author: COLEMAN, Circuit Judge:

text:
    Robert SHULER and Jerry Chatman, Petitioners-Appellees, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant.
    No. 72-2481.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.

      Robert L. Shevin, Atty. Gen., Tampa, Fla., Gordon G. Oldham, Jr., Leesburg, Fla., Dan R. Warren, Daytona Beach, Fla., for respondent-appellant.
    Tobias Simon, Elizabeth J. duFresne, Miami, Fla., Jack Greenberg, Charles S. Ralston, Jack H. Himmelstein, New York City, Anthony G. Amsterdam, Stanford University Law School, Stanford, Cal., for petitioners-appellees.
    Before COLEMAN, AINSWORTH and DYER, Circuit Judges.
   COLEMAN, Circuit Judge:

This is an appeal from a judgment granting habeas corpus relief to Robert Shuler and Jerry Chatman, Shuler v. Wainwright, 341 F.Supp. 1061 (M.D., Fla., 1962). In part, we reverse the judgment of the District Court and we remand the remainder for further proceedings.

In Lake County, Florida, on the night of March 10, 1960, a fifty-six year old spinster, who lived alone, was driven from her home by burglarious intruders, cruelly beaten, and brutally raped. A doctor testified that she was incompetent during her hospitalization for the injuries sustained in the attack and she was shortly thereafter committed to a mental institution.

The state trial transcript reflects evidence abundantly supporting the guilty verdict. L. V. Summers testified that he accompanied the defendants to the solitary home and remained there for part of the housebreaking activities, but abandoned the enterprise before the rape was committed, waiting a short distance away for his companions. He further testified that when Shuler and Chatman rejoined him in about half an hour they said “they had to kill her” but they got “it”. Obviously, the victim of the attack was either unconscious or so comatose that the assailants thought they had, in fact, killed her. She managed to walk, however, to a neighbor’s home, about half a mile away, where she collapsed in a pool of blood, and the officers were called. Upon her arrival at the hospital she was promptly examined by a doctor, who told the jury that her sexual organs were severely torn, that she was bleeding from that region, and that he found live male sperm therein. Moreover, her skull had been laid bare by a stroke from some blunt object, ribs were broken, and teeth had penetrated the cheeks.- There was much other proof, including the confessions of the defendants which are not at issue in this appeal. The defendants offered no testimony. Defense counsel made no argument for a verdict of not guilty but offered an eloquent plea for mercy, that is, that the jury should not assess the death penalty.

The convictions were affirmed on direct appeal by the Supreme Court of Florida, 132 So.2d 7 (1961). The Court held that the evidence had established the corpus delicti and that the confessions were voluntarily made. These were the only issues decided.

On September 25, 1962, represented by counsel, the convicts filed a new petition for habeas corpus relief, which the Supreme Court of Florida ultimately rejected, Shuler and Chatman v. State, 161 So.2d 3 (1964), of which more will be said later in this opinion.

On May 28, 1964, still represented by counsel, Shuler and Chatman filed a petition for federal habeas corpus relief. It was this petition which resulted, approximately eight years later (May 4, 1972), in the judgment now presented for review.

By agreement of the parties, the District Court rendered its decision solely on the state court records.

The issues will be considered and decided in the order of their decision below. In so doing, we are governed by the provisions of 28 U.S.C., § 2254(d) which provides that a determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. Under this statute the burden was on the petitioners to establish by convincing evidence that the state court determination was erroneous, LaVallee v. Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

I

Were the Petitioners Convicted in Violation of.the Due Process Clause of the Fourteenth Amendment through the State’s Knowing and Deliberate use of Faked Plaster Foot Casts as Evidence ?

This allegation caused the Supreme Court of Florida to appoint retired State Circuit Judge, L. L. Parks, as a Special Commissioner to try the facts, make findings of fact, and report. At the close of a two day hearing, and after argument of counsel, the Commissioner stated verbally that the allegations with reference to faking the plaster casts of the footprint impressions at the scene of the crime had not been proved, that he did not believe the testimony offered on behalf of the petitioners, and that he did believe the testimony offered on behalf of the State. He told counsel for the petitioners, “I think you made out a good case on paper but you did’nt make it when it came to the testimony”.

Subsequently, the Commissioner filed his written report with the Supreme Court of Florida, which we do not repeat here since it is set forth in full, Shuler v. State, 161 So.2d 3 (Fla., 1964).

The Supreme Court of Florida approved the report, held that the petitioners had failed to carry their burden, that the record evidence was ample to sustain the findings of fact and conclusions drawn by the Commissioner, and dismissed the petition for the writ of habeas corpus.

The District Court discussed at length, 341 F.Supp. 1067-1070, the evidence offered on behalf of the petitioners to support their contention that the footprint casts were faked, but neither mentions nor analyzes the proof offered on behalf of the State, in negation of the alleged fakery. The District Court opinion accepts altogether the testimony which the trial Commissioner expressly declined to believe; it ignores the testimony which the Commissioner specifically stated that he did believe.

Remembering that the petitioners had the burden of establishing by convincing evidence that the state court decisions were erroneous, LaVallee v. Rose, supra, we now proceed to a consideration of that question.

Some months after these petitioners had been tried and convicted, two former Lake County deputy sheriffs, Thomas Ledford and Noel Griffin, who had been fired from their positions, made the public accusation that the plaster of parís footprint casts introduced at the original state court trial had been fraudulently manufactured by deputy sheriff L. G. Clark in his own back yard. The District Court opinion does not mention that neither Ledford nor Griffin claimed to have seen this done but asserted only that Clark had told them he did it. At the Commissioner’s hearing, Ledford, who had testified at the trial of the defendants, was again a witness. He swore that there were only three partial footprints at the crime scene when he and Griffin arrived, that it had rained that night, which would have substantially erased any footprints except the three which he had covered with pots and pans. He further testified before the Commissioner that what he covered “was a definite heel print”, “a kind of a half track”, and “a partial print, just a toe print from about the arch of the foot on out”. This was inconsistent with the testimony given at the trial of the defendants, in which Ledford told of covering the tracks with pots and pans, making no mention of their quality.

The former deputy, Griffin, likewise testified at the Commissioner’s hearing that there were only three partial footprints at the crime scene when he and Ledford arrived, that it rained after the prints were covered, that the victim had chickens which would have destroyed any other prints, and that the deep sand around the house would not admit of perfect prints. Therefore, Griffin testified that the footprint casts introduced at the trial could not have possibly been made at the crime scene.

Also, at the hearing before the Commissioner, two special agents of the F.B.I. gave it as their opinion that for various reasons, set forth in the opinion of the District Court, the plaster of parís foot casts could not have been made at the crime scene or did not fit the shoes of the defendants.

The opinion of the District Court, granting habeas relief, 341 F.Supp. 1067-1070, sets forth all of the above testimony and accepts it at face value as if it had not been contradicted.

There was no discussion of the testimony offered before the Commissioner on behalf of the State on which the Commissioner based his rejection of the testimony for the petitioners and his acceptance of the testimony for the State. Under the procedure prescribed by LaVallee we must analyze that evidence.

Assistant State’s Attorney John W. McCormick testified that he was in court at Brooksville, Florida, when notified of the attack on Charlotte Wass. A highway patrol car conveyed him from Brooksville to Okahumpka, where he was picked up by deputy sheriff Thomas Ledford. He definitely recalled being told by Mr. Ledford that there were numerous footprints at the scene. When Attorney McCormick arrived at the scene, “there were tracks underneath the windows, * * * and then tracks leading from the window going out and turning, * * * and one track dug in like this”. That same day Mr. McCormick saw the casts made of those tracks and was informed at that time that the shoes worn by the defendants when arrested did not fit the casts. He advised the officers to attempt to locate shoes which might have been discarded after the commission of the offense. He was at the jail when some of those shoes were brought in after one of the defendants told the officers where to look for them. Some of the shoes were found that night and the others the next morning.

Lake County deputy Joseph Harry Spence was one of the officers who picked up Miss Wass at the home to which she had fled and drove down by her house on the way to the hospital: “I saw all these tracks and the screen door at the east side of the house was torn off and lying on the ground and the front door, a half-glass door, the glass was broken out”. So, he sent Miss Wass to the hospital by another officer and remained at the scene the remainder of the night and all the next day to see that the footprints were not disturbed by visitors. There was sand all around the house. There were several tracks around the windows, at the front door, and at the back door, and there were “plenty of tracks all around the house”. He saw deputy Ledford cover several tracks with pots and pans, at least four or five of them.

He was present when Mr. Clark and Mr. Yates poured the tracks, at least six sets of them, on Friday morning. The weather was threatening, but it wasn’t raining.

Willis V. McCall, who had been Sheriff of Lake County since 1946, testified that he arrived at the scene of the crime sometime between 7 and 8 o’clock of the morning immediately following its occurrence, that the weather was cloudy but it certainly had not been raining prior to the time the casts were taken of the footprints. There were plenty of footprints around the Wass house, some of them obviously made by people running away from the house, “You could tell where they walked all over the yard”, that there were several good tracks which had not been covered. Sheriff McCall further testified before the Commissioner that he saw the casts of the footprints being poured, some had been covered by cans while others had been covered by boxes obtained at a nearby labor camp. He further testified that these casts did not fit the shoes which the defendants were wearing when taken into custody. The officers were told, however, by Levi Summers (the companion of Shuler and Chatman on the night of the offense) that the men had thrown their shoes away near the clay pit. Searches of the area produced the shoes and when found they matched the plaster casts.

