author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Dale McGRADY, Appellant.
    No. 74-1133.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Dec. 6, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1408.

      Irvin B. Nodland, Bismarck, N. D., for appellant.
    Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

The appellant was convicted by a jury on three counts of violating 18 U.S.C. § 1163, by converting or misapplying funds from the Community Action Program on the Fort Berthold Indian Reservation. He and seven other defendants were acquitted on numerous additional counts and on a general count of conspiracy. He contends on appeal: (1) that the District Court lacked subject matter jurisdiction; (2) that the complexity of the multiple-defendant, multiple-count conspiracy trial denied him a fair trial on the two factual situations for which he was found guilty; (3) that the evidence was insufficient to sustain the convictions; and (4) that numerous errors were committed by the trial court which individually denied his constitutional rights and collectively denied him a fair trial. We affirm.

JURISDICTION

The appellant urges that the general criminal laws of the United States, including the section under which he was charged, do not apply to Indians committing crimes against Indians in Indian country. He relies on 18 U.S.C. § 1152 to support this contention. We reject this reading of § 1152, for the reasons set forth in Stone v. United States of America, 506 F.2d 561 (8th Cir. 1974). As we stated there:

* * * The section refers only to those laws where the situs of the offense is an element of the crime.
* * * The exemption [of § 1152] does not encompass the laws of the United States that make actions criminal wherever committed. * * *

Id. at 563. Accord, Walks on Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967). The statute under which the appellant was convicted makes certain actions criminal regardless of where they are committed. Consequently, the District Court had subject matter jurisdiction.

SUFFICIENCY OF THE EVIDENCE AND DENIAL OF A FAIR TRIAL DUE TO THE COMPLEXITY OF THE INDICTMENT AND TRIAL

We discuss the appellant’s second and third contentions together, since his argument that the evidence was insufficient to sustain a conviction on the three counts is closely related to his claim that he was denied a fair trial due to the multiple defendants, plethora of counts, and complexity of the issues. The gist of his latter claim is that, although the two factual situations for which he was convicted are relatively simple, his innocence on the three counts got lost in the avalanche of evidence on the other counts. We have examined the entire record carefully in light of this two-fold contention, viewing the evidence, as we must, in the light most favorable to the verdict, and accepting as established all reasonable inferences to support the conviction. See United States v. Simone, 495 F.2d 752, 753 (8th Cir. 1974); United States v. Henson, 456 F.2d 1045, 1045-1046 (8th Cir. 1972). We conclude that the evidence was sufficient to sustain the jury verdict of guilty on all three counts.

Under Counts 8 and 10, the appellant was convicted of violating § 1163 by paying $570 in rent to his landlady out of CAP funds by means of two separate checks. The evidence showed that the appellant was the Director of the Community Action Program (CAP). For seven months, commencing in July, 1971, he rented a house in New Town, North Dakota, at a rental of $190 per month. At the end of July, the appellant’s landlady received from him a check drawn on the CAP account in the amount of $380, representing the first two months’ rent. She also received a check from him in December in the amount of $190, again drawn on CAP funds. The voucher on the latter check indicated that it was for space, costs, and one month’s rental. Such items were specifically not to be paid out of CAP funds derived from the federal government but were to be paid, if at all, by the Tribe. The evidence also tended to show that, contrary to the explanation given by the appellant, there were no CAP supplies being stored in the house which would justify the CAP expenditure. During a portion of the seven months, the appellant was simultaneously charging rent from third persons for staying in the house, receiving thereby a total of approximately $300. There was ample evidence from which the jury could conclude that the appellant had willfully misapplied CAP funds.

Under Count 11, the appellant was convicted of having misapplied or converted the sum of $2,233 to his own use. The evidence tended to show that CAP had advanced travel funds on behalf of an organization known as NAME and that, when NAME gave the appellant a check for $2,233 to reimburse CAP for that advancement, the appellant deposited the money in a newly opened personal bank account. There was also evidence that the funds from this check were used for the appellant’s own personal affairs, and were not used in any way for the benefit of CAP or the Tribe. The appellant attempted to establish that he had returned an equivalent amount of cash to the CAP by delivering it in four envelopes to Mr. Leonard Hare, Jr., in a motel room meeting after the appellant had resigned his position as Director. Although Mr. Hare did testify that he had been at such a meeting, where he had been given some money in at least one envelope, he was unable to recall how many envelopes there were, how much money had been placed in them, what he had been told to do with them, or what he had in fact done with them. The jury could well have discounted the appellant’s claim that the $2,233 had been returned, and concluded that he willfully converted this money to his own use.

After examining the record in its totality, we are left with the impression that the appellant was able to set forth fully all the facts concerning the rent and NAME incidents, and that the full story was placed before the jury for its deliberation. We cannot agree with the appellant that the case was so complex that the jury lost sight of the evidence on the three counts. Although there were additional counts, involving much factual detail about sloppy paperwork, failure to comply with regulations, and unauthorized trips at CAP expense, the facts on those counts were sufficiently distinct from the rent and NAME incidents so that no blurring of events in the jurors’ minds was likely. The evidence on the three guilty counts was clear, direct and strong. We conclude that the appellant was not denied a fair trial by the complexity of the indictment and trial.

ALLEGATIONS OF ERROR BY THE TRIAL COURT

The appellant’s list of trial court errors is a long one and requires extended discussion. First, he claims that he was not fairly or adequately advised of the nature of the charges, as required by the Sixth Amendment, but was affirmatively misled on that score. He contends that he was told that he was being charged with embezzlement and defended on that basis, only to have the government change its theory late in the trial, with the court’s approval, to one of misapplying the funds. We find no merit in this contention. The appellant was charged with violating a statute which contains language proscribing misapplication of funds. Moreover, the indictment clearly sets forth the specific acts for which he was charged.

Second, the appellant contends that the trial court erred in its handling of a third-party subpoena duces tecum served upon CAP Director Nell Walker. Great quantities of materials were turned over to the appellant pursuant to this subpoena, including several cartons of CAP records. However, when Mrs. Walker sought to withhold some correspondence, the judge viewed those letters in camera and granted her request. The reasons given for the refusal to fully enforce the subpoena were that the material was cumulative and sensitive. The appellant urges that this ruling was erroneous and denied him his Sixth Amendment right to compulsory process.

A subpoena duces tecum issued pursuant to Federal Rule of Criminal Procedure 17(c) may be quashed if production would be “unreasonable or oppressive,” Bowman Dairy Co. v. United States, 341 U.S. 214, 220 n. 5, 71 S.Ct. 675, 95 L.Ed. 879 (1951), or if it seeks irrelevant or privileged matter. See, 1 Wright, Federal Practice & Procedure (Criminal) § 275 (1969). Moreover, the trial court can refuse to enforce the subpoena before trial if the moving party fails to demonstrate a need for the material at that point in the proceedings. See, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039, 1059 (1974); United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952). The decision of whether or not to quash on these grounds is a matter within the discretion of the trial judge. See, United States v. Nixon, supra 94 S.Ct. 3090, 41 L.Ed.2d at 1060; United States v. Bearden, 423 F.2d 805, 809-810 (5th Cir.), cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68 (1970). The problem here is that the trial court did not give any of these reasons for its ruling. Thus, the question is whether a court may withhold subpoenaed material in a criminal case entirely on the grounds that it is cumulative or inflammatory.

We do not believe that non-privileged matter can be withheld by third parties in a criminal action solely on grounds of sensitivity. Nor do we believe that this order denying disclosure may be upheld on the ground that the correspondence subpoenaed was cumulative. While the court has wide discretion in excluding proffered evidence at trial on the ground that it is merely cumulative, we find no authority for the proposition that it may quash a subpoena duces tecum in a criminal case on that ground. The court conceded in its order that at least some of the correspondence was relevant. Given that fact, the appellant ought to have been given the opportunity to examine the material himself to see if it was truly cumulative. We conclude, therefore, that the court erred in denying the appellant the in camera material for the reasons which it gave. See, Bowman Dairy Co. v. United States, supra 341 U.S. at 220-221, 71 S.Ct. 675. There remains, however, the question of whether the error was prejudicial.

We have examined the sealed in camera material carefully, in light of the entire record, and have concluded beyond a reasonable doubt that the error in quashing a portion of the subpoena was “harmless error” under the rule of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). A great deal of the correspondence is clearly irrelevant, and the trial judge could have withheld it on that ground. Moreover, the defendants had been supplied with large quantities of material from the CAP offices and, from our reading of the record, everything in the in camera material which had relevance was cumulative of evidence adduced at trial. Hence, had the court excluded the correspondence at trial as cumulative, there would have been no abuse of discretion. Under these circumstances, as in Mackey v. United States, 122 U.S.App.D.C. 97, 351 F.2d 794 (1965), and Phillips v. Tollett, 330 F.Supp. 776, 779 (E.D.Tenn.1971), the erroneous curtailment on the appellant’s right to compulsory process does not require reversal.

