author: LIVELY, Circuit Judge.

text:
    Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. ALTEC, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellees, v. MOBILE AERIAL TOWERS, INC., Defendant-Appellant. Jack MANNING and Clara Ann Manning, Plaintiffs-Appellants, v. MOBILE AERIAL TOWERS, INC., and Altec, Inc., Defendants-Appellees.
    Nos. 73-1219 to 73-1221.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Dec. 5, 1973.

      William N. Groover, Knoxville, Tenn., for Altec, Inc.; Cheek, Taylor & Groover, Knoxville, Tenn., of counsel.
    George^ D. Montgomery, Knoxville, Tenn., for Mobile Aerial Towers, Inc.; Kennerly, Montgomery, Howard & Finley, Knoxville, Tenn., of counsel.
    W. Zane Daniel, Knoxville, Tenn., J. D. Lee, Madisonville, Tenn., for Jack Manning and Clara Ann Manning.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

A diversity action in the district court has resulted in three appeals which were consolidated and heard together in this court. Jack Manning, an employee of the Knoxville Utility Board, was seriously injured while at work on July 1, 1970. At the time the injury occurred Manning was working in a bucket elevated above the ground by a crane or boom to which the bucket is attached, this equipment being commonly referred to as a “cherry picker.” He and another lineman had been lifted in the bucket to a position near a group of electric wires from which they intended to remove a dead line. Manning’s shoulder came into contact with an energized line and the resulting injury required that both hands and a portion of both arms be amputated. Clara Ann Manning joined in the complaint seeking damages for loss of consortium and services. The jury returned a verdict of $450,000 in favor of Jack Manning and $75,000 in favor of Clara Ann. Manning. The district court, on its own motion, remitted $100,000 of the Jack Manning verdict and $45,000 of the Clara Ann Manning verdict and entered judgment for $350,000 and $30,000 respectively. The plaintiffs accepted these remittiturs under protest and have appealed in No. 73-1221.

The defendants in the action in the district court were the manufacturer, Mobile Aerial Towers, Inc. (Mobile) and Altec, Inc. (Altec), the distributor of the “cherry picker” equipment. It was stipulated that the equipment had been purchased by Manning’s employer on July 1, 1966 and had been put in operation on July 27, 1966. At an informal pretrial conference held in chambers immediately before the jury trial began, attorneys for the plaintiffs stated that the case would be tried as a products liability action under Section 402A of the Restatement of Torts and that the only negligence to be proven was that the equipment left the hands of the manufacturer with a defective servo valve. Although Jack Manning could remember nothing about the accident and there were no eye witnesses, his theory was that the bucket in which he was working tilted and this resulted in his body being thrown against the “hot” wire.

The Liability Issue

Both defendants made motions for a directed verdict and for judgment notwithstanding the verdict, contending there was no evidence of negligence. Jack Manning and other employees of the Knoxville Utility Board testified that the bucket on the particular piece of equipment in question had tilted on previous occasions, beginning in the period one month to six weeks after the equipment was delivered to the employer and continuing to the morning of Manning’s injury. A fellow worker who was on the ground testified as to Manning’s position with respect to the energized wire immediately before the accident which he described as the normal position for the work he was doing and was permitted, on the basis of 17 years experience, to testify that in his opinion the injury was caused by a sudden movement of the bucket. Each side produced expert testimony on the function of the servo valve and the effect of a defective servo valve on the stability of the bucket. The expert for the plaintiffs characterized the servo valve as the heart of the system which keeps the bucket steady in a vertical position as the boom raises and lowers it. He stated that if the servo valve leaks the bucket would have a tendency to rock or tilt. In answer to a hypothetical question he said the only thing which could cause the unit to tilt would be a malfunction of the servo valve. Although there was testimony from the experts produced by the defendants which contradicted that of the plaintiffs’ witness, this conflict only made a jury issue.

Altec further contended that it was entitled to a directed verdict because the servo valve was sealed inside of the equipment and it had no opportunity to inspect the valve and was really nothing more than a conduit between the manufacturer and the purchaser of the equipment. However, there was evidence that the servo valve was accessible for inspection and repair and that all that was required to inspect it was the simple removal of a small plate. The court was justified in refusing to treat the servo valve as a product in a sealed container. Cf. Walker v. Decora, Inc., 225 Tenn. 504, 471 S.W.2d 778 (1971). Mobile asserted that it should be relieved of liability because the servo valve had been overhauled and was not in substantially the same condition as when it left Mobile’s hands. However, the evidence concerning repairs to the equipment was not sufficiently clear to justify this conclusion. An examination of all of the evidence in the case convinces us that the court correctly submitted the issue of liability to the jury. This was not a case where only one possible verdict could have been reached by a reasonable jury, and therefore it would have been improper to have granted a directed verdict or judgment notwithstanding the verdict. Reeves v. Power Tools, Inc., 474 F.2d 375 (6th Cir. 1973).

On appeal Altec complains that it was denied due process of law by the refusal of the trial judge to permit its counsel to cross-examine a witness produced by the co-defendant Mobile. The trial court ruled that the questions which counsel for Altec attempted to ask the witness were repetitive and stated that both defendants were in the same position in the case. Counsel for Altec did not challenge this ruling by the court and made no attempt to show that the witness would give different answers to his questions nor did he offer to the court an avowal concerning questions which he proposed to ask the witness and the answers he expected to receive. Any error by the trial court in this respect was waived by Altec. After the verdict was rendered Altec made a motion for judgment over against Mobile on the theory that it was entitled to indemnity for the full amount of the verdict under the evidence in this case. The court properly denied the motion since no cross-claim had been filed by Altec against Mobile.

Both defendants argued in the district court and in this court that Clara Ann Manning’s cause of action for loss of consortium was barred by the applicable Tennessee statute of limitations. The right of a wife to recover damages for loss of consortium is created by statute in Tennessee. Tennessee Code Annotated (TCA) § 25-109. The general statute of limitations for personal tort actions, TCA § 28-304, has previously been construed to require the commencement of products liability actions within one year after the date of purchase of defective equipment rather than the date of injury. Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482, cert. denied, 396 U.S. 942, 90 S.Ct. 376, 24 L.Ed.2d 243 (1969). As noted hereafter TCA § 28-304 has been amended since this decision was rendered. A second statutory provision, TCA § 50-914, provides that limitations do not begin to run in an employee’s action for personal injuries against some person other than his employer until the date of the injury. This provision applies to the claim of Jack Manning. Dobbins v. Terrazzo Machine and Supply Co., Tenn., 479 S.W.2d 806 (1972). The district court held that Clara Ann Manning’s claim for loss of consortium was derivative from Jack Manning’s claim for personal injuries and that the same statute of limitations should apply to both claims. On April 4, 1972 the Tennessee General Assembly enacted an amendment to TCA § 28-304 to provide that no person shall be deprived of his right to maintain an action in a products liability case until one year from the date of his injury. The history of legislative amendments of TCA § 28-304 in response to Jackson v. General Motors Corp., supra, leads us to the conclusion that it would be against the public policy of Tennessee to hold that the right of action of Clara Ann Manning was barred by limitations because she did not file suit within one year after her husband’s employer purchased the equipment even though she filed within one year after the date of his injury. Bradley v. General Motors Corp., 463 F.2d 239 (6th Cir. 1972). The district court correctly held that the action of Clara Ann Manning was timely filed.

The Remittitur Issue

Although constitutional objections have been raised, it is now settled that a trial court which deems a jury’s award of damages excessive may order the plaintiff to remit a portion of the verdict or suffer a new trial. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). In diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court's ruling. Mooney v. Henderson Portion Pack Co., Inc., 334 F.2d 7 (6th Cir. 1964). In the second appeal of the Mooney case this court discussed the underlying rationale of the practice of remittitur, holding that it is . . ancillary to ... [the] right of the trial judge to grant a new trial because of the excessiveness of the jury verdict.” Mooney v. Henderson Portion Pack Co., Inc., 339 F.2d 64, 66 (6th Cir. 1964). Since the action of a trial court in granting a new trial on the ground that a verdict is excessive is subject to review only for abuse of discretion, the same standard is applied to an order of remittitur. In order to determine whether there has been an abuse of discretion it is necessary to examine the evidence on damages and the considerations which led the trial judge to order remission of a portion of the verdict.

It is undisputed that Jack Manning is totally and permanently disabled. At the time of the accident he was 39 years old, in good health and had been employed as a journeyman lineman for approximately 20 years. His earnings for the three years immediately preceding the accident and for the first half of 1970 were as follows:

1967 ..................$8,785.47
1968 .................. 9,531.63
1969 .................. 9,954.11
Jan.-June 30, 1970 ____ 5,512.14.

The mortality tables in the Tennessee Statutes which were admitted and upon which a proper instruction was given, indicated a life expectancy for a person 41 years of age (his age at the time of trial) of 31.29 years. In addition to lost future wages, a loss of earnings in the amount of $21,750 was shown between the date of the accident and the trial. Medical expenses of $22,570.27 were proven and the undisputed testimony of a manufacturer of prosthetic devices was that Jack Manning will be required to expend $24,500 for artificial limbs during the remainder of his life.

