author: MATTHES, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Martin William MONTEER, Appellant.
    No. 74-1578.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 11, 1975.
    Decided April 1, 1975.
    Rehearing and Rehearing En Banc Denied April 29, 1975.

      R. Thomas Day, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY and WEBSTER, Circuit Judges.
   MATTHES, Senior Circuit Judge.

Martin William Monteer, Wilbert Leroy Coonce, and Harry Dale Boyle were jointly indicted for robbing the bank of Ionia, Missouri, and placing in jeopardy the lives of Rosella Schnackenberg, cashier of the bank, and Eunice Emma Friedly, bookkeeper of the bank, by the use of dangerous and deadly weapons, to wit, a pistol and a knife, in violation of 18 U.S.C. § 2113(a) and (d). Coonce, who is a half-brother of Monteer, and Boyle pleaded guilty to the charge. Monteer stood trial and was convicted by a jury. He has appealed from the judgment of conviction.

Appellant does not challenge the sufficiency of the evidence to sustain the jury’s verdict. Instead, appellant through the public defender who has represented him in both the trial court and on appeal, presents two contentions of prejudicial error, which will be discussed below. Appellant also has filed pro se briefs, raising numerous other claims of error.

We first consider the facts in abbreviated form.

The government’s evidence shows that at mid-morning on March 14, 1974, Monteer and Boyle entered the Ionia Bank. There were no other persons present, except the two employees above named. Monteer asked Mrs. Friedly for a roll of quarters, but instead of paying her $10.00, the value of the quarters, Monteer exhibited a pistol and directed Mrs. Friedly ánd Miss Schnackenberg to lie on the floor. Both complied. Thereupon, Monteer went behind the counter, where the employees were lying. At that time, Monteer had a knife in his possession. Monteer obtained $2,816 from the cash drawers behind the counter and he and Boyle then left the bank through the rear door. While Mrs. Friedly was lying on the floor, she was able to and did obtain an accurate description of Monteer and Boyle. Both had long, shoulder-length hair, dark brown in color, and full, dark beards. Monteer was taller but slighter in build than Boyle. Both Monteer and Boyle were well dressed, more so than the average customers of the bank, although neither wore a tie. Monteer was wearing a brown coat and Boyle wore a blue coat. During their conversations with Mrs. Friedly, Monteer and Boyle were approximately three feet from her. She took particular notice of them because their hair and beards appeared to be identical.

Although he did not enter the bank, Coonce participated in the offense. He had driven Monteer’s automobile from Independence, Missouri, to Sedalia, Missouri, the night before the holdup. Monteer and Boyle drove to and from the bank robbery in another automobile they had stolen in Sedalia, Missouri, but after the holdup Coonce met Monteer and Boyle at a prearranged location, where the two robbers abandoned the stolen car. The three then proceeded in Monteer’s automobile, with Coonce driving, to a deserted building, where the money obtained in the holdup was stashed. Later, through the cooperation of Coonce, the stolen funds were recovered.

A report of the holdup was made immediately to law enforcement officials. Shortly after the robbery, Monteer, Boyle, and Coonce were apprehended. Coonce cooperated with the law enforcement officials and testified for the government at Monteer’s trial.

Almost immediately after the bank robbery law enforcement authorities had come to consider Monteer a suspect in the case. On the very afternoon and evening after the robbery, F.B.I. agents showed a series of photographs of various men to Mrs. Friedly and asked her to determine if any of the men photographed resembled either of the robbers. ■ In examining the pictures, Mrs. Friedly placed a piece of paper over the lower part of the face in each photograph in order to create the effect of seeing each man bearded. Mrs. Friedly selected a picture of Monteer. The next day, Mrs. Friedly viewed two lineups, in both of which Monteer was one of the participants. In the first lineup, consisting of three men, Mrs. Friedly tentatively identified Monteer. At Mrs. Friedly’s request, in a second lineup of four men (one of the original three was no longer available and was replaced by two other men) each of the men took turns wearing a wig and beard. Mrs. Friedly positively identified Monteer in the second lineup.

As noted at the outset, counsel for Monteer relies upon two claims of error in seeking a reversal and remand for another trial.

Counsel first attacks Mrs. Friedly’s identification of Monteer, claiming that the pretrial photographic displays and lineups were suggestive in nature and tainted Mrs. Friedly’s in-court identification. Judge Hunter, the trial judge, conducted an evidentiary hearing on May 16, 1974, on Monteer’s motion to suppress Mrs. Friedly’s identification. Mrs. Friedly was examined at length as to the photo displays and the lineup proceedings. Four law enforcement officers also testified, as did Monteer. At the conclusion of the hearing, Judge Hunter denied the motion. Subsequently Judge Hunter filed a memorandum opinion in support of the order denying the motion to suppress.

In denying the motion, the district court recognized that an in-court identification of a defendant will be suppressed if the source of that identification is a lineup conducted in violation of the Due Process Clause of the fifth and fourteenth amendments to the United States Constitution. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178-(1967). Judge Hunter also considered the use of photographs as a means of identification and recognized that in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the , Supreme Court held that when the claim is made that the use of photographs was suggestive and unduly prejudicial, such a contention must be evaluated in light of the totality of the surrounding circumstances and that each case must be considered on its own facts. “[Cjonvictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971.

In accordance with these principles, the district court held in its memorandum opinion that, “Neither the photographic showup nor either lineup were unduly suggestive, or in fact suggestive in any manner.” We have carefully examined the evidence offered in support of the motion to suppress Mrs. Friedly’s identification. No useful purpose will be served in detailing such evidence. It is sufficient to observe for the purposes of this opinion that we find nothing to demonstrate that the photographs exhibited to Mrs. Friedly and the lineups which she observed were in any respect improper or violative of the principles enunciated by the Supreme Court.

But even assuming arguendo that the photographs or lineups were in some way improper, we, like Judge Hunter in his memorandum opinion, are convinced that Mrs. Friedly’s in-court identification of Monteer was not influenced in any respect by the photographs or lineups. Consequently, since Mrs. Friedly’s in-court identification was independent of the photographs and lineups, it was properly admissible at the trial regardless of the pretrial identification proceedings. See United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926; United States v. Allen, 497 F.2d 160, 163 (5th Cir. 1974); Evans v. Janing, 489 F.2d 470, 474 (8th Cir. 1973). Here, Mrs. Friedly saw Monteer at close proximity for approximately five minutes during the robbery and she afterwards gave a detailed and accurate description of his build, facial features, and clothing. At no time during the next day and a half did she express doubt about her description of the robbers and she never failed to identify Monteer when he appeared in a lineup or a photographic display — a fact which enhances the reliability of her independent identification and confirms that she did indeed get a good look at Monteer during the robbery.