Lake County deputy Sewell testified that there were plenty of tracks around the house, as did Lake County deputy Collis M. Godwin, who arrived at the scene about 2 o’clock on the afternoon of March 11. Mr. Godwin saw many footprints around the house and on a path leading away from the house. When they were dry, he helped pick up some of the plaster casts of the footprints and carried them to the courthouse, where they were turned over to the ID room.

Thomas E. Hanson, a citrus grower, who kept a daily record of rainfall taken from a gauge on the lake about three miles from the scene testified that there was no rain at his location between March 3 and March 12. There was Vio of an inch of rain on March 12, followed by heavy rains on March 15, March 16, and March 17, the total for the three days being 11.3 inches.

Since deputy Spence remained at the house the remainder of Friday night and all of Saturday and allowed no interference with the tracks left at the scene by intruders, the testimony of this preponderant number of witnesses, whose testimony he believed, justified the Commissioner in concluding that both Ledford and Griffin had testified falsely when they claimed that there were only three partial footprints at the scene and that no plaster casts of footprints could have been obtained there.

This, however, does not end the matter.

Deputy Spence saw the plaster of parís poured in the tracks. Since there was no water at the house he had to go down to the lake with a bucket to get the water with which to mix the material to pour in the tracks. Interestingly enough, deputy Spence, who gave clear and positive testimony, had not been informed that he was to be a witness in the hearing before the Commissioner until he was sent for just a few minutes before he took the witness stand.

Dputy sheriff Douglas Sewell, who had been serving in that capacity since 1949, arrived at the rape scene about 9 o’clock on the morning of March 11. When he got there, Mr. Spence and Mr. Yates were making plaster of parís east footprints; “there were tracks all around the place; all around the house there was good tracks”. That same afternoon, about dark, he saw the casts in the ID room at the courthouse. It was not raining when he was at the Wass place, he was one of those who went to look for the discarded shoes and found some of them on the Montclair and Fruitland Road near the clay pits. He was present when the newly found shoes were compared to the cast impressions and the one he was handling “fit”.

James L. Yates, had been chief criminal deputy for Lake County since 1947. He was a graduate of F.B.I. schools and was experienced in ceramics and easts. He testified that about 8 o’clock on Friday morning, March 11, he arrived at the scene: “Mr. Spence had some tracks covered up there and I poured those tracks. He showed me, and found another track out on the road—a track from the house out to the dirt road out there, and I poured that one”. He poured six tracks in all.

L. V. Summers, who had testified against the defendants at the trial on the merits, testified in the hearing before the Commissioner. He admitted that he was at the Wass house but repeated that he did not have anything to do with the rape, that the next day after the alleged rape he saw the footprint casts in the custody of Lake County officials, he was asked about the shoes that were worn at the crime, and told the officials that the shoes had been thrown away out on the Montclair Road. When the shoes were brought in, he identified those belonging to him.

In the face of this abundance of proof, accepted by the Commissioner, who saw the witnesses and heard them testify, we are compelled to hold that the rejection of the findings of the Commissioner, approved by the Supreme Court of Florida, as to the alleged faking of the footprints failed to comply with 28 U.S.C., § 2254(d).

Another aspect of the alleged faking of the footprint casts was Ledford’s testimony that at a pretrial conference of the witnesses, State Attorney Gordon G. Oldham, Jr., instructed the witnesses that they “were not to mention rain in any part, portion, or any way during this trial, because if we did it would mess things up”, opinion of the District Court, 341 F.Supp. at 1068.

Ledford’s testimony in this regard was overwhelmingly refuted by the testimony of others present at the conference, including Oldham himself.

Before the Commissioner, Oldham testified that neither deputies Griffin or Ledford made any remarks about rain at the witness conference and he “absolutely” did not at any time during that conference instruct any witness not to mention rain.

This testimony was fully supported by the testimony of Sheriff McCall, Lake County deputy Joseph Harry Spence, deputy Sewell, and Lester W. Thompson, of Tallahassee, an employee of the Florida sheriff’s bureau. Additionally, a private citizen, Leon B. Smith, who lived about a mile from Fruitland Park, a witness, was at the pre-trial conference and heard no such remarks as those attributed to Mr. Old-ham. The District Court opinion makes no mention of this testimony. Since the Commissioner rejected the testimony offered on behalf of the petitioners and accepted that on behalf of the State, the evidence clears Mr. Oldham of any reflection on his professional integrity.

II

Did the Failure to Voluntarily Furnish the Defense with a Copy of the Wass Statement of March 11, 1960 Violate the Due Process Clause ?

At 1:30 o’clock on the afternoon following the attack on Miss Wass, Assistant State’s Attorney McCormick attempted to take a statement from her at the hospital. We are at a loss to understand why he placed her under oath and had the questions and answers taken down by a court reporter. The statement reveals no indicia of a dying declaration and thus could not have been used at trial even if Miss Wass had died. It consumes twenty-one pages of the Appendix [346-367].

The defense made no request for the statement and was not furnished a copy of it. The failure to supply it voluntarily is the second ground upon which the District Court granted habeas relief to both Shuler and Chatman.

The case against them was tried beginning July 5, 1960. The Supreme Court decided Brady v. Maryland on May 13, 1963, almost three years later.

Although the prosecutor is not to be charged with a gift of prophecy which should have given him advance notice of the Brady decision, and although we are aware of no case holding in so many words that Brady is to be given retrospective effect, we shall decide this matter as if the case had been decided prior to the trial in I960.

We now discuss the statement from a factual standpoint, to be followed by a consideration of the applicable law.

First, it is to be remembered that when Miss Wass made the Friday afternoon hospital statement she was in a badly bruised, battered, lacerated, befuddled condition, only about twelve hours subsequent to the receipt of her injuries.

As already recited, Dr. George Engelhard examined Miss Wass upon her arrival at the hospital, treated her thereafter, and signed the papers for her commitment by the county court to a mental institution. He testified at the original trial that she was incompetent. The record does not reveal how long she stayed at the mental hospital, but she was still there at the time of the trial.

Attorney McCormick testified before the Commissioner that he had a hard time questioning her because she was “so beaten and befuddled, she was incoherent”.

Lester Thompson, the previously mentioned employee of the Florida sheriff’s bureau, testified that he saw Miss Wass at the hospital in Leesburg on Saturday afternoon, March 12. He attempted to interview her, and “she was rather vague—she really did not know too much what had occurred, except she remembered some individuals being at her home. She just didn’t know”.

We have personally examined the twenty-one page question and answer statement, as transcribed by the court reporter. It is highly rambling, hazy, and disjointed. It did assert that two men came to the Wass home and knocked on her doors and windows. She asked who was there. They left and she thought they would not come back. Later, they did return, broke into her house, and ransacked it. At one time she thought she would run them away by throwing a pan of water in their faces. She described her efforts to fight off her assailant or assailants. She thought that when she tried to run out of the house she had been struck with something like a hammer (the evidence at the trial showed that she was struck with a pistol butt with such force that it was broken). Apparently, there was no light in her house, but the moon was shining, and she thought the older of the two “must have been in his forties or close to his fifties”, although the record shows that he, Chatman, was 23, while Shuler, the younger of the two, was 20. She thought the younger was “about seventeen”.

At one point she said, whether he raped me or not, I don’t know, because all I know he just kept strangling me, strangling me, and strangling me”. At another point she said, “now, I believe that he raped me, I really do”. She said the younger man had not touched her but he had ransacked the house, demanding money.

As described by the examining physician, the physical facts would clearly satisfy a reasonable mind that the woman had been raped. The only question was the identity of the rapist or rapists. The testimony of their companion, L. V. Summer, fixed the identity on Shuler and Chatman, either as principals or as aiders and abettors. He told how they planned the burglary-robbery, how they put on old shoes to disguise their tracks, how they said upon their return to the car that they had to kill her, that they got no money, but they got “it”, and how they threw away their shoes on the way home. This was enough to make their guilt a jury issue, without the confessions, the footprint casts, the bloody handkerchiefs, the bloody clothes, or other items in evidence.

At the hearing before the Commissioner, counsel for the petitioners twice argued that the statement was “favorable” or “exculpatory” as to the younger man, Shuler, because it would show that “one of the defendants never touched her”. How this statement, emanating from a beaten, befuddled, incompetent woman, would help an aider and abettor, was not demonstrated. Conceivably, if it had not been contradicted by so much other proof, it might have helped avoid the death penalty. That issue, however, is now moot by operation of the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In any event, counsel never suggested that the statement might have been of any value to the defendant Chatman, and made no such argument in the memorandum filed with the United States District Court.

With this discussion of the factual circumstances and the contentions of the parties in the state courts, we now turn to the law. We do not have to travel far to find it.