The plaintiff spent 56 days in a hospital in Knoxville and 90 days at specialized medical facilities in New Jersey. Although the stumps of his arms healed well, Manning has complained of recurring phantom arm pain which has required medical treatment. It was shown that Manning had built the home in which he and his family lived with very little outside help and possessed skills which enabled him to maintain his property. It has been his practice to work in his spare time around the house and at the church where he was active. Although he had achieved some proficiency with artificial limbs at the time of the trial, which was more than two years after the injury, he was still unable to care for himself. It was necessary that his wife brush his teeth, comb his hair, and shave him and assist him in dressing and at the table. He was unable to care for himself in the bathroom and needed the aid of his wife there. Because of his severe incapacity, Manning felt that he and his wife should not have any more children and a bilateral vasectomy was performed to sterilize him.

The very sparse evidence on Mrs. Manning’s claim for loss of consortium and services is set forth in full:

Q What has been his health over the years, has he been a good healthy person ?

A Yes.

Q And over the years has he been healthy and working around the house as much as can be expected of him?

A Yes. He has done everything around the house. He built the house we live in and he has taken care of everything that is needed to be taken care of around the house. And also he has done my mother’s work and built her house. My father is deceased.

Q When you. say he built the house, does that mean the carpentry work and masonry work ?

A All the carpentry work and he mixed cement for the brick mason and he helped the plumbers.

Q So he did have some help but pretty much he did a lot of it himself?

A Yes.

Q Now in addition to his work there has he performed work and helped out on other jobs or helped other people around ?

A Yes. He, like I say, worked for my mother and he does a lot of work in church, anything needs to be done.

Q Has he been a very active person over the years ?

A Yes.

In his Memorandum filed in response to the various posttrial motions of the defendants, the trial judge set forth his reasons for granting remittitur as follows:

Another difficulty is that these verdicts are substantially higher than those rendered in similar actions under similar circumstances in recent years. Mr. Manning proved medical expenses and lost wages of approximately $69,000.00. Assuming that he continued to earn at the rate of $11,000.00 per year and retired at age sixty-five, the value of his future earnings, capitalized at 6%, is approximately $199,000.00. Thus, his total proven economic loss is around $268,000.00.

Proof of damages is lacking in Mrs. Manning’s action for loss of consortium. Consortium has been defined as:

“ . . . the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation.”

We charged the jury in this ease as to that definition and further charged them that loss of consortium is a right of action separate from that of the husband for his damages, that loss of services is a part of the loss of consortium, and that both loss of services and loss of consortium must be proven by the wife.

It is to be observed from this definition that there are two main elements of damage in this cause of action. First is the loss of conjugal relations. Mrs. Manning experienced this loss for the few weeks Mr. Manning was in the hospital and, perhaps, for a comparatively short time thereafter. These relations were resumed some time ago, and Mr. Manning underwent a vasectomy. The damages from this loss are not great. The second element of damage is loss of services. There is evidence in the record that Mr. Manning did the usual things husbands are expected to do, namely, mow the grass, wash the dishes and sweep the floors. As the Court recalls there is no proof in the record to show the value of these services in monetary terms. This value could not be large, and, in no case, could it be said to amount to $75,000.00. Joint Appendix, pp. 10a-lla.

If the calculations by the trial judge of direct economic loss were correct, the reduced verdict would include damages for physical pain and mental anguish of $82,000.

No universally accepted standard has been found for testing the application of remittitur. In Gorsalitz v. Olin Matheson Chemical Corp., 456 F.2d 180 (5th Cir.), cert. denied, 407 U.S. 921, 92 S. Ct. 2463, 32 L.Ed.2d 807, rehearing denied, 409 U.S. 899, 93 S.Ct. 108, 34 L. Ed.2d 159 (1972), the court held that the correct standard for determining ex-cessiveness of a verdict is “ . the amount which, under the evidence in the case, was the maximum that the jury reasonably could find to be compensatory for appellant’s loss.” Id. at 181. In the opinion Judge Godbold referred to the job of applying this rule in a personal injury case in which there are pain, suffering, and disfigurement as a “Solomonic task.” Of course, this task first falls upon the jury and becomes a responsibility of the judge only if the jury fails to stay within limits drawn by the evidence in the case.

The District of Columbia Circuit follows the same rule which obtains in this circuit that the granting of a motion for a new trial based on excessiveness of the jury’s verdict is reviewable only for abuse of discretion. In Taylor v. Washington Terminal Company, 113 U.S. App.D.C. 110, 409 F.2d 145, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), a case involving remittitur, the court made the following observation, with which we agree:

Where the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial, the two factors press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remit-titur or a new trial. However, where, as here, the jury as primary fact-finder fixes a quantum, and the trial judge indicates his view that it is excessive by granting a remittitur, the two factors oppose each other. The judge’s unique opportunity to consider the evidence in the living courtroom context must be respected. But against his judgment we must consider that the agency to whom the Constitution allocates the fact-finding function in the first instance — the jury — has evaluated the facts differently. Id. at 148.

The test adopted by the court is that it will “ . . . reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within ‘the maximum limit of a reasonable range.’ ” (emphasis in original). Id. at 149.

In view of the nature and extent of Jack Manning’s injuries and the substantial direct economic loss which he suffered as a direct consequence of his injuries, we believe that the jury’s award of $450,000 was clearly within the “maximum limit of a reasonable range” of compensation for his loss. Accordingly, it was an abuse of discretion to direct the remittitur of $100,000 of the damages awarded him. There was no direct evidence of the value of the loss of consortium and services claimed by Clara Ann Manning and the verdict of the jury was based solely on inferences to be drawn from the facts in evidence, concerning her husband’s injuries. We believe that the trial judge’s view that this verdict is outside the maximum range deserves greater deference than the verdict of the jury under the particular circumstances of this case. Accordingly, we find no abuse of discretion in the action of the trial court in granting a remittitur of $45,000 of the damages awarded Mrs. Manning.

The judgment of the district court in Nos. 73-1219 and 73-1220 is affirmed. In No. 73-1221 the judgment of the district court is affirmed with respect to the appeal of Clara Ann Manning and reversed and remanded with respect to the appeal of Jack Manning with directions to restore the verdict in favor of Jack Manning to the amount awarded by the jury. Costs will be taxed to the defendants.

      . The district court’s opinion is reported at 359 F.Supp. 211 (E.D.Tenn.1972).

      . Sec. 402A. Special Liability of the Seller of Product for Physical Harm to User or Consumer
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jasper Lee SIMON, Defendant-Appellant.
    No. 73-2833
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.

      Thomas M. Haas, Mobile, Ala. (Court-appointed), for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Simon was convicted of violating 21 U.S.C.A. § 841(a)(1) by distributing and possessing with intent to distribute marijuana. His sole defense was entrapment, and to rebut it the government offered the testimony of three law enforcement officers to show his predisposition to deal in narcotics.

Each officer based his testimony on conversations with a confidential informant. One said an informer told him Simon had a reputation for dealing in drugs, and each of the other two testified an informer had said Simon was dealing in drugs. On appeal Simon claims this testimony was hearsay and a violation of his Sixth Amendment right to confrontation. In this circuit, however, we have consistently held that “when entrapment is asserted as a defense, hearsay is admissible to show prior disposition to commit an offense charged in the indictment and that the government is not required to disclose the names of the informants.” United States v. Brooks, 5th Cir. 1973, 477 F.2d 453. Accord, Rocha v. United States, 5th Cir. 1968, 401 F.2d 529, cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 796; Washington v. United States, 5th Cir. 1960, 275 F.2d 687. Therefore we affirm Simon’s conviction.

Affirmed.


text:
    Don Adell KALMBACH, Petitioner-Appellant, v. Clarence JONES, Sheriff, Dallas County, Texas, Respondent-Appellee.
    No. 73-2715
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 3, 1973.
    Rehearing Denied Jan. 16, 1974.

      Kerry P. Fitzgerald, Dallas, Tex., for petitioner-appellant.
    John B. Tolle, Asst. Dist. Atty., Dallas, Tex., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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:

This is an appeal from the denial of a writ of habeas corpus sought by appellant Kalmbach as a result of a robbery conviction. Kalmbach’s sole contention is that the victim’s in-court identification was the product of unduly suggestive and fundamentally unfair pre-trial photographic identification, and this being critical to the prosecution’s ease, the state conviction is inform. We affirm.

The sole identification witness was Mrs. Selma Bland, the owner and operator of the Valhalla Motel at the time of the robbery. On two separate occasions, one two weeks after the robbery, the other, just prior to trial, she was able to identify Kalmbach from two photographs shown to her. Moreover, when shown the photographs of additional suspects on several occasions, she did not mistakenly identify any one of them as those of the perpetrators. Thus, even if an error existed in the photographic identification under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L. Ed.2d 1247 (1968), it was harmless. See Powell v. Wainwright, 460 F.2d 1056 (5th Cir. 1972).

Affirmed.

      . The issue raised herein was thoroughly considered by the Texas Court of Criminal Appeals and decided adversely to Kalmbach. See Kalmbach v. State, 481 S.W.2d 151 (Ct. of Cr.App.1972).
      We commend appellant’s counsel for the excellent brief filed on Kalmbaeh’s behalf. We note with regret, however, that the Assistant District Attorney, Dallas County, Texas, failed to appropriately respond to requests by the Court Clerk to file briefs on appeal.


text:
    John W. WILLIAMS, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
    No. 73-2898
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 28, 1973.