Third, the appellant contends that it was error for the court to permit the prosecutors to introduce evidence, going outside of the indictment, of prior misconduct by the appellant. Specifically, they introduced exhibits indicating that the appellant had submitted duplicate claims for travel expenses, wherein he sought reimbursement for travel allegedly taking place in two different places at the same time. Evidence of prior misconduct is admissible when relevant to prove one of the following: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and (5) identity. See, Love v. United States, 386 F.2d 260, 266 (8th Cir. 1967), cert. denied, 390 U.S. 985, 88 S.Ct. 1111, 19 L.Ed.2d 1286 (1968). The government claimed that the evidence was admissible on all grounds but the last one, and the trial court admitted it on the first three grounds. We have misgivings about the propriety of this ruling. Had the indictment been limited to the three counts on which the appellant was convicted, it would be difficult to justify admission of the evidence on any of the above grounds. And even given the other counts involving similar misconduct, it does not seem appropriate to us to allow the government to inject evidence of further misconduct into the record; the trial was already complex, and there was no reason to require the appellant to rebut any more than the thirteen counts already formally charged. Nevertheless, we are satisfied that any error in admitting this evidence did not “affect the substantial rights of the parties,” 28 U.S.C. § 2111, and was therefore, harmless error. See, Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The appellant was acquitted on all counts involving conduct similar to that set forth by the contested evidence.

Fourth, the appellant claims prejudice because of two trial court rulings at the close of the government’s case which had the effect of denying to the appellant the benefit of the testimony of a co-defendant, Mr. Robert Bell. These rulings were a denial of Mr. Bell’s motion to dismiss and a denial of his motion to rest his case and go to the jury at that point. The appellant claims that he was prejudiced because Mr. Bell may have been able to explain what happened to at least part of the $2,233 travel reimbursement, and Mr. Bell’s counsel stated that he was not willing to take the stand while he was still in jeopardy.

As to the motion for dismissal, the appellant contends that to deny the motion was error because there was a total absence of proof against Mr. Bell. We disagree. There was ample evidence, particularly on Count IV, upon which a jury verdict of guilty against Mr. Bell could have been sustained. The government had produced evidence tending to show that Mr. Bell was paid $400 out of CAP funds for allegedly performing work for or selling materials to the Sheltered Industries Program; that there was no proof that the $400 had been earned; that the Director of the Alcohol Program did not know of any grounds for such payment; that the Sheltered Industries Program was not in operation until after the payment; and that Mr. Bell was ineligible to work for CAP or receive any payment from CAP because he was a member of the Tribal Council.

The appellant’s alternate contention that Mr. Bell ought to have been permitted to rest his case, which would have required a severance, is similarly without merit. The appellant never sought a severance, and Mr. Bell did not request one until the close of the government’s case. At that point, the appellant’s counsel vigorously objected to the only two means whereby that goal could have been obtained. To accept the appellant’s contention now would be to impose an intolerable rule under which the trial court would be reversed regardless of how it handled the severance motion of the co-defendant. We will not do this. The question of severance of co-defendants is a matter within the discretion of the trial court. See, Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Williams v. United States, 416 F.2d 1064, 1070 (8th Cir. 1969). In exercising that discretion, it must balance the expense and inconvenience to the government of separate trials against the prejudice to the defendants which is always a danger in joint trials. See, 1 Wright, supra at § 223. The government’s interest is particularly compelling where no defendant moves for severance until the prosecution has rested its case and 1400 pages of testimony has been taken. See, Mee v. United States, 316 F.2d 467, 470 (8th Cir. 1963), cert. denied, 377 U.S. 997, 84 S.Ct. 1923, 12 L.Ed.2d 1049 (1964); Pummill v. United States, 297 F.2d 34, 36 (8th Cir. 1961) (defendant has an obligation to make a timely motion for severance). Therefore, even if the appellant has standing to complain, and even if he is not estopped by his opposition to severance at trial, we find no abuse of discretion here.

Fifth, the appellant contends that prejudicial error occurred when the prosecutor referred to the fact that a Grand Jury had determined that the defendants should stand trial. The appellant’s attorney objected to the argument and the trial court denied a motion for a mistrial on that ground. The prosecutor justifies the remarks by stating that another defendant’s counsel invited the argument by asserting that it is “easy to charge” people with criminal acts. Notwithstanding the context of the prosecutor’s remarks, we have misgivings as to their propriety. Nevertheless, we are satisfied that the references had no influence on the jury, and that the appellant was not denied a fair trial because of them. See, United States v. Williams, 502 F.2d 581, 584 (8th Cir. 1974); Isaacs v. United States, 301 F.2d 706, 736-737 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). This is particularly true as the jury was instructed at the time the case was given to it that the indictment was but an accusation and was not evidence.

We find no merit to the appellant’s final three claims of trial court error. It was within the trial court’s discretion to permit two government attorneys to make final argument in this long and complex trial. The form of the verdict was an appropriate one, since where there are separate counts in an indictment, there must be separate verdicts by the jury as to the guilt or innocence of each defendant on each count. See, United States v. Crescent-Kelvan Co., 164 F.2d 582, 589 (3rd Cir. 1948). The trial court did not abuse its discretion by sending a copy of the indictment into the jury room in view of the fact that he warned the jury that it was not evidence of any kind, but only an accusation. See, United States v. Warner, 428 F.2d 730, 736 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970).

Affirmed.

      . Section 1163 provides, in relevant part, for the punishment of anyone who:
      * * ■* embezzles, steals, knowingly converts to his use or the use of another, willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, goods, assets, or other property belonging to any Indian tribal organization * * *

      . Section 1152 provides:
      Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
      This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.

      . The court stated:
      Consideration of the correspondence as a group reflects the moral indignation of the faction which was critical of the administration of the CAP and, as such, would be inflammatory and, in the opinion of this Court, disclosure of the letters as a group would just add to the disruptive situation on the Reservation, while disclosing no new facts either involving these criminal pro-' ceedings or involving other alleged misconduct that have not already been disclosed * ik *

      . The trial judge was faced with a difficult issue when Mrs. Walker tearfully pleaded for the withholding of the correspondence, asserting that she had been assaulted and threatened on the reservation. The court explained that it perceived the issue as one requiring a balancing of the rights of the witness against the rights of the defendants, and the court expressed concern for the witness’s safety. Judge Van Sickle is to be commended on his patient and careful handling of a difficult trial.

      . In reaching this conclusion, we have assumed that the constitutional right to compulsory process is involved, even though the Sixth Amendment speaks only of the right to compel the production of witnesses, rather than documents. It has been held that “[t]his constitutional mandate extends to documentary as well as oral evidence.” United States v. Schneiderman, 106 F.Supp. 731, 735 (S.D.Cal.1952), aff’d sub nom., Yates v. United States, 225 F.2d 146 (9th Cir. 1955). See also, Myers v. Frye, 401 F.2d 18, 21 (7th Cir. 1968); United States v. Burr, 25 Fed.Cas. p. 187 (No. 14,694) (CCD Va.1807). This constitutional right, however, whether involving witnesses or documents, has never been an absolute one. Often it has been required to give way in the face of competing policies of privilege and admissibility. See, United States v. Schneiderman, supra 106 F.Supp. at 736; United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952).

      . The appellant further argues that we should adopt the rule of State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), excluding such evidence unless the prosecutor has notified the defendant in writing within a reasonable time before trial of his intention to use it. That contention was raised and rejected by this Court in McConkey v. United States, 444 F.2d 788, 790 (8th Cir.), cert. denied, 404 U.S. 885, 92 S.Ct. 223, 30 L.Ed.2d 168 (1971).

      . One defense attorney moved to sever the cases of four defendants, including Mr. Bell, to permit them to rest. The court’s dilemma, and the appellant’s objection to such severance is demonstrated in the following dialogue:
      THE COURT: * * * You just threw me a left hook that really has me bouncing. That would mean I would have to dismiss without prejudice as to the other Defendants to use the jury ori these five [sic] Defendants. An alternative would be * * * to instruct as to the case at this stage on these five [sic] Defendants. Send the jury in, have them make a decision, and when they have completed the decision, have them come back out and consider additional evidence and decide the other * * * cases.
      * * * * * *
      MR. NODLAND [Counsel for McGrady]: I very much appreciate Mr. Tupper’s motion, but feel that the prejudicial effect of the second suggestion of the Court would be overwhelming and uncorrectable. * * * [T]he jury would be going into the jury room and' discussing the case — something that they’ve been admonished for three weeks not to do. As far as my clients are concerned * * * I think that it’s terribly prejudicial to my clients.
      * * * * * *
      Your Honor, I have one other comment that I think, at least, I want the Court to take into consideration. * * * [W]e have a fantastic amount of time and money tied up. We’re here. We want to go forward and we want to try our case. We want to complete it to this jury.