Counsel’s second attack upon appellant’s conviction is based upon the following direct examination at the trial of Coonce, the driver of the second getaway car.

MR. MOODY (attorney for government): Who was driving it [the getaway car]?
COONCE: I was.
Q: And at whose instruction was that?
A: Bill Monteer.
Q: Did he give any reason why you should drive?
A: It was just that I didn’t have no record.
Q: Do you mean that you have never — you have never been convicted—
MR. FREEMAN (attorney for Monteer): Just a moment, Mr. Moody.
THE COURT: Come up, gentlemen.

After a short colloquy between the court and the attorneys, the court denied appellant’s motion for a mistrial and instructed the jury to disregard Coonce’s last answer.

Counsel for appellant urges that the government’s questioning and Coonce’s answer enabled the government to place before the jury prejudicial evidence that Monteer had a criminal record since one can infer that if Coonce was driving because he had no record, the other two defendants, Boyle and Monteer, were not driving because they did have records.

We find no error. The trial judge appropriately observed: “the response does not carry the full impact that you [Monteer’s attorney] import to it.” The judge likewise was on sound ground in observing that the prosecutor did not act in bad faith in interrogating Coonce. In our view Monteer has magnified the subject questions and answers beyond all proportions. Defense counsel has attributed prejudicial error to an innocuous incident, which in our judgment did not have any adverse impact on the jury.

In any event, if we assume arguendo that Coonce’s remark was improper, the error did not affect the substantial rights of the appellant. Rule 52(a) Fed. R.Crim.P.; Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Moreover, even if Coonce’s statement was an impropriety of constitutional magnitude, it is clear beyond a reasonable doubt that any error was harmless. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Coonce’s statement was a fleeting one, and the jury was instructed by the court to disregard it. Moreover, the inference from Coonce’s statement that appellant had a criminal record was indirect at best, and it is not at all clear that the members of the jury would have even realized that Coonce had indirectly made reference to appellant’s criminal record.

In addition to the two issues already discussed, Monteer raises a number of points in his various pro se briefs to this court: that his arrest at home was illegal and in violation of the fourth and fourteenth amendments, and that a preindictment lineup is a critical stage requiring the presence of counsel. The lineup question has been resolved above. The remaining pro se contentions have been examined. They lack substance. In summary, we find no basis for reversal and remand.

Accordingly, the judgment of conviction is affirmed.

      . Monteer stipulated that the deposits of the b Corporation. ik were insured by the Federal Deposit Insurance

      . Judge Hunter concluded:
      I am satisfied from all of the evidence in this case that the Motion to Suppress Identification, and I note that it simply moves the Court for an order suppressing the use of any identification of the defendant Monteer by Eunice Friedly, is without merit and is overruled upon my specific finding, first, that the identification by Eunice Friedly of this defendant, Martin William Monteer, is, as a matter of fact, totally independent of both and each the lineup and the picture lineup.
      Mrs. Friedly’s testimony, which I accept as credible, on the subject is very strong and to the point that she was bookkeeper of the Bank of Ionia, Missouri, on March 14, 1974, at the time of the mentioned robbery of that bank, and that for a period of five minutes she had the opportunity to, and did, look closely at this defendant, Martin William Monteer. She took particular note of him. She stated that she was closer than three feet, in fact, about two and a half feet from him.
      She gave a careful and rather concise description of him and his clothes as they appeared to her on that occasion, and testified that she identified him from her look at him on that five-minute occasion, did so independently of any pictures that were shown to her or any lineup situation in which she participated in which this defendant was present.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    Bernard KAMHI, Appellant, v. Mannie COHEN, Appellee.
    No. 546, Docket 74-2410.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 7, 1975.
    Decided March 4, 1975.

      Frank Delaney, New York City, for appellant.
    Arthur J. Haussman, Brooklyn, N. Y. (Kadanoff & Haussman, P. C., Brooklyn, N. Y., of counsel) for appellee.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This appeal raises a question of interpretation of Fed.R.Civ.P. 19 which was formerly entitled “Necessary Joinder of Parties” and is now entitled “Joinder of Persons Needed for Just Adjudication.” The appellant, Bernard Kamhi, M.D., presently residing in Nevada, is the former husband of Shirley Kamhi. The appellee, Cohen, is the receiver and sequester appointed in the former Mrs. Kamhi’s New York divorce action against the appellant. Cohen’s function is to bring before the court any property belonging to Dr. Kamhi which might be used to pay alimony and child support awarded in connection with the granting of the New York divorce.

The suit from which this appeal is brought was one commenced by Dr. Kamhi in an attempt to set aside the seizure, by Cohen, of appellant’s so-called Keogh Plan Retirement fund, to which Dr. Kamhi contributed while he was practicing medicine in New York. The trustee for the fund is a bank in Staten Island, New York.

The ground upon which appellant bases his claim for relief focuses upon the dual aspects of matrimonial actions. On the one hand, the action is a proceeding in rem the purpose of which is to alter the matrimonial status of the parties before the court; the proceeding, however, can also have a substantial in personam aspect, fixing the rights and duties of the parties involved with respect to alimony and child support. Appellant maintains that the New York divorce which his former wife obtained on April 25, 1974, was only an in rem judgment, since it was made at a time when he contends he was a bona fide resident of Nevada. Accordingly, he takes the position that the sequester, appointed in the New York divorce action, was without authority to seize any of his property since a seizure subsequent to judgment would require that the court have had in personam jurisdiction over the appellant. Caplan v. Caplan, 30 N.Y.2d 941, 335 N.Y.S.2d 693, 287 N.E.2d 385 (1972); Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67 (1936). But see Tarshish v. Tarshish, 27 A.D.2d 909, 278 N.Y.S.2d 718 (1st Dep’t 1967).

Without reaching the merits of appellant’s claims, the court below dismissed the action on the ground that appellant had failed to include his ex-wife “as an indispensable party,” giving one month’s leave to appellant to serve an amended complaint. Appellant did not avail himself of this opportunity.

While the label “indispensable party” is misleading, we believe that Dr. Kamhi’s former wife should have been joined under Rule 19(a) and that the court below quite properly considered that in “equity and good conscience” as required by Rule 19(b) the action should be dismissed. We accordingly affirm although we invite the district court on remand to give appellant one further opportunity to amend.

