra, 434 F.2d at 779. Moreover, the prima facie case need not be established before the proffered hearsay may be admitted; the judge may admit it conditionally. It is sufficient if at the close of the government’s proofs, a prima facie case of the conspiracy and the defendant’s connection with it has been established by “independent or disassociated evidence”. South-East Coal, supra at 788.

While the hearsay evidence contained in Barry Lynn Clayton’s testimony was relevant to the ultimate issue of whether defendant Cook had participated in the conspiracy, it was not the only evidence of that participation. Upon a review of the record, we conclude that the necessary prima facie case had been 'made by the government independent of Clayton’s testimony. The admission of the challenged evidence was, therefore, proper.

C. Jimmy Thompson: Double jeopardy

Defendant Jimmy Thompson claims that his Fifth Amendment right not to be placed twice in jeopardy for the same offense was violated when he was brought to trial below, after having previously been brought to trial on conspiracy charges involving what he claims was the same auto theft ring. In 1971, Thompson was indicted on a charge of conspiracy to violate the Dyer Act and was brought to trial in Indianapolis, Indiana. After the jury had been sworn and the trial commenced, the government moved for dismissal of the charges. The motion was granted and the indictment against Jimmy Thompson in that case was dismissed.

The essence of Thompson’s claim is that there was only one conspiracy, and that the Indianapolis trial of the conspiracy charge barred a subsequent charge of participation in the conspiracy because jeopardy had attached in the first trial.

If the two alleged conspiracies were in fact but one, we would be compelled to uphold Thompson’s claim of double jeopardy, United States v. O’Dell, 462 F.2d 224, 226 n. 2 (6th Cir. 1972); United States v. Sarullo, 510 F.2d 1174 (6th Cir. decided and filed Feb. 20, 1975); unless dismissal of the first indictment was required by “manifest necessity” and “the ends of public justice”. Illinois v. Somerville, 410 U.S. 458, 464-5, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); or unless the claim was waived.

It is true, of course, as the government notes, that different overt acts involving Thompson were spelled out in each indictment. This circumstance is not controlling. Agreement is the primary element of a conspiracy, United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), and a single conspiracy may embrace many overt acts, including many substantively illegal acts. United States v. Braverman, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed.2d 23 (1942). It is only the conspiracy which is punished and not its objects. United States v. Wallace Fruit, et al., 507 F.2d 194 (6th Cir. decided and filed Dec. 9, 1974). Thus, to convict an individual for being part of two conspiracies when he is in reality a part of only one is to convict him of the same crime twice. United States v. Palermo, 410 F.2d 468 (7th Cir. 1969). The government may not sever a single plot or agreement into more than one in order to increase penalties or the likelihood of success. United States v. Wilshire Oil Co., 427 F.2d 969 (10th Cir. 1970).

The burden, however, is upon the defendant to prove by a preponderance of the evidence that the indictments charged a single conspiracy. United States v. O’Dell, supra; United States v. Nathan, 476 F.2d 456 (2nd Cir. 1973); United States v. Wilshire, supra. We conclude that that burden has not been met here. The district court below, while initially denying Thompson’s motion to dismiss on double jeopardy grounds, informed counsel that he would provide him an opportunity to be heard on the issue following the close of the government’s proofs. Counsel for defendant indicated that he would file a written motion raising his double jeopardy objections to the indictment and trial. The record reflects that no such motion was filed. Thompson’s failure to meet his burden on this issue was not, therefore, attributable to the trial court in any way.

Since defendant Thompson has failed in his burden to show that his conviction in Bowling Green was for the same offense as that charged in the Indiana indictment, we need not and do not reach the question of whether he waived his double jeopardy rights, or whether the necessity doctrine enunciated in Illinois v. Somerville, supra, would have applied to the dismissal of the Indiana indictment so as to permit retrial without running afoul of the Fifth Amendment.

D. Lewis Bewley: Double jeopardy

Defendant Bewley claims that he has been placed in double jeopardy. Specifically, he asserts that his prior plea of guilty to receiving and concealing a stolen automobile, precludes his conviction for conspiracy to violate the Dyer Act when his alleged connection to the conspiracy involved the same auto. We do not agree. The substantive and conspiracy offenses do not merge, and a conviction of both does not violate the principles of double jeopardy. United States v. Bradley, 421 F.2d 924 (6th Cir. 1970).

E. Newberry and Crawley: Hearsay evidence

Defendants* Newberry and Crawley claim that certain hearsay statements of alleged co-conspirators were erroneously admitted by the district court, in that they were not shown to have been made during the life of the conspiracy. It is, of course, true that statements of one co-conspirator are normally admissible against another only where they are made during and in furtherance of the conspiracy. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

In the absence of plain and prejudicial error, however, this court will not disturb a verdict on the basis of erroneously admitted evidence unless a specific and timely objection was made. Metcalf v. United States, 195 F.2d 213 (6th Cir. 1952). F.R.Crim.P. 52(a) and (b).