      Rein J. Vander Zee, Kerrville, Tex., for plaintiff-appellant.
    Robert B. Summers, Claude B. Masters, San Antonio, Tex., for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

This suit in diversity arose from an automobile collision between plaintiff-appellant Williams and Lewis Charles Elliott, who was driving a car owned by his employer, Westinghouse. At the time of the accident, not only was Elliott engaged in a personal errand, he was on an extended medical leave from Westinghouse. The lower court correctly concluded that Elliott was not acting within the course and scope of his employment, and it found no evidence of negligence on Westinghouse’s part in connection with Elliott’s use of the company car. Accordingly, the court granted summary judgment for Westinghouse. We affirm.

Affirmed.


text:
    Rodell JENKINS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Warden, Respondent-Appellee.
    No. 73-3126
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 14, 1973.
    Rodell Jenkins, pro se.
    Nelson Bailey, C. Marie Bernard, Asst. Attys. Gen., W. Palm Beach, Fla., for respondent-appellee.
    Before BROWN, Chief Judge and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Jenkins appeals from the denial of federal habeas relief. The trial court held that the sole issue raised below (and the sole issue on this appeal), the sufficiency vel non of the evidence at appellant’s state trial for murder as to his sanity at the time the offense was committed, did not present grounds for federal habeas relief for denial of due process. We agree.

There was competent evidence presented at the trial to substantiate the jury verdict. An issue of the sufficiency of the evidence raised by conflicting testimony supporting a state conviction does not present a due process question. See Colbroth v. Wainwright, 5 Cir. 1972, 466 F.2d 1193; Young v. Alabama, 5 Cir. 1971, 443 F.2d 854; Pleas v. Wainwright, 5 Cir. 1971, 441 F.2d 56; Summerville v. Cook, 5 Cir. 1971, 438 F.2d 1196. Cf. Mims v. United States, 5 Cir. 1967, 375 F.2d 135.

Affirmed.


text:
    Osbie BAILEY, Petitioner-Appellee, v. D. M. VAN CLEVE, Warden, Atmore Prison Farm, Respondent-Appellant.
    No. 73-2348
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    William J. Baxley, Atty. Gen., Otis J. Goodwyn, Jr., Asst. Atty. Gen., Montgomery, Ala., for respondent-appellant.
    Wilson M. Hawkins, Jr., Mobile, Ala. (Court-appointed), for petitioner-appel-lee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The district court in this habeas corpus ease granted the petition and set aside Osbie Bailey’s three Alabama robbery convictions and ordered a new trial. The basis for this action was its determination that Bailey’s attorney and the prosecutor jointly coerced him into entering his guilty pleas. Such a determination depends upon evidence not in the record of the state court guilty plea proceedings. Nothing in the record before us discloses that this evidence has ever been presented to the Alabama courts. Bailey appealed his conviction to the Alabama Court of Criminal Appeals arguing that his guilty pleas were not “understandingly and voluntarily” entered, but that court’s opinion indicates that his appeal was based solely on the record of the lower court proceedings. See Bailey v. Alabama, 48 Ala.App. 149, 262 So.2d 636 (1972). The Attorney General of Alabama has represented in his brief before this court that the collateral remedy of coram nobis is presently available to Bailey in state court. We agree. Therefore, under 28 U.S.C. § 2254(b) we must reverse the district court’s decision and remand this case for Bailey to present his de hors the record claim to the state courts of Alabama without prejudice to his right to return to federal court if his exhaustion of existing state remedies does not afford the relief he seeks.

Vacated and remanded.


text:
    UNITED STATES of America, Plaintiff Appellee, v. Ed SULLIVAN, Jr., and Kim Sullivan, Defendant-Appellants.
    No. 73-2769
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 12, 1973.
    Joseph S. Chagra, Lee A. Chagra, El Paso, Tex., for defendants-appellants.
    William Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-ap-pellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Defendants were convicted for knowingly and intentionally conspiring to import marijuana from Mexico into the United States. 21 U.S.C.A. § 963. On appeal, they challenge the legality of a search which produced the incriminating marijuana. Defendants, 'however, lack standing to object to the evidence as the product of an illegal search.

[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

The search in this case was of a van which the defendants neither owned nor possessed at the time of the search. They likewise neither owned nor possessed the 322 pounds of marijuana discovered therein.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul C. WASHBURN, Defendant-Appellant.
    No. 73-2818
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1973.
    Robert L. Saylor, West Palm Beach, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Scott P. Crampton, Meyer Roth-wacks, Asst. Attys. Gen., John P. Burke, Max D. Wheeler, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Washburn, a tax consultant, was convicted in a jury trial of violating 26 U.S.C.A. § 7206(2) by preparing and presenting a fraudulent tax return for a client. Washburn not only prepared a joint return in 1968 for his client, who was estranged from his wife, when the wife had specifically rejected the idea of jointly filing and, indeed, filed a separate return instead, but Washburn also signed the wife’s name to the return pursuant to a claimed power of attorney which he in fact did not have. In the return, certain of the wife’s losses were claimed against the husband-client’s income.

Washburn contends that the Government’s evidence was insufficient to sustain the verdict. We disagree. Viewed in the light most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, there was abundant evidence to support the verdict.

Finally Washburn urges that the prosecutor made an improper argument to the jury. Having failed to object to the argument in the district court Wash-burn now would have us invoke the plain error rule.

We are wholly unpersuaded that the prosecutor’s argument falls within that category of exceptional circumstances that would call for a reversal to prevent a clear miscarriage of justice. United States v. Flanagan, 5 Cir. 1971, 445 F.2d 263; United States v. Nolte, 5 Cir. 1971, 440 F.2d 1124. On the contrary, it is manifest from a fair reading of the argument and the trial court’s charge to the jury that the Government’s case was properly presented in summation.

Affirmed.


text:
    John Henry LEE, Jr., #028436, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Fla., Respondent-Appellee.
    No. 73-2280
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 6, 1973.
    Raymond Tamargo, Jr., Tampa, Fla. (Court-Appointed), for petitioner-appellant.
    P. A. Pacyna, Asst. Atty. Gen., David Luther Woodward, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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 Lee, a state prisoner, appeals from an order denying his petition for a writ of habeas corpus. He contends that evidence introduced at his trial was seized incident to an illegal arrest and that he was interrogated without prior Miranda warnings.

Upon a complete review of the record we find that appellant’s contentions are without merit. His initial detention was proper because it was based upon specific facts known to the police officer. Between 4:00 and 5:00 o’clock in the morning the officer was searching a residential neighborhood for a black rape suspect driving a Ford. Appellant was a black male driving a Ford in the neighborhood at that time. Probable cause for an arrest, of course, was not needed to momentarily detain the appellant in the course of the officer’s investigation. Subsequently obtained information made an arrest justifiable under the probable cause standard.

We find the Miranda issue is primarily factual. The material facts were fully developed at a state court hearing on a motion to suppress, and the state’s factual determination was fairly supported by the record. There is no allegation of newly discovered evidence. The district court properly made an independent examination of the file and state court record as well as considering a magistrate’s report and recommendation.

Upon the authority of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963), this petition was properly dismissed.

Affirmed.

      . See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and United States v. Moreno, 475 F.2d 44 (5th Cir. 1973).


author: PER CURIAM.

text:
    Fred WARD and Shirley Ward, Appellees, v. BANQUET FOODS CORPORATION, Appellant.
    No. 73-1402.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1973.
    Decided Dec. 7, 1973.
    Robert D. Cabe, Little Rock, Ark., for appellant.
    Henry Woods, Little Rock, Ark., for appellees.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   PER CURIAM.

This is an appeal in a negligence action Which resulted in a judgment for money damages for personal injury suffered by the plaintiff, Fred Ward. Diversity of citizenship of the parties is conceded. Defendant asserts on appeal that plaintiff’s proof did not make a submissible issue for the jury with respect to defendant’s negligence under applicable Arkansas law. The trial court overruled defendant’s motion for a directed verdict.

Upon review of the overall record and the law we find no error in the trial judge’s ruling and affirm the judgment of the district court. See Eighth Circuit Rule 14.

Judgment affirmed.

      . Defendant moved for a directed verdict at the close of the plaintiff’s evidence as well as at the conclusion of its own case. The trial court reserved ruling on the motions until after the verdict, at which time he announced that the motions would be overruled and judgment entered on the verdict. It is doubtful from the record whether counsel moved for a judgment notwithstanding the verdict pursuant to Federal Rule of Civil Procedure 50(b). Failure to do so deprives this court of the power to pass on the sufficiency of evidence question raised on the motions for a directed verdict. See Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952) ; 9 C. Wright & A. Miller, Federal Practice and Procedure § 2537 at 596, 604 (1971). In the instant case, counsel announced in open court, after the district judge directed the clerk to enter judgment on the verdict, that the defendant wished to “renew all motions for directed verdicts.” Although we think this may fall short of serving as a motion for judgment notwithstanding the verdict, we assume for purposes of our decision that there was compliance with Rule 50 of the Federal Rules of Civil Procedure and decide the ease on its - merits.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Delores Ann TAPPEN, Defendant-Appellant.
    No. 73-2934
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 10, 1973.
    Clarence O. Bentley, Dallas, Tex. (Court-appointed), for defendant-appellant.
    Frank McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

In conformity with the requirements established by Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. The only issues sought to be raised by appellant are based on factual allegations not contained in the record, which can not be raised on direct appeal. United States v. King, 5th Cir. 1972, 456 F.2d 1243. It is therefore ordered, that the motion filed by Charles Bentley, Esquire, for leave to withdraw as court-appointed counsel for Appellant is granted, and the appeal is dismissed. See Local Rule 20; United States v. Minor, 5th Cir. 1971, 444 F.2d 521; United States v. Crawford, 5th Cir. 1971, 446 F.2d 1085.


