author: EDWARDS, Circuit Judge.

text:
    Ann E. BIBLER, Admx. of the Estate of Ralph Bibler, Deceased, et al., Plaintiffs-Appellants, v. Berry H. YOUNG, Jr., et al., Defendants-Appellees. UNITED STATES of America, and the Federal Aviation Administration, Third-Party Plaintiffs-Appellants, v. Berry H. YOUNG, Jr., et al., Third-Party Defendants-Appellees.
    Nos. 73-1201, 73-1202.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 3, 1973.
    Decided Feb. 27, 1974.

      Harry L. Riggs, Jr., Erlanger, Ky., and Michael Pangia, Washington, D. C., for plaintiffs-appellants; Riggs & Riggs, Erlanger, Ky., Nelson Lancione, Columbus, Ohio, Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Leonard Schaitman, Joseph B. Scott, Attys., Dept. of Justice, Washington, D. C., on briefs.
    David L. Day, Columbus, Ohio, for defendants-appellees; Collis Gundy Lane, Lane, Alton & Horst, Columbus, Ohio, on brief.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   EDWARDS, Circuit Judge.

The widow of a deceased airplane pilot and instructor appeals from the judgment of the United States District Court for the Southern District of Ohio dismissing her complaint. The District Judge who tried this case without a jury found for the defendants on the ground of contributory negligence on the part of her husband who was killed in an airplane crash. The suit yas brought under the Federal Tort Claims Act (28 U.S.C. § 1346(b) (1970)), by Ann Bibler, as Administratrix of her husband’s estate, on behalf of herself and their minor child against the United States and the Federal Aviation Administration, the operator of the control tower at the Columbus, Ohio, airport where the crash occurred. She also sued the owner and operator of the other aircraft which collided with Bibler’s plane. The United States answered denying negligence and claimed indemnification against defendants Young and Ohio Aviation Distributors, Inc., the operator and the owner of the other plane.

By stipulation of the parties, another related state case was submitted to the court wherein Sundín, the owner of the plane in which Bibler was killed, sued all the same defendants for property damage occasioned by their claimed negligence. In turn Ohio Aviation counterclaimed for the damages to its plane.

The cases were heard before Judge Rubin in the United States District Court for the Southern District of Ohio. Judge Rubin held that the plaintiffs’ claims were barred by the contributory negligence of the deceased pilot, Bibler, in that “He failed to advise the Local Control that he had passed the outer marker” in making a simulated landing at Port Columbus International Airport, and in that he failed to make and maintain radio contact with the Local Controller while over the airport area. The District Judge held that pilot Young was not guilty of negligence and awarded $17,000 damages to Ohio Aviation for the damage to the plane Young was flying. He also held that the approach controller at the Port Columbus Airport was guilty of negligence for failing to tell pilot Bibler to contact Local Control. But he held that this negligence was not the proximate cause of the accident. The District Judge also held that the Local Controller at the Port Columbus Airport was not guilty of negligence.

There were four parties involved in this air collision which resulted in the death of two people. This record, as we view it, indicates that any one of the four might have prevented the crash. But actionable negligence does not Consist of failing to take extraordinary measures which hindsight demonstrates would have been helpful. It consists of doing or failing to do what a reasonable man would do under the circumstances confronting him.

This appeal disputes the interpretation of the applicable rules and regulations and the inferences from the facts drawn by the District Judge. Many of the facts in this case were stipulated and none of them are currently in dispute.

We recite them from the District Judge’s findings of fact:

“FINDINGS OF FACT

Finding of Fact (1)

General Conditions at Columbus International Airport

Columbus International Airport, known by pilots as CMH, is located in Franklin County, Ohio, immediately east of the City of Columbus. „ Its main runways lie in an east-west direction. Airport runways are identified by the first two digits of direction. Accordingly, the two main runways of Port Columbus are 28 left and 28 right, indicating an east to west bearing of approximately 280 degrees. When used west to east the same runways are known as 10 left and 10 right, signifying a heading of approximately 100 degrees. The precise magnetic bearing of 28 left and 28 right is 276 degrees.

Runway 28 left is 10,700 feet long and 150 feet wide. It is equipped for instrument landing and includes an electronic extension in the same compass heading referred to as a ‘beam.’ At a point 5.4 nautical miles (6.2 statute miles) east of runway 28’s left threshold is the ‘outer marker.’ An outer marker is an electronic device that advises a pilot when he has passed over it on his way to a landing.

Between the outer marker and the runway threshold there is a middle marker which likewise electronically advises the pilot that he has passed over such marker. A pilot may receive such information by a Beacon Marker Indicator which will cause a light to flash on the instrument panel and an audible radio signal to be given, or by a low frequency ADF receiver which will receive in Morse Code the identifying letters of the marker. The outer marker on runway 28 left is identified by the letters CM and is known by the term ‘Charlie Mike.’

A plane need not contain such equipment in order to use part of the electronic extension of runway 28 left. A plane can be equipped merely to ascertain its position in relation to the electronic extension or ‘localizer beam’ and be guided onto the localizer for ultimate landing on the runway.

The control of traffic in and around the Columbus Airport is a function of the Federal Aviation Administration. This facility operates from the Columbus control tower. There is a separation of function between Approach Control (APC) which monitors by radar traffic which is outside of a five mile radius from the tower, and Tower Control, also known as Local Control (TWR), which has jurisdiction over air traffic within the five mile radius. APC operations extend for approximately forty miles around Port Columbus. Local Control is housed at the top of the control tower. In 1968, when this accident occurred, Local Control did not have radar equip-' ment and relied on visual sightings to identify and direct landing aircraft. The two control departments communicate with pilots on assigned frequencies: APC on 119,0 megahertz- and TWR on 121.5. Because their jurisdictions are exclusive, pilots do not customarily communicate with both departments simultaneously.

When a pilot is flying under instrument flight regulations (IFR), he communicates with « Approach Control until he reaches the outer marker. At this time he is advised to contact Local Control in the tower on its frequency and report his presence. When a pilot is flying under visual flight regulations (VFR) he is not required to advise Approach Control of his presence, but contacts instead Local Control when he is in the vicinity of the outer marker.

Finding of Fact (2)

Cherokee N42 39J (39 Juliet)

On April 10, 1968, Ralph D. Bibler, decedent, was a duly qualified and licensed commercial pilot and flight instructor with over 1000 hours of pilot flight time. He was in command of a Piper Cherokee aircraft, Registration No. N4239J. At approximately 3:00 p. m. on that date, he was instructing a student, one David Dunnick, in the procedures for instrument landing at Port Columbus. Mr. Dunnick had logged 123 hours of flight time. The plane was equipped with an omni-converter for lo-calizer guidance. It was not equipped with an ADF radio Beacon Marker Indicator or any other electronic means of establishing position in relation to the outer marker. Prior to 3:00 p.m., 39 Juliet was operating under Instrument Flight Regulations (IFR) procedures with student Dunnick at the controls. Dunnick was wearing a ‘hood,’ a vision limiting device which focused his attention upon the instrument panel. As the operating pilot student Dunnick occupied the left hand seat. Instructor Bibler occupied the right hand seat. Weather conditions at Port Columbus on April 10, 1968, were such that visual flight regulations (VFR) were in effect. Proceeding under IFR conditions in a VFR day placed an obligation upon Bibler to act as ‘safety pilot’ and observe the classical admonition under VFR conditions of ‘see and be seen.’

Finding of Fact (3)

Bonanza N8318N (18 November) Defendant Berry D. Young, a retired United States Air Force Lieutenant Colonel, on April 10 was piloting Beech-craft Bonanza No. N8318N. Defendant Young at the time had logged in excess of 7,000 hours of pilot flight time. He was employed as a salesman by defendant Ohio Aviation Company, a distributor of Beechcraft products. The instrument equipment of 18 November is not significant since Young was flying, on the date in question, under VFR conditions. One such instrument, the air speed indicator, was known to be inaccurate in its operation. Mr. Young had taken off at approximately 14:30 (2:30 p.m.) from the Wood County Airport at Parkersburg, West Virginia. At 1500 (3:00 p.m.) he was proceeding in a westerly direction parallel to Interstate 70 and immediately south thereof. His direction would approximate the magnetic heading of runway 28 and he would be approximately 2 miles south of an eastward projection thereof. He first contacted Local Control at 1504 (3:04 p.m.) locating himself ‘2 miles south of Charlie Mike’ (outer marker).

Finding of Fact (4)

Approach Control (APC)

Approach Control at the Port Columbus tower was made aware of the presence of 39 Juliet at 1440:54 (2:40 p.m.). Its pilot requested a practice instrument approach at the Port Columbus Airport. In answer to its question Approach Control was advised that 39 Juliet was rated and equipped for an ILS approach. It is a matter of definition whether it was so equipped. 39 Juliet could electronically locate the localizer beam; it could not electronically find either the outer marker or the middle marker. The outer marker at Port Columbus can be visually determined and on the first ILS approach, Local Control was advised when 39 Juliet passed the marker. This was in accordance with previous instruction from Approach Control. An ILS practice approach is treated as a missed approach. 39 Juliet was instructed to execute a right turn to heading 50°, ascend to an altitude of 2,700 feet and return to the frequency of Approach Control. At 1457:50, 39 Juliet did so return and was guided or ‘vectored’ in a clockwise direction for a second approach to the runway. Thereafter Approach Control gave 39 Juliet the following instructions: 1500:16 heading 100°; 1501:25 heading 180°; 1502:26 heading 260°.