Defendants first object to the testimony of co-conspirator James Wilson to the effect that Billy Mayes had told him he had delivered certain automobiles to defendant Newberry. This was objected to by counsel for defendant Newberry, who stated: “Objection, your Honor, unless he saw them.” This objection did not apprise the trial judge of the ground now asserted on appeal, i. e., failure to identify the time of the statement, as is required by F.R.Crim.P. 51. We, therefore, do not consider it.

Defendants raise the same objection to certain testimony of co-conspirators Barry Lynn Clayton. As to one portion objected to, there was no objection made at trial at all, and we decline to consider the claim for the first time on appeal.

Defendants did, however, move to strike testimony of Clayton that “Billy Mayes told me where he and Osborn had taken a ’68 white Firebird from Burke’s Pontiac over to Lafayette, Tennessee, to Don Newberry.” Counsel for defendant Newberry, Mr. Stafford, made no objection at that time, although he did make reference to objection and discussion of the previous day. While declining to state any objections he had to that evidence, Mr. Stafford stated that he would state the grounds for his objection at a later time. On the following day, after the prosecution had closed its case, Mr. Stafford moved to strike the evidence, stating that it was not shown to have been made during the conspiracy. We hold that the trial court did not abuse its discretion in refusing to strike the testimony, even assuming that there was a failure to show the time the statement was made. There was no indication that it was not made during the conspiracy, and because of the delay in asserting the issue, the government was effectively precluded from demonstrating that it was. This court stated in Metcalf v. United States, supra:

“It is the well settled rule that objections to evidence should be timely made when the evidence is offered, and that it is within the discretion of the trial judge to sustain or overrule a motion, delayed until the close of the Government’s case, to strike from the consideration of the jury evidence previously received without objection.” 195 F.2d at 216.

We conclude, therefore, that no error was committed in the admission of these statements.

CONCLUSION

In a trial of this magnitude, it is of course inevitable that some errors both in judgment and in law may have occurred, errors which in another trial might be cured only to be replaced by others as yet unknown. Our careful review of the entire record of this case, however, convinces us that there was sufficient and substantial evidence to support the jury convictions of each of the appellants, that the jury was fairly and fully instructed in the law, and that no reversible error intervened to deprive any of the defendants of a fair trial.

Affirmed.

      . 18 U.S.C. § 2312 provides:
      § 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 806.
      18 U.S.C. § 2313 provides:
      § 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 806.
      The remaining counts of the 25-count indictment charged individual defendants with substantive violations of the Dyer Act. Those counts were not tried below and are not a part of this appeal.

      . Because of the factual complexity of the case, what follows is intended to be more illustrative than all-encompassing in spelling out the nature of the operation. In many facets, the circumstances here are similar to those reported in United States v. Goble, et al., 512 F.2d 458 (6th Cir. decided and filed March 5, 1975).

      . Quoted by Judge Soper in The Charge to the Jury, 1 F.R.P. 540, 545 (1940).

      . One additional claim is raised as a common issue. Certain defendants claim that the trial judge should have permitted them to testify and to call other defendants to testify about certain aspects of the conspiracy, without waiver of their Fifth Amendment right not to respond to questions about the car thefts which were also the subject of the separate substantive counts of the indictment. On the record before us, we find this contention to be without merit. •

      . Fowler also raises an issue regarding polygraph evidence which we hold to be without merit. The trial judge clearly acted within his discretion in refusing Fowler’s requests regarding polygraph examinations and evidence. See United States v. Stifel, 433 F.2d 431 (6th Cir. 1970); United States v. Franks, et al., 511 F.2d 25, (6th Cir. decided and filed Feb. 12, 1975).

      . The following interrogation of Pruitt Fowler by the government attorney is illustrative:
      Q. Mr. Fowler, do you recall the 1969 Chevrolet Malibu automobile, a white car with a black top—
      MR. SCOTT: Objection.
      BY MR. PARTIN:

        Q. —on which you accompanied your brother, the Defendant Frank Fowler, to Blythesvilie, Arkansas?
      MR. SCOTT: Objection.
      THE COURT: Sustained.
      BY MR. PARTIN:
      Q. Isn’t it true that after your brother Frank sold the automobile to T ■& G Auto Sales that he brought the pickup truck which he received in trade back to Kentucky?
      MR. SCOTT: Objection.
      THE COURT: Sustained.
      BY MR. PARTIN:
      Q. Isn’t it true that you knew that 1969 Chevrolet Malibu was a stolen car?
      MR. SCOTT: Objection.
      THE COURT: Sustained.
      BY MR. PARTIN:
      Q. Isn’t it true that you had conversations with your brother, the Defendant Frank Fowler, about the stolen nature of that car?
      MR. SCOTT: Objection.
      THE COURT: Sustained.
      BY MR. PARTIN:
      Q. Wasn’t this car picked up at Paris, Tennessee, from Jim Bridges and your brother, Frank Fowler, after which you all went to Blythesvilie, Arkansas?
      MR. SCOTT: Objection.
      THE COURT: Sustained.