At the outset, it must be recognized that this is not a case in which the prosecution deliberately presented a false picture of the facts by (1) knowingly using perjured testimony, since Miss Wass did not testify at the trial, or (2) failing to correct testimony when it became apparent that it was false, or (3) actively suppressing evidence known to be exculpatory after a request to produce it. As to Point 3, appellees argue that they could not have known to request a statement when they were ignorant of its existence, but this is not a valid argument. Had the defense wished to avail itself of the principle later made plain by Brady, it could have easily called on the State to present all statements, documents and similar material in its possession exculpatory of either of the defendants. From the facts already stated, it cannot be said that Miss Wass’ statement was of such “high value to the defense” that it could not have escaped the attention of the prosecution, United States v. Bonanno, 2 Cir., 1970, 430 F.2d 1060.

Rather, this is clearly a case in which the State passively or negligently failed to offer it voluntarily to the defense, and there is no evidence in this record to support an argument to the contrary.

The most recent Supreme Court ease in this field is Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). This was a case in which the identity of a murderer was a disputed crucial issue. The defense had moved for disclosure of all written statements taken by the police from any witness, to which the State agreed. It was later argued that six items of evidence, unknown to the defendant at the time of the trial, were not produced and were, in fact, suppressed by the State. Among the statements not given the defendant was an F.B.I. report, which the prosecuting attorney asserted he did not recall having seen before or during the trial. Other inconsistencies, based on statements of various witnesses, were alleged to have been withheld. Moore contended that the defense could not be expected to make a request for specific evidence that it did not know was in existence.

The Supreme Court held:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution’s conduct in Moore’s case is to be measured.”
* * * * * *
“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.”

Another Supreme Court case, Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) laid down the following guidelines:

(1) Deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. The same results obtain, when the State, although not soliciting false evidence, allows it to go uncorrected when it appears;

(2) When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within the rule;

(3) The rule however does not automatically require a new trial whenever a combing of prosecutors’ files after trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict (emphasis ours). A new trial is required if false testimony could in any reasonable likelihood have affected the jury.

In United States v. Johnson, 5 Cir., 1974, 487 F.2d 1318, 1325, we have recently held:

“The rule is that presentation of known false evidence, and nondisclosure of evidence affecting credibility, are grounds for retrial if the deception was material, that is if it might ‘in any reasonable likelihood have affected the judgment of the jury’.” (Citing Giglio v. United States, supra)

Last year, in Davis v. Heyd, 5 Cir., 1973, 479 F.2d 446, we stated that the real question is whether the prosecution failed to disclose evidence so material to the guilt or innocence of the accused that he was denied a fair trial under the teachings of Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

These cases are in line with what the Tenth Circuit said in United States v. Harris, 10 Cir., 1972, 462 F.2d 1033, 1035 :

“In cases involving the deliberate suppression of exculpatory evidence the courts will not inquire into the elusive question of actual prejudice affecting the result of a criminal prosecution. But where, as here, the denied evidence results from what might be termed unintentional and passive (though not excusable) nondisclosure a different test is indicated. The test must be whether the trial was merely imperfect or was unacceptably unfair. As a general rule, a new trial is not necessitated because of newly discovered evidence of a cumulative or impeaching nature unless its potential impact upon the result of the trial is apparent.” King v. United States, 10 Cir., 402 F.2d 289; United States v. Gleeson, 10 Cir., 411 F.2d 1091.

In United States v. Teague, 7 Cir., 1971, 445 F.2d 114, 121, it was said:

“The defendant has not shown to us any possible prejudice by the suppression of the evidence. ... It could, in no way, devalue the strong case the government had proved against him. . . . We do not believe that it would have led the jury to entertain a reasonable doubt of the defendant’s guilt.”
“Negligent or even intentional) failure of the prosecutor to disclose an additional item of impeaching evidence would not invariably require that a verdict be set aside * * *. The test, however, is * * * whether * * * there was a significant chance that this added item, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction”, United States v. Miller, 2 Cir., 1969, 411 F.2d 825, 832; United States v. Bonanno, 2 Cir., 1970, 430 F.2d 1060.

Quite obviously, the defense could not have used this statement in evidence for any purpose but the possible impeachment of Miss Wass if she had taken the witness stand either for the State or as a hostile witness called by the defense. If the statement could have been admitted under any other evidentiary theory, it ordinarily would have been competent as a whole, not in part, including the stranglings and the hammer blows.

Neither side called her, for the obvious reason that she had been committed about three months previously to a mental institution. It is true that a lunatic may be allowed to testify if he is able to apprehend the obligation of an oath and give a correct account of matters he has seen or heard, District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Lockard v. Parker, 4 Cir., 1948, 164 F.2d 804; Henderson v. United States, 6 Cir., 1955, 218 F.2d 14, 50 A.L.R.2d 754, cert. denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253.

If a patient in a mental institution is offered as a witness, the opposing party has a right to challenge his competency, whereupon it becomes the duty of the Court to make such examination as will satisfy it of the competency or incompetency of the proposed witness. While the form of the examination rests in the sound discretion of the Court, it is the better practice for the trial judge either to question the witness himself or to be present when the examination is conducted by counsel, and to rule on the basis of the evidence heard. Of course, the trial judge is not limited to an examination of the witness alone, but, in its discretion, may hear evidence from doctors, acquaintances, or other sources calculated to lead to a correct appraisal of the competency of the witness. The findings of the trial court may not be rejected on review except for an abuse of discretion, Henderson v. United States, supra; Florida Power and Light Company v. Robinson, 68 So. 2d 406 (Fla., 1953).

Therefore, either the State or the defendants could have called Miss Wass as a witness in this case, and whether she would have been allowed to take the stand could have been determined by the foregoing principles.

Both the State and the defense had the option of attempting to qualify Miss Wass, but neither had the obligation to do so. The State, as the record reveals, was able to prove its case without her. It did not have to take the chance of reversing a conviction through the use of a mentally ill person, whose conduct and behavior on the witness stand might be highly unpredictable and thus turn out to be highly prejudicial.

It appears most reasonable that Miss Wass, if her competency could have been established, would have been the last person the defense wished to see at the courthouse. She was the only eye-witness. Her testimony would have lifted the proof from circumstantial to direct. The personal presence of the rape victim would have been far more injurious to Shuler and Chatman than her absence.

Thus, the defense quite wisely chose to make no effort to call her. We think this disposes of any argument that if the defense had known of her statement it might have sought to call her, United States v. Bonanno, 2 Cir., 1970, 430 F.2d 1060. Thus, the failure to present the statement cannot reasonably be said to have prejudiced the defendant’s preparation for trial. The defense is bound to have known, as a matter of common sense, that the State had talked to the victim and had taken statements, oral, written, or both. Yet, it did not ask for their production.

The Confrontation Clause of the Sixth Amendment applies to evidence actually disclosed at trial and a defendant has no right to confront a “witness” who provides no evidence at the trial, United States v. State of New York, 2 Cir., 1970, 426 F.2d 1176, 1184, and the cases there cited.

In this state of the record, there is no substantial basis for a conviction that the petitioners met the burden of showing that the negligent or passive failure of the State to produce the Wass statement amounted to a denial of due process. It might not well have been determinative of guilt or innocence, Giglio v. United States, supra; there appears no reasonable likelihood that it would have affected the judgment of the jury, United States v. Johnson, supra; it cannot reasonably be said that it denied the defendants a fair trial under the teachings of Davis v. Heyd, supra; its potential impact upon the result of the trial is not apparent, United States v. Harris, supra ; it could not in any way have devalued the strong case proved by the State, United States v. Teague, supra; and its absence in no way foreclosed the calling of Miss Wass as a witness, had the defense chosen to attempt it. United States v. Bonanno, supra. This situation did not involve a witness about whom the defense knew nothing.

It necessarily follows that the District Court should not have awarded habeas corpus relief for failure to furnish the defense with a copy of the statement.

III

The Illegal Searches and Seizures

The opinion of the District Court on this subject, 341 F.Supp. at 1072, opens with the statement, “It is undisputed and uncontradicted by the parties and this Court therefore finds that petitioner Robert Shuler was a paying tenant with Levi Summers in a room in the home of his grandfather and landlord, L. C. Clarett [spelled Cleary in the transcript of the state court trial]

We have combed the record with total thoroughness and we are unable to find any place in which the petition for the writ of habeas corpus alleged, or the testimony stated, that Shuler was a paying tenant in the home of his grandfather.

Be that as it may, the record is likewise bereft of any indication that any state court has held a hearing or made findings of fact from the state court record on any of the following subjects: (1) whether or not Shuler was a paying tenant; (2) whether the consent of L. C. Cleary for the search of his home, occupied by his grandson, Shuler, was freely and voluntarily given; and (3) whether there was ever any search conducted at the home of Jerry Chatman, the convicted co-defendant. Although counsel for the defendants objected strenuously at the state court trial as to the involuntary character of the defendants’ confession, as to which there was an extended hearing before the trial judge outside the presence of the jury, and although the admission of articles taken from Cleary’s home and allegedly given to the officer by Chatman’s wife were objected to as irrelevant, there was no objection as to either the Shuler or Chatman articles on unreasonable search and seizure grounds. It is true that the Supreme Court of Florida, in the memorandum decision above alluded to, rejected Shuler and Chatman’s pro se search and seizure habeas petitions. These petitions, however, were couched in conclusory terms only, with no allegation of the facts. We are bound to conclude that, although the parties stipulated otherwise in the United States District Court, there has never been a state court disposition and no exhaustion of state court remedies as to the legality of the acquisition of this particular evidence against Shuler and Chatman.