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis Keith GLASSEL, Defendant-Appellant.
    No. 73-2044.
    United States Court of Appeals, Ninth Circuit.
    Dec. 7, 1973.

      Robert J. Hirsh, of Messing, Hirsh & Franklin, Robert J. Hooker (argued), Tucson, Ariz., for defendant-appellant.
    William C. Smitherman, U. S. Atty. James E. Mueller, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
    Before CARTER and GOODWIN, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge, District of Oregon, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

Defendant was convicted and sentenced on two counts: the first conviction was under 21 U.S.C. §§ 841(a) and 841(b) for possession of cocaine with intent to distribute; the second was under 21 U.S.C. §§ 841(a) and 846 for attempting to distribute cocaine. He appeals, contending that the cocaine was unlawfully seized and therefore improperly admitted into evidence at trial, and that the trial judge improperly refused to instruct the jury on the entrapment defense. We affirm.

Facts

In the spring of 1971, Richard Price, an informer, and Frederic Mann, an officer for the Federal Bureau of Narcotics and Dangerous Drugs, concealing their identities, began negotiations with a group of men in Arizona for the purchase of cocaine. The defendant, Curtis Keith Glassel, was not involved in these early negotiations.

Later, on June 5, 1971, Price and Mann were invited to a house in Tucson with the understanding that there they would complete the deal. They met Glassel inside the house and learned for the first time that he was participating in the sale. They all went back to the kitchen, where Glassel, who was suspicious of Price and Mann, subjected them to ten or fifteen minutes of questioning about their backgrounds. Price insisted that he was not an agent and urged Glassel to go through with the deal. Mann, sitting quietly at the kitchen table, let Price do most of the talking. Finally, Glassel left the kitchen, returning moments later with small bags of cocaine and a weighing scale. After examining the merchandise, Price and Mann agreed to buy. While Mann, the narcotics officer, remained seated at the kitchen table with the cocaine in front of him, Price left the house, supposedly to get money.

His exit was a signal for other officers, waiting nearby, to descend on the house. They promptly did so, entering the house from both the front and the rear, without first announcing their purpose and authority. They immediately arrested everyone, including Mann, and seized the cocaine.

Legality of the Seizure

Before his trial, Glassel moved to suppress the cocaine as evidence on grounds that the arresting officers, by entering the house without first giving notice of their authority and purpose as required in 18 U.S.C. § 3109, made an illegal search which rendered the seizure unlawful. The motion was properly denied. We need not decide whether the arresting officers inexcusably failed to comply with 18 U.S.C. § 3109, for even assuming they so failed, the cocaine was nonetheless lawfully seized by virtue of the lawful presence of officer Mann inside the house and his constructive possession of the narcotics.

Clearly officer Mann did nothing to violate 18 U.S.C. § 3109 or the fourth amendment. Under the rule of Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), an officer may legitimately obtain an invitation into a house by misrepresenting his identity, as Mann did. If he is invited inside, he does not need probable cause to enter, he does not need a warrant, and, quite obviously, he does not need to announce his authority and purpose. Once inside the house, he cannot exceed the scope of his invitation by ransacking the house generally, Lewis, supra, at 210 and 211, 87 S.Ct. 424, but he may seize anything in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970).

Without question, the cocaine was m Mann’s plain view, having been placed directly in front of him on the kitchen table. Prior to the raid, he had picked up the cocaine to examine it, and therefore had it in his possession at that time. When Price left the house to signal the other officers, Mann stayed behind, keeping the cocaine within his control and thus making sure that nobody could remove it before the raid was completed. He was prepared to confiscate the cocaine himself, if necessary, but since the other officers were able to take possession without further aid from him, he stood aside. This allowed him to continue to conceal his identity, thereby maintaining his value as an undercover agent. Despite the secrecy of his role, he played an active and substantial part in the seizure.

The only question, therefore, is whether a failure by the arresting officers to comply with § 3109 would taint the entire seizure. Arguing that it would, Glassel points to Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). In that case, Jones, a private individual who was temporarily acting as a stool pigeon for the government, was lawfully present in a house which government officers then entered without giving notice as required by 18 U.S.C. § 3109. The evidence was suppressed as the product of an unlawful search. But Sabbath does not control our case, for our factual situation is crucially different. In Sabbath, Jones did not participate in the arrest or seizure, nor was he authorized to do so. He was merely the defendant’s unfaithful cohort whose temporary role as “agent” involved nothing more than being a stool pigeon.

In our case, however, Mann was a full-time narcotics officer with authority to make arrests and seize evidence. Unlike Jones, he was under a duty to guard the contraband, which he did, and to take actual possession if necessary.

Under these circumstances, the seizure of the cocaine was lawful. We need not reach the question of compliance with 18 U.S.C. § 3109 unless there was a causal connection between the police conduct, legal or illegal, and the obtaining of the evidence which was the subject of the suppression hearing. Because we have held that officer Mann was lawfully in the house and had constructive possession of the cocaine, there was no such causal connection.

The Entrapment Defense

Glassel assigns as error the refusal by the trial judge to instruct the jury on the defense of entrapment. We find, however, that the ruling below was correct because the evidence of entrapment was insufficient to submit to the jury.

In considering the sufficiency of the evidence, we note that the entrapment consists of two elements: (1) government agents induce the defendant to commit the particular acts charged in the indictment, and (2) the defendant’s predisposition is such that he is not otherwise ready and willing to commit the offense on any propitious opportunity. United States v. Sherman (2 Cir. 1952) 200 F.2d 880. Once these two elements are in issue, the government has the burden of showing beyond a reasonable doubt that entrapment did not exist. Notaro v. United States (9 Cir. 1966) 363 F.2d 169, 175.

But “[t]he duty, of determining whether or not the issue exists is the judge’s duty, not the jury’s. . Notaro, supra, at 175. When the evidence presents no genuine dispute as to whether the defendant was entrapped, there is no factual issue for the jury, and the judge then has a duty to rule on the defense as a matter of law. Smith v. United States (9 Cir. 1968) 390 F.2d 401.

In this case, the evidence of entrapment presented a question of law for' the court. Glassel interrogated Price and Mann for approximately ten minutes before acceding to their request to buy cocaine. The record makes it abundantly clear that Glassel’s hesitation sprang only from a fear, ultimately borne out, that Price and Mann were undercover agents. Such hesitation would be natural in even the most hardened of criminals. It is likely that almost every illegal sale of narcotics to a stranger is transacted somewhat gingerly.

Thus proof that the defendant was cautious because he thought Price and Mann might be government agents does not in itself raise the issue of entrapment. His actions showed, without dispute, that he was predisposed to the crime. He possessed weighing scales and a commercial quantity of the cocaine; he associated himself with other persons who illegally dealt in narcotics; his kitchen talk with Price and Mann demonstrated a businesslike desire to complete the sale if safe to do so.

On this record, no jury could reasonably doubt that Glassel was predisposed to commit the offense. The judge therefore had a duty to rule against entrapment as a matter of law.

Affirmed.

      . 18 U.S.C. § 3109 provides as follows:
      “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
      While the statute refers only to the execution of search warrants, it is established law that warrantless searches are governed by the statute as well. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

      . Notaro v. United States (9 Cir. 1966) 363 F.2d 169, 174-175, n. 6, contains dictum to the effect that the issue of entrapment is raised for the jury whenever a showing is made “that the commission of the offense was attended by the intervention of a government agent.” Taken literally, such a rule would frequently encumber and confuse the jury with frivolous questions of entrapment. “Intervention” by government agents is today a standard device for apprehending criminals. In fact, entrapment cannot be a defense unless there is government participation or “intervention.” If “intervention” by a government agent was in itself enough to raise a jury question, then all entrapment defenses would go to the jury. Certainly the trial judge has the right to rule against the defense as a matter of law.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    In the Matter of AMERICAN MAGNESIUM COMPANY, Debtor. OZARK-MAHONING COMPANY, Appellee, v. AMERICAN MAGNESIUM COMPANY, Debtor, Appellant.
    No. 73-1479.
    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.
    Rehearing and Rehearing En Banc Denied March 14, 1974.
    James L. Kincaid, Lynnwood R. Moore, Jr., Tulsa, Okl., Joe V. Boerner, Jr., Lubbock, Tex., for appellant.
    Harold P. Brown, Charles B. Jones, ~ Lubbock, Tex., for appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

PROCEDURAL HISTORY

American Magnesium filed a petition requesting institution of proceedings for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq. After proper notice was given, a confirmation hearing was held. One creditor, Ozark-Mahoning, objected to the confirmation but was overruled. The bankruptcy judge confirmed American Magnesium’s plan but was then reversed by the Federal District Court for the Northern District of Texas. American Magnesium appeals. We reverse the decision of the district court.