      . Mr. Peterson argued as follows:
      Mr. Tupper says it is easy to charge defendants with criminal acts. It is not as easy apparently as Mr. Tupper thinks it is. There are certain procedures that are involved in charging an individual. It is not * * * the * * * members of our office staff that sit down and decide one day that we don’t feel that we’ve got enough to do in the office, so we better figure out a few more charges and a few more defendants to bring in. These things are brought before a Grand Jury. It is required under the Constitution ’ that a Grand Jury indict an individual, and they are the ones that are making the charges. We are the ones that are presenting the evidence to you for your determination as to whether or not they are guilty of the charges beyond a reasonable doubt. So it’s not a situation where we just sit down and say “Hey, you and you and you and you are going to answer to the Federal Courts today.” That’s not it at all.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Lowe SNELL, Defendant-Appellant.
    No. 74-3126
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1975.
    Rehearing Denied March 24, 1975.

      Murray Lieberman, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, 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, Charles Lowe Snell, was convicted of 13 counts of violating 18 U.S.C. § 922(a)(6), making a false statement to a licensed dealer in firearms in connection with the acquisition of a shotgun and a number of pistols. He was sentenced to a total term of 8 years imprisonment. The appellant claims four errors were committed during his trial. After careful review of the briefs and record we find the appellant’s contentions to be without merit.

The appellant first argues that the indictment was insufficient in that it failed to apprise him of the nature of the charges, and failed to charge an offense under 18 U.S.C. § 922(a)(6). A comparison of the provisions of 18 U.S.C. § 922(a)(6) with the allegations of the indictment clearly shows that the indictment accurately and sufficiently charged the appellant with all the essential elements of the statutory offense. The alleged discrepancies raised by appellant involve either omissions not required in an indictment or semantic difficulties of no legal consequence.

The appellant’s next specification of error concerns the admission of firearm dealer license applications provided by the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department. These license applications specify an expiration date but fail to reveal the date the license was issued. Therefore, reasons the appellant, the applications are insufficient proof of the statutorily required “licensed” status of the dealer necessary at the time of the firearms sales made the basis of this prosecution. The áppellant argues that the only other proof showing dealer licenses were effective at the time of the firearms purchases was supplied by Geneva N. Schlinke, a supervisor of the licensing section of the Alcohol, Tobacco and Firearms Bureau. In her affidavit attesting to the official nature of the licensing records Schlinke included a reference to the periods for which the dealer was effectively licensed. The appellant argues that her statement with respect to the critical date of license issuance was hearsay and should have been excluded. Assuming arguendo that the appellant is correct, the license applications alone are sufficient to show that Oshman’s Sporting Goods Company was a “licensed” dealer at the time of the firearm sales in question. A dealer, depending on the type of business in which he cares to engage, must specify the kind of license desired by checking the application form’s appropriate box. The Oshman dealer applied for and obtained a $10.00 license with an expiration date of October 11, 1972. A $10.00 license is by statutory definition in effect for one year. Therefore, the license application on its face indicates license effectiveness during the period of the weapons sales for which appellant was indicted. Assuming, without deciding, that error was committed in admitting Schlinke’s statement, the same was harmless.

The third contention of the appellant is that the trial court erroneously admitted Department of the Treasury forms 4473 because there was no proper showing that the forms were business records. On the contrary, the record clearly reflects that 4473 forms were kept in the regular course of business as required by law and that the appellant, or a salesman at appellant’s direction, prepared each form. In every instance of a firearm sale the appellant signed the appropriate form 4473. The fact that the records were kept at different stores and that some of the salesmen were no longer employed by Oshman’s at the time of the trial does not detract from the reliability of the records. Bridger v. Union Ry. Co., 355 F.2d 382 (6th Cir. 1966). The records were clearly under proper custody and kept as a matter of routine in the ordinary course of business.

The fourth and final argument of appellant is that 18 U.S.C. § 922 violates his fifth amendment right to due process. He claims the statute unconstitutionally discriminates between classes of people including convicted felons and licensed dealers on the one hand and indicted private citizens on the other. For example, a convicted felon may apply to the Secretary of the Treasury for relief from statutory disabilities and a licensed dealer may continue his business pending the ultimate resolution of indictment charges. The private citizen under indictment has no such recourse or period of grace. While it is true that statutory classifications may be so unreasonable as to be violative of the Fifth Amendment’s due process clause, Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), such an assertion is patently frivolous in the context of the instant case. Certainly it was reasonable for Congress to conclude that citizens indicted for offenses punishable by prison terms of more than one year often demonstrate a propensity for violence and that they should therefore be restrained from acquiring personal arsenals. United States v. Craven, 478 F.2d 1329 (6th Cir. 1973). See also United States v. Lebman, 464 F.2d 68 (5th Cir. 1972). On the other hand, it was obviously reasonable for Congress to ameliorate the devastating effect that strict adherence to section 922 would have with respect to the conduct of a licensed firearms dealer’s business.

Affirmed.

      . In connection with the purchase of each weapon the appellant indicated on Department of the Treasury, Internal Revenue Service Form 4473 Part 1 (Rev. 6-70), “Firearms Transaction Record,” that at the time of the sale he was not under indictment in any court for a crime punishable by imprisonment for a term exceeding one year. In fact, at the time of each purchase appellant was under such an indictment for violations of Texas law.

      . Title 18 U.S.C. § 922
      (a) It shall be unlawful
      (6) for any person in connection with the acquisition or attempted acquisition of any firearm . . . from a . . . licensed dealer ... to make any false statement .

      . See 18 U.S.C. § 923.

      . See footnote 1, supra.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAYLESS CASHWAY LUMBER STORE OF SOUTH ST. PAUL, INC., Respondent.
    No. 74-1289.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 14, 1974.
    Decided Dec. 19, 1974.
    Richard A. Cohen, Atty., N.L.R.B., Washington, D. C., for petitioner.
    James M. Samples, Faegre & Benson, Minneapolis, Minn., for respondent.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

The National Labor Relations Board asks this Court to enforce a bargaining order against Payless. Payless defends on the ground that the Board’s certification of the Union is invalid. We refuse to enforce the Board’s order because we believe that remarks made by a public official at a Union election-eve meeting were coercive and so closely related to the election that they had a probable effect on the employees’ actions at the polls.

An election by secret ballot was conducted among certain Payless employees on August 15, 1972. The Union won the election by a fourteen to nine vote. A week later, Payless filed timely objections to conduct affecting the results of the election. It alleged, in substance, that: (1) the Union misstated material facts to which the company had no opportunity to reply; (2) the Union threatened and intimidated employees; (3) a prominent local person interfered with the election and threatened violence to an employee’s person and property; and (4) the election was conducted in an atmosphere of fear, coercion and misrepresentation. The Acting Regional Director conducted an investigation and issued his report and recommendations in which he overruled objections relating to alleged misrepresentations and directed that a hearing be held on the following objection:

At the [Union’s] meeting with employees on the night of August 14, an official of the City of South St. Paul [the Acting Mayor, Michael Verderosa] was introduced to the employees by a representative of the [Union] and made a short speech. The city official is alleged to have asked whether a particular employee favored the Union, and then to have stated that this employee had better favor the Union or he would slit his tires. The city official denies making these remarks.