We say that the term “indispensable party” is misleading because the very essence of the amendments to Rule 19 in 1966 was to abandon the rigid thinking brought about by the use of this and other labels in the old Rule 19. See Advisory Committee Note to the 1966 Amendment of Rule 19(a), 39 F.R.D. 89, 91-92; Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 364-66 (1967). That rigid thinking had utilized the rather flexible categorizing of Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1855), to turn, old Rule 19 into a rather inflexible rule even going so far as to equate “indispensable” with “having a joint interest” under subdivision (a). See United States v. Washington Institute of Technology, Inc., 138 F.2d 25, 26 (3d Cir. 1943); Cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). The courts, in short, had forgotten the admonition of Judge Learned Hand, speaking in Roos v. Texas Co., 23 F.2d 171, 172 (2d Cir. 1927), cert. denied, 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001 (1928), of Rule 39 of the Equity Rules (predecessor to Rule 19) and its provision that gave discretion to the court to proceed without parties ordinarily necessary but prescribed that the decree must be without prejudice to those who are absent: “The general statement does little to advance matters, until one knows what is the test by which to ascertain when such rights can be protected and when not, and this we understand to be an entirely practical question, dependent in each case upon the facts.” (Emphasis added.)

In any event, Professor John W. Reed’s seminal article, Compulsory Joinder of Parties in Civil Actions, 55 Mich. L.Rev. 327 (1957), which was a keystone of the 1966 changes in Rule 19, pointed out the various interests that should be involved in a Rule 19 decision, not the least of which was “the social interest in the orderly, expeditious administration of justice.” Id. at 330. He called for abandonment of the labels “necessary” and “indispensable.” Id. at 328-29. In the change of the rule’s name to which we first alluded, as well as in its revised body, Professor Reed’s thinking has largely been followed. Thus Rule 19 today involves a balancing of interests— those of the parties and of the outsider, those of the public and of the court in seeing that the litigation is both effective and expeditious, Schutten v. Shell Oil Co., 421 F.2d 869 (5th Cir. 1970), while taking into account “equity and good conscience.” Relying on the philosophy of United Mine Workers v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), that “joinder of claims, parties and remedies is strongly encouraged,” Professor Wright has stated that “the rule should be employed to promote the full adjudication of disputes with a minimum of litigation effort.” 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1602 at 18 (1972).

With these considerations in mind, we will try to employ Judge Hand’s pragmatic approach to determine whether Judge Neaher’s discretion was properly exercised. From the standpoint of the appellant as plaintiff below, he has, of course, the right to choose his forum, although we have only recently said that “there is particularly strong reason for abstention in cases which, though not within the exceptions for matters of probate and administration or matrimony and custody actions, are on the verge, since . . . they raise issues ‘in which the states have an especially strong interest and a well-developed competence for dealing with them.’ ” Phillips, Nizer, Benjamin, Krim and Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973). Dr. Kamhi’s reluctance to go into state court is understandable in view of N.Y.C.P.L.R. § 303 (McKinney 1972) which might be construed to give Dr. Kamhi’s former wife an opportunity to obtain personal jurisdiction over appellant in a counterclaim for alimony or support. This is a matter which we are little competent to, and do not, decide, particularly in the light of N.Y.C.P.L.R. § 302(b) (McKinney Supp.1974) which, even though enacted after the judgment of divorce in this case, might conceivably be construed to give some sort of continuing jurisdiction over the doctor despite his residence elsewhere. At the same time, one may question why the commencement of this action is not in and of itself a vehicle for service by the ex-wife of the husband’s attorney under § 303; in other words, we wonder what he stands to gain by proceeding here, as opposed to proceeding against the sequester in state court, although we understand his contention that § 303 does not apply to federal court actions. To be sure, he speaks somewhat reproachfully of the constitutional implications of New York’s asserting in personam jurisdiction in what he says is an in rem action, but there is nothing to indicate to us that the New York courts cannot, as they have been able to do in the past, adequately deal with the constitutional dictates of William v. North Carolina II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

As for the appellee here, the sequester, he was appointed in the divorce proceeding by the Supreme Court, Kings County. He is an officer of and responsible to that court, acting as he does under N.Y.Dom.Rel.Law § 233 (McKinney’s Consol.Laws, c. 14, 1964). Interestingly, it is possible that under N.Y.Dom. Rel.Law § 235 (McKinney 1964), the appellee does not even have the power to examine and review the matrimonial file in the Supreme Court, which might well be necessary to the proper assertion of a defense made below, that there was in fact in personam jurisdiction over the appellant in the divorce action. Beyond this he has a proper right to wish to avoid multiple litigation and the possibility of inconsistent decrees in reference to his conduct. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).

Mrs. Kamhi doubtless has an interest in this litigation, such that we may wonder why she has not sought leave to intervene, since it is her judgment which the sequestration seeks to protect. Surely under the more flexible approach to Rule 19 decision-making now required, it is feasible to join her; while it may be that in her absence complete relief could be accorded among the parties, she does have an interest relating to the subject of the action and is so situated that disposition of the action in her absence may as a practical matter impair or impede her ability to protect that interest. Joining her would not defeat diversity, nor would it be impracticable to serve her. Under these circumstances we think that by the terms of Rule 19(a) the court was required to join her — the rule says, “the court shall order that he be made a party.”

This being so the court is required under Rule 19(b) “in equity and good conscience” to determine whether to proceed or to dismiss, since appellant has not seen fit, for what may be good reasons of his own, not to serve her, now that she has been “regarded as indispensable.” In making this judgment, while the court below did not articulate the public interest factors, it seems to us they must be taken into account. Whether one calls it comity or something else, it would seem inappropriate for the federal court, absent jurisdiction over Mrs. Kamhi, to subject the sequester to inconsistent decrees. For a federal court to accept jurisdiction in a matter which in the words of Phillips, Nizer, supra, at least “verges” on the matrimonial, or where as here the receiver is a state court appointee and hence an arm of the state court, would require proof of substantial countervailing factors not shown to be present in this suit. The multiplicity of litigation here involved has evidently been caused by the husband’s unwillingness to subject himself to the possible operation of New York State domestic relations laws in what he refers to as “the legal atmosphere” of New York State, an atmosphere we take it not altogether amicable toward husbands who leave New York wives for the more favorable climes of Nevada. But this is hardly grounds for the federal court to go out of its way to exercise its conceded jurisdiction, as a matter of policy — what was referred to in Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 165, 6 L.Ed. 289 (1825), as “the policy of the court.” The policy of our court will remain, the case being otherwise equal in equity, to keep our federal hands off actions which verge on the matrimonial, or impinge upon the matrimonial jurisdiction of the state courts. We believe, however, that appellant should be given an additional 30 days’ leave to serve and file an amended complaint, naming Mrs. Kamhi as a party, after remand to the district court. We request the court below to grant such leave.

Judgment affirmed in accordance with opinion, costs to appellee.

      . Rule 19. Joinder of Persons Needed for Just Adjudication.
      (a) Persons to be Joined if Feasible.' A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
      (b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

      . Jurisdiction is based upon both diversity, 28 U.S.C. § 1332, and a claimed federal question, that is, the limits of a state’s jurisdictional power over one claiming to be a nonresident, 28 U.S.C. § 1331. The matter in controversy, exclusive of interest and costs, exceeds $10,-000.