      . Mr. Scott made repeated references to his dual capacity, each time requesting the trial court to sanction his conduct. For example, prior to the interrogation of Terry Fowler, the following colloquy took place:
      MR. SCOTT: If the Court please, I assume that it would not be necessary for me to restate the fact that my advice to Mr. Terry Fowler was as his attorney, not as the Defendant Frank Fowler’s attorney. And though I wear both hats in this court, the right not to incriminate himself is a right individual to Mr. Terry Fowler, the witness, and it has nothing to do and should not be construed as any reflection upon the Defendant Frank Fowler.
      THE COURT: Correct.
      Members of the jury, a witness who is called has a right to the advice of counsel. Mr. Scott represents both these men, Mr. Terry Fowler and Mr. Pruitt Fowler as their attorney. That does not mean that their testimony in any way interferes with his representation of Mr. Ernest Fowler — what is his middle name?


source: Caselaw Access Project

author: FRIENDLY, Circuit Judge:

license: Public Domain

text:
    SECURITIES & EXCHANGE COMMISSION, Plaintiff-Appellee, v. CAPITAL COUNSELLORS, INC., et al., Defendants. CONBOY, HEWITT, O’BRIEN & BOARDMAN, Appellant, v. Sydney B. WERTHEIMER, Receiver-Appellee.
    No. 404, Docket 74-2023.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1975.
    Decided March 3, 1975.

      Hobart L. Brinsmade, Conboy, Hewitt, O’Brien & Boardman, and David J. Mountan, Jr., New York City, for appellant pro se.
    Leon Leighton, New York City, for receiver-appellee.
    Walter P. North, Senior Asst. Gen. Counsel, and Frederick L. White, S. E. C., for plaintiff-appellee.
    Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

This is an appeal from an order of Judge Cooper of the District Court for the Southern District of New York, denying the application of a law firm, Con-boy, Hewitt, O’Brien & Boardman (Con-boy, Hewitt), for payment of $20,000 in legal fees for services rendered Capital Counsellors, Inc., a broker-dealer, and Capital Advisors, Inc., an investment adviser, both registered with the Securities and Exchange Commission (SEC). Con-boy, Hewitt also asked that its claim be granted a preference out of the assets of the two corporations as an administration expense.

The services in question were rendered between March 25, 1971, and June 17, 1971, in connection with the unsuccessful efforts of the corporate defendants and the individual defendants, J. Irving Weiss, president and director of Capital Counsellors, and his brother, Abraham B. Weiss, vice-president and director of both Capital Counsellors and Capital Ad-visors, in resisting legal action by the SEC in connection with alleged securities violations. In December 1970, the SEC undertook an investigation to determine whether the corporate defendants had committed any violations of securities laws. Conboy, Hewitt were retained to represent the defendants during the course of the investigation and any subsequent proceedings. Based upon this investigation, the SEC filed a complaint in the Southern District on March 25, 1971, *alleging a number of violations, by both the corporate and the individual defendants, of the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisors Act of 1940, and rules and regulations thereunder. The complaint asked for an injunction to prevent the defendants from engaging in the marketing of securities and for the appointment of a receiver. Defendants through their counsel, Conboy, Hewitt, vigorously opposed the requests. On the same date, March 25, Judge Cannella entered a temporary restraining order which, inter alia, froze corporate defendants’ assets and restrained the defendants “from . . . creating any contractual commitment of or in behalf of [the corporate defendants], except as may be directed or approved by any receiver or trustee appointed herein.” On April 2, this TRO was modified and continued by consent in an order by Judge Cooper to permit the corporate defendants to continue operations on a limited basis. It provided in part:

The corporate defendants may retain and pay such employees as they deem necessary and disburse such funds as they deem necessary for office and other expenses provided that all expenses so incurred shall be paid for in full by the corporate defendants and shall in no way impair any funds owing to any public customers. All expenses herein shall be indemnified by deposits in the Indemnity Fund [elsewhere described in the order as the “Indemnity Account”] by the individual defendants J. Irving Weiss and Abraham B. Weiss.

The order provided that the Indemnity Account was to be established as follows:

An escrow account entitled “Customer Indemnity Account” (“Indemnity Account”) shall be established by the individual defendants J. Irving Weiss and Abraham B. Weiss for the benefit of all customers of the corporate defendants; funds deposited in the Indemnity Account under the circumstances herein described shall be obtained exclusively from the personal assets of the individual defendants . and shall be used to indemnify the customers of the corporate defendants from any depletion of their securities, free credit balances and other assets in the hands of the defendants^] their officers, directors, agents, servants, employees, attorneys, successors and assigns . . ..

The individual defendants were required to fund the Indemnity Account initially with $7,000. Thereafter “[e]ach succeeding required deposit shall be made prior to or simultaneous with the related expense item.”

Another order of May 7 further modifying and extending the TRO, again by consent, deleted the above quoted provision that “office and other expenses” shall be indemnified by deposits in the Indemnity Fund and substituted the following:

The corporate defendants may retain and pay such employees as they deem necessary, and disburse such funds as they deem necessary for office and other expenses, all provided, however, that (i) no such defendant may incur any expense, or make any disbursement, unless for an activity herein permitted to be conducted by it and in accordance with the conditions and limitations, if any, upon such activity herein contained.