Sixteen witnesses, including Verdero-sa, testified at the hearing. The Hearing Officer found that Verderosa had attended the meeting and that prior to its start, he had engaged in a conversation with Emil Forrester, a former employee of Payless. He summarized the testimony of employee witnesses as follows:

* * * [T]he testimony above reveals that a great deal of confusion exists with regard to what Mr. Verde-rosa actually said in his conversation with Emil Forrester.
Stover, Steven Schmitt, Walls, Anderson, Schwingle, Dorsey, Turner, Rossing, Klug, Reid, Brown and Mer-tens either did not overhear Verdero-sa’s conversation with Forrester or recalled very little of the conversation referred to above. There [sic], I find their testimony of little probative value.
This leaves only the testimony of Kraemer, Thomas Schmitt and Verde-rosa. Kraemer could not recall the exact words used by Verderosa or recall the nature of the conversation immediately preceding or following his version of the conversation. For this reason, as well as the demeanor of this witness while testifying, I do find his testimony unreliable.
Thomas Schmitt, likewise, did not recall the nature of the conversation immediately preceding or following his version of the conversation. This witness’s convenient memory is particularly important since, according to testimony, he took notes at the meeting which he later gave to the Employer. Based on the foregoing, and the demeanor of the witness while testifying, I discredit the testimony of this witness.
The conversation between Verderosa and Forrester was a personal conversation and was merely overheard, in part by others. I, therefore, conclude that Verderosa, himself, was in the best position to give the most accurate version of his conversation, and credit the testimony of Verderosa, based on the foregoing, his forthright attitude while testifying, and his total demean- or.

The Hearing Officer summarized Verderosa’s testimony as follows:

* * * “I asked a question whether Larry Machacek who I worked with for about 20 years and who also was a steward in my department, if he could belong to that union (Petitioner) or did he have to belong to Local Union 120 (of the Teamsters), which is a truck driver (union). That is the question I asked. Nobody seemed to answer it. And then I stated that if he had to belong to 120, that they would cut his tires if he didn’t belong to the union.”

The Hearing Officer found that neither Verderosa’s presence nor the statement he made prior to the formal commencement of the meeting raised substantial or material issues with respect to conduct affecting the results of the election.

Exceptions to the Hearing Officer’s report and recommendations were taken by the employer. The Board accepted the Hearing Officer’s findings as to what was said by Verderosa but rejected his findings as to when the remarks were made; it found that the remarks occurred during the Union meeting rather than in a conversation with Forrester before the meeting. It concluded that the remarks did not reasonably have any significant impact on the election.

Thereafter, the employer refused to bargain and the Board issued a complaint charging the employer with refusal to bargain. It determined in a summary proceeding that Payless had refused to bargain and that all issues raised in defense of Payless had been litigated and foreclosed in the prior representation proceeding. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 157-163, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). This enforcement proceeding followed.

We are convinced from a careful reading of the record that the Board’s findings with respect to what Verderosa said are not supported by the record as a whole. The Hearing Officer’s sweeping finding, adopted by the Board, that Sto-ver, Steven Schmitt, Walls, Anderson, Schwingle, Dorsey, Turner, Rossing, Klug, Reid, Brown and Mertens either did not overhear Verderosa’s conversation with Forrester with reference to slitting an employee’s tires, or recalled very little of the conversation, is simply not supported by the record. Five of the twelve — Rossing, Klug, Reid, Brown and Mertens — testified, in substance, that Verderosa stated at the election-eve meeting that an employee’s tires would be slit if he did not support the Union.

Rossing testified that when someone in the front of the room — to the best of his recollection, Verderosa — was asked, before the meeting, whether a trucker should be a member of the Union, he replied, “ ‘He had better be,’ or they would do something to his front tires, cut them or slash them, I don’t remember the exact words.”

Klug testified that Verderosa made a statement just before or during his formal remarks to the effect that “we’ll slash his tires.” He further testified that he initially thought that the statement was directed towards management; but after talking to other employees, understood that the statement was directed to the truck driver, Larry Machacek.

Brown testified that after Verderosa was introduced, he said “if [a] certain person didn’t vote for the union he would slit his tires.”

Mertens testified as follows:

* * * The mayor, Verderosa, noticed that Machacek wasn’t there, and he asked how Machacek stood on the grounds of the union. And he stated that he had better join or we would slash his tires or they would slash his tires or something on that order. * * * I can’t recall truthfully if he said we or they or I.

Mertens further testified that when Verderosa made the statement, he was “[j]ust talking so he wanted to be heard.”

Two additional witnesses in this group, Dorsey and Turner, testified that while they did not overhear the remarks attributed to Verderosa, they did hear employees talking about Verderosa’s statement the next day on the job.

It is clear that the testimony of Ross-ing, Klug, Reid, Brown and Mertens was sufficiently specific to have probative value, and the testimony of Dorsey and Turner tended to support their version of what Verderosa said.

The Hearing Officer discredited the testimony of Kraemer on the grounds that Kraemer could not recall the exact words used by Verderosa or recall the nature of the conversation immediately preceding or following his version of the conversation. The record does not support this conclusion. Kraemer’s testimony was quite precise. He testified that prior to the meeting, he was seated approximately twenty feet from Verderosa, who was standing at the bar, and that Verderosa was, in turn, approximately twenty feet from Emil Forrester. Kraemer was asked:

Q. Now, based on your observations and what you heard, can you describe the conversation that you recall that took place between Mr. Verderosa and Mr. Foster [sic] at that point? A. Mr. Verderosa asked Emil Foster [sic] if Larry, the man who used to work at Swift’s or something like that, was for the union. And Emil Foster [sic] then said that he didn’t know. He hadn’t talked to Larry about it. And Mike said, “Well, he had better be,” or damn well better be, or something to that effect, “or I will slit his tires with a full load on it.”

Kraemer then testified that he didn’t hear what had been said earlier between Verderosa and Forrester because until the tire-slitting statement was made, Verderosa had been standing closer to Forrester.

The Hearing Officer also discredited Thomas Schmitt’s testimony on the grounds that he did not recall the nature of the conversation immediately preceding or following his version of the conversation. The record does not support this conclusion. It reveals that the Hearing Officer questioned Schmitt at the hearing and asked him what was said before and after the questioned conversation. Schmitt responded:

* * * [A]fter he made the statement Mr. Forrester mentioned you don’t have to worry about it; Larry’s for it 100 per cent, see. And then, again, I guess there was just small talk went on and then I believe Mr. Bluhm called the meeting to order. * * *

The Hearing Officer then asked what was said prior to the time the conversation started, and Schmitt answered:

* * * [I]t was just mostly talk. They were talking back and forth about the union and his work, and stuff like this. Again, I can’t remember exactly verbatim what he said before that.

In the light of this testimony, the reason given by the Hearing Officer to discredit Schmitt’s testimony was inexplicable. We also note that Schmitt’s testimony was consistent with a prior statement given by him and received by the Board in evidence.

The Hearing Officer stated in his report that there was an additional reason for discrediting the testimony of Kraemer and Thomas Schmitt — their demeanor while testifying. We view this reason as largely make-weight. The testimony of each of these witnesses was internally consistent and consistent with the other witnesses who testified with respect to the conversation, namely, Klug, Rossing, Brown and Mertens. Moreover, the record does not reveal that either witness was evasive or argumentative while on the stand.

Accepting, as we do, the testimony of the employees indicated above, we have no alternative but to reject the testimony of Verderosa. We do so because we firmly believe from an examination of the entire record, that the evidence of the seven employees or ex-employees is more credible than that of Verderosa. See N.L.R.B. v. Audio Industries, Inc., 313 F.2d 858, 864 (7th Cir. 1963); Farmers Co-Operative Co. v. N.L.R.B., 208 F.2d 296, 303-304 (8th Cir. 1953); K. Davis, Administrative Law Treatise § 29.06 at 144 — 145. We reach this decision in full awareness of the rule that the question of credibility of witnesses and the weight to be given their testimony is primarily one for determination by the trier of facts. N.L.R.B. v. Morrison Cafeteria Co., 311 F.2d 534, 538 (8th Cir. 1963). See also N.L.R.B. v. Walton Manufacturing Company, 369 U.S. 404, 419, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962) (Frankfurter, J., dissenting). But the rule is not one to be applied mechanically for if we were to so apply it, the substantial evidence test set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(E), and in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), would be meaningless. The reviewing court would be compelled to sustain any finding as to which testimonial evidence was conflicting. See Davis, supra § 29.06 at 144. This case is one in which we feel that the record as a whole requires that we disregard the credibility findings of the Hearing Officer and the Board, and we, therefore, reject them.

We turn then to the remaining question: whether Yerderosa’s statements were coercive and so closely related to the election that they had a probable effect on the employees’ actions at the polls. We think that these questions must be answered in the affirmative.

Verderosa was an invited guest at the election-eve meeting. His remarks were coercive on their face and clearly related to the election which was scheduled to be held in a few hours. The remarks were overheard by six employees and communicated by one or more of them to other employees on the job. We can reach no other conclusion from these facts than that the remarks created an atmosphere in which a free expression of choice was impossible. See N.L.R.B. v. Southern Paper Box Co., 473 F.2d 208, 211 (8th Cir. 1973); cf., N.L.R.B. v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870— 871 (8th Cir. 1972). We, therefore, refuse to enforce the Board’s order.