      . Whether this distinction between in rem and in personam jurisdiction precludes the seizure of in-state property is a question presently being raised in New York. Renaudin v. Renaudin, 37 A.D.2d 183, 186, 323 N.Y.S.2d 145, 148 (1st Dep’t 1971) (Eager, J„ dissenting), appeal withdrawn, 29 N.Y.2d 725, 326 N.Y.S.2d 386, 276 N.E.2d 224 (1971). McLaughlin, Supplementary Practice Commentary, N.Y.C.P.L.R. § 314 (McKinney 1972). The trend toward extending in personam jurisdiction through the use of “long-arm” statutes wherever there are sufficient contacts linking a nonresident to a forum state suggests that courts may scrutinize the distinctions between in rem and in personam jurisdiction more closely. Here, the Kamhis were married in New York and resided in New York for many years; one might well question whether a divorce action such as the present one which included incidental in personam relief affecting only New York property would “offend ‘traditional notions of fair play and substantial justice’.” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). But see N.Y.C.P.L.R. § 302(b) (McKinney Supp.1974), which might well strain the constitutional limits that a state may assert over a nonresident in connection with a matrimonial action.

      . Dr. Kamhi had apparently obtained his own divorce in Nevada on December 21, 1973, having been domiciled there since October 13, 1973. Appellant maintains that his continued presence in that state, together with an expressed intention to remain there, makes him a bona fide Nevada resident. However, in the New York divorce decree, it appears that the court made a finding that Dr. Kamhi was still a resident of New York as of April 24, 1974.

      . Dr. Kamhi takes the position that seizure of his New York assets in connection with an in rem divorce action would have been proper only if the seizure were made prior to the final divorce decree.

      . In Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1855), the Supreme Court stated that there were, in addition to formal parties, two other classes of parties.
      2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.
      While this language may be faulted for its vagueness, it should be clear that the court was suggesting by its “equity and good conscience” language, a flexible approach to deciding if a particular person was “indispensable.” That language has of course been inserted in new Rule 19(b).

      . In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11, 88 S.Ct. 733, 738, 19 L.Ed.2d 936 (1968), the Court suggested four interests to be considered in deciding whether a court should proceed without a party having an interest in the litigation.
      First, the plaintiff has an interest in having a forum. Before the trial, the strength of this interest obviously depends upon whether a satisfactory alternative forum exists. On appeal, if the plaintiff has won, he has a strong additional interest in preserving his judgment. Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. .
      Third, there is the interest of the outsider whom it would have been desirable to join. . [T]he court must consider the extent to which the judgment may “as a practical matter impair or impede his ability to protect” his interest in the subject matter.
      Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. We read the Rule’s third criterion, whether the judgment issued in the absence of the nonjoined person will be “adequate,” to refer to this public stake in settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtainable against them. After trial, considerations of efficiency of course include the fact that the time and expense of a trial have already been spent.
      (Footnotes omitted.)

      . N.Y.C.P.L.R. § 303 (McKinney 1972) provides as follows:
      The commencement of an action in the state by a person not subject to personal jurisdiction is a designation by him of his attorney appearing in the action or of the clerk of the court if no attorney appears, as agent, during the pendency of the action, for service of a summons in any separate action in which such a person is a defendant and another party to the action is a plaintiff if such separate action would have been permitted as a counterclaim had the action been brought in the supreme court.

      . N.Y.C.P.L.R. § 302(b) (McKinney Supp. 1974) provides as follows:
      Personal jurisdiction over non-resident defendant. A court in any matrimonial action or family court proceeding involving a demand for support or alimony may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the obligation to pay support or alimony or alimony accrued under the laws of this state or under an agreement executed in this state.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Donald TOWNES, Defendant-Appellant.
    No. 74-2045.
    United States Court of Appeals, Sixth Circuit.
    March 17, 1975.
    S. Allen Early, Jr., Detroit, Mich., for plaintiff-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Gordon S. Gold, Asst. U. S. Atty., for defendant-appellee.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   PER CURIAM.

This appeal is from Appellant’s conviction by a jury on two counts. The first count charged possession of 23 grams of cocaine, and the second count charged Appellant and his co-defendant with selling and aiding and abetting in its sale. A third count in the indictment against Appellant charged a conspiracy between the two co-defendants to sell the cocaine. This third count was dismissed at the close of the Government’s case, after the District Court offered the Government the choice of dropping the aiding and abetting charge under count two or the conspiracy count. Under protest that the District Court was wrong in holding that the two charges constituted “in effect the same thing,” the Government agreed to the conspiracy count’s dismissal.

The deletion of the conspiracy count gives rise to Appellant’s first argument for reversal. He contends that certain damaging hearsay evidence was admitted under the co-conspirator exception to the hearsay rule which would not have been admitted if the conspiracy count had been dropped before trial. The Government responds that the conspiracy charge should not have, been ordered deleted, so that the hearsay testimony was properly admitted. Even if the conspiracy count was properly dismissed, the Government maintains, there was substantial evidence of a criminal joint venture, aside from the hearsay testimony itself, so that the disputed testimony was within an exception to the hearsay rule.

We agree with both of the Government’s contentions. First, the conspiracy count should not have been ordered deleted from the charge to the jury. In United States v. Bradley, 421 F.2d 924, 927-28 (6th Cir. 1970), we explicitly stated that convictions concerning the same transaction under both aiding and abetting and conspiracy counts were proper. Conspiring to commit a crime with another and aiding and abetting in its substantive commission are distinct crimes. See also Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435 (1953); Securities and Exchange Commission v. Coffey, 493 F.2d 1304, 1316 (6th Cir. 1974). Thus, the Government should not have been forced to choose between deleting the aiding and abetting element of count two or dropping the conspiracy charge under count three, and the hearsay testimony concerning the conspiracy was properly admitted.

Second, even aside from the existence of a proper conspiracy charge, we find substantial evidence in the record, apart from the challenged hearsay testimony, of a criminal joint venture between the co-defendants. The hearsay testimony was therefore admissible. United States v. Perna, 491 F.2d 253 (6th Cir.) cert. denied, 417 U.S. 934, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); United States v. Lucido, 486 F.2d 868 (6th Cir. 1973); United States v. Talbot, 470 F.2d 158 (6th Cir. 1972).