At 1503:47, 39 Juliet was noted by Approach Control as ‘on the localizer a mile from the marker.’ At no time did Approach ■ Control have radio contact with 18 November. APC was, however, aware that 18 November would land on runway 28 left.

Finding of Fact (5)

Local Control (TWR)

Local Control did not have in 1968 a radar scope that would assist its controllers (or Tower Control) in locating and monitoring a specific plane. The tower controllers were required to make visual locations assisted by binoculars when those were indicated. TWR had contact with 39 Juliet on the first approach from 1449, when it was advised that 39 Juliet had passed the outer marker, until 1457:50, when the pilot returned to the frequency of Approach Control. At 1503:23 TWR was advised that 39 Juliet was on the localizer. Approach Control advised that if 39 Juliet got in TWR’s way he was to be turned south.

Approximately 37 seconds later at 1504, 18 November advised TWR that he was 2 miles south of Charlie Mike for landing. TWR instructed 18 November to land on runway 28 left number two following a flight of Lake Central Airlines in a Nord aircraft. This transmission included notice of traffic coming upon the outer marker intending an ILS low approach. ' The term ‘low approach’ or ‘low go’ refers to a landing approach that will not be completed.

At no time after 1457:50 was there radio communication between 39 Juliet and Local Control although no later than 1504:47, 39 Juliet did in fact cross the outer marker. 39 Juliet never contacted TWR during the time it was inside the outer marker. Its last advice at 1507:45 was made to Approach Control and its radio in the wreckage was found to be tuned to 119.0 mg. Approach Control frequency (Ex. 45 at 8).

Finding of Fact (6)

Time and Location

In midair collision cases, the relative positions of the aircraft are of sufficient importance to be considered in detail. The. Court finds that the positions of the two aircraft over the crucial period of time prior to their crash, were as follows:

POSITION
39J 18N
Prior to 1500
1459:07 North East of Tower 2 mi. heading 50° Unknown — heading westerly from Parkersburg, W. Va.
1500-1501
1500:16 Heading 100° Unknown •— heading westerly from Parkersburg, W. Va.
1501-1502
1501:25 Heading 180° Unknown — heading westerly from Parkersburg, W. Va.
1502-1503
1502:26 Heading 260° Unknown — heading westerly from Parkersburg, W. Va.
150S-1501f
1503:23 On the localizer Unknown — heading westerly from Parkersburg, W. Va.
1503.47 On the localizer a mile from the marker Unknown — heading westerly from Parkersburg, W. Va.
1501f-1505
]504:14V2 On the localizer 2 ml. s. of Charlie Mike
1504:44V2 On the localizer down by Pandora's Box
1505-1506
1505:34 On the localizer South of the approach course
1506-1507
1506:41 On the localizer In sight Cof Tower]
1507-1508
1507:45 A beam Western Electric

Finding of Fact (7)

Knowledge of Parties

(A) Knowledge of 18 November— After contacting Local Control at 1504, Young was advised to plan to land on runway 28 left following the Lake Central Nord and to watch traffic coming up on the outer marker making an ILS low approach. The term, ‘coming up on the outer marker,’ indicates a position of such traffic at that time east of the out-ermarker. Because only 13 seconds had elapsed from the location of 39 Juliet at one mile from the outer marker, this statement was correct. At 1505:47 he was advised of the Lake Central Nord about a mile out of the airport and cleared to land on runway 28 left.

(B) Knowledge of 39 Juliet — Following the vectoring that had ended at 1502:26, 39 Juliet had received from Approach Control a clearance for a straight in ILS 28L approach. At 1503:47 he was advised that he was on the localizer one mile from the outer marker and spaced in reference to a Lake Central Nord three miles north of the airport. The term ‘spaced in reference to Lake Central Nord’ is not a clearance to land nor is it a landing sequence. At 1507:45, 39 Juliet knew he was inside the outer marker since he advised Approach Control ‘a beam of Western Electric.’ No conversation at any time in this approach was had with Local Control.

(C) Knowledge of Approach Control —At 1502:26 Approach Control knew that 39 Juliet was heading 260° intending another missed approach. At 1503:47 he knew that 39 Juliet was on the localizer one mile from the outer marker. At 1504:34 Approach Control knew that 18 November was intending to land on 28 left. At 1504:44% Approach Control knew that 18 November was in the vicinity of Pandora’s Box heading for the approach to 28 left. At no time did Approach Control speak to 18 November. Alone of the four parties involved, Approach Control possessed all of the critical information. Two planes no more than three miles apart were planning to use the same runway approach and were converging thereon. The radar scope that had previously located 39 Juliet ‘one mile from the outer marker’ and 18 November ‘down by Pandora’s Box’ was available to alert Ap-' proach Control of the decreasing separation between the two planes.

(D) The knowledge of Local Control —At 1503:23 he knew that 39 Juliet was on the localizer. At 1504 he knew that 18 November was 2 miles south of the outer marker. At 1505:44* he knew that 18 November was south of the approach and could see the Lake Central Nord. At 1505:51 he was advised that 18 November would land a little long. At 1506:41 he had 18 November in sight and cleared him to land on runway 28 left. He had no precise knowledge of the location of 39 Juliet. Neither the communication of 1503:47 identifying 39 Juliet one mile from the outer marker nor the communication of 1507:45 identifying 39 Juliet ‘just a beam of Western Electric’ was received by the Tower since these communications were on Approach Control frequency. Bearing on local control’s lack of knowledge concerning the location of 39 Juliet is the fact that as late as 1507:44 he inquired whether that plane was within the outer marker.” (Footnotes 3, 4 and 5 omitted.) ’

The law applicable to this Federal Tort Claims Act action is, of course, that of the State of Ohio, where the accident occurred. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Ohio law makes no provision for a comparative negligence, and as the District Judge held, it bars recovery to any plaintiff whose negligence contributed as a proximate cause to the happening of the accident. Bahm v. Pittsburgh & Lake Erie Rd. Co., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966); Drown v. Northern Ohio Traction Co., 76 Ohio St. 234, 81 N.E. 326 (1907).

As we have indicated, the District Judge held that Bibler’s contributory negligence consisted of failing to contact the Tower as he passed the outer marker and failing to maintain radio contact with the Tower while in the airport traffic area.

It is appellant’s contention, however, that since Bibler was in contact with Approach Control, he was in contact with the Tower and that he was under' no legal duty to report his passing of the outer marker.

We believe that several Federal Aviation Administration Regulations are applicable :

(1) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft. 14 C.F.R. § 91.3 (1973).
(2) Communications with control towers operated by the United States. No person may, within an airport traffic area, operate an aircraft to, from, or on an airport having a control tower operated by the United States unless two-way radio communications are maintained between that aircraft and the control tower. However, if the aircraft radio fails in flight, he may operate that aircraft and land if weather conditions are at or above basic VFR weather míni-mums, he maintains visual contact with the tower, and he receives a clearance to land. If the aircraft radio fails while in flight under IFR, he must comply with § 91.127. 14 C.F.R. § 91.87(b) (1973).
(3) The pilot in command of each aircraft operated under IFR in controlled airspace shall have a continuous watch maintained on the appropriate frequency and shall report by radio as soon as possible—
(a) The time and attitude of passing each designated reporting point, or the reporting points specified by ATC, except that while the aircraft is under radar control, only the passing of those reporting points specifically requested by ATC need be reported;
(b) Any unforecast weather conditions encountered; and
(c) Any other information relating to the safety of flight. 14 C.F.R. § 91.125 (1973).
(4)(e) Overtaking. Each aircraft that is being overtaken has the right of way and each pilot of an overtaking aircraft shall alter course to the right to pass well clear.
(f) Landing. Aircraft, while on final approach to land, or while landing, have the right of way over other aircraft in flight or operating on the surface. When two or more aircraft are approaching an airport for the purpose of landing, the aircraft at the lower altitude has the right of way, but it shall not take advantage of this rule to cut in front of another which is on final approach to land, or to overtake that aircraft. 14 C.F.R. § 91.67(e) & (f) (1973).

Likewise applicable to our problems on this appeal is a sentence from the Airman’s Information Manual:

“During the time an IFR flight is operating in VFR weather conditions, it is the direct responsibility of the pilot to avoid other aircraft, since VFR flights may be operating in the same area without knowledge of ATC (air traffic control).” Airman’s Information Manual (AIM, 1-58).

Of similar applicability is a Port Columbus regulation which places on the Approach Controller the specific duty of telling the pilot of an airplane which he has cleared for an approach to contact Tower Control when he reaches the final approach fix. Terminal Air Traffic Control Manual, Rule 674(d).

With these facts and these rules and regulations in mind, we conclude that the District Judge’s finding of contributory negligence on the part of pilot Bib-ler must be affirmed and therefore the two original causes of action were properly dismissed.

Under Rule 52(a) of the Federal Rules of Civil Procedure, this court cannot set aside the findings of fact of the District Judge unless we can say that they are “clearly erroneous.” Judge Rubin’s findings are not only not “clearly erroneous”; we believe they are supported by the great weight of the evidence in this record. Indeed, as pointed out above, aside from interpretations of the regulations and inferences from the facts, they are undisputed. ■

We now turn directly to Judge Rubin’s conclusions pertaining to pilot Bibler’s contributory negligence. Like the District Judge, we believe that 14 C.F.R. § 91.87(b) (1973), specifically forbids operating any aircraft within an airport traffic area (described at the time as within five miles of the Tower and below 2,000 feet) which airport has a control tower operated by the United States “unless two-way radio communications are maintained between that aircraft and the control tower.” Like the District Judge, we reject the appellant’s contention that Bibler satisfied this rule by maintaining two-way radio contact with the Approach Controller. This record which contains much expert testimony, demonstrates conclusively that when the term “Control Tower” or “Tower” is used in connection with operations “within an airport traffic area,” the terms refer to local control and not to approach control. This conclusion is strengthened by the fact that under visual flight conditions, such as prevailed on the date of this accident, Approach Control would not routinely have radio contact with in-bound traffic. Like Young’s plane (18N), such traffic would ordinarily report only to the Tower (local control) at the outer marker. Thus Approach Control would be powerless to talk to or guide away from dañ-ger most of the planes within the airport traffic area.