The order specified certain activities in which defendants were permitted to engage, but defendants were not expressly authorized to employ attorneys in connection with the SEC’s complaint and they never sought approval of their retention of appellants from the fiscal agent, who was appointed by the court to exercise wide-ranging power over the assets and operations of the corporate defendants, including power over the employment of personnel. The TRO as modified remained in effect until Sydney B. Wertheimer, the fiscal agent, was appointed receiver in Judge Cooper’s order of June 17, as was well known by appellants, who participated in the negotiations leading to the two modifications permitting interim operation of some of the corporate defendants’ activities. In his opinion of June 11, granting the SEC’s application for a preliminary injunction and for appointment of a receiver to administer the corporate defendants’ assets, Judge Cooper found that the SEC had made a sufficient showing that defendants had engaged in the offer and sale of unregistered securities and in doing so had “failed to truthfully inform investors of the true costs and substantial risks” involved and had “failed to deal fairly and honestly with their customers,” thereby violating §§ 5(a)&(c) and 17(a) of the Securities Act, § 10(b) of the Securities Exchange Act, and Rule 10b-5. SEC v. Capital Counsellors, Inc., 332 F.Supp. 291 (S.D.N.Y.1971).

Appellants applied for the granting of attorneys’ fees on a preferred basis on October 25, 1971. In an opinion of May 22, 1974, Judge Cooper denied the application in all respects. He found that he could resolve the issue presented to him “by the application of the reasoning in a recent decision” in this circuit, SEC v. Alan F. Hughes, Inc., 481 F.2d 401 (2 Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549 (1973). In that case attorneys for defendant, a registered broker-dealer charged by the SEC with violating provisions of the Securities Exchange Act of 1934, sought to recover, as a first priority, their claim for attorneys’ fees in assisting defendant in its unsuccessful effort to resist appointment of a trustee for liquidation under § 5(b)(3) of the Securities Investor Protection Act of 1970, 15 U.S.C. § 78eee(b)(3). Besides noting that the attorneys’ claim did not conform with the compensation standards of any provision of the Securities Investor Protection Act, we dismissed appellants’ constitutional claims and noted in any event that “the analogy to the Bankruptcy Act is compelling.” Id. 481 F.2d at 403. Legal services in resisting a bankruptcy petition are not compensable under that Act. See, e. g., Randolph v. Scruggs, 190 U.S. 533, 539, 23 S.Ct. 710, 47 L.Ed. 1165 (1903); In re Evenrod Perfumer, Inc., 67 F.2d 878 (2 Cir. 1933), cert. denied sub nom. Mintz v. Irving Trust Co., 291 U.S. 671, 54 S.Ct. 455, 78 L.Ed. 1060 (1934); In re Garrett Road Corp., 256 F.Supp. 709, 713 (E.D.Pa.1966). Acknowledging that Hughes involved an interpretation of the Securities Investor Protection Act, § 6(c)(1) of which we held to have incorporated § 64(a) of the Bankruptcy Act, 481 F.2d at 403, the court below nevertheless found the reasoning of Hughes “equally applicable” to the case before it. Indeed, the court considered this reasoning to be a fortiori applicable since, while bankruptcy may be the fate of an individual who simply handles his financial affairs ineptly or is the victim of misfortune, defendants here perpetrated a fraud on investors.

The court therefore refused to permit defendants “to impose the burden of defending themselves upon customers and other creditors who have already suffered losses in excess of 4 million dollars.” It acknowledged that “where prosecution or defense of an action under the federal securities laws has been in furtherance of the purpose of those laws — protection of the public investor— then the parties bearing the costs of such prosecution or defense are entitled to reimbursement.” In the instant case, however, it found that “defendants’ opposition to the SEC application in no way furthered the interests of their public investors.” It also acknowledged that “the professional services rendered were of high order and deserving of the legal fees requested,” but it found no reason to transfer the burden for payment to the customers when appellants had failed to obtain adequate assurance of payment other than through a successful defense of the action.

Conboy, Hewitt insist that the historical practice of the courts has been to award counsel fees, in the proper exercise of discretion, for services rendered in opposing the appointment of a receiver. They call our attention to a number of older cases, including Robinson v. Mutual Reserve Life Ins. Co., 175 F. 624 (C.C.S.D.N.Y.1909), 182 F. 850 (C.C.S.D. N.Y.1910), aff’d, 189 F. 347 (2 Cir. 1911); Barnes v. Newcomb, 89 N.Y. 108 (1882); and People v. Commercial Alliance Life Ins. Co., 148 N.Y. 563, 42 N.E. 1044 (1896). They also suggest that the bankruptcy analogy and the reasoning in Hughes are inapposite since both are based upon statute, whereas the equity receivership has evolved over the years as an equitable remedy, governed by rules of fairness which may be more generous than those enacted by Congress for bankruptcy proceedings or required by the Constitution.

The appellees, on the other hand, suggest that the cases cited by appellants may be distinguished in that the decisions made clear that counsel fees would not be awarded for resisting appointment of a receiver where corporate officers had resorted to fraudulent statements or devices, as here, in order to enable the corporation to continue its activities but rather where the sole issue was that of solvency — a situation • in which the interests of creditors might be better served by avoiding the expense of a receivership.