We conclude therefore that that part of the judgment of the District Court which invalidated the acquisition of this evidence as having been the product of unlawful searches and seizures must be vacated and remanded to the District Court, in order that these issues may, in turn, be remanded to the state courts for an appropriate exhaustion of state remedies. This will be done in keeping with the teachings of the Supreme Court in the recent cases of Schneckeloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and United States v. Matlock, — U.S. —, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

For the benefit of the record, with reference to the seizure of the articles at the home of L. C. Cleary, we note that the present record contains the testimony of Lake County deputy Joseph Harry Spence, who testified as follows:

“When we returned there, L. C. Cleary was out in the yard and he met us and Deputy Yates explained to him what we were there for, and he told us to come on in, and we were looking around in Robert and Levi’s room and under Robert Shuler’s bed I found a pair of shorts with blood all over the fly of the shorts.”

At pages 108-111, 113 of the Appendix, is found the testimony of James L. Yates, chief criminal deputy of Lake County since 1947, who testified that right after he had poured the track at the Wass residence he found a place in the yard, torn up by scuffling, and there were two bloodstained handkerchiefs together on the ground. One was a monogrammed handkerchief and one was a plain handkerchief. He then went over to L. C. Cleary’s house, the grandfather of Robert Shuler,

“And there I asked him could I go in the house and look at any shoes or clothes that either Robert Shuler or Levi Summer had there, and he said yes, and I went in there with L. C. Cleary and found five monogrammed handkerchiefs that matched the one I found over there at the Wass house.”

The monogrammed handkerchief found at L. C. Cleary’s had the same initials and the same pattern as the bloodstained handkerchief found at the scene where the scuffle took place. When the bloodstained handkerchief and the handkerchief found at Cleary’s were admitted into evidence, the defense stated that it had “no objection”.

With reference to certain articles introduced in evidence against Jerry Chat-man, Joseph Harry Spence, Lake County deputy, testified:

“I went back Saturday morning to his home [Jerry Chatman’s] and his wife, Daisy, gave me the clothes that Jerry was wearing on Thursday night, the night of this attack up at Miss Wass’s and also a pistol that Jerry was supposed to have had. Jerry had told the sheriff that he had the gun and where it was in Leesburg at his home, and Daisy got the gun and his clothes and gave them to me, and Mr. Godwin was with me at the time.”
* * * * * *
“This is a pair of shorts of Jerry’s —Jerry Chatman’s—and his wife gave me these shorts and a pair of khaki pants at his home.”

As to Chatman’s shoes, chief deputy James Clark testified that “I went to Jerry’s house and asked his wife for them and she went in the house and got them and brought them out and gave them to me”.

It is not our function to make findings of fact; therefore, the state courts must first perform this function.

As to the issues concerning the footprint easts and the failure to furnish a copy of the Wass statement of March 11, 1960, the judgment of the District Court is reversed. As to the acquisition of the evidentiary items from the homes occupied by the petitioners, the judgment of the District Court is vacated and remanded for further proceedings not inconsistent herewith.

      . The verdict of the jury was for the death penalty. This, however, has been abrogated by the decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . About a year after the decision of the Florida Supreme Court, Shuler and Chatman each filed pro se handwritten petitions for habeas corpus relief, alleging that the confessions were involuntary. Both petitions were denied without opinion, Shuler v. Cochran, 146 So.2d 380 (Fla., 1962) ; Chatman v. Cochran, 146 So.2d 380 (Fla., 1962). The voluntariness of the confessions was an issue raised by the petition for the writ of habeas corpus in the federal district court. It was not decided there, apparently on the theory that the issues herein treated necessitated relief without reaching the matter of the confessions. Our decision does not turn on anything contained in the confessions. Since the District Court decided nothing with reference to them we have deliberately refrained from reading them.

      . Appendix, 691.

      . Id., 567.

      . Id., 583.

      . Id., 544, 558.

      . Id., 642.

      . Id., 649.

      . Id., 659.

      . Id., 598.

      . Id., 633.

      . Id., 108.

      . Id., 627.

      . Deputy L. G. Clark, accused of tlie faking, did not testify. After considerable newspaper publicity by one of the daily papers in the area, a grand jury had indicted him for faking the prints. The indictment was pending at the time of the Commissioner’s hearing. Both the petitioners and the State attempted to adduce Clark as a witness. He was present, but his counsel, Chester Bedell, Esq., objected under the Florida Bill of Bights prohibiting forced possible self incrimination. The indictment was later dismissed under the state statute of limitations. The Commissioner reported to the Supreme Court of Florida, however, that he did take into consideration an affidavit filed with that Court by Clark, before he was indicted, in which he categorically denied faking the prints.

      . Appendix, 620.

      . Id., 548.

      . Id., 595.

      . Id., 641.

      . Id., 604.

      . Id., 647.

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

      . Since the principle explicated in Brady goes to the integrity to the fact finding process and was foreshadowed by the decision in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1934), we feel that if the statement was “favorable” or “Useful” or “exculpatory”, to use the words variously appearing in the numerous decisions in this field since 1962, then the prosecutor was bound by the principle even though he could not be charged with anticipation of the case.

      . Appendix, 68.

      . Id., 572.

      . Id., 612.

      . Id., 527, 678.

      . Id., 87.

      . Id., 90, 91.

      . Id., 119.


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    W. S. BADCOCK CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-1948.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      Sherwin P. Simmons, Harold W. Mullís, Jr., Tampa, Fla., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., U. S. Dept. of Justice, Ernest J. Brown, Acting Chief, Appellate Sec., Tax Div., Lee H. Henkel, Jr., Chief Counsel, I. R. S., Lawrence B. Gibbs, Acting Chief, Chris J. Ray, Atty., Richard'W. Perkins, Murray S. Horwitz, Elmer J. Kelsey, Attys., Tax Div., Dept. of Justice, Washington, D. C., for respondentappellee.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

Taxpayer appeals from a judgment of the United States Tax Court which found deficiencies in its income tax. W. S. Badcock Corp., 59 T.C. 272 (1972). Involved are returns for its tax years ending in 1964 and 1966-68, aggregate additional taxes exceeding seven hundred thousand dollars, and something of a threat to accrual basis tax reporting. Since the facts of the case are painstakingly and accurately detailed in the Tax Court’s careful opinion, we will state only so much as is necessary for understanding our reversal.

For forty years taxpayer sold household furnishings in essentially the same manner through consignment dealers. These dealers received their primary compensation as percentage commissions based on authorized sales prices. Most sales were on credit. Consonant with its accrual basis, taxpayer reported the full sales price as income in the year of sale, despite the fact that portions might be finally collected in later tax years. Likewise, it claimed as deductions the full amount of sales commissions accrued in the year of sale although, since these were not paid over to the dealer until the taxpayer received the collections on which they were based, portions were not remitted until later years. The claimed deficiencies resulted from the Commissioner’s determination that the unpaid portions of these commissions were not deductible in the year of their accrual. He did so because he concluded that, since most of taxpayer’s contracts with his dealers provided that these commissions were not “earned” until collected, all events necessary to fixing petitioner’s liability to pay them had not occurred in the year of sale, hence they were improperly accrued.

It was stipulated that, if the commissions were properly accruable in year of sale, taxpayer’s method of accounting clearly reflected income based on its accrual method of accounting. That the amount of the commissions was determinable with requisite accuracy was also agreed. The Commissioner insisted that, in addition to the “earned” terminology of the contracts, the commercial risk of non-collection of the sales price was a contingency defeating deductibility under the all events test. Early in the history of our tax scheme the courts decided that the risk of collection in a credit transaction was not a condition defeating fixed liability. See, Ohmer Register Co. v. Commissioner, 131 F.2d 682 (6th Cir. 1942), which found fixed but unpaid sales commissions to be accruable expense deductions. To conclude differently would be to call in question the very basis of accrual-basis tax accounting, and we emphatically decline to do so. While the Commissioner disallowed accrual of the unpaid commissions as expenses, he did not contest taxpayer’s accrual of the uncollected income which was equally subject to the risk of non-collection. Thus, as counsel for the Commissioner conceded at argument, the Commissioner’s position and the Tax Court’s judgment result in an obvious mismatch of taxpayer’s income and expense.

Though a basic accounting principle is thus violated and taxpayer’s net income irrationally distorted, the Tax Court felt bound to such a result by the literal words of taxpayer’s contract with his dealers. We are no more inclined than that court to revise a party’s private undertakings in the name of some abstract symmetry, and were this phrase of the contract language all that was before us, we would perforce agree with the Tax Court. Believing, however, that a consideration of the four (or more) corners and total context of taxpayer’s dealer contracts raises sufficient fair doubt of the contracts’ meaning to permit us to consider other factors, we conclude that the taxpayer’s liability to pay the commissions was sufficiently fixed for deduction in the year it accrued them, though the time of their payment was deferred. As noted, the question turns wholly upon the construction to be accorded the commission arrangements provided by the dealers’ contracts, and to that we now turn.