Appellant’s second contention is that there was insufficient evidence to justify submission of the case to the jury. A review of the record demonstrates ample evidence to support the conviction. The record shows that Appellant went to the co-defendant’s residence after a call was made by the co-defendant to “Don.” Don is Appellant’s first name. The caller placed an order for a bag of cocaine. Appellant was present in the room when the co-defendant tested the cocaine and certified to its strength, in order to assure the Government’s undercover agent who was posing as a purchaser. The agent testified that Appellant stated that the cocaine was “very good” and that “we haven’t had any complaints about it in the past.” Appellant added that larger quantities were available in the future. This evidence, along with other damaging testimony, is sufficient to support Appellant’s conviction on both counts. Appellant’s denial of any involvement with drugs was for the jury to consider, and its verdict indicates a rejection of his credibility-

Appellant’s final argument is that the Government should not have been permitted to introduce evidence that a quantity of narcotics had been discovered in a pair of trousers in his bedroom approximately three months after the acts charged in the indictment. The search which produced these narcotics was declared illegal on May 8, 1973 by the District Court. The Government introduced this evidence to rebut Appellant’s statements in response to his lawyer’s questions on direct examination that he had never used controlled drugs and “never had anything to do with drugs.”

Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), requires us to reject Appellant’s contention. As the Supreme Court held there, 347 U.S. at 65, 74 S.Ct. at 356, “[Tjhere is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Evidence obtained from an illegal search and seizure of narcotics on a defendant’s premises may be admitted to rebut a defendant’s claim on direct examination that he had never been involved with narcotics. A different case would, of course, be presented if Appellant himself had not asserted his lack of involvement with narcotics. See Agnello v. United States, 269 U.S. 20, 35, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

Appellant’s conviction is affirmed.


text:
    UNITED STATES of America, Appellee, v. William A. SOLVEN, Appellant.
    No. 74-1750.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 6, 1975.
    Decided March 18, 1975.
    Rehearing Denied April 4, 1975.

      Sheldon Weinstein, St. Louis, Mo., for appellant.
    Richard A. Heidenry, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

William A. Solven was convicted of possessing a firearm, a sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871, and unlawfully receiving a firearm, a revolver, in violation of 18 U.S.C. § 1202(a)(1). He contends on appeal that the trial court erred in refusing to suppress the weapons which were seized in a warrantless search from the trunk of a car driven by Solven. We disagree with Solven and affirm.

The arresting officer initially had reasonable cause to stop Solven for questioning. He knew Solven, he knew Solven had previously been arrested for robbery, he saw Solven get into the driver’s seat of a car that had, according to a reliable informant, been used in drug store robberies in South St. Louis, and he observed that Solven matched the description of one of the men involved in those recent drug robberies and that the passenger matched the description of another of the men involved in those robberies. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971). When the passenger got out of the car, the officer observed the butt of a revolver protruding from under the floor pad. This fact, coupled with those previously stated, was sufficient to justify the arrest of Solven and the passenger.

The arresting officer had probable cause to believe that the car driven by Solven contained stolen goods as well as other weapons and, thus, he had probable cause to make an extensive search of the automobile for such weapons or contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Heisman, 503 F.2d 1284, 1290 (8th Cir. 1974).

Probable cause to search the trunk still existed at the station house — • the car having been driven there immediately from the scene of the arrest, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), particularly as the officers were unable to open the trunk at the scene of the arrest on the highway and conducted the search immediately after the car arrived at the station.

Affirmed.


text:
    Jerry Mack DORROUGH, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-1881.
    United States Court of Appeals, Fifth Circuit.
    April 28, 1975.
    David M. Ellis, Dallas, Tex. (court appointed), for petitioner-appellant.
    Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   BY THE COURT:

The earlier opinion of this Court in this case, reported at 497 F.2d 1007 (5 Cir. 1974), was reversed by the United States Supreme Court. See Estelle v. Dorrough, 1975, - U.S. -, 95 S.Ct. 1173, 43 L.Ed.2d 377. Dorrough’s sole contention in the district court and in this Court was that the Texas statute which provided for the dismissal of any pending direct criminal appeal of a defendant who escaped from confinement after sentencing, Vernon’s Tex.Code Crim.Proc.Ann., Art. 44.09, denied him the equal protection of the laws. The district court had denied relief, but this Court found the statute invalid, and in its mandate issued August 20, 1974, ordered that, unless the State of Texas provided Dorrough an appeal or a new trial within a reasonable time if an effective appeal were not possible, the district court should issue a writ voiding the detainer warrant the state had lodged against him. The Supreme Court found that the statute did not offend the Equal Protection Clause, and reversed. In its opinion the Court noted that Dorrough sought to raise new contentions before it, but declined to consider them.-U.S. at-, 95 S.Ct. at 1175, 43 L.Ed.2d at 380. None of those other issues is presently before us.

It is therefore ordered and adjudged that the earlier judgment of this Court in this cause is hereby vacated and set aside, and that the mandate of this Court issued on August 20, 1974, is hereby recalled, and that in its stead a mandate shall issue forthwith affirming the judgment of the district court denying the petition for a writ of habeas corpus.


author: PER CURIAM: BROWN, Chief Judge,

text:
    In the Matter of the Complaint of DEARBORN MARINE SERVICE, INC., C-W-D, Inc., Thoroughbred Marine Services, Inc., and Freeport Operations, Inc., for Exoneration from or Limitation of Liability of the OIL SCREW CARRYBACK. Webster Barnwell ARMSTRONG, III, Individually, etc., et al., Plaintiffs-Appellees, v. CHAMBERS & KENNEDY et al., Defendants-Appellees-Appellants, Esther M. Love, Intervenor-Appellant-Appellee.
    No. 72-2704.
    United States Court of Appeals, Fifth Circuit.
    April 7, 1975.
    Dissenting Opinion April 23, 1975.
    Robert H. Roch, Houston, Tex., for Esther Marie Love.
    T. G. Schirmeyer, L. Glen Kratochvil, Houston, Tex., for Dearborn, Thoroughbred, and others.

      Edward W. Watson, Houston, Tex., for Chapman Contracting.
    Alice Giessel, Henry Giessel, Houston, Tex., for Drilling Eng.
    W. Eugene Davis, New Iberia, La., Donald L. King, New Orleans, La., for Chambers & Kennedy.
    John N. Barnhart, Houston, Tex., for Lucille Monk.
    Warner F. Brock, Houston, Tex., for Armstrong.
    Carl Waldman, Ned Johnson, Beaumont, Tex., for Gaspard, Breaux and others.
    William D. Hunter, Morgan City, La., for Cassel.
    George B. Matthews, New Orleans, La., for Hartford.
    H. Lee Howard, Lafayette, La., for Employers Reins. Corp.
    Wm. P. Rutledge, Lafayette, La., O. H. Deshotels, Jr., Kaplan, La., for Melancon and others.
    Emile A. Carmouche, Jr., Crowley, La.
    Blake Tartt, Edward W. Watson, Houston, Tex., for Chapman and Home Indem. Co.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.