In affirming the judge’s ruling, we find it unnecessary to engage in a close textual analysis of the early cases or a detailed examination of the fraud in this case. It is perfectly clear that the award of attorneys’ fees in a case such as this is entrusted to the sound discretion of the district judge, and we are unable to find that Judge Cooper abused this. Appellants do not deny that decision on the award of fees rests in the district judge’s discretion and the cases they cite bear this out. Barnes v. New-comb, supra, 89 N.Y. at 115; People v. Commercial Alliance Life Ins. Co., supra, 148 N.Y. at 565; Robinson v. Mutual Reserve Life Ins. Co., supra, 175 F. at 627. See 2 Clark, Law of Receivers § 642(b), at 1107 (1959). Defendant’s attorneys’ fees in receivership proceedings are not typically allowed. As said in 2 Tardy, Smith on Receivers § 639, at 1779 (2d ed. 1920):

Ordinarily the services of an attorney employed by defendant to represent him in the receivership proceedings are solely for his benefit and are not to be paid for out of funds brought into court for the benefit of plaintiff and other claimants against the defendant.

While these words are over fifty years old and recent authority is relatively sparse in view of increased resort to the amendments to the Bankruptcy Act starting in the early 1930’s, they remain appropriate for application today. See Barker v. Southern Building & Loan Ass’n, 181 F. 636 (C.C.N.D.Ala.1910). Cf. Culhane v. Anderson, 17 F.2d 559, 560 (8 Cir. 1927); In re McMillan, Rapp & Co., 36 F.Supp. 663, 664 (E.D.Pa.1941). There must be some showing that “some material benefit accrued to an estate in receivership through the services of those not entrusted with its administration,” id. at 664; see Glenn, The Rights and Remedies of Creditors Respecting Their Debtor’s Property § 479, at 382 (1915); cf. Culhane v. Anderson, supra, 17 F.2d at 560, and the burden of demonstrating benefit to the receivership estate lies on those who assert a claim for counsel fees against it. Barker v. Southern Building & Loan Ass’n, supra, 181 F. at 638 (“There would be nothing in the circumstances named to require a departure from the general rule that each client should compensate his own solicitor. There is no allegation of fact in the petition showing that the petitioners performed any service that increased or protected the fund that they seek to charge, nor is it alleged that they performed any service that brought the fund into the court.”). Appellants have not demonstrated that their efforts had such a beneficial effect. Rather they seem to suggest only that their services were not “captious, delaying, interposed in bad faith, or unnecessary” and that they were not connected with any fraudulent conduct on the part of defendants. This, however, is not enough. We are wholly unable to say that, in weighing the interests of the creditors and the deserts of appellants and concluding that the opposition to the SEC’s application for a receiver “in no way furthered the interests of” the public investors, the district court abused its discretion.

Indeed, appellant’s principal contention is not that a denial of their claim was an abuse of discretion but that Judge Cooper failed to exercise discretion at all because of a view that he lacked power to grant their application in light of the Hughes case. We are unable to agree. While the court did say that the issue before it “is resolved by” its view of the Hughes case, which may have been somewhat of an overstatement, it also said repeatedly that it was applying the reasoning of the case, not its holding, for it recognized that Hughes was in a different, if analogous, field and involved statutory interpretation. Moreover, in announcing its holding, the court sufficiently evinced an understanding that it had discretion in deciding the question of awarding counsels’ fees: “After careful consideration of movant’s claim and of the nature and purpose of the underlying action, we conclude that such fees are not payable out of the assets of the receivership estate.” Beyond that we believe that granting of the application would have been an abuse of discretion on the facts here.

Finally, appellants have asserted that they continued to represent defendants in their opposition to the appointment of a receiver (even though they realized, as they admitted at oral argument, that by the terms of the TRO defendants had no contractual right to engage their services) because they relied on the acts and omissions of others in this litigation which had the effect of encouraging them to believe that they would be permitted to recover out of the receivership estate. We find no action by the court which could have so encouraged them. Indeed, the April 2, 1971,, order, which required the individual defendants to establish an Indemnity Account to indemnify customers from any depletion of the assets as a result of further expenditures by the corporate defendants, should have placed appellants on notice that they could not look confidently to the receivership estate for recompense. We also reject any contention that omission of the parties and the court in failing to warn appellants of the danger of their position caused prejudicial reliance on their part. The law is not so unclear in this area and, as the Supreme Court has said in an analogous context, “We are not prepared to go further than to allow compensation for services which were beneficial to the estate. Beyond that point we must throw the risk of his conduct on the assignee [who asserted a claim for attorneys’ fees in resisting an adjudication of involuntary bankruptcy against the assignor, which had made a general assignment for the benefit of creditor later set aside when the assignor was adjudicated bankrupt within four months of the assignment], as he was chargeable with knowledge of what might happen. No ground appears for allowing the item for services in resisting an adjudication of bankruptcy.” Randolph v. Scruggs, supra, 190 U.S. at 539, 23 S.Ct. at 713. The best argument adduced by appellants is that at an earlier time, in response to their application for fees, the receiver supported them insofar as the application was for services on behalf of the corporate, as opposed to the individual, defendants, and that the SEC’s only quarrel with the award of fees was that it was unable to ascertain what the proper apportionment was between services rendered to individuals and to the corporate defendants. Since the affidavits appellants refer to are dated December 14, 1971, and November 11, 1971, after the appointment of the receiver and the end of the period for which appellants assert their claim, we do not see how appellants could have relied on them. If they merely express in writing an earlier understanding, we have seen no evidence of this and thus have no occasion to consider what, if anything, the consequence would be.