Since the State of Ohio has adopted Federal Air Regulations as its own (See Ohio Rev.Code, §§ 4561.05, 4561.14), we believe that Bibler’s violation of 14 C.F.R. § 91.87(b) was also a violation of Ohio law, and negligence per se. Maryland Casualty Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 64 L.Ed. 297 (1920); Eastern Airlines v. Union Trust Co., 221 F.2d 62, 95 U.S.App.D.C. 189, aff’d sub nom. United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955).

We also affirm the District Judge’s conclusion that pilot Bibler was guilty of contributory negligence in failing to “advise local control that he had passed the outer marker.”

Strangely, the federal regulations on this score (See § 91.125 previously quoted) are not sufficiently definite to support this conclusion as a matter of law. But this record shows that the weight of the expert evidence does support the District Judge’s statement in this regard. The testimony of expert witness Culley is persuasive:

Q. And as a pilot, when an aircraft is making an actual or simulated ILS approach, is there anything the pilot must do in passing over the outer marker as required by good operating procedures?
A. Yes, he should most definitely report the final approach fix or the outer marker in this case to the local controller or to approach control.
THE COURT: Mr. Pangia, excuse me just a moment. May I ask you a question in this regard: You said he should.
THE WITNESS: Yes, sir.
THE COURT: Now, does that mean he must or is it just good practice to do so?
THE WITNESS: It is not required by Federal Air Regulations that he do so, but it is a part of the recommended air traffic control procedures on which all instrument flying is predicated.
THE COURT: Okay. His failure to do so does not subject him to any discipline? Aside from the question of negligence, I don’t want to get into that, but his failure to do as you stated is not a violation of any of the PAA regulations ?
THE WITNESS: No, sir, it is not.
THE COURT: Thank you. You may proceed.
Q. (By Mr. Pangia) Is it fair to say, Mr. Culley, that there are many things which pilots should do in the operation of the aircraft that are not spelled out exactly in the Federal Aviation Regulations?
A. Absolutely.
Q. Mr. Culley, if an aircraft was making an ILS approach, practice or otherwise, and he was not told to change from approach to the tower frequency, what, if anything should the pilot do?
A. As a pilot, if he has not been told to report or instructed to report as he approaches the marker, he should query approach control as to whether or not. he wants him to change frequency to local control. If in the event we have a frequency congestion and he can’t get to him or can’t get a reply, he automatically changes to local control, the reason being, if I may say, as a pilot, I am interested in the traffic ahead of me. If I continue to monitor approach control frequency, I am only getting traffic that is behind me and to the side of me. If I am on the tower frequency, I. can hear other traffic and communication with the tower, and I can determine their position from that report.
Q. And if an aircraft were not making a radar approach, Mr. Culley, would he get his landing sequence and clearance to land from the local controller ?
A. Landing sequence and clearance to land is assigned by the approach controller under these conditions.
Q. I am sorry.
A. I beg your pardon, under tower control.
Q. Is it done by the approach controller in that condition?
A. No, sir, it is not.

While we recognize that Culley’s testimony might be affected by his employment with defendant, Federal Aviation Administration, other witnesses, including plaintiff Sundín (owner of the plane Bibler was flying) furnish confirmation of the essential points of this testimony.

Finally, the Airman’s Manual contains this paragraph:

Report Leaving Final Approach Fix

Pilots conducting a prescribed instrument approach are reminded of the importance of reporting to ATC or an FSS when over the final approach fix on final approach. ATC may predicate separation between departures and arrivals and between successive arrivals on the basis of this report; therefore, failure to make this report may compromise separation criteria. Airman's Information Manual

This instruction is vividly underlined by the comment of the Local Controller immediately after the mid-air collision on April 10, 1968:

“He [Bibler (39J) ] never called me at the marker.”

Since pilot Bibler’s failure to report at the Marker or to contact Local Control deprived Local Control of knowledge that Bibler’s plane (39J) had passed the marker and was in proximity of Young’s plane (18N), it served to prevent action by Local Control to warn and separate the converging planes. It also served to deprive Bibler of knowledge of Young’s clearance to land and Young of Bibler’s presence within the airport traffic area. Clearly the negligence we have described on Bibler’s part was a proximate cause of the accident. Such contributory negligence under the Ohio cases cited earlier bars recovery by either plaintiff Administratrix or plaintiff Sundín in the original actions, regardless of whether or not the negligence of the Approach Controller (in failing to tell Bibler to switch to Local Control) contributed as a proximate cause also.

There remains for our consideration only appellant’s vehement protest against recovery by Ohio Aviation of the $17,000 worth of damages suffered by the Bonanza 18N piloted by appellee Young. Here appellant relies upon a regulation which places the burden of yielding the right of way upon an overtaking plane (See 14 C.F.R. § 91.67), i. e., upon Young. Since visual flight conditions prevailed at the time and place concerned, the fact that neither pilot ever saw the other is apparently explained by the fact that Young's plane (18N) was both above and behind Bibler’s, and hence, as found by the District Judge, Young could not see Bibler and Bibler could not see Young because of the configuration of their planes.

At the time and place concerned Young had a clearance to land and was proceeding according to it. Bibler did not have a clearance to land; he had only a clearance to approach. Thus, under 14 C.F.R. § 91.67(f), Young had the right of way over Bibler. At the time and place concerned Young did not know that what turned out to be Bibler’s plane (39J) was even in the airport traffic area. Expert testimony supports the District Judge’s conclusion that Young’s failure to take extraordinary measures to observe below him by side slipping and veering off his course (while landing) was not negligence — even though by hindsight such action might well have prevented the accident.

For these reasons and others spelled out in the District Judge’s Findings of Fact Opinion and Conclusions of Law, the judgments of the District Court are affirmed.

      . The terms Local Control, Local Tower or Tower as used herein are synonymous and are all identified as TWR.

      . There is an identification system used by pilots and controllers which involves the last two digits and letter of a plane’s registration. Sjjeeific words are used to avoid letter confusion. Thus Cherokee N4239J was known as “39 Juliet” and Bonanza N8318N was referred to as “18 November.”

      . Plaintiff is suing as Administratrix of the estate of her deceased husband, and hence, his contributory negligence would bar her claim.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Clifford Lavern BISHOP, Appellant. UNITED STATES of America, Appellee, v. Lewis Frank GRAYSON, Appellant. UNITED STATES of America, Appellee, v. Nathaniel J. BRANCATO, Appellant. UNITED STATES of America, Appellee, v. George L. HUSONG, Appellant. UNITED STATES of America, Appellee, v. James S. DUARDI, Appellant. UNITED STATES of America, Appellee, v. Jack Michael KING, Appellant.
    Nos. 73-1287, 73-1288, 73-1300, 73-1310, 73-1358 and 73-1705.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1973.
    Decided Feb. 28, 1974.
    Rehearing Denied April 22, 1974.

      Robert G. Duncan, Kansas City, Mo., and Stephen Jones, Enid, Okl., for appellants.
    Gary Cornwell, Special Atty., Crim. Div., Dept. of Justice, Washington, D. C., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

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

   STEPHENSON, Circuit Judge.

Appellants were convicted under 18 U.S.C. § 371 of conspiring to violate 18 U.S.C. § 1952, by promoting and establishing an unlawful activity, and by promoting such unlawful activity by travel-ling and causing others to travel in interstate commerce and by the use of telephone facilities in interstate commerce. The case was tried to a jury before the Honorable John W. Oliver, United States District Judge, Western District of Missouri, upon Count I of a two count indictment.

These consolidated appeals raise the principal question of whether an exhibit not admitted into evidence, but inadvertently delivered to the jury during its deliberations by the court clerk, constituted prejudicial error, thus necessitating a' new trial. Insufficiency of the evidence and other trial errors are also urged. After carefully considering this record totalling nearly one thousand pages, we conclude that appellants were not prejudiced by the errors alleged, and therefore affirm the conviction. Fed.R.Crim.P. 52(a).

The essence of the conspiracy is that between August 26, 1971 and March 26, 1972, appellants together with Olivia Mae Pitts and Jess C. Roberts, named in the indictment as co-conspirators but not defendants, conspired to promote and establish an unlawful business enterprise involving gambling, prostitution and bribery in violation of the laws of the State of Oklahoma. Interstate travel and use of the telephone facilities in interstate commerce were involved.

The government’s evidence is briefly summarized as follows: On May 12, 1971, co-conspirator Roberts met with appellant Grayson, then an Oklahoma State District Attorney, for the purpose of discussing Roberts’ plan to erect a private club in the vicinity of Grove, Oklahoma (within Grayson’s jurisdiction). The club, known as “Mr. Yuk,” was opened on August 26, 1971. Shortly after its opening Mr. Yuk experienced a series of raids by local authorities and charges were eventually filed against Roberts for the illegal sale of intoxicating liquors. As a result of the raids Roberts experienced financial difficulties.