FACTUAL HISTORY

In October of 1965, American Magnesium and the Ozark-Mahoning Company entered into a joint venture for the purpose of producing magnesium and acquiring leases of magnesium chloride brine deposits in Borden County, Texas, to provide brine from which the metal could be produced. In July of 1967, Ozark and American Magnesium terminated their joint venture and agreed upon a division of its properties. An agreement was entered on September 20, 1967, whereby American Magnesium would pay Ozark $137,879.00 for Ozark’s interest in the joint venture. This included brine leases, rights-of-way, options and personal property. In addition to this immediate exchange of consideration, Ozark agreed to refrain from purchasing, leasing or otherwise acquiring any rights in land within the brine reservoir and to refrain from entering into the business of producing magnesium oí magnesium chloride for a period of ten years.' American Magnesium agreed to pay Ozark a royalty of $1.00 per short ton of magnesium chloride which might be recovered by American Magnesium from the brine taken from leases within a 21 mile radius of Gail, Texas, processed at American Magnesium’s Snyder, Texas, plant. In effect, the total output ofxthat plant was subject to this royalty agreement. This agreement further stated that American Magnesium’s obligation to make payments to Ozark could be terminated at American Magnesium’s option in the event of sale of its brine leases, plant, and certain related assets. Any considerations received, in such a sale by American Magnesium which was in excess of the cost and expense of American Magnesium would be divided equally with Ozark. It was also required that Ozark execute and deliver to American Magnesium an appropriate release of its royalty interest in the event of such termination.

As a practical matter, the leases which were assigned from Ozark-Mahon-ing to American Magnesium were never used. It is important to understand that this was a royalty interest in production of a manufacturing plant. Here the interests were in the production of the plant and not in production from the land — -this is not an overriding royalty interest in an oil or gas lease. In 1971, American Magnesium was deeply in debt, it had borrowed millions of dollars from its stockholders and was unable to continue in business because of the lack of operating capital. These investors then formed a joint venture. The purpose of this joint venture was to put American Magnesium back on its feet. The only thing American Magnesium contributed was its operating assets. None of its debts or obligations were assumed by the joint venturers. There was no actual conveyance by American Magnesium of any of its property. The enterprise was merely a temporary undertaking in order to shore up American Magnesium. There was further need for additional capital, and in January of 1971, the joint venture agreement was amended and two more parties entered into the joint venture contributing additional capital.

On September 14, 1972, another financial crisis struck American Magnesium. The plant was shut down by reason of a major fire; also, the magnesium extraction process in use was not working properly. At this time, however, none of its stockholders or the joint venturers involved were willing to contribute additional capital. In order to continue operating the plant, keep the employees on the job, and recoup some of the joint venturers’ investments, American Magnesium proposed a plan of arrangement under Chapter XI of the Bankruptcy Act whereby American Magnesium would withdraw from the manufacturing of this metal. Under the plan, all of American Magnesium’s assets would go to a new joint venture made up of some of the previous joint venturers and others. In essence, National Magnesium, a subsidiary of National Steel, decided to take over the operation and agreed to contribute substantial capital to make the plan work. The plan of arrangement called for the cancellation of all notes held by the previous stockholders of American Magnesium and some of the joint venturers, totaling $8,300,000.-00,- and formation of a new joint venture with American Magnesium completely out. American Magnesium would no longer engage in any of the business as it had done in the previous joint venture. In return for American Magnesium’s contribution of all of its assets, the joint venture would assume all of American Magnesium’s obligations, including a 2.2 million dollar mortgage. All executory contracts would be assumed by the joint venture with the exception of the Ozark-Mahoning royalty contract, which would be terminated as provided in the agreement. After the plan was confirmed and acceptances were filed by all of the creditors affected, the district court reversed the confirmation of the bankruptcy judge based upon two contentions made by Ozark-Mahoning.

THE BANKRUPTCY PROCEEDINGS

The pertinent determinations by the bankruptcy judge were, first, that the September 20, 1967, agreement between Ozark and American Magnesium was ex-ecutory and therefore could be rejected under Chapter XI of the Bankruptcy Act. Second, the bankruptcy court ruled that the assignment- of assets by American Magnesium to the joint venture in consideration for the joint venture’s assumption of most of American Magnesium’s liabilities as provided for in the plan of arrangement was a sale within the context of the royalty termination provision of the September 20th agreement. The district court reached the opposite results on both these issues. Ozark naturally asserts that the district court was correct on both grounds. First, Ozark contends that the September. 20, 1967, contract between American Magnesium and Ozark had been fully executed and cannot be terminated at the time of the bankruptcy arrangement. Second, Ozark asserts that the terms of the plan of arrangement whereby American Magnesium transfers all its assets to the other joint venturers in return for assumption of American Magnesium’s debts is not a sale and therefore cannot serve as a basis for cancelling the Ozark-American Magnesium royalty agreement contained in the above-mentioned contract.

THE CONTRACT

The key as to the contract issue is simply whether the contract between American Magnesium and Ozark dated September 20, 1967, is an executory contract for the purposes of 11 U.S.C. § 757(2). There is no doubt that an executory contract may be rejected in a bankruptcy proceeding. 11 U.S.C. §§ 110(b), 706(4), 757(2).

Ozark urges, first, that there was no true contract for the bankruptcy court to consider, much less an executory one. Ozark grounds this contention upon the premise that this contract was one dealing only with a fractional portion of mineral rights which, according to Ozark, constituted a royalty on real property rights. Therefore, contends Ozark, this contract must be governed by the substantive law of Texas. Then Ozark states that because any interest conveyed in Texas must be by deed and because all deeds are regarded as the final expression of the agreement between the parties, no true contract existed for the bankruptcy court to consider. The reason no contract existed, says Ozark, is because the agreement to pay royalty interest and the non-competitive agreement were in fact two separate documents, dated September 20 and September 17, 1967, respectively. The non-competitive contract, Ozark asserts, is not only separate from the royalty agreement, but also it is not pertinent to the rights of the parties involved in the bankruptcy proceeding and, therefore, cannot be considered. This contention must be rejected. The agreement in question provided for much more than the assignment of interest in mineral leases in return for cash payment. It also provided that Ozark was to receive a royalty on every short ton of magnesium that American Magnesium produced from its Snyder, Texas, plant. This royalty payment was in no way tied to the lease interest previously held by Ozark. It was a payment on all magnesium produced. In other words, this was an interest in the total production of the plant and not an interest in production from specific mineral leases. Furthermore, Ozark agreed not to purchase brine leases in this area for a period of ten years. These factors clearly remove the contract in question from the realm of a real property executed contract. This is not a situation where an interest in land was conveyed for a fixed consideration. Much more was involved here.

Both the rule in Texas and in the majority of other jurisdictions is that a contract is executory when something remains to be done by one or more of the parties. An executory contract is one in which a party binds himself to do or not do a particular thing, whereas an executed contract is one in which the object of the agreement is already performed. Farrington v. Tennessee, 95 U.S. 679, 24 L.Ed. 558, Fletcher v. Peck (U.S.) 6 Cranch 87, 3 L.Ed. 162. An executory contract is obviously what this court is faced with. Ozark agreed to transfer all its interest in certain leases to American Magnesium and further agreed to refrain from purchasing other releases in this specific area. American Magnesium agreed in return to immediately pay Ozark a cash amount ($137,-879.00), and also to pay Ozark a royalty on all magnesium produced in the Snyder plant. Both parties had ongoing commitments. There is no point at which it could be said that the contract was completed. Furthermore, it should be noted that Ozark acknowledges on appeal that the contract between itself and American Magnesium was indivisible while at the same time trying to circumvent that fact by invoking the doctrine of merger. The court has examined this contention and found it to be without merit. Ozark also urges several contract interpretation arguments on the court which, when examined, are found to lack substance and to be totally without foundation.

This court then finds that a contract did exist, it was executory, and the bankruptcy judge was correct in allowing its rejection.

THE SALE

The next essential issue facing this court is whether the assignment of assets to the joint venture constituted a sale within the context of the agreement such that the debtor may elect to terminate the royalty payment. It does not appear to this court that there can be any doubt that the assumption of over two million dollars of indebtedness by the joint venturer in exchange for assignment of certain assets is a sale under the proper legal definition. See 1 Williston on Contracts § 99-137(a), 3rd Edition, 1957. Ozark contends that no sale took place, but only a transfer of a possible reversionary interest. That is to say the sale by American Magnesium to the subject joint venture of only a reversionary interest is not that sale which was envisioned in the original contract. Ozark then contends that this should be obvious from the face of the contract and, further, that the intent of the parties should prevail. This court has examined that contract and does not find such to be obvious. Furthermore, Ozark’s contention is utterly without foundation. American Magnesium, however, does appear to have substantial legal authority in its favor. See Childress v. Hinch, 162 Okl. 296, 20 P.2d 571 (1933), and Swiss-Ameriean Import. Company v. Variety Food Prod. Co., 436 S.W.2d 770 (Mo.App.1969).

If, for no other reason, Ozark’s argument that no sale took place must be rejected because if American Magnesium had given notice of termination of the royalty agreement in 1970, when the joint venture was created, and had that joint venture been successful Ozark would certainly have been very unhappy about American Magnesium’s profits while managing the formerly American Magnesium-Ozark assets. Ozark’s objection at that point would have been tenable because as of 1970 American Magnesium did retain a management interest. Ozark’s position now would thus require the court to conclude that having entered the joint venture, American Magnesium could never engage in a sale. That conclusion would then restrict the available means of attempting to recoup losses in any situation governed by analogous contractual terms.

This court then finds that as a result of the assignment by American Magnesium of all its assets to the joint venture, the debtor will have disposed of all right, title and interest in and to the magnesium property and will have no rights whatsoever to participate in the management or operation of such enterprise. Thus, the assignment obviously is covered in the original agreement between Ozark and American Magnesium referring to the event which would give rise to the right of termination by American Magnesium of Ozark’s royalty payments and such termination should be allowed.