PER CURIAM:

The Petition for Rehearing filed by Defendants-Appellants Dearborn Marine Service, Inc., C-W — D, Inc., Thoroughbred Marine Services, Inc., and Freeport Operators, Inc., is overruled. With respect to that petition, no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

The petition for rehearing filed by appellees Lucille Monk, et al., surviving dependents and personal representative of the estate of William C. Monk, deceased, is overruled. With respect to that petition, the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied, from which denial Chief Judge Brown dissents.

BROWN, Chief Judge,

dissenting from denial of rehearing en banc:

Executive Jet is the first Supreme Court case abandoning the traditional “ebb and flow of the navigable waters” test for admiralty tort jurisdiction. Today the Court lets stand a panel decision extending the rationale of Executive Jet to produce the result that one man’s death is governed by two different systems of law. I think the result is wrong but in any event the question thus decided is an important one — and, therefore, worthy of consideration by the full Court.

In cases where the Executive Jet result was urged, but rejected, e. g., Atlantic Transport Co. v. Imbrovek, 1914, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, the Court has shown itself receptive to a broad concept of maritime service. While the language in Part I of Executive Jet is broad, the actual holding in Part IV is narrowly drawn. It relies heavily on the fact (i) air transportation involves problems substantially different from those admiralty rules are designed to resolve, and (ii) the situs situation is highly fortuitous in cases of air disaster.

I am not convinced either factor has a counterpart in this case. The problems land-based parties face in protecting persons aboard nearby vessels have long been dealt with by admiralty rules, e. g., Kelly v. Smith, 5 Cir., 485 F.2d 520, cert. denied sub nom. Chicot Land Co. v. Kelly, 1974, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558; Re Motor Ship Pacific Carrier, 5 Cir., 489 F.2d 152, cert. denied sub nom. Union Camp Corp. v. Gypsum Carrier, Inc., 1974, 417 U.S. 931, 94 S.Ct. 2643, 41 L.Ed.2d 235. And I think the Executive Jet Court found fortuity an important factor because injury would have been sustained whether impact was with land or water. In this case Monk’s situs on the High Seas was fortuitous, but he would not have sustained the instant injury but for that situs.

Nor should the panel have relied on Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, for the proposition “Congress did not intend that application of state law necessarily should cease at the physical boundaries of the platform.” To the extent the panel means to rely on OCSLA, I think it incorrectly interprets both Rodrigue and the legislative intent. The question Congress decided was whether to extend admiralty law inward — onto the platform. It decided not to, and relied on the traditional maritime principles relating to man-made structures attached to the ocean’s floor— piers, wharfs, etc. I certainly find nothing in that rationale to support the panel’s erosion of the traditional principles relating to persons injured on board vessels.

Experience demonstrates daily that Rodrigue, conceived by the Court in the beneficent object of protecting and advancing the rights of shore-based workers employed on offshore platforms by applying to them the legal rights accorded by the adjacent state, actually diminishes them and subjects them and their heirs to awful consequences of technical rules long since rejected by the admiralty. Thus we see rights accorded by the admiralty — indeed held applicable vis-avis M/V Carryback — taken away by the Texas rule on contributory negligence. Today it is contributory negligence. Tomorrow it will be the state statute of limitations. See, Huson v. Otis Engineering Corp., 5 Cir., 1970, 430 F.2d 27 at 27 — 28, aff’d on other grounds sub nom. Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. Next month it will be the stringent Louisiana “statutory employer” defense. See, Roelofs v. United States, 5 Cir., 1974, 501 F.2d 87, 90 n. 7.

The panel’s basic position is Monk’s presence aboard the vessel was non-maritime in nature. We do not have to make either a blue water or Sieracki-ambiguous-amphibious seaman out of him to make maritime principles the source of his (and his heirs’) rights. But this Circuit has struggled long and hard with who is a “seaman”, and I do not think those efforts were meant to be disturbed by the Supreme Court in the context of an airplane crash. To establish the ship-related status, I would apply by analogy the test announced in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, and just recently followed in Brown v. ITT Rayonier, Inc., 5 Cir., 1974, 497 F.2d 234. The main question under that test is whether “the duties which he performed contributed to the function of the vessel as to the accomplishment of its mission . .” Offshore Co. v. Robison, supra, 266 F.2d at 779. The important thing is the particular mission of that vessel, not necessarily that of an ocean liner or the Weehawken Ferry.

In this case,
[s]ince the platform was unmanned it was necessary that there be daily transportation from shore to platform and back to shore for those engaged in and supervising the work [period]. Also, of course, various materials, supplies, and equipment had to be transported to and from shore. Each day for the period after it arrived from shore and until it returned to shore the Carryback remained in the vicinity of the platform, acting as a service and standby vessel, the DEI supervisor, Monk, came aboard her to do office work where he could be away from the wind and noise of the platform and in air-conditioned surroundings.

499 F.2d at 267. While aboard M/V Carryback, Monk was certainly making a substantial contribution to that mission, because his needs were one of the important reasons the vessel was employed and there.

In Brown, supra, it was held appellant was not a “crew member”, but Brown spent only about 1% of his employment time aboard any vessel. Even at that the Court recognized that the second part of the Offshore test (permanent assignment) should not be rigidly applied. See, Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, rehearing denied, 1961, 289 F.2d 939. In this case, Monk’s employer required him to spend a substantial amount of time aboard M/V Carryback.

It at least appears to me that the Court has broken from the established rule in this Circuit — and its result appears contrary, also, to that in other Circuits, e. g., Slatton v. Martin K. Eby Construction Co., 8 Cir., 1974, 506 F.2d 505; and Lewis v. Roland E. Trego & Sons, 4 Cir., 1974, 501 F.2d 372. Both those cases recognize (i) the question is not whether the worker was directly involved with the vessel’s navigation, but rather its function and (ii) the worker need not be exclusively assigned to duties on the vessel.

Finally, this Reverían “one-if-by-land, two-if-by-sea”, United States v. Ingham, 5 Cir., 1974, 502 F.2d 1287, 1290, approach, in which the very same person (Monk) on the very same vessel (M/V Carryback) for the very same catastrophe growing out of the very same acts or non-acts has rights measured under two antithetical standards depending on who is the pursued, introduces awful technicalities which in its generous liberality of both substance and procedure is anathema to the admiralty.

I would reverse the panel on the merits of this issue. But at the least it deserves reconsideration by the whole Court, considering the volume of OCSLA cases in the Fifth Circuit in the Nation’s quest for precious energy.

      . Executive Jet Aviation v. Cleveland, 1972, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454.