Enforcement order denied.

      . Midwestern States Regional Council No. IV, International Woodworkers of America, AFL-CIO.


author: JAMES HUNTER, III, Circuit Judge:

text:
    Denis HENRY, a minor by Gaston Henry and Lorraine Henry, his natural parents and guardians, et al., Appel-lees, v. RICHARDSON-MERRELL, INC., a Delaware Corporation and Merrell-Na-tional Laboratories, Division of Richardson-Merrell, Inc., a Delaware Corporation, Appellants.
    No. 74-1198.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 11, 1974.
    Decided Jan. 22, 1975.

      Robert P. Gorman, Michael R. Cole, Clapp & Eisenberg, Newark, N. J., Raynes, McCarty & Binder, Arthur G. Raynes, Philadelphia, Pa., for appellees.
    Riker, Danzig, Scherer & Brown, Peter N. Perretti, Jr., James S. Rothschild, Jr., Newark, N. J., for appellants.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is a diversity case in which plaintiff-appellee seeks damages for personal injuries suffered as a result of his mother’s ingestion of thalidomide during pregnancy. In the present appeal, appellant drug company challenges the district court of New Jersey’s application of the New Jersey statute of limitation and consequent denial of its motion for summary judgment. Henry v. Richardson-Merrell, Inc., 366 F.Supp. 1192 (D.N.J.,1973). The district court’s interlocutory order was certified for appeal under 28 U.S.C. § 1292(b).

Twelve-year old appellee, Denis Henry, is a citizen and resident of Quebec, Canada. Appellant Richardson-Merrell, Inc., is a Delaware corporation with principal offices in New York which engages in national and international drug sales. Richardson-Merrell does transact some business in New Jersey.

Plaintiffs originally filed this suit in the New Jersey State courts, at which time service of process was effected on Richardson-Merrell’s registered agent in New Jersey. Defendant subsequently removed the suit to federal court on grounds of diversity of citizenship.

The present controversy deals with the statute of limitation to be applied in the case at bar. Quebec prescribes a one-year delictual limitation which is not tolled for minors. New Jersey’s two year personal injury limitation is tolled for minors until two years after the minor attains the age of 21. The law of no other jurisdiction was pleaded by the parties.

Appellant contends that the trial court’s application of the New Jersey limitation must be reversed since the expired Quebec prescription properly applies.

After careful consideration of appellant’s contention, the judgment of the district court will be reversed. The suit will be dismissed as timebarred under the applicable Quebec limitation since this court concludes that the choice of law principles of New Jersey, the forum state, mandate such a result.

I.

The facts alleged by plaintiff are as follows. Lorraine Henry, mother of the infant appellee, ingested Kevadon, Richardson-Merrell’s brand of thalidomide, in July of 1961 during the first trimester of pregnancy. The drug was prescribed by a Quebec physician while Mrs. Henry was a patient in a Quebec hospital. In March of 1962, plaintiff-appellee, Denis Henry, was born in the same hospital with severe and permanent birth defects.

In 1961 appellant, Richardson-Merrell, was engaged in testing, manufacturing and marketing its thalidomide tablet, Kevadon. The complaint alleges that Denis Henry’s injuries resulted from Richardson-Merrell’s negligent, fraudulent, willful, wanton and reckless conduct in failing properly to test, label and market the drug, in improperly obtaining government permission to market the drug, in refusing to heed and supply adequate warnings, in failing to comply with the Canadian and United States food and drug laws, in manufacturing a defective drug and in violating express and implied warranties of fitness and merchantability.

Thalidomide was developed in Germany as a sleeping pill and was licensed by the German developer to Richardson-Merrell in 1958 for manufacture and distribution in North America. Although the Canadian Drug Directorate approved use of the drug in April of 1961, the United States Food and Drug Administration withheld approval because it found testing data, supportive of the new drug application, insufficient.

During the late 1950’s defendant-appellant imported the active ingredient into the United States from Germany. The ingredient was synthesized into tablets and packed at Merrell-National Laboratories in Ohio. Sometime in 1961, Richardson-Merrell’s subsidiary, Baker, began production of the active ingredient of Kevadon at its New Jersey plant. This ingredient was then shipped to Ohio where it was formed into Kevadon tablets and packed for shipment. The Canadian Kevadon shipments originated at the Merrell-National Laboratories in Cincinnati, Ohio.

II.

Under Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1940), a federal court sitting in diversity must apply the conflicts of law principles of the forum state. In the present conflict between the laws of New Jersey and Quebec, the conflicts of law principles of New Jersey, the forum state, govern the limitation period which applies.

NEW JERSEY’S CHOICE OF LAW RULES

In a series of cases beginning with Melik v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967) and Pfau v. Trent Aluminum Company, 55 N.J. 511, 263 A.2d 129 (1970), New Jersey courts adopted the governmental interest approach to choice of law questions. This approach requires a two-step analysis. The court determines first the governmental policies evidenced by the laws of each related jurisdiction and second the factual contacts between the parties and each related jurisdiction. A state is deemed interested only where application of its law to the facts in issue will foster that state’s policy. This approach does not count up contacts and make quantitative determinations of interest based on which state has the greatest number of contacts. Instead, the qualitative nature of contacts is considered so that only contacts which are likely to promote valid state policies are considered relevant. Mullane v. Stavola, 101 N.J.Super. 184, 243 A.2d 842, 845 (1968).

Until quite recently, the New Jersey governmental interest approach applied only to choices of substantive law. Procedural matters, such as the appropriate statute of limitations, were governed by forum law. In Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973), the New Jersey Supreme Court abandoned the mechanistic application of the forum statute of limitation in cases where a foreign substantive law was chosen. The Heavner borrowing rule explicitly seeks to discourage forum shopping by litigants with slender ties to New Jersey who desire the benefit of New Jersey’s more favorable limitation period.

In determining whether the present cause of action is timebarred, New Jersey choice of law rules therefore require a determination of which law will govern the merits of the case.

In Heavner v. Uniroyal, Inc., supra, a North Carolina couple sued a tire manufacturer incorporated in New Jersey for injuries to the husband caused by the blowout of a defective tire. Plaintiff-husband purchased a truck equipped with the defective tire in North Carolina; the accident occurred in North Carolina and plaintiffs at all times were domiciled in North Carolina. Defendant manufacturer transacted business in each of the fifty states, including North Carolina and New Jersey.

The court stated that mere incorporation in New Jersey was a contact insufficient to warrant the application of New Jersey substantive law. Since the North Carolina limitation period, borrowed with its substantive law, had already expired, the suit was dismissed.

The court in Heavner did not explain its failure to examine the policies behind the laws of North Carolina and New Jersey but it is clear that there were insufficient factual contacts to justify the application of New Jersey law. Implicit in Heavner is a finding that New Jersey was a disinterested forum.

The methodology by which the court concluded that New Jersey was a disinterested forum in Heavner is not laid out. Heavner, supra, 305 A.2d at 414 n. 3. Instead the court makes reference to the earlier New Jersey cases of Mellk v. Sarahson and Pfau v. Trent Aluminum Co., supra. Applying the Mellk-Pfau governmental interest approach to Heavner, it appears that the policies evident in New Jersey’s liberal products liability law would not have been fostered in the case. The primary purpose of a torts recovery is to compensate plaintiffs for their injury. Since the Heavners were domiciliaries of North Carolina, New Jersey had no interest in protecting their compensation rights. An alternate purpose of torts suits is to exact compensation from the tortfeasor in order to deter future misconduct. Where the tortious activity took place wholly outside of New Jersey as in Heavner, however, that policy could not be fostered. Similarly, the longer New Jersey statute of limitation in Heavner was probably enacted with a view toward protecting New Jersey citizens in whom the legislature had an interest.

Despite New Jersey’s governmental policy favoring liberal products liability recovery, there was simply no factual basis to apply that policy in Heavner.

The disinterested forum conclusion in Heavner is in contrast to Mellk v. Sarahson and Pfau v. Trent Aluminum Co. In Melik, plaintiff and defendant were New Jersey residents who were involved in an Ohio auto accident. Plaintiff was injured while riding as a passenger in a car driven by defendant. The car was owned and insured by a New Jersey resident. The court in Melik refused to apply Ohio’s guest statute which barred recovery to auto guests who failed to show wanton misconduct by the host driver. The court concluded that while sound principles of comity required the application of Ohio’s rules of the road, 229 A.2d at 627, Ohio had no interest in the application of its guest statute. The guest statute was designed to prevent collusive lawsuits and a consequent increase in insurance rates. Where insurance rates were set and premiums paid in another state, Ohio’s policy could not be advanced by the application of its guest statute. New Jersey’s concern for protecting the plaintiff, who was a New Jersey domiciliary, gave it a sufficient interest to warrant the application of New Jersey law.