In mid-December, appellant Bishop, an employee of appellant Duardi, a Kansas City, Missouri night club owner, telephoned Roberts from Kansas City and indicated that he could help Roberts with the raids problem through various political connections. Bishop also indicated to Roberts that he had an idea to make money in a business' venture. Roberts then flew to Kansas City and met with appellants Bishop, Duardi and Brancato. The latter owned several businesses in the Kansas City area. During the course of the meeting, Duardi and Brancato suggested to Roberts that they might be able to help eliminate some of the raids. On January 7, 1972, Mr. Yuk was again raided, charges were filed and all the furniture from within the club was seized. Owner Roberts later met with District Attorney Grayson who said that “he had to do it [stage the raid] for political purposes.”

On January 12 and 13, 1972, Bishop visited Grove, Oklahoma and met with appellant King and Roberts, and discussed establishing a “vending” machine business. King, who owned the “Show Boat” Club, also, in the vicinity of Grove, indicated that he too had been having problems with local officials; that Du-ardi saw to it that charges filed against him were reduced or dropped, and that he (King) in turn gave Duardi a partnership in the Show Boat. On January 13, 1972, Bishop, Roberts and King drove to Kansas City and had a partnership agreement prepared which gave Bishop an interest in Mr. Yuk. On the return trip, King indicated that he had a prior arrangement with appellants Grayson and Husong, a special investigator for District Attorney Grayson, which provided for gambling at the • Show Boat.

On January 14, 1972, Roberts met with ■ investigator Husong who indicated that the raids on Mr. Yuk could be stopped and that gambling could be arranged. Husong told Roberts that in return he and Grayson needed 20% of the gambling proceeds “to keep other law enforcement officers away from Mr. Yuk,” and that they needed a new ear for the local Sheriff. Roberts told Hu-song that an additional room would be added to Mr. Yuk for gambling, that there would be a motel, an amusement park and gambling at the Show Boat, owned by appellants King and Duardi, and that rather than giving 20% of the gambling proceeds he would pay 5% of the profits of the entire operation. The next day, Roberts met with appellants Bishop, Brancato and Duardi in Kansas City to discuss the proposed agreement to be reached with investigator Husong and District Attorney Grayson. They also discussed financing the operation through the Bureau of Indian Affairs or the Small Business Administration, and further, that “girls” could be employed to entertain and be companions for the customers.

Bishop later confirmed the arrangements with investigator Husong, and then telephonically described some of the final details to Duardi. Several meetings followed to discuss financing and construction. Mrs. Pitts (co-conspirator) who met with appellants, was described by Duardi as a person who could obtain an “S.B.A., or Indian loan.” On February 3, 1972, Roberts and Bishop engaged in a telephone conversation between Grove and Kansas City in connection with the arrangements with local authorities. On February 4, 1972, Bishop arrived in Grove with a 1972 Chevrolet Impala, which he and Roberts gave to investigator Husong as part of the “deal.” Subsequently District Attorney Grayson used the auto. (The auto was leased rather than purchased ostensibly to permit its repossession should the “deal” fail.)

It was later learned that appellants would be unable to secure an S.B.A. loan. Husong, King and Bishop blamed Roberts for the failure to secure this financing. According to Roberts, however, Husong subsequently told Roberts that “Mr. Grayson and himself were going to acknowledge all of the agreements we had had prior to that time concerning the notification of the raids, allowing gambling in the club, were going to keep the car that had been given them, but they would make the payments on the car and they would expect no percentage out of the gambling.” Roberts replied “that it couldn’t work that way * * * once this was started we had to stick to it, there was too much money had been spent to back out at this time.” On February 29, 1972, King, who was in Denver with Bishop and Roberts to secure a bingo machine for Mr. Yuk, learned in a telephone conversation with his wife at Grove that Internal Revenue men were in Grove. It was agreed they “would let things lay quiet for a while until this simmered down.”

Appellants were subsequently indicted on the conspiracy charge which alleged 22 overt acts. Warrants were issued for their arrests on August 23, 1972. Of the eighteen witnesses who testified during the course of the trial, all but one were called by the government. Co-conspirator Roberts was the chief witness for the government. His testimony was corroborated in several respects by other employees who testified. Co-conspirator Pitts was called by the defense.

A great deal of documentary evidence was introduced during the course of the trial. Among the offered exhibits was the government’s Exhibit R, purporting to be “a summary of telephone records and the corresponding business records of telephone companies upon which that summary is based, prepared by F.B.I. agents.” Judge Oliver refused to admit Exhibit R because of the- form of the exhibit. He later explained in his order of January 2, 1973, that “defendants’ objections to that exhibit were val-lid only in a limited sense and that the difficulty with the exhibit in the form it was offered was that many phone calls which had no probative value (in that they simply reflected calls between pay telephones in public places) were listed together with records of telephone calls between identified individuals which could be relevant.”

Shortly after the jury began its deliberation it requested all the exhibits. Counsel agreed that all exhibits admitted into evidence should be sent to the jury, but that exhibits attached to court Exhibit 1 (the pretrial stipulation relating to authenticity of certain exhibits, see note 3, supra) should not be included. In the presence of defense counsel and with the telephonic approval of government counsel, Judge Oliver directed the court clerk to check all exhibits carefully so that evidence not admitted could not inadvertently be transmitted to the jury. The jury deliberated approximately six and one-half hours and returned guilty verdicts as to all defendants. Despite the precautions taken, the court clerk advised the court that when he collected the exhibits after the trial he found Government Exhibit R among the exhibits that went to the jury room.

Appellants now urge that such transmission constitutes reversible error, necessitating a new trial.

It is undisputed that the delivery to the jury of Exhibit R constitutes error. Osborne v. United States, 351 F.2d 111, 115 (CA8 1965); accord, Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546, 555 (1969). But, unless the error was prejudicial to “substantial rights” of appellants, the verdict and judgment will stand. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946); Osborne v. United States, supra, 351 F.2d 111, 117 (CA8 1965); see, United States v. Warner, 428 F.2d 730, 736-738 (CA8 1970). In order for error to be declared harmless the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendants’ conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Homan v. United States, 279 F.2d 767, 771 (CA8 1960), we stated:

The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect. Blackwell v. United States, 244 F.2d 423, 431 (CA8 1957).

The weight of the government’s evidence is relevant in determining the effect of the error. United States v. Straughan, 453 F.2d 422, 427 (CA8 1972); Osborne, supra, 351 F.2d at 118. In this case, it is abundantly clear from the lengthy trial record, that the evidence of guilt is overwhelming. The significant testimony of the government’s key witness, although admittedly an accomplice, was substantially corroborated by other credible testimony. As such, Exhibit R did not serve to corroborate any significant portion of Roberts’ testimony. We fully agree with Judge Oliver’s statement in his order of February 28, 1973 which denied appellants’ supplemental and joint motion under Fed.R.Crim.P. 52, that “independent evidence was adduced and admitted without objection in regard to any significant telephone call which could in any way be said to have remotely been corroborative of what counsel stated are the ‘essential points’ in Roberts’ testimony.” The fact that some of the calls were made from pay telephones was a fact independently known to the jury by other evidence in this record.

As previously noted, the objectionable nature of Exhibit R was its form. It was not rendered inadmissible because it was highly inflammatory or prejudicial. Our decision in Osborne, supra, is distinguishable on this basis. The original telephone records which served as an official source for Exhibit R were all in court, identification had been waived, and they were made a part of the record available to all parties. Furthermore, as acknowledged by defense counsel during oral argument of this appeal, no objection was made with respect to the accuracy of the exhibit. In the form in which it was offered Exhibit R simply lacked probative value with respect to certain telephone calls. The most that can be said is that the exhibit showed a large number of calls to and from the listed numbers during the period indicated.

In the final analysis, we are satisfied beyond a reasonable doubt that on this record the error in question did not have any influencing effect upon the jury, and therefore did not contribute to the convictions. Chapman v. California, supra, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); Homan v. United States, supra, 279 F.2d 767, 771 (CA8 1960); accord, United States v. Porter, 441 F.2d 1204 (CA8 1971); see, Kotteakos v. United States, supra, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946); and compare, United States v. Straughan, supra, 453 F.2d 422, 427 (CA8 1972), with United States v. Warner, supra, 428 F.2d 730, 736-738 (CA8 1970); see also, Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Judge Oliver did not abuse his discretion in denying appellants’ motion for a new trial because of the jury’s exposure to Exhibit R.

Appellants next contend that they were denied a fair trial because of the accumulation and cumulative effect of multiple prejudicial references, evidence and statements throughout the trial. We are satisfied from a careful examination of this record that whatever potential prejudice there may have been was cured by appropriate instructions by Judge Oliver.

Lastly, appellants urge that the trial court erred by submitting to the jury the alleged offense of conspiracy to engage in a business enterprise involving gambling, prostitution and bribery, and in the conjunctive, that there was not sufficient evidence to support a conviction. This record overwhelmingly .substantiates appellants’ guilt in all respects. The convictions of guilt are therefore affirmed.

Affirmed.

      . The record discloses that “other law enforcement officers” allegedly referred to the State Alcoholic Beverage Control Board, local Sheriff Lloyd Bosell and Leo Albro of the Oklahoma State Crime Bureau.

      . Overt Act #22 under Count I of the indictment, charged that “on or about March 16, 1972, Clifford Lavern Bishop and Jack Michael King attempted to kill Jess C. Roberts near Grove, Oklahoma.”
      In chambers, Judge Oliver warned that proof of the shooting of Roberts as an overt act “might introduce problems of prejudicial evidence * * Government counsel therefore agreed to avoid this area of examination. Under careful guidance of the trial court no evidence with respect thereto was admitted. Overt Act #22 was not submitted to the jury.