This court finds that the original rulings by the bankruptcy judge were correct and the cause is reversed and remanded so that those rulings might be enforced.

      . The present entity, American Magnesium, was originally an enterprise of Roger M. Wheeler, which he later incorporated in Oklahoma under the name of American Magnesium. He was the sole owner of both. In 1968, Wheeler formed a Delaware corporation, American Magnesium Corporation, which acquired all the assets of Oklahoma American Magnesium by merger. The present stockholders of American Magnesium are National Steel Corporation, Mr. Wheeler, Bovaird Supply Co., Missouri, Kansas and Oklahoma Lines, Inc., and John E. Barry, who also are holders of American Magnesium’s promissory notes in substantial amounts which they will cancel under the terms of the plan of arrangement if it is confirmed. Mr. Wheeler is president of Delaware American Magnesium. For the purpose of this appeal, the term American Magnesium shall apply to all three of these entities because, in effect, they were the same enterprise' which simply changed its name and form on two occasions.

      . The release executed by Ozark-Mahoning and given to American Magnesium is set out in its entirety below :
      Tulsa, Oklahoma
      September 20, 1967
      Ozark-Mahoning Company 1870 South Boulder Avenue Tulsa, Oklahoma Gentlemen:
      In consideration of the mutual covenants and agreements hereinafter set forth, you and AMERICAN MAGNESIUM COMPANY, an Oklahoma corporation (“American”) hereby agree as follows:
      1. You agree to sell, convey, assign and deliver to American, and American agrees to purchase and receive from you, all of your rights, titles and interests in and to
      (a) all brine leases, options for the acquisition of brine leases and other leases, options for leases, and rights in land located in Borden County, Texas;
      (b) all easements and rights of way and options for the acquisition of easements and fights of way located in Borden and Scurry Counties, Texas;
      (c) all wells, equipment and personal property located upon the properties described above; and
      (d) all other rights, titles and interests of every kind and character acquired by or for or on behalf of the Ozark-Wheeler Joint Venture and acquired by you as a result of the termination of said Joint Venture as of July 31, 1967.
      You agree, within 10 days after the date hereof, to execute and deliver to American conveyances and assignments, in recordable form where appropriate, of the property herein-above described. Such conveyances and assignments shall be without warranty of title, express or implied, and may make appropriate reference to the royalty payable to you as hereinafter provided for in order to charge third parties with notice of the existence of such royalty.
      2. In consideration for such sale, conveyance and assignment, American has paid to you concurrently herewith $137,879, the receipt of which is hereby acknowledged by you, and, in addition, American further agrees to pay to you the royalty hereinafter described.
      3. American agrees to pay you a royalty of $1.00 per short ton of 2,000 lbs. on a dry basis of all magnesium chloride recovered from any and all brines and waters found in, under or that may be produced from the Brine Reservoir (as hereinafter defined) and processed, saved and sold from facilities which may hereafter be constructed in Borden County or Scurry County, Texas, and in which American owns an interest. Such royalty shall be in full payment and settlement for all magnesium chlorine, bromine, boron, potassium chloride, calcium chloride and all other salts, minerals, metals and elements derived from any waters or brines found in, under or produced from the Brine Reservoir. Subject to the provisions of paragraph 4 hereof, the foregoing royalty shall be perpetual, shall be a covenant running with all rights and interests in all land, contracts or other sources from which brines or waters are derived from the Brine Reservoir (and American shall, upon request, make appropriate assignments of such royalty interests to you with respect to all rights and intersts in all land, contracts or other sources from which brines or waters are derived from the Brine Reservoir which American at any time may acquire so as to vest in you the full legal and economic title to such royalty interests) and the obligations therefor shall be expressly assumed in writing by the successors and assigns of American, in default of which American shall remain liable for the payment thereof. Such royalty shall be payable to you monthly by the 20th day of each calendar month on the basis of all magnesium chloride sold during the preceding calendar month. Your representatives shall have the right at any reasonable time to inspect and make copies of the books and records of American pertaining to the' production and sale of magnesium chloride. “Brine Reservoir”, as herein used, means any and all lands lying within a circle with a radius of 21 miles of which the Town of Gail in Borden County, Texas is the center.
      4. In the event American shall at any time hereafter sell all of its Operating Interests (as hereinafter defined) in the Magnesium Property (as hereinafter defined), American shall have an option to terminate, effective as of the effective date of such sale, the royalty described in paragraph 3 hereof. Such option shall be exercised by notice of such termination given to you within 30 days after such effective date. In the event of such termination, and in the event the consideration (of every kind) received by American for such sale shall be in excess of the aggregate of (i) all costs and expenses of American relative to the Ozark-Wheeler Joint Venture (which Joint Venture was terminated as of July 31, 1967), and (ii) all additional costs and expenses of American relative to the Magnesium Property (whether heretofore or hereafter incurred), then and in such event, American shall divide equally with you that portion of such consideration which shall be in excess of the foregoing amounts.
      (a) “Operating Interests”, as herein used, means all right, title and interest in and to the Magnesium Property other than a royalty interest, overriding royalty interest, net profits interest or similar interest which does not entitle the owner to participate in the management or operation of the Magnesium Property;
      (b) “Magnesium Property”, as herein used, means brine leases and options for the acquisition thereof, easements and rights of way and options for the acquisition thereof, and any plant and related facilities which may hereafter be constructed for the production of magnesium metal, all of which are or shall be located in or in the vicinity of Borden County, Texas.
      In the event of termination of such royalty interest you agree to execute ■ and deliver to American, at the request of American, an appropriate recordable release thereof.
      5. You agree not to purchase, lease or otherwise acquire, either alone or in conjunction with others, directly or indirectly, any lands or rights in land within the Brine Reservoir (other than as provided in paragraph 3 hereof) and not, either alone or in conjunction with others, directly or indirectly, to enter into the business of producing magnesium metal or magnesium chloride for the production of magnesium metal, for a period of 10 (ten) years after the date hereof.
      6. That certain letter agreement dated September 1, 1967, accepted September 5, 1967, by and between Roger M. Wheeler and Ozark-Mahoning Company, a copy of which is attached hereto and marked Exhibit A for reference, is hereby canceled, terminated and rescinded.
      7. American hereby assumes and agrees to pay all unpaid amounts which you are obligated to pay to American and/or third parties pursuant to the provisions of paragraphs 3 and 8 of the letter agreement dated January 31, 1967, by and between American and you by which the Ozark-Wheeler Joint Venture was terminated, a copy of which paragraphs 3 and 8 is attached hereto and marked Exhibit B for reference.
      8. Any notice required or permitted to be given hereunder shall be given by registered mail, postage and registration charges prepaid, addressed to the party to be notified as follows:
      Ozark-Mahoning Company 1870 South Boulder Avenue Tulsa, Oklahoma American Magnesium Company % Roger M. Wheeler The Telex Corporation 41st and South Sheridan Road Tulsa, Oklahoma
      The date of such notice shall be the date of mailing. The address of either party for purposes hereof may be changed by notice given in the manner hereinabove provided.
      9. You agree to pay any documentary stamp taxes incurred by reason of the foregoing sale and conveyance.
      10. Ad valorem taxes covering the properties and interests sold to American hereunder shall be prorated to the date hereof.
      11. The terms and provisions hereof shall bind and shall inure to the benefit of the parties hereto and their successors and assigns.
      If the foregoing correctly reflects your understanding of our agreement, please sign in the space provided below and this letter shall constitute an agreement between us.
      Very truly yours,

      ACCEPTED AND AGREED TO»
      OZARK-MAHONING COMP'ANY


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Richard Wayne WETZEL and Charlotte Kramer, Appellants.
    No. 73-1274.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided Dec. 4, 1973.
    Rehearing Denied Dec. 21, 1973.

      Theodore L. Kessner, Lincoln, Neb., for appellants.
    Daniel E. Wherry, Asst. U. S. Atty., Lincoln, Neb., for appellee.
    Before GIBSON, LAY, and HEA-NEY, Circuit Judges.

      . Sometime during the trial, defendant Kramer apparently married defendant Wetzel. This opinion will refer to the female defendant as Kramer, her name at the time the true bill was returned.

   GIBSON, Circuit Judge.

Defendant Richard Wayne Wetzel was charged in Count I with interstate fraud by wire in violation of 18 U.S.C. § 1343; in Count II with receiving, concealing, and selling 99 head of cattle that were moving in interstate commerce in violation of 18 U.S.C. § 2317; and in Count III with conspiracy relating to Counts I and II in violation of 18 U.S.C. § 371. Defendant Charlotte Kramer was charged only under Count III. The jury found Wetzel not guilty of Count I and guilty of Counts II and III and Kramer guilty of Count III. The District Court sentenced Wetzel to five years imprisonment each on Counts II and III, the sentences to run concurrently. Defendant Kramer received a suspended sentence and was placed on probation for four years.

Defendants first argue that the acquittal on Count I for defendant Wetzel necessarily means that no scheme to defraud existed before delivery of the cattle in Nebraska and that defendant Wetzel cannot be found guilty of Count III. Second, defendants claim that the cattle sold by defendant were not stolen or moving in interstate commerce. Rejecting these arguments, we affirm both defendants’ convictions.