Affirmed.

      . The law firm’s claim for services rendered prior to this date is not in dispute. A claim of $2,098 for 59/< hours of pre-litigation legal services has been allowed as a general claim, for which appellants are expected to receive a distribution of $41.07 out of the receivership estate.

      . In this case the court said, 181 F. at 637-38: The contention of petitioners may be conceded, that the president or stockholders may be permitted to intervene and seek to vacate the order appointing the receiver, or seek to have him removed and another receiver appointed; but this is far from holding that they may do so at the expense of the fund held in court. In such a case, those employing counsel should themselves bear the expense. . . . The claim is dependent solely, on the facts as presented, on the theory that the president of the corporation, after the appointment of a receiver and after the assets are in the receiver’s hands by a decree enjoining the officers of the corporation from further control, can make a contract with attorneys to resist the court’s actions, and by such contract fasten a lien on the corporation’s assets. I cannot sustain that view.
      Since at the time the services here in question were performed the court had appointed a fiscal agent who was empowered to act much as a temporary receiver would and had issued a TRO restraining the acts of defendants, the case is quite close.

      . The receiver subsequently changed his position on even this after he gave the Hughes case careful consideration.


author: GURFEIN, Circuit Judge:

text:
    Frank BERNARDINI, Plaintiff-Appellee, v. REDERI A/B SATURNUS, Defendant and Third-Party Plaintiff-Appellant, and International Terminal Operating Co., Inc., Third-Party Defendant-Appellee.
    No. 113, Docket 74-1404.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1975.
    Decided March 11, 1975.
    Joseph T. Stearns, New York City (Haight, Gardner, Poor & Havens, New York City, of counsel), for defendant and third-party plaintiff-appellant.
    James D. Auslander, New York City (Zimmerman & Zimmerman, New York City, of counsel), for plaintiff-appellee Bernardini.
    Albert V. Testa, New York City (Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third-party defendant-appellee International Terminal Operating Co., Inc.
    Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.
   GURFEIN, Circuit Judge:

This is an appeal by the defendant and third-party plaintiff Rederi A/B Saturnus (“Shipowner”) from a judgment rendered against it after trial before the Honorable Robert J. Ward and a jury. Plaintiff-appellee, a longshoreman, brought suit to recover damages on his claim of negligence and unseaworthiness for an injury to his right shoulder, which he alleged he sustained on October 28, 1969 aboard the Shipowner’s M/S SVENSKSUND (the “Vessel”) at Pier 21, Brooklyn, New York. At the time, plaintiff was employed by third-party defendant-appellee International Terminal Operating Co., Inc. (the “Stevedore”).

After trial, the jury returned a special verdict, pursuant to F.R.Civ.P. 49(a), finding defendant liable in negligence and awarding plaintiff $10,000 in damages. The jury also found, however, that plaintiff had not proven that the Vessel was in an unseaworthy condition which proximately caused plaintiff’s injury. The special verdict also indicated the jury’s conclusion that plaintiff had not been contributorily negligent and that the Stevedore had not breached its warranty of workmanlike performance.

The Shipowner moved for judgment n. o. v. and for a new trial on all the issues of the case, which motion was denied by the trial judge. The serious issue raised on appeal is whether or not the jury’s special verdict that the Shipowner was negligent is consistent with its special verdict that the Vessel was not unseaworthy, a problem with which we would not be concerned in the case of a general verdict.

The facts viewed most favorably to the plaintiff are as follows. Plaintiff, a longshoreman, was sent from the hiring hall to work aboard the Vessel, which he had never before seen or worked upon. At the dock, he was told by the timekeeper, an agent of the Stevedore, to report in the hold of the number 4 hatch. Upon boarding the Vessel, which was moored starboard side to the pier, he walked aft to the forward part of the number 4 hatch. There he looked for the hatch ladder and when he could not find it, walked to the offshore side where he sought directions from another longshoreman who was pulling on wires as he rerigged the boom. Directed to the aft and inshore side of the hatch, plaintiff walked aft around the hatch and forward on the inshore side.

At this point, plaintiff’s attention was momentarily diverted upward by a cracking noise in the rigging, so he paused and looked up to assure himself that nothing untoward was happening. He then proceeded forward and without warning came upon spots of light colored oil or grease on the gray, dirty deck. Plaintiff attempted to avoid stepping on the grease, but nonetheless slipped, lost his balance, and then tripped over a two-high pile of pallets which were stacked across the deck from the hatch coaming to the deck rail. He fell in twisting motion and struck his right shoulder on the coaming flange, which protruded about four inches from the, coaming and was three to four feet above the deck. He landed on his back. After the accident, plaintiff reported to the timekeeper that he had tripped over the pallets, but did not mention the slippery deck. The plaintiff testified that after the fall he saw heel and scuff marks through the various spots of oil or grease. There was no other evidence that there had been oil or grease on the deck.