      . Transcript at'658. Of the twenty-two overt acts under Count I of the indictment, four related to telephone calls. Exhibit R was captioned “Key to review of telephone toll records.” Its intended use was to summarize allegedly relevant telephone company toll records aggregated in stipulation Exhibit E, admitted as part of Court Exhibit 1. Stipulation Exhibit B consisted of “true and accurate copies of the business records of Southwestern Bell and Century Telephone Companies.” It was further stipulated that telephones bearing certain telephone numbers were either listed to various named individuals, or were pay telephones, and that the telephones were located at designated locations at the particular times and dates indicated on the face of the records. Exhibit R contained a listing by date of telephone calls made from and to specified numbers which were identified, i. e., (Yuk), (Gray-son), etc. The exhibit itself did not purport to show who actually made the call or participated in it.

      . The government failed to delete the records of phone calls which the court ruled had no probative value.

      . The issue of appellants’ failure to screen the exhibits is not before us. We of course would not affirm on this basis where appellants had suffered substantial prejudice. See, United States v. Burket, 480 F.2d 568, 571 (CA2 1972). However, we note from the record that at least one defense counsel in the instant cause was an attorney of record in the Osborne case, also tried before Judge Oliver. In spite of all the precautions taken herein in light of Osborne, to. assure that only proper exhibits were sent to the jury, the record indicates that only the court clerk examined the exhibits. We realize that the methods used for transmission of exhibits to the jury are within the discretion of the trial court. Nevertheless, in light of the continuing nature of this problem, we strongly urge the position of the First Circuit stated in United States v. Yoppolo, 435 F.2d 625, 627 (CA6 1970) :
      [W]hen a case is ready for submission to the jury, counsel for both parties should look over all the exhibits to make sure that no exhibit which had not been admitted in evidence will be sent into the juryroom. They ought not to leave this task solely to the clerk.

        See, United States v. Sheehan, 428 F.2d 67, 72 (CA8 1970); see also, Dallago v. United States, supra, 138 U.S.App.D.C. 276, 427 F.2d 546, 554 (1969).

      . Stipulation Exhibit E, Court Exhibit 1, note 3, supra.

      . Among appellants’ claims are allegedly improper references made with respect to Overt Act #22 by the government in its opening statement, not then objected to (see also, note 2, supra), and to another criminal act of appellant Grayson in mortgaging leased property (automobile), evidence purporting to establish a nexus between appellants and organized crime, and improper argument by government counsel-


author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lee STEPHENS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alfonse BARTKUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Milton SILVERMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sam NORBER, Defendant-Appellant.
    Nos. 73-1334-73-1337.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 18, 1973.
    Decided Feb. 28, 1974.

      Joseph P. Zanglin (Court Appointed), Detroit Mich., on brief for Lee Stevens.
    W. Robert Chandler (Court Appointed), Detroit, Mich., on brief for Bart-kus.
    Noel L. Lippman, Warren, Mich., on brief for Silverman.
    Sanford Rosenthal, Southfield, Mich., on brief for Norber.
    Kirby Patterson, U. S. Dept. of Justice, for appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Robert L. Keuch, Atty., Dept. of Justice, Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, CEL-EBREZZE and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

The four appellants and two others were jointly indicted for conspiracy to violate Title 18 U.S.C. §§ 2314, 2315 and 2 “by fraudulently and unlawfully transporting and causing to be transported in interstate commerce, goods and merchandise of a value exceeding $5,000 knowing the same to have been stolen, and receiving, storing, bartering, selling and disposing of goods and merchandise of a value exceeding $5,000 moving in interstate commerce, knowing the same to have been stolen.” The indictment then described the part which each of the defendants allegedly played in the conspiracy and set forth a number of overt acts and the dates on which these acts were performed by various defendants. The indictment contained five counts relating to the alleged conspiracy, the various overt acts and charges of aiding and abetting. One defendant, Wayne Wakeford, was dismissed and a jury trial began on January 4, 1972 with the four appellants and one Robert “Bobby” Kahn as joint defendants. On February 9, 1972 this jury reported that it was unable to reach a verdict and was discharged. Prior to the commencement of the second trial the defendant Kahn pled guilty. On August 1, 1972 the jury returned a verdict finding the defendants Norber, Bartkus, Stephens and Sil-verman guilty as charged in count I of the indictment, Norber and Bartkus guilty under counts II and III and Silver-man guilty under counts IY and V. The four appeals were consolidated and heard together in this court.

The goods which were stolen consisted of a truck-type trailer loaded with Bayer aspirin and other non-prescription drug products which was shipped from the Glenbrook Laboratories of Sterling Drug Company in Trenton, New Jersey to a distribution point at Chicago, Illinois on January 12, 1970. The shipment was by rail and it was proven that the trailer arrived at the Penn Central yard in Chicago.' The loaded trailer disappeared from the Penn Central yard in Chicago before it could be delivered to the consignee and the empty trailer was found on a street in Chicago on January 19, 1970. All of the aspirin was not recovered but cases of aspirin identified as being parts of the shipment were recovered from a truck driven by the defendant Silverman in Detroit, from a building identified as the Castle City Furniture Company in Detroit and from a discount store in Cincinnati whose manager testified that it had been purchased from the defendant Silverman. The testimony of Sal Caracappa, an independent trucker, provided important links in the chain of conspiracy.

Caracappa testified that he was contacted on January 20, 1970 by Bobby Kahn whom he had known for about 15 years and hired to run a load of stolen aspirin from Chicago to Detroit. He was told by Kahn that the stolen cargo would be in a legitimate trailer to be picked up at Middle West Freight Lines in Chicago on the morning of January 21. When Caracappa arrived at the appointed place and met with Kahn he cheeked the loaded trailer and found that it did contain Bayer aspirin. Kahn rode part of the way to Detroit with Caracappa, but left the truck before it arrived at its destination. Caracappa then drove on to Detroit and pulled into a truck stop which had been designated by Kahn and waited in a conspicuous place. After a while a man identified by Caracappa as the defendant Stephens came to his truck and said, “I’m your man here in Detroit.” Later in the evening of January 21 Caracappa was at the home of the defendant Stephens when four people arrived. These were identified as Bobby Kahn, a young woman named Marianna Soots, the defendant Norber and the defendant Bartkus. About 10:00 o’clock that night Caracap-pa overheard a conversation among the other men at Stephens’ house concerning the ownership of the cargo. He went back to his truck and spent the night in the cab.

Caracappa then testified as to events which occurred on January 22 involving Norber, Kahn, Stephens and Bartkus. Before the day was over the trailer which Caracappa had brought from Chicago was unloaded at a warehouse near Fourth and Grand River in Detroit. The crew which unloaded the trailer was in the charge of Lee Stephens, and Kahn and Bartkus directed where the cartons which were taken from the trailer were to be placed on the second floor of the building. The witness testified that all four of the' other men were involved in discussions concerning the unloading and placement of the cargo and that he saw Norber give an envelope containing money to Kahn. Thereafter Kahn paid Car-acappa for hauling the goods. He also testified that he saw yellow slips of paper containing an inventory of the load while at Stephens’ house and he positively identified the contents of the trailer as Bayer aspirin, Midol and related products.

The witness Wayne Wakeford was originally indicted with the appellants, but the charges against him were dismissed prior to the first trial. He was an employee of the defendant Silverman, who also did business as Scot Beauty Supply, and he testified to activities in which he, Silverman, Norber and Stephens were involved in moving smaller loads of Bayer aspirin in Detroit' and from Detroit to Cincinnati, Ohio. The testimony of Wakeford related the movement of cases of aspirin to the Castle City Furniture storeroom and he also testified to a visit to the warehouse at Fourth and Grand River with Silverman at which time he saw 800 to 1,000 cartons of Bayer aspirin on the second floor. His testimony concerning the storage of Bayer aspirin at Castle City Furniture, meetings at Greenfield’s Restaurant, the visit to the warehouse at Fourth and Grand River and the delivery by Silverman of aspirin to a discount store in Cincinnati all verified previous testimony given by Detective Sergeant Hagstrom of the Michigan State Police who had conducted a surveillance of Silverman in January and February of 1970. On February 18, 1970 Silverman and Wakeford were arrested by Michigan authorities. Cases of Bayer aspirin were seized from a TJ-Haul truck that they were driving at the time of their arrest and from the Castle City Furniture building all pursuant to a search warrant issued after their arrest. These were later identified as being included in a group of cartons introduced in evidence.

The general manager of the discount store in Cincinnati who had purchased two loads of aspirin from Silverman testified that they were offered to him at 18 to 20 per cent below cost. Some of the aspirin were sold immediately to a business known as Goldsmith operated in the same building with the discount store, and in turn portions of this purchase by Goldsmith were traced to two other wholesale druggists in the Cincinnati area. Some of the cartons of aspirin received by each of these four Cincinnati businesses were recovered by the FBI and introduced into evidence along with those taken from the U-Haul truck and the Castle City Furniture storeroom. The labels had been cut from the boxes recovered in Cincinnati, which corroborated the testimony of Wakeford that the cases of aspirin which he hauled to the Castle City Furniture storehouse had had the labels cut.