During the tax years in question, four types of dealer contracts were in use and taxpayer treated each in the same manner regardless of the presence in some and the absence in others of the “earned” wording urged as crucial here. The great majority of these provided, in pertinent part, as follows:

That for all merchandise consigned by the Owner to the Dealer and sold by the Dealer, the Owner will pay, on or before the 10th day of each month, a commission of 25% of the authorized selling price and finance charges, such payments to be made as the money is collected by the Dealer, with the understanding, however, that no commission is earned or due unless and until payments are collected by the Dealer and remitted to the Owner. In the event the Dealer should discount either the authorized selling price or finance charges, the commission due the Dealer shall be reduced by the amount of such discount, (emphasis added)

Next in number were agreements providing as to sales commissions:

That you will pay me (except as herein otherwise provided) on or before the tenth day of each month a commission of twenty-five (25%) per cent of the authorized selling price, as the money is collected by me. It being understood that no commissions will be earned is due me [sic] unless payments are collected by me, said commission becoming due for payment to me only after the monies created by the sale thereof are collected by me and received by you. (emphasis added)

One contract provided:

I am to get 25% on time sales made at list time prices when you finance the contracts, my part or profit payable only as the money is collected by me or my employees and 15% on cash sales made at your list cash prices, (emphasis added)

Several contracts were oral. One other dealer’s contract in evidence, though not effective during the years in question here, further illustrates the parties’ overt verbal confusion about their commission arrangements:

That you will pay us (except as herein otherwise provided) on or before the tenth day of each month a commission ... as the money is collected by us. It being understood that no commissions will be earned is due us [sic] unless payments are collected by us, said commission becoming due for payment to us only after the monies created by the sale thereof are collected by us and received by you.

In varying degrees, each of the above excerpts is on its face at worst ambiguous about the parties’ intent whether the commissions are deemed earned by the mere act of sale, but payable only out of monies as collected, or whether some contingency other than collection is applicable to the commissions as income to the dealer but not to the balance as income to the taxpayer. Indeed, the next-to-last excerpt quoted above is plain that there is no other contingency. . Neither party invites us to treat each formulation contract by contract, on the basis of its own particular language. Both the Commissioner and the taxpayer treat them all as what they rather plainly are: examples of a layman’s developing verbiage seeking to express a single and unvarying meaning, embodied in various contracts of adhesion. It is to be whole hog or nothing. So seen, we conclude that even conflicts between the contracts —which were applied, it should be borne in mind, identically by the taxpayer— suffice to render each ambiguous on its face. We therefore look to that most reliable indicator of what the contracting parties meant: what they did.

When we do so, our doubts about the parties’ intentions whether the commissions were deemed earned at time of sale are quickly and emphatically resolved. The facts, which are stipulated and not in dispute, reveal a consistent course of dealings between taxpayer and his dealers, long-maintained and utterly refuting the notion that the parties did not consider the commissions property of the dealers at time of sale. It is shown, for example, that the dealers were accustomed to borrow substantial amounts from banks, third persons and, most significantly, from the taxpayer itself upon the collateral of the accrued but unpaid sales commissions. Almost six hundred thousand dollars in borrowed funds were so secured in the years in question. Retainages in significant amounts were made by dealers, both with and without taxpayer’s prior knowledge, for business and personal financial purposes from collections before their deposit with taxpayer. Some of these represented advance payments on sales commissions; no interest was charged by taxpayer on these. An additional commission was paid for services in collecting receivables, including delinquencies and repossessions, a practice which refutes the notion that the sales commissions here in question were on condition of future services in making collections. Finally, upon sale of a dealership, either directly to taxpayer or in a taxpayer-sponsored transaction with a third party, the dealer received the full amount of his accrued commissions, despite existing uncollected sales proceeds, upon which the commissions were based. That these practices were well established and understood was attested by the fact that in over forty years of operations under them taxpayer was never sued by a dealer over commissions. And while there is no question of any estoppel or binding effect on the Commissioner, it cannot be entirely without significance that in ten audits over the course of forty years, the Revenue Service never raised any objection to taxpayer’s treatment of these commissions as deductions and, in connection with one of the years here in dispute, specifically approved it as necessary “ . . . for a proper matching of income and expense which would clearly reflect income as required by the Internal Revenue Code.”

It is undisputed also that these contracts were drafted, without tax consequences in mind, by a layman, Wogan S. Badcock. And while we are constrained to admit the obvious, that his gifts as a furniture merchant far exceed those as a scrivener, yet his consistent actions and those of his dealers speak louder of their intent than his somewhat confusing words. In sum, to speak in the context of accrual-basis accounting of items which are subject to no contingency except the normal, commercial risk of collection as unearned is almost meaningless. The contract terms are confusing, and the consistent practice of forty years belies any intent to attach a meaning to the term “earned” other than that of “due” or “payable.” We are often and rightly besought by the Commissioner to look to the substance rather than the form of transactions. Doing so here, we conclude that the decision of the Tax Court must be .

Reversed.

      . By reason of a carryback from the year ending June 30, 1967.

      . The “all events” test, that before an expense becomes deductible all events which fix the amount of taxpayer’s liability must have come about, was set out in United States v. Anderson, 269 U.S. 422, 40 S.Ct. 131, 70 L.Ed. 347 (1926), and is codified in regulations promulgated under §§ 446 and 461, I.R.C. See § 1.446-1 (c) (1) (ii) and § 1.461-1 (a) (2), Treasury Regulations on Income Tax (1954 Code).

      . Within the meaning of §§ 446 and 461, I.R.C.

      . See also, Central Cuba Sugar Co. v. Commissioner, 198 F.2d 214 (2d Cir. 1952) [deductibility of broker’s commissions] ; Warren Co., Inc., 46 B.T.A. 897, aff’d 135 F.2d 679 (5th Cir. 1943), reh. den. 136 F.2d 685 (5th Cir.) [sales commissions]; Air-Way Electric Appliance Corporation v. Guitteau, 123 F.2d 20 (6th Cir. 1941) [sales commissions] ; Holland, Accrual Problems and Tax Accounting, 48 Mich.L.Rev. 149 (1949); Revenue Ruling 72-34, 1972-1 C.B. 132 and G.C.M. 9571, X-2 C.B. 153.
      As the Holland article states:
      “If the collection of an item is uncertain only because of the normal risk involved in all business transactions, accrual is required. If such possibility of non-payment were to be accepted as a sufficient reason for not recognizing an item of income, the whole theory of the accrual method of accounting would fall where commercial transactions are concerned. This seems so obvious that it is surprising the courts have found it necessary to state it on several occasions. . . .”48 Micli.L.Rev., at 173.
      We labor the point slightly since the Tax Court opinion shows some tendency to- treat normal default as an accrual-defeating- contingency.

      . As would the Florida courts in determining the obligations of the parties and the effect of their agreements where “. . . the terms of a written contract are in any respect uncertain or doubtful and the parties thereto have by their conduct placed a construction upon the contract which is reasonable. . . .” Orlando Orange Groves Co. v. Hale, 119 Fla. 159, 161 So. 284, 295 (1935).

      . Appropriately discounted for bad-debt experience.

      . It is in evidence that dealers sometimes objected specifically to tlie “earned” terminology, and were pacified by taxpayer’s assurance that there bad never been any litigation about it. We attribute his insistence on this language despite these objections, however, to a layman’s determination to make plain that no commissions would be paid until the proceeds on which they were based were collected.

      . Including, of course, its affirmance of the Commissioner’s action in changing taxpayer’s method of accounting to a cash basis for dealer commissions and an accrual basis for all other expenses and for income.


author: ALDRICH, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gaetano FRIZZI, Defendant-Appellant.
    No. 73-1131.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1974.
    Decided Jan. 30, 1974.
    Joseph C. Deleore, Everett, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellant.
    Thaddeus B. Hodgdon, Atty., Dept. of Justice, with whom James N. Gabriel, U. S. Atty., Jeffrey M. Johnson, Sp. Atty., Boston Strike Force, Boston, Mass., and John. J. Robinson, Atty., Dept. of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

With this case we hope to complete our coverage of 18 U.S.C. § 111, the statute conferring federal jurisdiction over prosecutions for assaulting or otherwise impeding certain federal officers while in the performance of their duties, most recently discussed in United States v. Perkins, 1 Cir., 1973, 488 F.2d 652. As we there indicated, the statute has several purposes. One is to punish deliberate forcible interference even when no other misconduct is involved. See Finn v. United States, 9 Cir., 1955, 219 F.2d 894, cert. denied 349 U.S. 906, 75 S.Ct. 583, 99 L.Ed. 1242; compare Long v. United States, 4 Cir., 1952, 199 F.2d 717. A more commonly invoked objective is simply to afford the federal officer, engaged in performing his duties, the protection of the federal court when a common law offense is committed against him. E. g., United States v. Langone, 1 Cir., 1971, 445 F.2d 636, cert. denied 404 U.S. 915, 92 S.Ct. 226, 30 L.Ed.2d 189. The instant case presents an unusual set of facts drawing on both purposes.