The Shipowner defended on two alternative bases — first, that the accident was faked by plaintiff and, second, that if the accident did occur, the injuries sustained by plaintiff were minor and not permanent. The second argument has not been pressed on appeal. The Shipowner, however, does pursue the first argument vigorously here, relying primarily on the testimony of the Vessel’s First Officer, Rune Stahl. Stahl testified that he observed the plaintiff when the plaintiff first came aboard at 8:45 a. m., spoke briefly to him, and then watched him cross in front of the forward part of No. 4 hatch to the offshore side. Thirty seconds to a minute later, Stahl said, he saw the plaintiff come around the end of the Vessel and start forward on the inshore side alongside the No. 4 hatch. Stahl testified that he kept the plaintiff continuously in view. When the plaintiff was some 30 feet from him, he saw the plaintiff, who was walking toward him, stop, look around, and then proceed to kneel down and then to lie down on the pallets that were stacked two high and extended across the deck from the ship’s rail to the hatch éoaming. The plaintiff then began to scream and, when Stahl approached him, claimed unsafe passage. The Shipowner offered evidence that there was no oil or grease on the deck.

The Shipowner contends that the court erred in denying the Shipowner’s motion to dismiss at the close of the plaintiff’s case and improperly denied the motions for judgment n. o. v. and for a new trial on the ground that plaintiff’s testimony was incredible and the accident physically impossible.

The appellant’s case is arguable, but the simple answer is that there was enough conflicting evidence for the matter to be submitted to the jury and we hold that Judge Ward was right in so doing:

“Whether the motion is one to direct a verdict or to set aside a verdict which the jury has returned, the test applied by the court is the same. The evidence must be viewed in the light most favorable to the party other than the movant. The motion will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the nonmovant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him. 5 J. Moore, Federal Practice, H 50.; 2 [1] (2d ed.); F. James, Civil Procedure, § 7.11 pp. 277— 278 (1965).” Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2 Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970).

In this instance, plaintiff produced just enough evidence by his own testimony to warrant the District Court’s denial of the Shipowner’s motions in spite of strong evidence by the Shipowner that the accident is not likely to have happened the way the plaintiff described it.

The more difficult question facing us on this appeal is whether or not the special verdicts rendered by the jury pursuant to Rule 49(a) can be made consistent with one another. The Supreme Court has said that the Seventh Amendment requires a court to adopt that view of a case under which a jury’s special verdicts may be seen as consistent. Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). However, when special verdicts cannot be reconciled, or when a jury’s answers to interrogatories cannot be reconciled with its verdict, the court may not enter a judgment. Royal Netherlands S.S. Co. v. Strachan Shipping Co., 362 F.2d 691 (5 Cir. 1966), cert. denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967); Martin v. Gulf States Utilities Co., 344 F.2d 34 (5 Cir. 1965). See Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101 (2 Cir. 1974). If judgment has been entered inappropriately, the proper appellate remedy is to remand for a new trial. Turchio, supra, at 106.

Where a finding of unseaworthiness will make a finding of negligence unnecessary, the special verdict is a good device. See John R. Brown, Federal Special Verdicts, 44 F.R.D. 338 (1967). And, of course, when liability follows from a holding of unseaworthiness as a matter of law, “the exculpatory finding of no negligence becomes immaterial.” See Mills v. Mitsubishi Shipping Company, 358 F.2d 609, 614, n. 10 (5 Cir. 1966). It is when the jury finds that the vessel was not unseaworthy but that the shipowner was, nevertheless, guilty of negligence, as here, that the difficulty arises. As this court has noted: “It is hard to imagine, especially on the facts of this case, how an owner could be negligent, if the ship was not unseaworthy.” Spano v. Koninklijke Rotterdamsche Lloyd, 472 F.2d 33, 35 n. 1 (2 Cir. 1973).

In this case the trial judge recognized in his charge that a finding of unseaworthiness was a precondition to a finding of negligence. The evidence presented no issue of operative negligence aside from the breach of duty reasonably to provide a safe place to work. The submission of the special verdict form might well have been accompanied by a charge or other direction that, in the circumstances of this case, the jury could not find negligence if they failed to find unseaworthiness.

Recently in Conceicao v. New Jersey Export Marine Carpenters, Inc., 508 F.2d 437 (2 Cir. 1974) cert. denied, - U.S. -, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), we were able to reconcile the jury’s finding that the Vessel was not unseaworthy with its finding that the accident was caused by the Shipowner’s negligence. We relied upon Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971) for the proposition that a single separate act may constitute operative negligence, though it may not necessarily create a condition of unseaworthiness. In Conceicao, the single act was the overloading of a storage bin that itself was sufficiently sturdy to bear a normal load. In Usner, the act was the premature and sudden release of a fall by a winchman, causing the sling to strike a longshoreman. It is true that in Conceicao we went somewhat further than the Supreme Court did in Usner, for in Usner the single act of negligence was performed by a longshoreman and not by a member of the crew, while in Conceicao, the operative negligence was the fault of one of the ship’s officers.