Two employees of Glenbrook Laboratories testified. The witness Bannister was the shipping foreman at Trenton, New Jersey on the date the merchandise which eventually disappeared was loaded and dispatched. He described the use of control numbers by the manufacturer that served to identify the particular batch from which each container of aspirin was manufactured. He stated that this control number appeared at two places on each carton of aspirin and that the cartons also contained consecutive numbers and that this information was noted on a withdrawal sheet as the cases of aspirin were loaded on the trailer. He introduced the withdrawal sheet, the bill of lading for the particular shipment which was later stolen and the control sheets which gave further information about each control item. He described in great detail the contents of the trailer, identifying the number of cases of aspirin and other products, broken down as to the size containers in each case. He further stated that the control number appears on each bottle and tin of Bayer aspirin in addition to appearing on the shelf carton in which they are enclosed and on the shipping case. The witness pointed out that some of the cartons were mixed cases. These were cartons which contained aspirin made from the last portion of one batch of ingredients and the first part of the next succeeding batch. These cases contained two sets of control numbers and were specially designated with a white sticker. The witness testified that it would be impossible for a box containing the numbers shown on the various shipping documents which were filed as exhibits to have gone to any destination except Chicago. He also stated that an empty shipping ease later recovered could be identified as part of a particular shipment.

Edward Mannix testified that he was director of quality control at the Glen-brook Laboratories in Trenton, New Jersey both at the time that the stolen products were shipped and at the time he testified. He described the use of control numbers to identify batches of aspirin mix, corroborating the testimony of the witness Bannister. Mannix stated that after the FBI had recovered aspirin which it believed was stolen he went to the bonded, warehouse where it was stored and checked the control numbers and contents of each box, making a list as he went along. He identified cartons which had been brought to the courtroom by the prosecution as being those which he had checked either in the bonded warehouse or in the marshal’s office, always in the company of FBI agents. He testified that cartons of products shown to him at the warehouse and in the marshal’s office and exhibited to the jury were part of the shipment from Trenton to Chicago which disappeared. He stated that no two split cases of aspirin could ever be identical and that these could always be positively identified. Six such cartons were identified by the witness. An FBI agent named O’Neil testified to receiving 233 cases of aspirin and other Glenbrook products from the Michigan authorities and storing them in the bonded warehouse where Mannix examined them. He identified the cartons exhibited in the courtroom as being among those which had been in the possession of the FBI.

It would unduly extend this opinion to discuss every claim of error which the appellants have asserted in their briefs and in oral argument. The trial of the case consumed eight weeks and we have examined the transcript which consists of nearly 4,000 pages. While separate briefs were filed by the four appellants, each adopted many of the arguments in the briefs of the others and some of the alleged trial errors affected all of the defendants.

All four of the appellants were convicted of the conspiracy charge. The defendants maintain that it was error to submit this case to the jury as a “chain conspiracy,” and that if the conspiracy issue was properly submitted at all, the evidence disclosed two separate conspiracies rather than a single one. Reliance is placed on United States v. Peoni, 100 F.2d 401 (2d Cir. 1938), where the court refused to permit the prosecution to link together the activities of two people as a conspiracy in the absence of evidence that there was a concert of purpose between them. In this case, however, according to Caracappa, when Bartkus and Kahn followed the stolen merchandise from Chicago to Detroit they met the same day with Norber at the Stephens residence. When the other alleged conspirators, Silverman and Wakeford, entered the picture four or five days later they were seen going to the residence of Norber and then to the warehouse at Fourth and Grand River where the stolen merchandise had originally been unloaded and stored. The defendant Norber is thus shown to have been in contact with Bartkus and Kahn immediately upon their arrival in Detroit, to have been involved in the unloading and storage of the merchandise in that city and to have been in contact with Wakeford and Silverman at the time of the removal of part of the shipment to the Castle City-Furniture storeroom. It is not necessary that each member of the conspiracy be a member of it from the beginning so long as each joins it while it is still in operation. United States v. Jackson, 422 F.2d 975 (6th Cir. 1970). We do not believe that the conspiracy ended, as a matter of law, when Bartkus and Kahn delivered the merchandise to Norber and Stephens. The jury was properly permitted to consider whether the actions of all the named conspirators were in furtherance of a single plan to transport and dispose of interstate merchandise which they knew to have been stolen. Possession by one of goods shown to have recently been stolen is sufficient to make a prima facie case that the person in possession knew of the stolen nature of the goods. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); United States v. Winbush, 428 F.2d 357 (6th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970). We believe that the circumstantial evidence of involvement in the charged conspiracy by each of the four appellants is sufficient to support the jury verdict. Schwachter v. United States, 237 F.2d 640 (6th Cir. 1956).

All of the defendants objected to the admission in evidence of the cartons of aspirin and other products seized by the officers in Detroit and Cincinnati. The basic claim was that these cartons were not properly identified as being part of the stolen shipment. The trial judge correctly ruled that the exhibits in question should be received. The witness Mannix positively identified six of the cartons as being part of the shipment from Trenton to Chicago and he and the witness Bannister confirmed that the other cartons and their contents contained control numbers which were the same as those appearing on other items in the stolen shipment. Both of these witnesses were subjected to vigorous cross-examination intended to cast doubt on the identification of these very exhibits. The principles enunciated by this court in United States v. Langley, 466 F.2d 27 (6th Cir. 1972), are controlling. It is immaterial that the government was not able to recover and produce all of the merchandise from the stolen shipment or that all of it could not be positively identified in the same way as the six mixed eases. The evidence discloses a sufficient identification of the stolen merchandise, detailed testimony of surreptitious movement of large quantities of the same kind of merchandise and the ultimate recovery of merchandise bearing identifying numbers which coincided with those known to have been affixed to portions of the stolen shipment. From all of this evidence the jury could reasonably infer that the cartons of aspirin and other products recovered from Silverman and Wakeford and those who purchased from them were part of the stolen shipment. A case with many features similar to this one in which the same result was reached is United States v. DeKunchak, 467 F.2d 432 (2d Cir. 1972).

An issue raised by several of the appellants concerns the failure of the prosecution to produce Bobby Kahn as a witness. At the time of the second trial, Kahn had pled guilty to several of the charges in the indictment upon which appellants were tried and was awaiting sentencing. When Caracappa was first asked’ to relate a conversation between him, Kahn and Bartkus, the defendants objected on the ground that they would be denied their right of confrontation unless the government planned to produce Mr. Kahn as a witness. One of the prosecuting attorneys responded that defense counsel knew that the government could not call Mr. Kahn to the witness stand in the case. Later a motion for mistrial was based on this statement of the prosecutor and lengthy arguments 'were had as to whether the government could call Kahn as a witness and whether he could exercise a Fifth Amendment right to remain silent after having pled guilty. The court denied the motion for mistrial and asked the parties to brief the question. We believe the court correctly ruled on the motion for mistrial since the single comment of the prosecutor concerning the government’s ability to require Kahn to testify was not prejudicial in the entire context of the proceedings. This does not dispose of the matter, however. Late in the trial the prosecuting attorney announced that the government proposed to call Robert Kahn as its next witness. The court had previously appointed an attorney to advise Mr. Kahn of his rights in the eve^t either, side should call him. This was the same attorney who had represented Kahn at the first trial. This attorney informed the court that he had advised Kahn that he had an absolute right to refuse to testify and that it would be a violation of his Fifth Amendment rights to call him as a witness. The court then indicated that the government could not call Kahn as a witness. There was no request that Kahn be granted immunity.

The statement by Caraeappa that Kahn told him that his cargo would be stolen aspirin was clearly hearsay. Having admitted this testimony as the statement by one of the co-conspirators made in furtherance of the conspiracy the court erred in denying Bartkus the right to confront and cross-examine Kahn. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). While Kahn’s guilty plea to the federal charges did not deprive him of the right to assert his Fifth Amendment privilege against incrimination on any possible state charge, nevertheless he should have been required to take the witness stand and assert the privilege in response to particular questions. United States v. Seavers, 472 F.2d 607 (6th Cir. 1973). Then if Kahn refused to answer questions about his alleged statement to Caraeappa that the aspirin was stolen, the court had the responsibility to determine whether an answer could be required. Since the government created the situation by electing to introduce hearsay rather than direct evidence from Kahn that the aspirin was stolen, it ran the risk that Kahn would endanger the prosecution by refusing to testify and corroborate Caraeappa. It could have offered Kahn immunity, but chose not to. Nevertheless Kahn’s assumed Fifth Amendment right, which was improperly invoked by a refusal even to be sworn as a witness, could not be used as a means of depriving Bartkus of his Sixth Amendment right to confront and cross-examine his accuser. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Although the other appellants have claimed prejudice, we find that Bartkus was the only one whose fundamental rights were affected by the court’s ruling.

Another Fifth Amendment- issue arose when Caraeappa refused to answer certain questions on cross-examination. One such question concerned the identity of the person to whom he had sold three cases of aspirin which he testified he stole from the trailer between Chicago and Detroit. However, there was no objection to his refusal to answer this question and it is not before us. The other questions which Caraeappa refused to answer on Fifth Amendment grounds related to a different load of aspirin which he hauled in 1970. It was apparently the theory of the defense that he had confused this load with the one which he hauled on January 21 of the same year. The appellants maintain that the entire testimony of a key prosecution witness should be stricken if he refuses to answer questions upon cross-examination. This question was carefully considered in United States v. Cardillo, 316 F.2d 606 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), where the court held that there are three categories of testimony which require different action by the trial court when there is a refusal to submit to cross-examination. If the answer sought would have been so closely related to the crime for which the defendants were being tried, that the defendants may be substantially prejudiced by being deprived of their right to test the truth of the witness’ direct testimony, the entire testimony of the witness should be stricken.' If the subject matter of the testimony is connected with only a part, but not all, of the case being tried, a partial striking of the witness’ testimony might suffice. The third category consists of testimony involved in collateral matters or cumulative testimony concerning credibility. The refusal'of a witness to submit to cross-examination on such matters as these does not require that any testimony be stricken, but can be handled by a charge to the jury. See Fountain v. United States, 384 F.2d 624 (5th Cir. 1967), cert. denied sub nom., Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968).