On a certain afternoon one Larity, a United States Postal Service mail carrier, having completed his deliveries, was on his way back to the post office to return mail he had picked up. He was in uniform, driving his own car. A double-parked truck impeded traffic, and Larity backed up to permit an on-coming car, driven by defendant, to pass. For reasons that do not appear, defendant stopped opposite Larity and responded to the courtesy with an obscene epithet. Larity told him to shut his mouth. Defendant, instead, spat in Larity’s face. Both men then drove clear, stopped their cars, and emerged and approached each other. Larity testified that his intent was to demand an apology. Defendant frustrated this purpose by knocking him down, cutting his chin. Defendant was indicted under the statute, and found guilty by a jury.

On this appeal the principal issue is defendant’s claim that he was entitled to a directed acquittal. He argues that spitting in the face does not amount to a forcible assault, and that when Larity, instead of driving on, left his car and approached defendant, he had ceased to be in the course of his employment.

We do not think it could be ruled that spitting in the face is not forcible assault, or, more exactly, a battery falling within the statutory description “forcibly assaults, resists, opposes, impedes, intimidates or interferes.” Although minor, it is an application of force to the body of the victim, a bodily contact intentionally highly offensive. Alcorn v. Mitchell, 1872, 63 Ill. 553; Whitsett v. Ransom, 1883, 79 Mo. 258, 260. The statute does not require the infliction of bodily injury. Defendant confuses the issue when he says the government failed to prove Larity was put in fear. If fear were necessary to make a battery actionable under the statute, a defendant who struck before he was seen, and ran away, or rendered the victim immediately unconscious, so that no fear or apprehension arose, could not be convicted. Quite apart from defendant’s generally improper interjection of the element of fear, cf. Commonwealth v. Slaney, 1962, 345 Mass. 135, 185 N.E.2d 919, it would seem particularly inappropriate to require fear in a statute which covers resisting, opposing, and acts of interference which may not be fear-inducing in any respect.

But even if it could be thought that the spitting was neither an assault nor a battery, we do not accept defendant’s further claim. At the time of the spitting Larity manifestly was engaged in his employment. His response, to seek an apology, although natural, may not have been the wisest one, but we cannot quite say it was outside the scope of that employment. Cf. United States v. Marcello, 5 Cir., 1970, 423 F.2d 993, cert. denied 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543. Rather, a jury should be permitted to choose between a personal frolic and standing up for his employer’s right to have him pursue his duties unmolested. Cf. Zerngis v. H. P. Hood & Sons, 1926, 255 Mass. 603, 152 N.E. 50; Robinson v. Doe, 1916, 224 Mass. 319, 112 N.E. 1007. The jury was properly charged with respect to a personal frolic. We see no more merit in defendant’s motion for acquittal than in his original conduct.

The balance of the appeal is devoted to the all-too-familiar practice of complaining about a charge of which no complaint was made below. We are particularly unreceptive to this when the new-found objection is not to an affirmative error, but to mere failure to give further explanation. Apart from our general dislike of Monday morning nitpicking of a charge, this type of defect, if a defect, is readily remediable, and hence a classic example of where it is counsel’s duty to speak up at the time. We see no error, but if there were one we would disregard it.

Affirmed.

      . As to this last event only, there is a dispute in the testimony. The dispute is irrelevant to defendant’s motion for acquittal.

      . We of course do not suggest that self defense against unreasonable “standing up” for his authority by a public officer would subject the resister to liability under 18 U.S.C. § HI.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Larry E. WILLIAMS and Roy W. Williams, Defendants-Appellees.
    No. 73-1633.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 10, 1973.
    Decided Feb. 11, 1974.
    Stanley B. Miller, U. S. Atty., Indianapolis, Ind., Edward R. Korman, Crim. Div., App. Section, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Ronald S. Lieber, Indianapolis, Ind., for defendants-appellees.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   PER CURIAM.

A Grand Jury charged that Appellees Larry E. Williams and Roy M. Williams did, on or about the 18th day of May, 1972, forcibly assault an employee of the Postal Service, while said employee was engaged in the performance of his official duties, in violation of 18 U.S.C. §§ 111 and 1114 (1970). Although this fact was not disclosed in the indictment, the government stipulated that appellees, as well as the victim of the assault, were employed by the Postal Service at the time of the incident. They therefore moved to dismiss the indictment upon the ground that, since Congress recognized an administrative procedure to govern in-service assaults, § 111 should be construed not to apply to in-service assaults. Relying upon its own previous unpublished order in another case, the district court granted the motion. This appeal presents two questions: (1) whether the order is appealable under our en bane decision in United States v. Ponto, 454 F.2d 657 (1971); and (2) if it is, whether the district court’s construction of the statute was correct.

I.

Appellees contend that the order of the district court dismissing the indictment was an acquittal because the court relied on facts not set forth in the indictment. Accordingly, they argue, under the rationale of Ponto, the Double Jeopardy Clause of the Fifth Amendment forecloses appeal. The government asks us to overrule Ponto. We need not consider the present viability of Ponto in this case, however, since the order which is before us is clearly appealable under the rationale of our recent decision in United States v. Walker, 489 F.2d 1353 (7 Cir., 1973).

II.

Appellees were indicted under 18 U.S.C. § 111 (1970), which provides in part:

“Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.”

Section 1114 places “any officer or employee of the Postal Service” among the class of public employees Congress was trying to protect.

Although these sections do not contain an explicit exception for assaults committed by fellow employees, appellees argue that the district court correctly implied one. In 1968 Congress enacted Public Law 90-449. Section 1 of this act, which became 39 U.S.C. § 3108 (Supp. V, 1969), recognized an administrative procedure to govern in-service assaults. Section 2 broadened the coverage of § 1114 to all postal employees, thereby bringing them within the protective ambit of § 111. Appellees contend that, by enacting § 3108, Congress evidenced an intent to treat in-service assaults specially. This intent was further evidenced by including § 3108 in the same legislation which broadened § 1114. We reject this contention.

If § 3108 had been intended to justify or create an exception from the plain language of § 111, surely Congress would have said so. It is entirely consistent for Congress specifically to empower the Postmaster-General to take disciplinary action, such as suspension, demotion, or removal from duty, against a postal employee who assaults another, and also to make such an employee criminally liable, along with all others who assault postal employees. 'Indeed, the meaning for which appellees contend would be illogical, for it would make it a criminal offense to assault a postal official only if the assailant were not also a postal employee. Absent a clear expression of congressional intent, we are not inclined to construe a statute to yield such an anomalous result.

Moreover, there is affirmative evidence that Congress did not intend to exclude postal employees from the operation of § 111. The sponsor in the Senate of the bill which became Public Law 90-449, Senator Hartke, stated that § 2 of the bill, which added all postal employees to § 1114, “would make assaults a federal offense if any employee in the postal field service is assaulted during the performance of his official duties, whether by another employee or the general public.”

We therefore hold that the indictment correctly stated an offense. The judgment is reversed and the cause is remanded for further proceedings.

      . An Assistant to the Solicitor General, on behalf of the United States, argues that the estoppel rationale of the concurring opinion in Ponto is no longer viable in view of the subsequent decision by the Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, that a majority of our en bane court did not subscribe to the double jeopardy reasoning (of the nine judges who participated, four dissented, two concurred separately, and three subscribed to the principal opinion without reservation), and that in any event the double jeopardy holding was erroneous.

      . Walker emphasized that the “Ponto ‘acquittal’ rationale is inapplicable” to cases in which the district court’s decision is predicated only upon “the sufficency of the government’s charge.” (489 F.2d at 1355.) In that case, the district court had decided that the defendant’s conduct was not that contemplated by 18 U.S.C. App. § 1202(a) ; in this case, the district court, similarly, did no more than decide that 18 U.S.C. §§ 111 and 1114 (1970) did not apply to appellees’ activity. “It is clear that a dismissal based on a determination of the sufficiency of the charge ... is subject to appellate review. See United States v. Fruehauf, 365 U.S. 146, 157-158, 81 S.Ct. 547, 5 L.Ed.2d 476.” (Walker, supra, at 1356.)

      . Act of August 2, 1968, Pub.L.No. 90-449, §§ 1-3, 82 Stat. 611.

      . 39 U.S.C. § 3108 (Supp. V, 1969) provided:
      “The Postmaster General may take appropriate disciplinary action, including, when circumstances warrant, suspension from duty without pay, reduction in pay, demotion, or removal from the service, against any employee who forcibly assaults any other employee while such other employee is engaged in the performance of his official duties or on account of the performance by sucli other employee of his official duties.”

      . In 1970 Congress substantially revised Title 39 of the Code. Section 3108, while not reenacted, was permitted to remain in force as a Postal Service regulation so long as the Service desired. Act of August 12, 1970, Pub.L.No.91-375, § 5(f), 84 Stat. 719, 775. The basic authority recognized by § 3108 was incorporated in 39 U.S.C. § 1001 (1970). See 39 U.S.C. Tables I & II (1970). In our opinion, the subsequent changes in § 3108 do not foreclose appellees’ argument. The crucial inquiry is still whether Congress, by enacting Public Law 90-449, intended to treat in-service assaults specially. If Congress did, it cannot be said that these changes imply a new intent to include such assaults within §§ 111 & 1114.