In Pfau v. Trent Aluminum Co., supra, a Connecticut domiciliary sued a New Jersey domiciliary for injuries suffered in an Iowa auto accident. At the time of the accident, both plaintiff and defendant were resident students at an Iowa college. Since insurance rates were set in New Jersey, the court refused to apply Iowa’s guest statute. The court concluded that, although New Jersey did not have an interest in protecting the plaintiff who was a citizen of Connecticut, it might have an interest in enforcing a New Jersey “hosts duty to his guests.” (emphasis in original) 263 A.2d at 136.

Connecticut on the other hand had a clear interest in protecting its citizens which would allow for the application of its law on host-driver liability. Since the laws of both Connecticut and New Jersey were identical in requiring proof only of ordinary negligence by the host, there was a false conflict. The Pfau court did not decide, therefore, whether defendant’s domicile was a sufficient contact upon which to base the application of New Jersey law since the New Jersey result could be reached under Connecticut law.

In each case where New Jersey has deemed itself interested there have been close ties between state and the parties. One commentator has concluded:

a state is interested in applying its law to a particular case when it can be said that the law was designed to encompass the facts of just such a case. Laws of a state, in turn, are not designed to dispose of all conceivable cases, but only of those having factual contact with the state such that it may be affected by the outcome of the suit. A state is so affected when one of the persons it presumes to protect is a party to the dispute, when misconduct it finds culpable transpired within the state, when its courts are invoked to resolve a dispute which it wishes to avoid, or when persons with a financial stake in the litigation are residents of the state, [footnotes omitted.] Comment, False Conflicts, 55 Cal.L.R. 74, 80-81 (1967).

This article cited with approval in Pfau seems to reflect the views of the New Jersey courts.

APPLICATION OF NEW JERSEY RULES TO THIS CASE

In the present case, Quebec and New Jersey are the only jurisdictions which the parties assert are related. Quebec’s factual contacts with this case are numerous. Quebec is the place where the injury occurred, where the drug was prescribed and consumed, where the infant-appellee was born, where he and his parents resided in 1961 and still reside. Richardson-Merrell was in 1961 and is today licensed to do business in Quebec. Richardson-Merrell marketed Kevadon in Quebec upon the authorization of Canadian drug agencies.

New Jersey’s contacts in turn are less than numerous. 1.7% of the United States testing of Kevadon was undertaken by New Jersey physicians and appellant’s subsidiary, Baker, operates a plant in New Jersey which manufactured the active ingredient of Kevadon. In addition, Richardson-Merrell sells other products and advertises in New Jersey.

The district court concluded that manufacture of an active ingredient and 1.7% of United States testing were contacts sufficient to warrant the application of New Jersey’s tolling provision in favor of the infant-plaintiff. Implicit in this conclusion was a finding that, unlike Heavner, New Jersey was sufficiently interested in the Henry case to apply its own law. An analysis of New Jersey’s statutes dealing both with the substantive cause of action and the statute of limitation, however, reveals that the district court’s finding of interest was erroneous.

The negligence-strict liability portion of this cause of action seeks chiefly to compensate plaintiffs. It is clear from Pfau and Heavner, however, that New Jersey does not consider itself interested in nondomiciliary plaintiffs. As with any other balancing test, however, New Jersey’s governmental interest approach allows that lack of interest in the plaintiff may be outweighed by other factors. For example, in Heavner v. Uniroyal, Inc., 305 A.2d at 418, the court stated, “ . . . there may well be situations involving significant interests of this state where it would be inequitable or unjust” to deny a plaintiff relief despite the fact that most of the operative facts have occurred outside the state. While acknowledging the appeal of plaintiff’s claim, the district court record does not necessarily reflect all the options available to persons in the position of the minor plaintiff. The Heavner court cites Marshall v. George M. Brewster & Son, Inc., 37 N.J. 176, 180 A.2d 129 (1962), as an example of a case in which the New Jersey court was confronted with significant New Jersey interests.

In Marshall, decedent was killed in Pennsylvania because of the negligence of an association of New Jersey defendants who had engaged in a joint venture in Pennsylvania. Plaintiff-administrator, an Ohio resident, sued the New Jersey defendants in a New Jersey state court. The court applied the Pennsylvania wrongful death statute but refused to apply Pennsylvania’s limitation period which would have barred suit. The court in Heavner seems to read Marshall as saying that a state which has very significant contacts with the defendant will be deemed interested.

Presumably New Jersey’s contacts with a defendant as in Marshall, give the state an interest in enforcing legal duties owed by its citizens and in deterring future misconduct, an interest substantially similar to that adverted to in the false conflict context of Pfau, supra.

In the instant case New Jersey’s sole contact is with Baker, the local subsidiary of Richardson-Merrell. Although the sheer presence of a defendant might be sufficient to give New Jersey a government interest in cases like Marshall where no other jurisdiction is likely to have greater contacts with the defendant, such a rationale does not apply to a corporation which operated in some fashion in all fifty states and has more substantial activity in other places. The court in Heavner seems to question the view that defendant’s presence alone, which in Heavner was combined with New Jersey incorporation, can be sufficient to give New Jersey courts an interest.

The manufacturing activity of Richardson-Merrell’s subsidiary in this case was similarly insufficient to give New Jersey an interest, even assuming that the state courts would posit an interest in deterring misconduct because of defective manufacture within the state.

Although plaintiff’s complaint sounds in negligence, strict liability and warranty, defendant’s allegedly improper conduct cannot be traced to manufacturing activities in New Jersey. Plaintiff alleges throughout that his mother did not ingest a “bad batch” of thalidomide which failed to conform to specification because of a defect developing during manufacture in New Jersey. Such an allegation would have been founded on tortious conduct in the forum state. Instead plaintiff alleges that the drug was inherently defective and that its defects were analogous to defects in design. It is undisputed that New Jersey’s contacts with the drug began long after the design stages and that the raw thalidomide manufactured in New Jersey did not deviate from the specifications set by the German developer and the Ohio laboratories of defendant Richardson-Merrell. Thus, any possible New Jersey policy of enforcing a duty, owed because of tortious misconduct in New Jersey, is inapplicable; the plaintiff has specifically stated that there is nothing improper about the way the drug was manufactured.

Plaintiff’s complaint also charges that the drug was insufficiently tested. The district court seems to have concluded that since 1.7% of the United States testing had been conducted in New Jersey, New Jersey was an interested forum. This contact is even more tenuous than the manufacturing contact, however. There is no allegation that the testing in New Jersey was improperly conducted. Any charge of insufficient testing would seem to relate to the place where testing decisions were made, Richardson-Merrell’s National Laboratories in Ohio. New Jersey was merely one of forty-one states in which clinical testing of the drug was conducted. New Jersey testing simply did not give the State an interest in applying its product liability law to these plaintiffs.

Absent a finding that New Jersey substantive law applies, Heavner requires borrowing of the foreign limitation period.

Although the district court did not investigate the policy behind New Jersey’s tolling provision, it is clear that the policy behind that statute also would not be fostered by application ta these plaintiffs. The New Jersey tolling provisions were enacted to protect infants during minority. Higgins v. Schneider, 61 N.J. Super. 36, 160 A.2d 165 (1960). There are no New Jersey cases construing the scope of this precise statute. A panel of this court, however, has held that the New Jersey statute which tolls for defendants absent from the state, N.J.S.A. 2A:14-22, should be limited to resident plaintiffs. Zelson v. Thomforde, 428 F.2d 1360 (3d Cir., 1970). The Zelson court stated: “ . . . it is fair to assume that in enacting the tolling statute the Legislature was intent in protecting New Jersey residents who had New Jersey claims against nonresident debtors from having to go to foreign jurisdictions to enforce their claims.” 428 F.2d at 1362.

Faced with a similar tolling statute for minors, we feel that a New Jersey court would limit its applicability to local infants in whom the New Jersey legislature has an interest. The state clearly did not intend to extend tolling protection to all plaintiffs from distant locales whose legislature had failed to afford similar protection.

We conclude that a New Jersey court, confronted with these facts would deem itself a disinterested forum and apply the law of Quebec to dismiss this suit as timebarred. To apply New Jersey’s tolling provision here would violate the He-avner dictate that forum shopping should be discouraged by litigants with slender ties to New Jersey.