The general rule is that a witness who has testified to incriminating matters on direct examination has waived the privilege as to those matters and may not decline to answer on Fifth Amendment grounds when cross-examined. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951). The basic inquiry in a situation such as is presented here is whether there has been an adequate confrontation between the accused and the accuser to satisfy the confrontation clause of the Sixth Amendment. Dutton v. Evans, 400 U.S. 74, 97, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), (concurring opinion of Mr. Justice Harlan). An examination of the transcipt reveals that Caracappa was carefully and intensely cross-examined about every detail of his testimony concerning his' meeting with Kahn and Bartkus, the movement of the aspirin from Chicago to Detroit ánd his observations of the activities which took place after his arrival at Detroit.

The questions in response to which he invoked the Fifth Amendment concerned an entirely unrelated trip which he had purportedly made. At best this was a collateral matter, not directly connected to the transactions for which the defendants were being tried. As such, it was clearly within the discretion of the court to decide ■ whether the invocation of the Fifth Amendment and refusal to answer questions on cross-examination required that the entire testimony of the witness be stricken. We find no abuse of discretion in the court’s ruling in this regard. If the purpose of this cross-examination was to cast doubt upon the credibility of Caracappa, it was cumulative evidence. There was no effort by the government to conceal Cara-cappa’s past or current troubles with the law, and counsel for the defense availed themselves of numerous opportunities to remind the jury of the flawed character of the chief witness for the prosecution.

A related claim of error concerns the court’s refusal to make available to the defendants the grand jury testimony of Caracappa concerning the prior transportation of a load of aspirin. This again was a matter not directly related to the transactions involved in the conspiracy for which the defendants were being tried. The Supreme Court has held that the right to have access to the grand jury testimony of a trial witness is based on a showing of “particularized need.” Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). In Dennis the Court cautioned that it is especially important in conspiracy cases that all information which may lead to the truth be made available. A request for the grand jury testimony of a trial witness is addressed to the discretion of the trial court. United States v. Johnson, 414 F.2d 22 (6th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1112, 25 L.Ed.2d 399 (1970); United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967). We conclude that in the present case the defendants failed to show a particularized need for the requested transcript and that the trial judge did not abuse his discretion or close an avenue to the truth in denying their request.

The witness Caraeappa created another issue when he falsely answered on cross-examination that his home at the time of trial was Kansas City. At the first recess following this testimony one of the prosecuting attorneys advised defense counsel and the court that this was riot a true statement and that Caraeappa was attempting to keep his present location hidden. At the same time the prosecuting attorney offered to recall Caraeappa so that the matter could be explored in the presence of the jury. The defense declined to agree to his recall to the witness stand in view of the statement by the prosecuting attorney that he would ask Caracappa to explain the reason for giving a false answer. We have held that the prosecution may not knowingly suborn false testimony or suppress exonerating evidence. United States v. Young, 426 F.2d 93 (6th Cir.), cert. denied, 400 U.S. 828, 91 S.Ct. 55, 27 L.Ed.2d 57 (1970). It is established that a witness may be asked his residence on cross-examination. The purpose of this is to learn of his community identification so that other evidence may be sought concerning his reputation for veracity. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In view of the fact that Caraeappa had recently left Chicago and would not have likely established a reputation in his new domicile and the fact that his general character was so fully explored in the trial, we do not believe that his false answer produced prejudicial error. This is particularly true since the government immediately disclosed the fact of its falsity to the court and defense counsel and offered to bring the witness back to the stand for further cross-examination.

It is contended that the trial court abused its discretion in permitting the prosecution to cross-examine and impeach the witness Wakeford who had been called by the government. The problem is that the defendants opened the door to this particular action by asking Wakeford on cross-examination whether he had any reason to believe, at the time he was involved in movement of the aspirin with the defendant Silver-man, that the cargo was stolen. This question did not relate to any testimony on direct examination and the prosecutor claimed that the negative answer of Wakeford took him by surprise. He was then permitted to question Wakeford as if under cross-examination with respect to a meeting between Wakeford, the prosecuting attorney and an FBI agent named O’Neil. When Wakeford denied that he had made a statement to the prosecuting attorney and FBI agent that he believed the aspirin was stolen, agent O’Neil was called and permitted to testify that Wakeford had made such a statement in his presence in the presence of the prosecutor. If the purpose of getting this testimony before the jury had been to prove the conspiracy, it would have been improper. United States v. Sherfey, 384 F.2d 786 (6th Cir. 1967). Any statement of Wakeford after the charged conspiracy had terminated would not be admissible to prove either the conspiracy or any substantive offense. However, it is clear from the context that agent O’Neil was permitted to testify solely for the purpose of impeaching the testimony of the witness Wakeford and the jury was so advised in the charge. In view of the fact that the subject of Wakeford’s knowledge or state of mind at the time of the transactions which he testified to was first raised by the defendants, it was not error to permit impeaching testimony following a claim of surprise by the prosecution.

The defendants contend that the trial court committed two errors in its application of the Jencks Act, 18 U.S.C. § 3500. The first incident again related to portions of Caracappa’s grand jury testimony which concerned a different transaction from the one which was on trial. Also involved was an FBI statement which had been taken from Caraeappa. The prosecuting attorney advised the court that he had given to defense counsel the portions of the grand jury transcript and Caracappa’s FBI statement relating to the charges which were then being tried. The remainder of the grand jury transcript of Caracappa’s testimony and the FBI statement were furnished to the trial judge for an in camera inspection. That is, the portions relating to the charges then on trial were turned over to the defense and the entire statement was handed to the court for in camera inspection. We find no abuse of discretion in the decision of the trial judge in denying the request of the defendants that the entire grand jury transcript and complete FBI statement be delivered to them. The Supreme Court has sai'd that application of the Jencks Act depends on the good sense and experience of trial judges subject to “appropriately limited review of appellate courts.” United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969). Our examination of the proceedings indicates that the defendants in this case were probably furnished with more material than is actually required by the Jencks Act. The court properly held that the additional requested material was not required to be furnished.

The other alleged Jencks Act error related to the refusal of the court to strike the testimony of officers who admitted that they had destroyed notes which had been made at the time of a surveillance about which they were testifying. The Jencks Act applies to a “substantially verbatim recital” of an oral statement by a witness and does not apply to an officer’s rough notes. United States v. Augenblick, supra. This court has held that when an agent destroys his rough notes of an interview with a person after using the notes to write a statement or report, it is not error to permit the agent to testify. United States v. Lane, 479 F.2d 1134 (6th Cir. 1973); United States v. Hensley, 374 F.2d 341 (6th Cir.), cert. denied, 388 U.S. 923, 87 S.Ct. 2139, 18 L.Ed.2d 1373 (1967); United States v. Fruchtman, 421 F.2d 1019 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed. 2d 86 (1970). The defendants rely upon United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965), but this case does not apply because of a basic factual difference. In Lonardo, a government agent deliberately destroyed a stenographic transcript of an interview with a witness and there was evidence of a vital discrepancy between the destroyed transcript and the final statement which was furnished.

Several complaints are made about the charge given to the jury by the court and the refusal of the court to give certain requested instructions. The defendant Bartkus requested an instruction that the relationship of buyer and seller, in the absence of an understanding beyond the mere sales agreement, does not prove a conspiracy to deal in stolen property even if both parties know of the stolen character of the goods. The language of the requested instruction is from United States v. Varelli, 407 F.2d 735 (7th Cir. 1969) quoting from an earlier Seventh Circuit case. While not disputing the fact that there may be a transaction between a buyer and seller involving goods which both know are stolen without the existence of a conspiracy, we do not believe that such an instruction was necessary in this case. The court very carefully recited the elements required for a finding of conspiracy and membership in the conspiracy by any of the defendants, and in following these instructions the jury could not have found a defendant guilty unless it believed beyond a reasonable doubt that he was part of the overall conspiracy and not just a purchaser or seller of stolen goods. The buyer-seller theory was fully developed by counsel and the requested instruction was not required in order for the jury to be properly charged with respect to the , findings it was required to make in determining the innocence or guilt of the defendants. When considered as a whole, the jury charge in this ease fairly and accurately stated the law applicable to the charges for which the defendants were being tried. United States v. Andrews, 347 F.2d 207 (6th Cir.), cert. denied, 382 U.S. 956, 86 S.Ct. 431, 436, 15 L.Ed.2d 360 (1965).

It is necessary to consider separately one other allegation of trial error. The transcript reveals the following dialogue which occurred during the direct examination of the witness Caracappa:

Q Incidentally, I think — well, let me ask you this — is this the first time that you had met Mr. Bart-kus?
A Yes.
Q And was Mr. Bartkus introduced to you in any particular way ?
A I was reluctant to talk to Mr. Kahn in front of Mr. Bartkus and he was introduced—
MR. ZANGLIN: I object
MR. ROSENTHAL: Objection as not responsive, your honor.
THE COURT: The court will sustain the objection.
Q (By Mr. Kelley, continuing) Did Mr. Kahn introduce Mr. Bartkus to you in some way ?
A Yes, he did.
Q What did he say ?
A He said, you can do business in front of this man.
Q Did he describe Mr. Bartkus in any particular way ?
MR. CHANDLER: I object again, your honor, on the grounds there is no opportunity for a confrontation of Mr. Kahn in this matter, unless he is called as a witness.
MR. KELLEY: Well, that is the same objection, if the court please, and I think your honor has ruled on it.
THE COURT: All right. You may proceed.
MR. CHANDLER: I would further say, your honor, that the description Mr. Kahn gives of Mr. Bartkus is pure hearsay and could not be in any way in furtherance of the conspiracy.
Q (By Mr. Kelley, continuing) Did he introduce him in any particular way, Mr. Caracappa?
A Yes, he did.
Q What did he say ?
A He said he was a buyer of stolen merchandise.
Q All right. Was there at that time —we are still talking about—
MR. CHANDLER: Your honor, I would ask the jury be excused.