      . Hearings on H.R.15387 Before the Sub-comm. on Postal Affairs of the Senate Comm. on Post Office and Civil Service, 90th Cong., 2nd Sess. 1 (1968).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Augustine RIZZO, Appellant.
    No. 600, Docket 73-2428.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 21, 1973.
    Decided Jan. 24, 1974.
    Michael J. Hutter, Buffalo, N. Y., for appellant.

      Anne M. Srebro, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty., W. D. N. Y., of counsel), for appellee.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   PER CURIAM:

The only question of substance presented relates to the absence of evidence in respect to the conspiracy charge to show that appellant knew the interstate character of the theft, involving a piggy-backed trailer of 105 Sylvania color television sets. While circumstantial evidence is sufficient to prove knowledge, United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), there is nothing in this record from which the jury could infer that appellant knew that the stolen cartons had been traveling in interstate commerce other than the fact that the particular trailer in question came from the Bison Yard of the Norfolk & Western Railroad. But there is nothing to show that appellant knew that only trains traveling interstate would come to that yard or that the Norfolk & Western only shipped interstate to Buffalo; Indeed, he might—had he thought at all about it—have thought that the television sets in question were manufactured at some other Sylvania plant in New York State, and placed in their trailer on the flat bed car (which could have belonged to any railroad so far as the record appears). The Government is reduced to arguing (Gov’t Brief at 12) that “one could reasonably infer that Rizzo, as a resident of North Tonawanda, New York, knew that the only Sylvania operation in the Western New York area was a warehousing operation and so knew the sets had to have been manufactured and sent in from out-of-state.” We do not believe that the residents of North Tonawanda can be charged with such general knowledge or knowledge that Sylvania does not have a manufacturing operation somewhere in New York State other than the western portion thereof. Accordingly we must reverse on the conspiracy count although this reversal does not affect the propriety of the conviction on the substantive count. See United States v. De Marco, 488 F.2d 828, 832 (2d Cir. 1973); United States v. Alsondo, 486 F.2d 1339, on petition for. rehearing (2d Cir. 1973), 486 F.2d at 1346. Here there was no question but that, as in De Marco, the jury clearly could have found both that the goods in appellant’s possession were in fact stolen from an interstate shipment and that the appellant believed the goods he possessed to be stolen, so as to be sufficient on the substantive count. Although the appellant attacks the adequacy of the instruction as to knowledge in the substantive count, Judge Curtin’s charge was free from fault. Following United States v. De Marco, 488 F.2d at 833, we remand the case to the district court for review of sentence on the possibility that the conviction on both counts “might have affected the punishment set for each.” By doing, so, as in De Marco, we by no means imply any view as to whether the sentence on the substantive count should be modified in any respect.

Judgment affirmed in part, reversed in part and remanded for reconsideration of sentence.


text:
    Sherwood E. ROBERTS, Appellant, v. UNITED STATES of America.
    No. 73-1810.
    United States Court of Appeals, Third Circuit.
    Submitted on briefs Dec. 19, 1973.
    Decided Jan. 28, 1974.

      Sherwood Roberts, pro se.
    Herbert J. Stern, U. S. Atty., John J. Barry, Newark, N. J., Richard S. Zackin, Asst. U. S. Atty., for appellee.
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

In Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969), we held that because the “mandate of . [F.R.Crim.P.] 11, before and after the 1966 amendment, is designed to insure that the pleader is made aware of the outer limits of punishment,” knowledge of ineligibility for parole was necessary to an understanding of a plea of guilty. In United States v. Jasper, 481 F.2d 976 (3d Cir. 1973), and Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973), we extended the Berry rule to vitiate a plea of guilty under circumstances where the pleader was erroneously told he could be exposed to a maximum sentence in excess of that provided by law. The question presented in this appeal is whether the rule should be applied to the circumstances where appellant was not informed before the court accepted his plea that a mandatory Special Parole Term would attach to any sentence imposing a term of imprisonment. We hold that it does, and do not agree with the district court’s conclusion that exposure to provisions of the new Special Parole Term “are not consequences of a guilty plea within the meaning of Rule 11. . . .”

On October 27, 1970, Congress passed the “Comprehensive Drug Abuse Prevention and Control Act of 1970,” 21 U. S.C. § 801 et seq., effective May 1, 1971, giving comprehensive coverage in all drug offenses, repealing older narcotics laws, and introducing a Special Parole Term for certain offenses. Included among those offenses is 21 U.S.C. § 841(a)(1), distribution of heroin, the offense to which appellant pleaded guilty on January 3, 1972. He was subsequently sentenced to a seven-year prison term. In addition, as required by 21 U. S.C. § 841(b), he was sentenced to three years Special Parole to take effect upon completion of the imprisonment and parole consequences of the seven-year term.

In denying appellant’s petition for relief under 28 U.S.C. § 2255, the district court stated: “There is no requirement to advise a defendant, before accepting a plea of guilty, that he will come up for parole in a certain amount of time, or that if he is paroled, and violates that parole, he may again be incarcerated. . . .” Subject to unusual circumstances, as exemplified in Berry, this would serve as a fairly accurate statement of appropriate law applicable to parole as it is commonly and ordinarily understood. So understood, parole means a conditional release from incarceration under supervision at a time prior to the expiration of the full term set by the sentencing court.

But the Special Parole Term is a new concept. By statute it “shall be in addition to, and not in lieu of, any other parole provided for by law.” 21 U.S.C. § 841(c). It is designed to take effect upon the expiration of the period of parole supervision following mandatory release, or at the full term date following parole, or upon release from confinement following sentence expiration.

As described by Norman A. Carlson, Director, The Bureau of Prisons: “For certain offenses the new law specifies that a Special Parole Term (SPT) to be used in addition to and not in lieu of normal sentencing and parole procedures. This is a new concept, and must be considered in conjunction with the sentence procedure used by the court.” Mr. Carlson explains:

The SPT is separate from and begins after the usual sentence terminates, including any period of supervision. In the event an individual should violate during the period of supervision prior to the beginning of the SPT, he will be returned as a violator of the basic period of supervision with the SPT still to follow unaffected. When an individual is released from confinement by any of the following methods, the SPT will begin as indicated:
(1) Mandatory release—SPT begins at the termination of supervision.
(2) Parole—SPT begins at full term date.
(3) Sentence expiration (Exp—GT [expiration with extra good time], Exp—FT [expiration with full time] and Min—Exp [minimum expiration]). SPT begins with release from confinement.

Thus it can be readily seen that SPT significantly differs from ordinary concepts of parole. SPT imposes restrictions upon freedom in excess of the full term of sentence and the possibility of additional imprisonment for SPT violation. Gee, 21 U.S.C. § 841(c).

In Berry we said: “When one enters a plea of guilty he should be told what is the worst to expect. At the plea he is entitled to no less—at sentence he should expect no more.” 412 F.2d at 192. Here, when appellant was not advised that he was subject to conditions of additional parole, he was not “told what . [was] the worst to expect.” The failure to impart this information constituted a failure to explain to appellant the consequences of his plea.

The judgment of the district court will be reversed and the proceedings remanded with directions to vacate the judgment of conviction and sentence, to vacate the plea of guilty, and to afford appellant an opportunity to plead anew to the indictment.

      . Polley statement, Bureau of Prisons, 7500.43, January 18,1973.


text:
    YELLOW BAYOU PLANTATION, INC., Plaintiff-Appellant, v. SHELL CHEMICAL, INC. and Thompson-Hayward Chemical Company, Defendants-Appellees.
    No. 73-1304.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      Philip Mansour, Greenville, Miss., James A. Dooley, Chicago, Ill., for plaintiff-appellant.
    Frank W. Hunger, J. A. Lake, Green-ville, Miss., for Shell.
    Allan D. Sheekel Ford, Jon M. Barn-well, Clarksdale, Miss., for Thompson.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

This diversity suit for damages against the manufacturer, Shell Chemical, Inc. (Shell), and a distributor, Thompson-Hayward Chemical Company (Thompson-Hayward), of an herbicide, Planavin, asserted its actionable failure to control various pest-grasses in plaintiff’s soybean fields. Plaintiff, Yellow Bayou Plantation, Inc. (Yellow Bayou), advanced theories of negligence, misrepresentation, express and implied warranty, and intentional misconduct. Trial to a jury resulted in special and general verdicts uniformly unfavorable to plaintiff and a consequent take-nothing judgment, which we affirm.

Plaintiff’s 3,900-acre farm was plagued by weeds and by seedling and rhizome Johnson grass. Plaintiff’s professional manager decided to institute a program to control these for the 1971 crop year in hopes of better yield. After testing several herbicides, he settled upon Planavin, purchasing from Thompson-Hayward, sealed in' containers as it came from Shell, an amount sufficient, if properly applied and functioning, to achieve the desired control in plaintiff’s projected 1,400 acres of soybeans.