Although the New Jersey Supreme' Court in Heavner did not feel obligated to do more than point out North Carolina’s interest in the facts of that case, we deem it helpful to prove that Quebec’s interest in this case is overwhelming.

The trial court properly concluded that Quebec CC Article 2262, supra n. 3, was directed toward “protecting Quebec citizens and the Quebec courts from excessive and tardy litigation.” 366 F.Supp. 1202.

The trial court then concluded that because Quebec was not the forum court and because defendant was not a Quebec corporation, the policy behind the Quebec limitation would not be fostered by application in this case. 366 F.Supp. at 1202. Although Richardson-Merrell was not a Quebec corporation, it was at all times licensed to do business in Quebec. The protection afforded by the Quebec limitation was aimed at defendants like Richardson-Merrell acting within the territorial limits of Canada. Thus in refusing to apply the statute on these facts, the district court did in fact frustrate a policy of Quebec.

In addition, it is Quebec which has the chief concern with these plaintiffs, who may become public charges to the Quebec government if they are not compensated. In the same vein, much of the allegedly tortious conduct of defendants, including the marketing and sale of the drug, any misrepresentations made to secure Canadian approval, and any violation of the Canadian Federal Foods, Drug and Cosmetics Act, occurred in Canada. Surely Canada has a governmental interest in deterring future misconduct within its borders and in punishing past misconduct. That Quebec has chosen to subordinate interests of deterrence, punishment and compensation to a concern for speedy litigation should have no bearing on this court’s finding that Quebec’s interest in this matter is paramount.

There are additional and more serious problems with contending that anything but Canadian law should apply to this case. In Pfau and Melik, the New Jersey courts conceded without hesitation that the state where the auto accident occurred had a paramount interest in applying its “rules of the road.” To judge conduct occurring in another state by New Jersey’s highway rules would violate fundamental principles of fairness and comity. By analogy, New Jersey would not presume to tell a drug seller that its activity in Canada should be judged by the rules of New Jersey or for that matter by the United States Food and Drug Law. With respect to those portions of plaintiff’s complaint alleging conduct occurring entirely within Canada, therefore, New Jersey would refuse to apply its substantive law. Canada clearly had the paramount interest in determining what testing and supportive data it would require before approving drugs for sale in Canada to Canadian citizens. Sound principles of comity direct that any misrepresentation to the Canadian drug authorities, or any inadequacy of labels be judged by that nation’s laws. Once this court finds that the substantive law of another jurisdiction must be applied, Heavner, of course, directs that we borrow that jurisdiction’s limitation period.

III.

The trial court found that Heavner was distinguishable because in that case there were no contacts to support a government interest whereas in this case there were contacts which resulted in forum interest.

The contact of manufacture is not determinative in a products liability suit decided under New Jersey’s governmental interest analysis. Although it will be relevant in most cases where injury has resulted from a defect of manufacture, each case must be examined on its own facts. On the facts of this case, plaintiff has never alleged that the defect arose during manufacture. As such, New Jersey has no interest in having its law applied to this case. Like the court in Heavner, we conclude:

We need go no further now than to say that when the cause of action arises in another state, the parties are all present in and amenable to the jurisdiction of that state, New Jersey has no substantial interest in the matter, the substantive law of the foreign state is to be applied, and its limitation period has expired at the time suit is commenced here, New Jersey will hold the suit barred. 305 A.2d at 418.

The judgment of the district court will, therefore, be reversed and the suit dismissed as timebarred under the applicable Quebec statute of limitations.

      . The parents of the infant-plaintiff joined in the original suit but their action was dis- • missed as timebarred by the district court under either the Quebec or New Jersey limitation. 366 F.Supp. at 1195 n. 6.

      . Plaintiff named Merrell-National Laboratories. a division of Richardson-Merrell, Inc., located in Cincinnati, Ohio, as a second defendant. Since it is not a separate legal entity, the trial court treated the suit as one against a single defendant.

      . Civil Code of the Province of Quebec (Quebec C.C.) (1972) Article 2262 provides:
      The following actions are prescribed by one year:
      2. For bodily injuries, saving the special provisions contained in Article 1056 and cases regulated by special laws [these special provisions are not relevant to the case at bar].

      . New Jersey’s two year statute of limitation, N.J.S.A. 2A:14-2 provides:
      Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.
      New Jersey’s toiling statute, N.J.S.A. 2 A: 14-21 provides:
      If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A: 14-16 to 2A: 14-20 of this title or to a right or title of entry under section 2A:14-6 of this title is or shall be, at the time of any such cause of action or right or title accruing, under the age of 21 years, or insane, such person may commence such action or make such entry, within such time as limited by said sections, after his coming to or being of full age or of sane mind.

      . Since this case comes before us on a motion for summary judgment, the facts must be viewed in the light most favorable to the plaintiff, who opposes the motion. Rule 56 F.R.Civ.P. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

      . Denis Henry was born without ears and consequently is deaf, with left facial paralysis, bilateral cranial nerve palsy, micrognathia and severe facial abnormalities. As a result of physical deformities, his psychic and educational development has been impaired.

      . The sole factual dispute in the case revolves around the date on which Merrell’s subsidiary began production of the active ingredient in New Jersey. Appellant drug company contends that Mrs. Henry could not have consumed Kevadon, whose active ingredient originated in New Jersey since it did not begin manufacture until after the date of her ingestion. We will assume on this summary judgment motion, however, that appellee-plaintiff’s counterclaim is correct and that Mrs. Henry did in fact consume Kevadon whose ingredient originated in New Jersey.

      . In stating its approach to governmental interest, the New Jersey courts rely on earlier cases from California, Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), and New York, Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Macey v. Rozbicki, 18 N.Y.2d 289, 274 N.Y.S.2d 591, 221 N.E.2d 380 (Ct.App.1966); Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (Ct.App.1969). A series of commentaries. is also deemed instructive. Currie, Notes on Methods and Objectives in The Conflict of Laws, 1959 Duke L.J. 171, Kay, Comment on Reich v. Purcell, 15 U.C.L.A. L.Rev. 584 (1968), Currie, The Disinterested Third State, 28 Law & Contemp. Prob. 754 (1963). See also Horowitz, The Law of Choice of Law in California, 21 U.C.L.A. L.Rev. (1974). Comment, Statute of the Locus Applied to Foreign Cause of Action, 27 Rutgers Law Rev. 481 (1974), Note, Conflicts of Law — Statute of Limitations — Foreign Jurisdiction’s General Personal Injury Statute of Limitation Bars a Non-Resident’s Products Liability Action, 5 Seton Hall L.Rev. 342 (1974).

      . Appellant’s allegations that the substantive nature of the Quebec limitation require this court to choose it in preference to New Jersey’s period of limitations must fail in light of Heavner. That case eschews all mechanistic rules. The decision to borrow or not must be made irrespective of whether the foreign limitation period is considered substantive or procedural.

        See Busik v. Levine, 63 N.J. 351, 307 A.2d 571, 577-578 (1973); Breslin v. Liberty Mutual Insurance Company, 125 N.J.Super. 320, 310 A.2d 527, 533 (1973) for more recent statements of New Jersey’s requirement to borrow a foreign limitation period on a foreign based cause of action. These cases are otherwise irrelevant to the present issue.

      . The district court concluded that it would be premature to decide whether Quebec’s substantive law would govern 366 F.Supp. at 1200 n.I2. Instead that court performed a limited governmental analysis of the interests behind the limitation periods of Quebec and New Jersey. To consider the limitation period in isolation, however, defeats the very purpose of Heavner which seeks to discourage forum shopping. The foreign state’s policy of protecting the court and defendant from tardy litigation will never seem relevant to a local court dealing with a defendant not domiciled in the foreign jurisdiction.

      . The Heavner court also implied that a proper case for the exercise of forum non conveniens had been presented. The court cited two earlier New Jersey cases. In Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670 (1954), cert. denied, 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954), the New Jersey courts refused to consider a case where an Alabaman injured in that state sued a defendant incorporated in New Jersey in a New Jersey court.
      Similarly, in Semanishin v. Metropolitan Life Insurance Co., 46 N.J. 531, 218 A.2d 401 (1966), the court dismissed a suit by European nationals against a New Jersey corporation. The plaintiffs were beneficiaries on insurance policies issued in New York by a company whose main offices were in New York.
      Since none of the parties raised the issue of forum non conveniens, we will not consider it. It is interesting to note, however, that the court in Semanishin deemed relevant the fact that defendants’ insurance company was licensed to do business in New York where most of the operative facts occurred.