In argument which followed out of the presence of the jury the prosecution sought to justify its introduction of the statement which characterized the defendant Bartkus as a buyer of stolen merchandise on several grounds. It was claimed that the statement was made in the presence of Bartkus and therefore could be used in his trial, and it was further contended that the testimony of Caracappa was admissible as a statement made by a co-conspirator in furtherance of the conspiracy. Bartkus took the position that the statement was introduced as evidence of his character and that the rule against the introduction of such evidence in a criminal case is absolute. On appeal Bartkus principally relies upon Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), in which the Supreme Court said:

“Courts that follow the common law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. . . . The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weight too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” At 475-476, 69 S.Ct. at 218.

This universally recognized rule has often been applied by this court. See, e. g., United States v. McCarthy, 470 F.2d 222 (6th Cir. 1972).

The government maintains that this testimony falls within a recognized exception to the general rule set forth in Michelson v. United States, supra. The purpose of the statement by Kahn to Caracappa, it is asserted, was to assure Caraeappa that it was safe to discuss the transportation of the stolen goods in the presence of Bartkus, and the movement of the stolen merchandise was necessary to the success of the conspiracy. It is the position of the government that relevant evidence of a fact or statement done or made in furtherance of the conspiracy is not inadmissible because it incidentally discloses criminal conduct on the part of a defendant. Reliance is placed on cases which permit -such evidence to show a pattern of conduct. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949). We do not believe the evidence that Bartkus engaged in other criminal activities on other occasions came within any exception to the Michelson rule. Such evidence is extremely damaging and the prejudice cannot be removed even by curative instructions. United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968). As with the reference to the aspirin being stolen, this error related only to Bartkus and the rights of the other defendants were not affected by it.

We have considered the other issues raised in the briefs and arguments of the defendants, including the allegation of a defective search warrant, and find them to be without merit. This was a difficult case for the district court. Although it had been agreed that the objections and statements of counsel for one defendant would be received as applying to all, there were repeated instances when all four attorneys addressed the court on a single point. Nevertheless, District Judge Damon J. Keith consistently treated everyone with courtesy and patience. He ruled promptly when required to do so and reserved rulings in instances where this did not delay the trial and further research by the attorneys appeared desirable. With the exception of those matters relating to the defendant Bartkus which are set forth herein, we have found no prejudicial error in the conduct of the trial. It is therefore ordered that the judgments of the district court in No. 73-1334 (Lee Stephens), No. 73-1336 (Milton Silverman) and No. 73-1337 (Sam Norber) are affirmed and the judgment in No. 73-1335 (Alfonse Bart-kus) is reversed and that the appellant Bartkus be granted a new trial.

      . The basis for this assertion is unclear. Kahn had pled guilty to the charges against him and was not on trial.


author: PER CURIAM:

text:
    Daniel Leslie TANKERSLEY, d/b/a Competitive Carpet Company, and Linda Witt Tankersley, Bankrupts, Plaintiffs-Appellees, v. CREDIT EXECUTIVES SERVICE CORPORATION et al., Defendants, Burton Tankersley, Defendant-Appellant.
    No. 73-3957.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.
    Rehearing Denied June 6, 1974.

      Jack O. Nelson, Jr., Robert E. Garner, Lubbock, Tex., for defendant-appellant.
    Bill H. Brister, Lubbock, Tex., for plaintiffs-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant Burton Tankersley, an unsecured creditor, appeals from the district court’s judgment setting aside a transfer of money to him by his son, Daniel L. Tankersley, a bankrupt. The district court determined that the bankrupt’s transfer of funds made within four months of a creditors’ petition seeking to have Daniel Tankersley adjudicated a bankrupt was a preferential transfer and thus fell within the proscriptions of Section 60 of the Bankruptcy Act, 11 U.S.C. § 96 (1970).

The evidence fully supports the lower court’s resolution of the facts. The record demonstrates that within four months of the creditor’s petition, the bankrupt permitted his property to be transferred to Credit Executives Sex-vice Cox-poration, a liquidator of insolvent estates. Under this liquidation, approximately one-half of the bankrupt’s liquidated assets were received by appellant, an unsecured creditor. Both appellant and the bankrupt knew that liquidation would result in this transfer to appellant to the detriment of the bankrupt’s other creditors. All the requirements of Section 60 have been established and a x-eci-tation of the facts here would serve no legitimate purpose. Accordingly, the judgment of the district court is affirmed.


author: PER CURIAM. LAY, Circuit Judge

text:
    Norbert A. LAING, an Individual, on behalf of himself and all other persons, associations, firms and corporations similarly situated, Appellant, v. MINNESOTA VIKINGS FOOTBALL CLUB, INC., et al., Appellees.
    No. 73-1625.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 17, 1974.
    Decided Feb. 11, 1974.
    Rehearing and Rehearing En Banc Denied April 3, 1974.
    John E. Thomas, St. Paul, Minn., for appellant.
    Irving R. Brand, Minneapolis, Minn., for appellees.
    Before MEHAFFY, Chief Judge, and LAY and ROSS, Circuit Judges.
   PER CURIAM.

The judgment below is affirmed on the basis of the district court’s opinion, and on the ground that there is no anti-competitive effect. See Grossman Development Co. v. Detroit Lions, Inc., Civil Action No. 37652 (E.D.Mich. Nov. 16, 1973).

LAY, Circuit Judge

(concurring).

I concur in the affirmance of the district court’s judgment on the ground that plaintiff has demonstrated no anti-competitive effect flowing from the Minnesota Vikings Football Club’s requirement that a season ticket holder purchase tickets to the exhibition games along with regular season games. The basis of the district court’s grant of summary judgment, i. e., that there existed no “coercive effect” since there were available some regular tickets (approximately 2,500 to 4,000) for purchase by the general public for each game gives me concern. It is difficult for me to say as a matter of law that no coercion exists. Assuming the other elements of a “tie-in” could be proved, I would think whether coercion exists is a question of fact to be evaluated in light of all of the attendant circumstances.


text:
    UNITED STATES of America, Appellee, v. CERTAIN LAND IN the TOWN OF NEW LONDON, COUNTY OF NEW LONDON, STATE OF CONNECTICUT, et al., Appellants.
    No. 705, Docket 73-1911.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1974.
    Decided March 27, 1974.
    Attilio M. Russo, pro se.
    Larry G. Gutterridge, Atty., Dept. of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and David A. Clarke, Jr., Attys., Stewart H. Jones, U. S. Atty., for the District of Connecticut, Henry S. Cohn, Asst. U. S. Atty., on the brief), for appellee.

      Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
   PER CURIAM:

This is an appeal by Attilio M. Russo and Margaret Russo, the former owners of certain property in New Londpn, Connecticut, taken in 1969 by the Government for the expansion of the United States Coast Guard Academy. After a thorough condemnation trial in the United States District Court for the District of Connecticut before Chief Judge M. Joseph Blumenfeld, appellants were awarded $111,000 as the fair market value of their property on the date of taking. Appellants argue, however, that this determination was incorrect, that the court committed a number of errors, and that the proper value was at least $205,000. We would ordinarily merely affirm on the clear opinion of the district court, since we have considered these and other points raised by appellants and for the most part find them without merit. Our hesitation relates only to an argument not discussed in the district court opinion, probably because it was not clearly raised in the trial court: appellants’ allegation that, they were twice required, in effect, to pay city tax bills totaling $3,035.30. We are not satisfied with the Government’s casual response to this claim, but we are also unsure of the pertinent facts and the identity of the proper parties to this collateral controversy.

Accordingly, the judgment of the district court is affirmed. The Government is directed to bring the facts as to the tax payments to the attention of the district court, which we assume will examine into the matter and, if appellants are correct, attempt to devise proper relief.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAY LESS DRUG STORE OF PENDLETON, INC., Respondent.
    No. 73-2268.
    United States Court of Appeals, Ninth Circuit.
    March 29, 1974.
    Elliott Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D. C., Elwood C. Strumpf, Officer in Charge, NLRB, Portland, Or., for petitioner.
    Jack B. Schwartz, Sabin, Newcomb, Sabin & Meyer, Portland, Or., for respondent.
    Before ELY, WRIGHT and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

The petitioning Board’s Decision and Order is reported at 203 NLRB No. 10. The Board’s Order was based upon its conclusion that the respondent had violated section 8(a)(5) and (1) of the Act by refusing to bargain with the certified representative of the respondent’s employees. The reason for the respondent’s refusal was its view that the election of the bargaining representative was invalid and that the Board therefore acted improperly in certifying the particular union as the statutory bargaining representative. The respondent leveled six objections to the conduct of the election, all of which were overruled after having been considered by a Hearing Officer and the Board. We are not persuaded that the Board’s resolution of the objections, which principally involved factual issues, were not supported by substantial evidence. Accordingly, the Board’s Order will be

Enforced.