      . “The anomaly is well illustrated by the hypothetical case of two aircraft colliding at a high altitude with one crashing on land and the other in a navigable river. If . the respondent’s position were adopted, jurisdiction would depend on whether the plane happened to be flying over land or water when the original impact of the alleged negligence occurred. This circumstance, too, could be totally fortuitous.”
      409 U.S. at 267, 93 S.Ct. at 504, 34 L.Ed.2d at 467.

      . Dearborn Marine Service, Inc. v. Chambers & Kennedy, 5 Cir., 1974, 499 F.2d 263, 273.

      . The Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq.


author: PER CURIAM: COOPER, Trial Judge:

text:
    JACOBSON BROTHERS, INC., et al. v. The UNITED STATES.
    No. 355-70.
    United States Court of Claims.
    March 19, 1975.

      Robert C. Miller, Washington, D. C., attorney of record, for plaintiffs.
    Louise O’Neil, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before KASHIWA, KUNZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This case comes before the court on defendant’s motion, filed December 31, 1974, requesting that the court adopt the recommended decision of Trial Judge Hal D. Cooper, filed November 6, 1974, pursuant to Rule 134(h), as the basis for its judgment in this case since plaintiffs have failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court has expired. Upon consideration thereof, without oral argument, since the court agrees with the recommended decision, as hereinafter set forth , it hereby grants defendant’s motion and affirms and adopts the said decision as the basis for its judgment in this case. It is therefore concluded that plaintiffs are not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

COOPER, Trial Judge:

Plaintiffs, under 28 U.S.C. § 1498, seek reasonable and entire compensation for the alleged unauthorized use and manufacture by or for the United States of an invention described in claims 1, 2, 4, 6, and 7 of United States Letters Patent No. 3,014,984, entitled “Underwater Television Device,” issued on December 26, 1961, to Irenus C. Jacobson, now deceased.

Plaintiff Jacobson Brothers, Inc., a Washington State corporation with its principal place of business in Seattle, Washington, is the licensee of the patent in suit. This corporation is owned by I. C. Jacobson, Alan Jacobson, Robert Brog, and Bryan Jacobson. The plaintiffs Elisa E. Jacobson (executrix of the estate of I. C. Jacobson) Sofus T. Jacobson, and Isidor R. Jacobson are the owners of the patent in suit.

The patent in suit relates to an underwater salvage device. It consists of a closed circuit television camera mounted in a pressure resistant watertight chamber, the chamber being adjustably mounted on a cage or framework to permit pan and tilt movement. A plurality of illuminating lights are mounted on the framework in association with the camera and are adapted to be moved with the camera. A hoisting cable is used to suspend the entire device from a surface vessel and to raise and lower it in the water. In addition, a maneuvering system is provided to maneuver the device along the ocean floor. This system includes four maneuvering anchors with a cable attached to each anchor. Each cable passes through a separate block or pulley on the framework, up to the surface vessel, where it is attached to a cable-winding drum or winch to enable each cable individually to be wound in or payed out. In essence, the patented device is an underwater vehicle using a TV camera as an “eye” to permit the operator on the surface vessel to control the movements of the vehicle by selectively operating the winches.

Although not described in the text of the patent, the patented device has been used primarily to recover torpedoes for the U.S. Navy. In so doing, the surface vessel is first fixed in a three-point moor to minimize horizontal movement. The four maneuvering lines with anchors attached are then deployed some 300 to 400 yards from the ship, roughly 90° apart. The device is suspended over the side of the main vessel with a boom and hoist cable, and the four maneuvering lines are attached to the frame by passing them through the pulleys. The device is lowered over the side by paying out the hoist cable and the four maneuvering lines simultaneously until it is just short of the bottom. It is maneuvered by selectively taking in and paying out the appropriate maneuvering lines until, through a monitor on board the vessel, visual contact with the torpedo is made. The operator maneuvers the vehicle over the torpedo and actuates a clamp which grips the torpedo. The torpedo is then lifted to the surface.

Plaintiff maintains that three television-equipped torpedo recovery vehicles procured by the Navy, named the Solar-is, SORD I, and SORD II, infringe claims 1, 2, 4, 6, and 7 of the patent. Claim 1 is as follows:

An underwater television device comprising a cage structure, a supporting cable for raising and lowering said cage, a television camera adjustably mounted within said cage, illuminating means mounted in association with said camera and adapted to be moved in accordance with the movement of said camera, a plurality of cage maneuvering lines, an anchor secured to the outer end of each line, a cable winding drum for each maneuvering line on which the maneuvering line is adapted to be wound in or payed out, said drums being mounted on a surface vessel and block means on said cage for slidably securing the cage to said maneuvering lines intermediate the ends of said lines and each of said lines leading directly from its respective winding drum, through its respective block to its respective anchor.

Although defendant denies any infringement of the patent, there is no substance to that contention. Such differences as there are between the claims and the accused structures relate to a modified cable maneuvering system that the Navy evolved. Quite clearly, that modification is the full equivalent of the arrangement claimed and therefore, does not avoid infringement. Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Tektronix, Inc. v. United States, 445 F.2d 323, 195 Ct.Cl. 53 (1971); Autogiro Company of America v. United States, 384 F.2d 391, 181 Ct.Cl. 55 (1967), rehearing denied, 184 Ct.Cl. 801 (1968).

The principal issue for consideration is defendant’s contention that the patent is invalid for obviousness under 35 U.S.C. § 103. The approach to be taken in resolving that issue was stated in Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966), in the following terms:

Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness- of the subject matter is determined. * * *

See also, Ellicott Machine Corp. v. United States, 405 F.2d 1385, 186 Ct.Cl. 655 (1969).

The nonobviousness determina-' tion must, of course, be made from an assessment of the subject matter “at the time the invention was made.” 35 U.S.C. § 103. Here the seeds of the invention were sown in the summer of 1955 when plaintiffs first purchased an underwater TV camera and lights for use in a potential salvage operation they had in mind. At that time, underwater TV cameras were known and had been previously suggested for underwater salvage work. In one such prior art arrangement (described in the Wireless World publication), a closed circuit TV camera and a bank of lights were mounted on a framework, with the camera and lights being movable as a unit. The assembly was suspended from a surface vessel by a hoist cable with the operation of the camera controlled remotely from the surface. In another prior art device (disclosed in the Hartman patent), a television camera was carried in a diving bell, along with photographic equipment, with the bell suspended from a surface vessel. The television was used to provide visual observation of the ocean floor for purposes of exploration and salvage work and the photographic equipment was used to record the objects located by the TV camera. The operation of this device was controlled remotely from the surface.

A third such device, developed by the Navy under Project Fisheye, had a TV camera, a still camera, and lights mounted on a framework, with the equipment being operated and controlled remotely from a surface vessel.