On May 11, 1972, Wetzel from Nebraska telephoned Mr. William Rogers Martin in Centreville, Mississippi, to order a load of calves. Several telephone calls were exchanged and Martin shipped 99 head from Centreville to Valley, Nebraska, on May 20th. The 99 head were quoted at a price of $20,332.62. The calves arrived in Valley on May 21st, and Wetzel requested the driver to ship them to York, Nebraska, where they were stored for the night.

Wetzel shipped and sold the calves to Lester Harms in Piekrell, Nebraska, on May 22nd. Harms wrote a check payable to Kramer for $19,326.35 for the calves, and both defendants cashed Harms’ check at Beatrice National Bank and Trust Company and received in return cash and three cashier’s checks.

On May 22nd or 23rd, Wetzel placed another identical order with Martin, who first accepted the offer but later stopped delivery after learning from the Nebraska State Agriculture Department of Animal Husbandry that Wetzel was being investigated on state charges of stealing cattle. On May 28th, Martin traveled to York, met with both defendants, and demanded payment. Wetzel promised Martin to pay him the next day at a restaurant near Waverly, Nebraska. Neither defendant met Martin at any time nor paid him any of the amount due.

First, defendants argue that the not guilty verdict for Wetzel on Count I precludes a conviction on Counts II and III for Wetzel and Count III for Kramer. They argue that the “unequivocal finding by the jury forecloses any criminal act over which the United States District Court had jurisdiction because the cattle were not and could not have been ‘stolen’ (or unlawfully detained) and a part of ‘interstate commerce’ when the wrongful acts of Wetzel * * * were carried out.” Defendants essentially claim that the jury’s finding on Count I means that the cattle were not stolen at the time of transportation of them to Nebraska. Defendants factually point out that a dispute over an inclusion of bulls in the load occurred after delivery in Nebraska, and defendant merely refused to pay for the cattle at the time of delivery.

The Government contends that an “acquittal on the fraud-by-wire count does not signify a jury finding that no scheme existed, particularly in light of the jury’s guilty verdicts on Counts II and III.” Assuming arguendo that there is an inconsistency between the not guilty and guilty verdicts, this court has consistently held in accordance with Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that “inconsistency of a verdict on sepa-' rate counts of an indictment does not entitle a convicted defendant to reversal of a judgment of conviction.” Coil v. United States, 343 F.2d 573, 576 (8th Cir.), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.2d 67 (1965). Although much of the same evidence would be involved in the different counts, a finding of not guilty on Count I would not determine the factual issues or the legal sufficiency of the evidence under Counts II and III. Coil v. United States, supra, at 576, 86 S.Ct. 48, quoting Bryson v. United States, 238 F.2d 657, 663 (9th Cir. 1956), cert. denied, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34 (1957). We reject defendants’ first argument.

Second, defendants argue that there was insufficient evidence to find that the calves were stolen and that they were moving in interstate commerce. Defendants state that Martin voluntarily delivered the cattle to Wetzel and that Wetzel refused to pay for the cattle only because of a dispute over the inclusion of bulls in the load, all of which occurred after delivery in Nebraska. The Government counters by arguing that assuming that the calves were lawfully acquired by Wetzel, his subsequent conduct established that defendant had the requisite intent to steal at the time of the transportation and delivery and that the cattle were stolen while moving in interstate commerce.

In Stewart v. United States, 395 F.2d 484 (8th Cir. 1968), the defendant rented an airplane, kept it under eventually unauthorized circumstances, and was convicted of violating the Dyer Act, 18 U.S.C. § 2312. This circuit approved a trial court’s instruction in that case that stated in part:

Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed “stolen” if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use.

Stewart v. United States, supra, at 491; accord, United States v. McLean, 424 F.2d 513, 514 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 89, 27 L.Ed.2d 91 (1970).

Defendants’ subsequent conduct clearly provided legally sufficient circumstantial evidence for the jury to find that defendants intended to steal the cattle at the time of the transportation and delivery. Wetzel promised to pay Martin, and neither defendant ever met with him as scheduled nor paid for the calves. The question of intention was for the jury to resolve, and we accept the reasonable inference that they must have made concerning defendants’ intention to steal the cattle.

In addition, the jury had sufficient evidence to conclude that the calves were moving in interstate com- ! merce at the time they were stolen. The question of whether the cattle were moving in interstate commerce at the time of the theft was a factual question for the jury to decide. United States v. Briddle, 430 F.2d 1335, 1339 (8th Cir. 1970); Powell v. United States, 410 F.2d 710, 712 (5th Cir. 1969). Even if the calves were deemed to be stolen only after defendants’ failure to pay Martin on May 24th, the cattle were still moving in interstate commerce. Interstate movement does not necessarily cease when property reaches its first destination within a state. We have previously stated that a “sale thereafter may be an incident to the theft and so tied up with it as to constitute the final step of a continuous unlawful scheme.” United States v. Briddle, supra at 1339 quoting Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956). We think that it was well within the jury’s province to conclude that the calves were still moving in interstate commerce when defendants failed to pay Martin several days after delivery of the cattle to Nebraska. Obviously the jury concluded that the whole purported purchase of the cattle was in fact a scheme to steal Martin’s calves. The cattle were shipped in interstate commerce to Wetzel under directions to mail a check immediately upon receipt. This Wetzel did not do and, apparently, never had any intention of so doing.

Considering the facts that defendants received over $19,000 for the cattle and that they own real estate, we think that their financial status allows them to pay also the costs incurred on this appeal, including attorney’s fees paid under the Criminal Justice Act.

Judgment of convictions are affirmed with costs assessed against both defendants.

      . The Honorable Warren K. Urbom, United States District Judge, District of Nebraska, presided.

      . The District Court also assessed each defendant $347.42 pursuant to 18 U.S.C. § 3006A(f), which represented the fees allowed by the court to defendants’ court-appointed counsel at the trial level, since the District Court discovered defendants jointly owned real estate that could be used to pay for their legal representation.

      . Defendants reduced their price on the bull calves to Harms by 50 cents a hundred weight, amounting in all to about fifty dollars.

      . Of course, on appeal, we accept the view of the evidence and all reasonable inferences in regard to the proof that are most favorable to supporting the jury’s verdicts. Hanger v. United States, 398 F.2d 91, 108 (1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L. Ed.2d 124 (1969).

      . Since interpretations of 18 U.S.C. § 2317 are scarce and since 18 U.S.C. § 2312 contains similar language on this issue, Dyer Act cases are used herein to aid in analyzing this case.


author: THORNBERRY, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. GENERAL TELEPHONE COMPANY OF FLORIDA, Defendant-Appellant.
    No. 73-1824.
    United States Court of Appeals, Fifth Circuit.
    Nov. 30, 1973.

      Howard K. Rutherford, James F. Bell, Tampa, Fla., for defendant-appellant.
    Beverley R. Worrell, Regional Solicitor, U. S. Dept, of Labor, Atlanta, Ga., Richard F. Schubert, Solicitor of Labor, Philip A. Yahner, Bobbye D. Spears, U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   THORNBERRY, Circuit Judge:

This case is before us for the resolution of a single issue. We must decide whether section 304(a) of the Consumer Credit Protection Act allows an employer to fire an employee for garnishments that occurred prior' to the Act’s effective date. We believe that it does, and we reverse.

The facts of the case are undisputed. Prior to the Act’s effective date (July 1, 1970), employee Long’s wages had been garnisheed three times for three separate indebtednesses. In October 1971 her wages were garnisheed again, and a month later General Telephone terminated her employment because of her four garnishments. Thus when Ms. Long was fired in November 1971, her wages had been subjected to garnishment once since July 1, 1970, and four times (for three debts) in the last thirty months.

Because Ms. Long had been subjected to garnishment only once since the effective date of the Act, which prohibits discharges on the grounds of garnishment for one debt, appellee claims her discharge was in violation of the Act. The disputed section provides:

No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness. Consumer Credit Protection. Act § 304(a), 15 U.S.C.A. § 1674(a).

We perceive the plain meaning of this passage to be that garnishment is not an adequate reason for firing an employee with but one indebtedness on his record, and it is inconsequential whether the indebtedness and garnishment occurred either before or after the Act’s effective date. We find nothing on the face of this passage to indicate that Congress intended to wipe the slate clean of all garnishments suffered prior to July 1, 1970. It seems to us ■ that Congress could easily have specified that result if it had been desired. It is appellee’s task to convince us that “garnishments” as used in section 304 means “garnishments after July 1,1970.”

In finding for appellee the trial court said the plain language of the Act precludes consideration of pre-Act garnishments. The basic tenet of this theory lies in section 302 of the Act, which defines “earnings” and “garnishment” and, like the rest of the statute, became effective on July 1, 1970. Plaintiff argues that if the definition of garnishment is not operative until July 1, 1970, then wherever that word is used in the Act it must refer only to those garnishments made after July 1.

We cannot agree. The definitions in section 302 seek only to clarify the meaning of certain terms. The definition of garnishment, for example, merely describes and delimits an event which may not serve as a predicate for firing unless it has occurred in connection with two debts. That word, as defined in section 302, does not contain a temporal limitation to prevent the employer from considering garnishments occurring before July 1, 1970. Nor can such a limitation be found in the effective date, which simply means that after July 1, 1970, the employer’s right to fire his workers was restricted. On that date the Act’s prohibitions became operative, and section 302’s definitions help explain the nature and extent of those prohibitions.