      . The only New Jersey case we have found which alludes to such a policy is Pfau, supra. In Hurtado v. Superior Court of Sacramento County, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974), relied on by plaintiff-appel-lee, the court enunciates a purpose in tort actions to deter future misconduct. Although this California case is not controlling on a court governed by New Jersey law, it is persuasive in light of its logic and New Jersey’s earlier reliance on California decisions in formulating its interest approach.

      . In Mellk, and Mullane v. Stavola, 101 N.J. Super. 184, 243 A.2d 842 (1968), both parties were New Jersey residents. In Pfau, New Jersey did not conclude that it was an interested forum — plaintiff was a non-resident — but the court implied that the place of defendant’s residence might be interested. In Rose v. Port of New York Authority, 61 N.J. 129, 293 A.2d 371 (1972) plaintiff was a New Jersey resident and defendant was a New York-New Jersey agency. In each of these cases, the court applies New Jersey law despite the fact that misconduct occurred elsewhere because of New Jersey’s ties to the parties.
      In the forum non conveniens cases. Gore and Semanishin, cited supra n. 11, the court refused to hear cases where plaintiffs resided elsewhere, the misconduct occurred elsewhere and defendant’s only ties to the jurisdiction were unrelated to the cause of action. Accord Heavner, supra.

      The distinction between these cases clarifies what New Jersey considers to be its interest.

      . The parties failed to allege that any other jurisdiction was interested in this case, although they might have proposed an interest in Ohio, where the Merrell-National Laboratories are located or in New York where the corporate headquarters of defendant are located. The parties having failed to plead the law of any other jurisdiction, it is not incumbent on this court to do so. Leflar, Choice Influencing Considerations in Conflicts Law, 41 N.Y.L.Rev. 267, 303-304 (1966), Leary v. Gledhill, 8 N.J. 260, 269-270, 84 A.2d 725, 729 730 (1951).

      . After the district court hearing on the summary judgment motion, plaintiffs discovered yet another “contact" to New Jersey. They discovered that a New Jersey company, acting as an independent contractor, had packed certain amounts of Kevadon tablets into cellophane strips. That this “contact” was even mentioned evidences appellees’ misunderstanding of New Jersey’s governmental interest analysis. We reiterate with the New Jersey court in Mullane v. Stavola, supra, that a plaintiff does not show interest by piling up quantities of contacts. Only where a contact gives the state a factual basis to apply its governmental policy is it deemed relevant to show interest.

      . The district court relied on this language, at least in part, holding that it would be unjust to dismiss the plaintiffs suit. 366 F.Supp. at 1200. This Heavner language, however, can only apply where New Jersey has “significant interests” which it does not have in the instant case. See p. 36, infra, of this opinion.

      . Marshall v. George M. Brewster & Son, Inc., was decided under the pre-Melik lex loci delicitus rules.
      In the same context, the Heavner court alluded to Air Products and Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 206 N.W.2d 414 (1973). Contrary to the district court’s treatment of Air Products in the instant case, however, the Heavner court did not approve the rationale of Air Products. The Heavner court merely stated that Air Products had come to its attention. Even if Air Products had been adopted by the New Jersey Supreme Court, it is of little value to appellee’s position. In Air Products, the Wisconsin court applied its own limitation in a case where the parties stipulated that Pennsylvania law governed the merits. In that case, Pennsylvania plaintiffs sued defendant for defects arising during manufacture of a machine in Wisconsin. The court there did not apply a governmental interest analysis but instead relied on Leflar’s Choice Influencing Considerations, supra n. 14. The case is not helpful to plaintiff appellee because the defect there arose during manufacture whereas here the manufacture was unrelated to any defect, infra n. 20 and text accompanying.

      . The district court in Henry seems to have confused the contacts necessary to achieve in personam jurisdiction over the defendant with those necessary to trigger New Jersey’s governmental interest. The contacts required are not identical. In a lengthy article cited with approval by the New Jersey courts, Former Justice Traynor of the California Supreme Court explored the boundary lines between the doctrines of forum non conveniens, in personam jurisdiction and governmental interest. Traynor, Is This Conflict Really Necessary? 37 Tex.L.R. 657 (1957).
      Activity by the Baker subsidiary in New Jersey may have been sufficient voluntary association with New Jersey for that state to assert in personam jurisdiction over Richardson-Merrell under the principles of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). See also Seymour v. Parke, Davis & Company, 423 F.2d 584 (1st Cir., 1970).
      New Jersey’s governmental interest, however, seems to require a higher quality of contact than the minimum contacts required for jurisdiction. Whereas in personam jurisdiction may properly be exercised over a defendant who is merely “caught” in the jurisdiction, governmental interest requires a nexus between the contact and some valid governmental policy.

      . The district court apparently concluded that the plaintiff had alleged improper conduct in New Jersey. 366 F.Supp. at 1200.

      . At the hearing on the motion for summary judgment, counsel for the plaintiff specifically stated:
      we are not talking about a contaminated batch, your Honor. We are not talking about one batch that was bad. We are talking about the entire thalidomide, whether it was made in Germany or whether it was made by Baker. It doesn’t make any difference. It is still Richardson-Mer-rell’s drug.
      In order to get approval of that drug to be used in the market they had to tack on the German experience. This is like a negligent design.
      (n.t. at 46 reproduced at page 92 of the Appendix.)

      . Exhibit 6-3 reproduced at page 303 of the appendix indicates that forty-one states took part in the testing and that in nineteen of the forty-one, greater numbers of physicians participated than in New Jersey.

      . Certain commentators have suggested that to extend state protective policies to persons with whom the state has no concern amounts to a denial of due process and violates the full faith and credit clause of the United States Constitution. Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws; Privileges and Immunities, 69 Yale L.J. 1323, 1324 (1960); Comment, False Conflicts, 55 Cal.L.R. 74, 87 (1967).
      We merely mention but do not comment on this theory.

      . In Hurtado, supra n. 12, a California case relied on by appellee, the court states that the protection afforded by a statute of limitation extends not only to defendants incorporated in the state but also to those doing business in the state. In describing the holding of an earlier California case, Ryan v. Clark Equipment, 268 Cal.App.2d 679, 74 Cal.Rptr. 329 (1969), the Hurtado court states, “[t]he defendant manufacturing corporation, while not incorporated in Oregon, was lawfully doing business there and Oregon had an interest extending to such a resident business entity in applying that state’s limitation of damages in order to protect such defendant’s financial security.” 11 Cal.3d at 585, 114 Cal.Rptr. at 113, 522 P.2d at 673. We perceive that New Jersey would recognize a state’s interest in protecting a corporation doing business within the state. In Semanishin, supra n. 11, New Jersey recognized that New York, where all the operative facts occurred and where defendant did business, had a greater interest than New Jersey, the place of defendant’s incorporation.
      In concluding that the Quebec statute did not protect companies like defendant, the district court relied on Dindo v. Whitney, 429 F.2d 25 (1st Cir., 1970). The court in Dindo construed the Quebec limitation in a factual contest involving a very slight connection to Quebec. An auto accident involving non-residents clearly did not give Quebec an interest in applying its one year limitation. In' the instant case, however, Quebec’s relationship to the case could hardly be dismissed as fortuitous. As such, the rationale of Dindo is less applicable.

      . The right to sue for personal injuries is incorporated in Article 1053 of the Civil Code of the Province of Quebec which provides:
      Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
      This provision has been. interpreted by the Quebec courts to include the right of á minor to bring a tort action for prenatal injuries. Montreal Tramways Co. v. Leveille (1933) S.C.R. 456.

      . A long series of Supreme Court cases has held that before a jurisdiction can seek extraterritorial application of its laws, it must have a substantial interest in the party whom the statute seeks to protect. For example, in Watson v. Employers Liability Assurance Corporation, Ltd., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954), the Court held a Louisiana statute which varied contract rights created outside of Louisiana between parties outside of Louisiana to be valid under the due process clause because Louisiana had an overwhelming interest in protection of its own citizens. 348 U.S. at 72, 75 S.Ct. at 170. Accord, Clay v. Sun Ins. Office, Ltd., 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229 (1963), and Crider v. Zurich Ins. Co., 380 U.S. 39, 85 S.Ct. 769, 13 L.Ed.2d 641 (1964).
      Where no such overwhelming interest in the parties is present, however, the Supreme Court has refused to allow the extraterritorial application of a local statute. In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1952), the Supreme Court overturned a trial court’s application of the Jones Act to a Danish seaman injured in Cuban waters who had signed an employment contract in an American port. Accord, Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1929).
      In the instant case there are due process problems in the extraterritorial application of American drug regulations to the Canadian activities of a drug seller who by coincidence is also subject to regulation by the American Food and Drug Administration.