At trial, the evidence showed that in order to obtain proper results from the use of an incorporated pre-emergence herbicide such as Planavin it is vital to obtain uniform and dense coverage in the soil of the treated area. Such an herbicide must be minutely and densely dispersed below ground, so that as many as possible of the growing roots of pest-plants will make actual contact with a chemical particle. This contact arrests root growth. If sufficient of the plant’s roots are affected, dessication follows and the plant dies. If coverage is not minutely dispersed and uniform, however, sufficient roots may miss actual contact with herbicidal particles to support life and growth in the weed. In order to achieve maximum dispersal, the insoluble herbicide is ground into tiny particles, millions to a pound, and sprayed on the soil. Water is the vehicle, and a sufficient volume must be used to spread the particles far and wide.

Such herbicides may be applied either by aircraft or by “ground rig,” but the dispersal characteristics of the two methods differ. Shell’s label specifies a minimum of ten to twenty gallons of water per acre for ground rig, five for airplanes. Yellow Bayou sprayed 133 acres by airplane, using the five-gallon-per-acre prescription specified by Shell’s label. On the major portion of its acreage, however, Yellow Bayou employed a formulation radically different from the label’s instructions and what amounts to a third method of application, a novel type of ground rig—and thereby hangs the case.

This machine, called a Span Spray, operated differently from the conventional ground rig. Briefly speaking, the conventional machine employs spray nozzles on booms, dispersing liquid directly onto the soil at high volume and pressure. The Span Spray operates at lower pressure and volume, with its nozzles blowing into fans which, in turn, disperse the material. One characteristic of Span Spray application is a smaller spray droplet, more subject to drift and wind dispersal than the coarser mist produced by a conventional sprayer. There was testimony that the finer mist is most effective in application of insecticides, where a slow-settling, more fog-like spray operates to catch flying insects and settle through brushy growth. Reason indicates, and there was some testimony that, Span Spray’s lower volume and the tendency of its finer spray to drift might well produce less of a dispersed and uniform fallout to the ground, the desideratum in herbicide applications. But the evidence was meager regarding experience in herbicide application with Span Spray, which came into use only very recently.

Shell’s label gave specific instructions for mixing Planavin with water for use :

Shake Planavin 4 container well before using. Mix the required amount of Planavin 4 in sufficient water (five gallons per acre minimum for aircraft application or ten to twenty gallons per acre minimum for ground rig) to provide uniform spray coverage of the soil surface. Planavin 4 application to alfalfa and peas should be made by ground equipment. Agitation of the dilute mixture in the spray tank before the [sic] during application is recommended. Rinse container when empty and pour rinsings into spray tank, (emphasis added)

Yellow Bayou’s manager, Williams, testified that he read these directions, but instead of using ten to twenty used 1% gallons of water per acre, believing he could so achieve uniform coverage with the Span Spray ground rig. So applied, Planavin produced a degree of weed control which was disputed, but at all events less than the ideal. Yellow Bayou’s basic contention was that the herbicide was ineffective. Shell and Thompson-Hayward retorted, not so, you didn’t follow directions.

There was evidence meeting Boeing v. Shipman standards upon which the jury could have gone either way, and it went with Shell and Thompson Hayward. Yellow Boyou’s various points to the effect that a verdict of liability should have been directed in its favor are without merit. Some of the countervailing evidence has been noted in the forepart of our opinion. In addition, there was testimony by qualified experts that it was simply impossible by any means to obtain uniform coverage by use of less than ten gallons of water per acre in ground applications of Planavin, that the Span Spray was fundamentally unsuited to application of such herbicides as Planavin, and that great care was used in producing, inspecting and testing the herbicide. In addition, Yellow Bayou’s manager admitted that even the Span Spray application improved yield and that the aircraft application improved it still more: untreated fields averaged about eighteen bushels per acre, Span Spray-treated areas about twenty-three, and air-sprayed ones about twenty-nine.

In response to this proof, Yellow Bayou took a very broad-brush approach indeed : that no grass control was achieved, that because of its unique action Span Spray could not fail to achieve uniform coverage with about one-tenth of the volume of water specified in Shell’s label, and that crops in which grass control is absent run from 25% to 75% of those in which it is achieved. Though these assertions pass lightly by various midly inconvenient facts, such as increased yield in fields where Planavin was applied in any manner whatever and the presence of rhizome Johnson grass which Planavin did not purport to control, they come down to an attempted circumstantial demonstration, which the jury might have accepted, that the Planavin supplied was defective as an herbicide. But the jury specially found it was not defective, on evidence at least as strong, a finding dispositive of all theories of negligence, warranty, etc.

As for Yellow Bayou’s claim that the label somehow misrepresented matters by failing to make special provisions regarding use in Span Spray machines, despite Shell’s and Thompson-Hayward’s knowledge of their existence, there was no evidence that use of Planavin mixed in the label proportions would have been ineffective in the Span Spray ground rig. There was evidence indicating that use of such large volumes of water was impractical with the machine, which fact might well have caused Williams to conclude that application of Planavin with the machine should not be attempted since compliance with Shell’s instructions was incompatible with its use. Shell’s warranty expressly disclaimed, in accordance with Section 85-2-316 of the Arkansas Code, responsibility for use of Planavin otherwise than in accordance with the label instructions. Nevertheless, Williams placed his faith in Span Spray to achieve uniform coverage despite violation of Shell’s plain mixing instructions for use with ground rigs—or even those for use with aircraft. The jury specially found that want of sufficient water caused the failure of uniform coverage, which in turn proximately caused the failure of weed control. Were we disposed to disturb this finding we could not, founded as it is in a reasonable reading of amply sufficient evidence.

Little remains. Yellow Bayou complains of the district court’s overruling of its several exceptions to the jury charge and refusal to give various special instructions and interrogatories which it requested. The court’s charge amply and,.indeed, generously presented plaintiff’s theories to the jury, and its instructions were correct and adequate. Complaint is made of the court’s instruction to the jury presenting the Arkansas comparative negligence statute as applicable to breach of warranty, but Yellow Bayou could in no manner have been harmed by this in view of the special finding that no breach occurred.

Four evidentiary rulings are also called in question. The court excluded the Span Spray manual offered by Yellow Bayou to buttress its assertions that 1% gallons of water applied by Span Spray was the equivalent of ten to twenty through a conventional ground rig. This was pure hearsay, offered not to show simply that it existed or under any exception to the rule but rather for the truth of the matter asserted, and was properly excluded. Likewise excluded was a list of lawsuits over, and complaints to Shell about, Planavin, offered to show that Shell knew or should have known that Planavin was ineffective. The most that these items could have indicated was that absent third parties had made this claim to or against Shell from time to time. To exclude evidence of such faint probative value and high potential for unfair prejudice was well within the trial court’s discretion.

The court admitted various reports and records of tests on Planavin performed by the United States Department of Agriculture, by state universities, and by private institutions, as well as by Shell, taken from Shell’s files. These were offered to show that Shell made reasonable inspections and tests of Planavin, an issue under Arkansas law. These reports were admitted in connection with the testimony of Dr. Richard Baldwin, a qualified agronomist and expert on herbicides employed by Shell to do research and development work on Planavin. Their admission as business records rested on his testimony that he received and reviewed them in connection with his work, compiled data from them and submitted it to the U.S.D.A. in obtaining approval of Planavin’s sale, and kept them in company files to which he had access. Since they were not all records of Shell’s activities, no specific showing was or well could have been made that each was made in the regular course of business, nor of their reasonable contemporaneity with the events which they recorded, nor of their accuracy and the efforts employed to assure it. See United States v. Blake, 488 F.2d 101 (5th Cir. 1973). This was error, and the exhibits should not have been admitted. In the circumstances, however, we have concluded that the error was not prejudicial. The records came in by way of footnote to the admissible testimony of Dr. Baldwin, and were cumulative of his testimony and that of others about the rigorous testing of Planavin by Shell and its established effectiveness. Certainly, it can in no sense be said that the records were crucial evidence, or that without them the verdict would not be amply supported by other, proper evidence. The case should not be reversed on this ground. Fed.R.Civ.P. 61; 28 U.S.C. § 2111; see 11 C. Wright & A. Miller, Federal Practice & Procedure § 2885 (1973).

Finally, Yellow Bayou complains of the receipt in evidence of photographs of some of its soybean fields in the 1972 crop year, showing Johnson grass infestation. In the state of the record, with evidence of Yellow Bayou’s 1972 production already having come in and testimony having been given by its manager that a competing herbicide was used in that year—wholly applied, we note, by aircraft—we cannot say the admission of this evidence was erroneous.

This was the very type of a case for the jury. The trial was free of prejudicial error and fair to both sides; the jury has spoken. There it ends.

Affirmed.

      . The applicable law was that of Arkansas, which did not recognize strict liability in tort.

      . Shell did not claim that Planavin would satisfactorily control this sort of Johnson grass, which grows from residual, root-like subterranean stems and is something of a different proposition from the annual crop of seedlings.

      . 411 F.2d 365 (5th Cir. 1969).

      . This testimony is roughly probative, though in logic subject to the familiar “compared-to-what” fallacy, the evidence indicating generally that the various fields were of different productivity even in an untreated state.

      . Nicklaus v. Hughes Tool Co., 417 F.2d 983 (8th Cir. 1969).