In Henry and Braye v. A/S Ocean & John P. Pederson & Sons, 512 F.2d 401 (2 Cir. 1975), a panel of this court, confronted with a similar finding on a special verdict of negligence but no unseaworthiness, was able to reconcile the alleged inconsistency because of the narrow charge on unseaworthiness there given by the trial court, which instructed that the jury could find unseaworthiness only if it found that plaintiff’s injuries were caused by defective equipment. The panel held that there was no inconsistency because the jury might have concluded “that other claims (e. g., failure to reposition the booms properly) could only be resolved on a negligence theory.” Id. at 405. In the case on appeal we have no single act of operative negligence that could account for the verdict.

The only negligence with which the Shipowner can be charged here derives from a breach of duty on the part of the First Officer, Stahl. It can be argued that Stahl was under a duty to keep the deck clean and that his knowledge of the slippery condition of the deck was sufficient to impose upon him a duty, with which he failed to comply, either to see that the deck was cleaned or to warn the plaintiff not to’' traverse that area. Yet the very statement of the breach of duty constituting negligence indicates that it would be a breach of duty for failure to correct or to warn of a condition, the condition being a slippery deck. This is a classic illustration of unseaworthiness, independent of negligence. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). To recapitulate, if the deck was not in an unseaworthy condition, then the Shipowner bore no duty to eliminate an unseaworthy condition or to warn the longshoreman plaintiff of the danger. This is the exceptional case where a breach of duty can be constructed only if the deck was in an unseaworthy condition.

For the most part, as Gilmore & Black have pointed out, “unseaworthiness has virtually swallowed up negligence.” G. Gilmore & C. Black, Admiralty § 6-55 at 364 (1957). An exception may exist, as this court found in Coneeicao and in A/S Ocean, supra, when an isolated act of operative negligence renders a shipowner liable to an injured plaintiff without rendering his ship unseaworthy. In this case, we can find no single act of negligence which did not of itself create a condition longlasting enough to constitute unseaworthiness.

While special verdicts should be reconciled wherever possible, allowing the jury’s right in Judge Weinfeld’s words “to an idiosyncratic position,” Malm v. United States Lines, 269 F.Supp. 731 (S.D.N.Y.), aff’d on the district court’s opinion, 378 F.2d 941 (2 Cir. 1967), and cf. Ianuzzi v. South African Marine Corp., Ltd., 510 F.2d 950 (2 Cir. 1975), there must be a limit where, as here, the special verdicts are quite irreconcilable, the plaintiff’s case is tenuous, and the suspicion strong that the judgment was predicated upon confusion or sympathy or both.

Reversed and remanded for a new trial.

      . There the jury found both unseaworthiness and negligence on the part of the shipowner, and there was no inconsistency in that regard. The jury also found the stevedore not liable for breach of its contractual warranty. The majority found one theory on which the shipowner could have been liable for unseaworthiness for which the stevedore would not be responsible.

      . There was a similar verdict in Weyerhaeuser S.S. Co. v. Nocirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), but the verdict in favor of the longshoreman was not appealed. 355 U.S. at 564, 78 S.Ct. 438. That was also true in Drago v. A/S Inger, 305 F.2d 139 (2 Cir.), cert. denied, 371 U.S. 925, 83 S.Ct. 292, 9 L.Ed.2d 232 (1962).

      . This comment was elicited by the insistence of counsel in alleging both negligence and unseaworthiness. The longshoreman plaintiff had tripped over a wire lashing barrels of deck cargo to a pad eye near a hatch coaming.

      . The court charged that it was plaintiff’s contention that the unseaworthy condition was the condition of the deck “due to one, grease or oil on its surface making it slippery to walk upon and two, blocked and encumbered with tripping hazards.”
      The court noted that to establish negligence in that the defendant failed in its duty to exercise reasonable care to provide him with a reasonably safe place to work, the plaintiff’s contention was simply “that permitting grease and oil to remain on the deck made the deck unsafe for men to walk on and that the ship’s officers knew or should have known in the exercise of reasonable care that the deck was unsafe and that they should have removed the grease and oil and provided a walkway past the pallets and their failure to do so was negligence, a violation of defendant’s duty to supply Mr. Bernardini with a reasonably safe place in which to work.”

      . Effective November 26, 1972, employees such as the appellant here, covered by the Longshoreman’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., may no longer bring an action against the vessel or its owner for unseaworthiness. Pub.L. 92-576 § 18.

      . Our reversal on the ground that the jury returned irreconcilable special verdicts makes it unnecessary for us to pass upon the correctness of the trial court’s instructions dealing with the applicability of the Health and Safety Regulations for Longshoremen to the issue of the shipowner’s liability. Inasmuch as we are remanding for a retrial it is not inappropriate to note that Albanese v. N. V. Nederl. Amerik Stoom v. Maats, 346 F.2d 481 (2 Cir. 1965), rev’d on other grounds, 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1966), remains the law of this circuit.