Appellee argues, however, that to allow an employer to consider garnishments occurring before the effective date is to give unwarranted retroactive effect to the Act because it would necessitate a retrospective application of the definition of garnishment. Again we disagree. The effect of section 304 is to restrict the employer’s right to fire his workers for reasons of garnishment. If our reading of the Act permits the employer to do what he could do before the Act existed, namely fire workers on garnishment grounds, how can that be called retroactive application? On the contrary, we would be producing a greater retroactive effect if we adopted the Secretary’s position and effectively removed past garnishments from workers’ employment records.

Next it is suggested that we must read the Act as contemplating only garnishments after July 1, 1970, in order to be consistent with section 303, which restricts the percentage of one’s wages that may be subjected to garnishment. This argument notes first that section 303 limits the percentage of one’s wages that may be garnisheed after July 1, 1970. If that section uses “garnishment” to mean garnishment after July 1, then surely section 304’s use of the word must also mean garnishment after July 1.

Our perusal of these two sections leads to a different conclusion. We agree that section 303’s prohibition began on July 1, 1970, and that it limited the percentage of earnings “which is subjected” to garnishment. (Emphasis supplied.) It is directed exclusively at garnishments begun and not yet completed. Section 304, on the other hand, prohibits firing an employee because “his earnings have been subjected to garnishment. . ” (Emphasis supplied.) This section is concerned with completed garnishments as well as ongoing garnishments. Thus the statute itself is “inconsistent” because it uses garnishment in two different senses, and our view of section 304’s meaning remains unchanged.

Although we are unpersuaded by the argument that the statute’s words standing alone, mandate adopting appellee’s interpretation, there is a second ground in the trial court’s opinion that calls for the same result. That ground is the time-honored maxim that courts give deference to the interpretation of the administrator charged with a statute’s administration or enforcement. See, e. g., Udall v. Tallman, 1965, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616. In regard to section 304, the Wage and Hour Administrator has said:

Section 504 of the Consumer Credit Protection Act provides that Title III is to be effective July 1, 1970. Thus the proscription in section 304 against discharge from employment because of the garnishment of personal earnings is effective as of that date. Accordingly, it is our position in enforcing Title III under section 306 that an employer cannot take into account garnishments occurring before July 1, 1970, in applying section 304.

Wage-Hour Administrator Opinion Letter No. 1130 (WH-83), Oct. 8, 1970, CCH Lab.L.Rep. jf 30,697. See also Opinion Letter No. 1136 (WH-89), Oct. 26, 1970, CCH Lab.L.Rep. If 30,703.

Courts generally recognize that an administrative interpretation of a statute is entitled to some deference, but the magnitude of the deference accorded varies with the circumstances. It cannot be argued that such an interpretation is controlling; in the absence of a statute giving an administrator power to make legislative rules, his rulings at best offer guidance to the courts, whose task it is to interpret statutes. Courts are free to substitute their judgment for such an administrative interpretation, but they will usually accord it at least some weight in their deliberations. An administrator’s views merit great weight if there is special agency expertise and lack of court expertise, reenactment of the statute in circumstances which indicate legislative approval, a longstanding interpretation, or an interpretation made at the time of the statute’s enactment by administrators who were especially informed of the legislative intent (“contemporaneous construction”). K. Davis, Administrative Law Text § 5.03. See also K. Davis, Administrative Law Treatise § 5.05; Zuber v. Allen, 1969, 396 U.S. 168, 192, 90 S.Ct. 314, 327, 24 L.Ed.2d 345.

In the instant case the only one of these four factors even arguable present is contemporaneous construction in the form of the opinion letter quoted above. The opinion letter, however, was authored in October 1970, some twenty-nine months after the Act’s passage in May 1968 and too far removed in time to be considered contemporaneous. Therefore the Administrator’s view of this issue is entitled to some deference but not great weight.

Even after according his interpretation some degree of deference we believe it is contrary to the plain meaning of section 304. We agree that Congress meant to give workers “simultaneous and uniform protection,” but we find nothing in the statute to indicate that the protection given was meant to be so broad as the Administrator believes. Therefore we will exercise our prerogative of departing from his interpretation.

The next argument in favor of the Secretary’s position is that his interpretation conforms with the purpose of the Act as expressed in the Act itself. We recognize, as section 301 points out, that this statute was intended to combat the by-products of garnishment: predatory extensions of credit and loss, of employment. The Congress, however, did not choose to outlaw all firing on the basis of garnishment. Instead it chose the compromise measure of letting the employee have one indebtedness and its accompanying garnishments without jeopardizing his job security. Even under the Secretary’s interpretation if the employee suffers two garnishments for two debts after July 1, 1970, he may be fired. Hence we conclude that section 304’s purpose is to provide partial protection for the worker, and that purpose is consistent with both parties’ interpretations.

The statute’s legislative history is also consistent with both interpretations. In fact the legislative history is singularly unhelpful on the point before us. Although each party contends that it supports his point of view, we see nothing more than legislators reiterating that the Act prohibits “discharging any employee by reason of a single garnishment” and similar statements. These statements do not answer the question whether the “single garnishment” must occur after the Act’s effective date. Therefore the legislative history adds nothing to the plain language of the statute.

The previous judicial treatment of this statute is similarly inconclusive and unhelpful. Defendant-appellant cites two district court cases in its favor and the Secretary cites one that supports his view. No other circuit court has yet dealt with this question.

The Secretary’s concluding argument is that even if we choose not to adopt his view of section 304’s meaning, we should find that General Telephone discharged Ms. Long for one garnishment because there was a twenty-month gap between the last garnishment and the previous one. Whether or not defendant fired Ms. Long solely because of her last garnishment, without regard to the previous three, is not a question that can be raised before this court on appeal. That contention should have been raised before the trial court for resolution in its findings of fact.

Since the Secretary has not raised an argument compelling enough to warrant giving section 304 a gloss different from its plain meaning, we hold that the Consumer Credit Protection Act does not preclude firing employees because of pre-Act garnishments. We do not regard this holding as the death knell for section 304; had we adopted the Secretary’s position an employee could nonetheless be fired after only two post-Aet garnishments. That is the maximum employee protection any court could possible read into this statute. Had Congress so chosen it could have adopted the approach of the Uniform Consumer Credit Code § 5.106 by prohibiting garnishment discharges altogether. It chose instead to protect only those whose wages had been garnished for one debt.

By giving debtors limited, incomplete protection from discharge, Congress chose not to burden employers with those chronically unable to manage their financial affairs. Our decision today reflects that choice. Those with many debts and garnishments on their records will be exposed to termination, while those falling into debt and experiencing garnishment for the first time will find a haven in the Consumer Credit Protection Act.

The judgment of the district court is reversed.

      . 15 U.S.C.A. § 1674(a).

      . Section 302 provides :
      § 1672. Definitions.
      For the purposes of this subehapter:
      (a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
      (b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
      (c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be Withheld for payment of any debt. 15 U.S.C.A. § 1672.

      . Section 303 provides:
      § 1673. Restriction on garnishment- — Maximum allowable garnishment
      (a) Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed
      (1) 25 per centum of his disposable earnings for that week, or
      (2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206(a) (1) of Title 29 in effect at the time the earnings are páyable, whichever is less. In the ease of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).
      Exceptions
      (b) The restrictions of subsection (a) of this section do not apply in the ease of
      (1) any order of any court for the support of any person.
      (2) any order of any court of bankruptcy under chapter XIII of the Bankruptcy Act.
      (3) any debt due for any State or Federal tax.
      15 U.S.C.A. § 1673.

      . In his opinion letter of October 26, 1970, the Wage-Hour Administrator said:
      From our study we are convinced that there was a Congressional purpose to afford simultaneous and uniform protection to all wage earners as of the effective date with respect to the restrictions contained in both sections 303 and 304. This can only be achieved by excluding all garnishments having no force and effect as of the effective date in applying the restrictions of not only section 303 but also those of section 304.
      Opinion Letter No. 1136 (No. WH-89), Oct. 26, 1970, CCH Lab.L.Rep. K 30,703.

      . 1968 U.S.Code Cong. & Admin.News, p. 1978.

      . “Section 203 prohibits the discharge of any employee by reason of the fact that, on one occasion, his compensation has been subjected to garnishment.” Id. at U.S.Code Cong. & Admin.News, 1968, p. 1989. In a like vein is the statement, “The amendment further prohibits an employer from firing an employee on occasion of a single garnishment on the latter’s wages.” Id. at U.S.Code Cong. & Admin.News 1968, p. 2017.

      . Hodgson v. Giant Snacks Co., N.D.Cal. 1973, 71 L.C. ¶ 32,884; Hodgson v. Consolidated Freightways, No. 71-382 (D.Ore., Apr. 11, 1972, unreported). These cases have been consolidated and now are pending ^before the Ninth Circuit Court of Appeals.

      . Nunn v. City of Paducah, W.D.Ky.1973, 72 L.C. H 46,123 [Aug. 20, 1973, No. 21490].

      . U-CCC § 5.106 provides:
      No employer shall discharge an employee for the reason that a creditor of the employee has subjected or attempted to subject unpaid earnings of the employee to garnishment or like proceedings directed to the employer for the purpose of paying a judgment arising from a consumer credit sale, consumer lease, or consumer loan.
      Uniform Consumer Credit Code § 5.106 (Final draft, 1968).