Notwithstanding the existence of these prior art arrangements, underwater television was in its infancy when plaintiffs first became interested in this field. Many of the problems they subsequently encountered, such as poor TV reception, leaking junction boxes, power and hydraulic cable problems, and shattered light lenses, stemmed from the general lack of experience by those in the business of manufacturing TV cameras and were ultimately solved by advancements made by others than plaintiffs.

The major problem encountered and solved by the patent in suit arose in May 1956 when, in an attempt to view a downed airplane in 400 feet of water, considerable difficulty was experienced in maintaining stability of the TV camera and maneuvering it into position. At that time, plaintiffs were supporting the cage on which the camera was mounted from a hoist cable, with two maneuvering lines connected to the cage running to the fore and aft of the ship. This arrangement proved to be wholly unsatisfactory.

The prior art underwater television arrangements, discussed above, offered scant guidance in providing a suitable arrangement for maneuvering a TV camera in deep water. Only the Navy-developed device had a maneuvering capability and that was in the form of a propeller-driven propulsion system. The other prior art TV cameras were merely suspended by a hoist cable and could not be maneuvered at all.

However, the problem of providing stability and maneuverability for an underwater device was not a new one. Diving bells had been used for many years in deep-water exploration and salvage. In the 1930’s, it had been proposed to use a system of cables, anchors, and winches both for maintaining stability of the bell against underwater currents and to afford maneuverability of the bell along the ocean floor. Two of these arrangements are disclosed in the O’Rourke and Romano patents. Both of these suspended the bell from a hoist cable with a plurality of maneuvering cables interconnecting the bell with anchors on the ocean floor. These anchors served as fixed points relative to which the bell could be maneuvered by operation of winches for winding up or paying out selected maneuvering cables. In O’Rourke, the winches were on the diving bell and were operated by the occupants of the bell, while Romano placed the winches on the surface vessel where they were operated as directed by the occupants in the bell.

This, then, was the state of the art when, in late 1957, Jacobson solved his stability and maneuverability problem by developing the system disclosed in his patent.

In 1958, the Navy opened a torpedo test range in Dabob Bay, near Seattle, Washington, the depth of that range being about 600 feet, a depth substantially greater than a diver could reach. Prior to that time, the Navy had tested its torpedoes at depths that were sufficiently shallow to permit divers to retrieve them. However, with the advent of deep-running torpedoes, much deeper test ranges were needed.

In 1958, plaintiffs heard a rumor of a sunken torpedo in Dabob Bay. Although they had given no thought to torpedo recovery prior to that time, they offered their services to attempt recovery of that torpedo. The Navy accepted and plaintiffs ultimately were successful in recovering the torpedo, using the device disclosed in the patent. This was the first successful recovery by anyone of a torpedo in deep water and it demonstrated that the system Jacobson had developed would hold the camera firmly against underwater currents while permitting incremental movement of the camera along the ocean floor.

The equipment disclosed in the patent in suit was used by plaintiffs in hundreds of successful torpedo recoveries for the Navy over the next few years. In these recoveries, plaintiffs worked under contract with the Navy and received numerous letters of congratulations on their work, which saved the Navy very considerable sums of money. In addition to torpedoes, plaintiffs also recovered from deep water different types of bombs and missiles.

Subsequent to their first successful torpedo recovery, plaintiffs offered to sell their equipment to the Navy. The Navy declined the offer, electing instead to embark upon a program of developing its own torpedo-recovery equipment. Under this program, the Navy tried a number of approaches, all of which were failures. Ultimately, it procured the Solaris, which employed a TV camera and a torpedo-gripping claw but which was designed to be maneuvered by propellers, much in the same manner as the earlier Navy Project Fisheye. This, too, was a complete failure, largely due to the instability of the maneuvering system. Ultimately, the propellers were removed from the Solaris and a cable-maneuvering system of the same type as that used by plaintiffs was employed. With this modification, the Solaris was successful. Thereafter, the Navy procured two more recovery vehicles, both named SORD, each of which employed a cable-maneuvering system for maneuvering the vehicle.

Against this background, defendant contends that claim 1 merely defines a combination of old elements that was obvious to anyone having ordinary skill in the art of underwater-salvage work at the time the invention was made. Plaintiffs assert that the combination of claim 1 was unobvious to one of ordinary skill in the field of deep-water recovery of torpedoes and that the commercial success achieved by plaintiffs, together with defendant’s abortive attempts at development of a different system of torpedo recovery, are cogent evidence of this nonobviousness.

It is at once apparent from the competing arguments of the parties that they are in disagreement as to what is the pertinent art. As is so often the case, plaintiffs define the art narrowly while defendant contends for a much broader definition. In resolving this issue, it is the claims that are the measure of the invention and the obviousness issue must be resolved on the basis of what is claimed. Kemode Manufacturing Co. v. United States, 347 F.2d 315, 171 Ct.Cl. 698 (1965). In looking to the claims, it appears that plaintiffs’ definition of the pertinent art is too restrictive. The claims describe the invention broadly as an “underwater television device” and that is the title of the patent. The specification refers to the invention as an underwater-scanning mechanism. Further, the operation of the device, as described in the patent, is phrased in general terms and contains no reference whatever to deep-water torpedo recovery. Thus, the claims, both by their terms and when construed in light of the specification, are not restricted to apparatus for deep-water recovery of torpedoes. Moreover, the facts are that Jacobson made his invention before the problem of deep-water recovery of torpedoes had even arisen. Accordingly, the art pertinent to an evaluation of the obviousness of these claims is not limited to that field. Application of Sebald, 268 F.2d 430, 432, 46 CCPA 964 (1959). Among the art that is pertinent are the O’Rourke and Romano patents, particularly with respect to their teachings of maneuvering systems for maneuvering underwater devices.

In view of the pertinent prior art, the differences defined by the subject matter of claim 1 reside principally in two areas. None of the prior art discloses a cable-maneuvering system in combination with a frame-mounted underwater TV camera and lights. Nor do the prior art cable-maneuvering systems, specifically those used with the underwater devices of O’Rourke and Romano, correspond exactly to the arrangement of cables, pulleys, winches, and anchors specified in claim 1. It is these differences, but in the context of the claimed subject matter as a whole, upon which the inquiry into the obviousness of claim 1 must focus.

The determination of whether these differences are sufficient to satisfy the requirement of nonobviousness contemplated by § 103 must be made with reference to “a person having ordinary skill in the art.” A finite quantitative definition of this ordinarily skilled person is difficult at best. Reeves Instrument Corp. v. Beckman Instruments, Inc., 444 F.2d 263 (9th Cir. 1971), cert. denied, 404 U.S. 951, 92 S.Ct. 283, 30 L.Ed.2d 268; Reiner v. I. Leon Co., 285 F.2d 501 (2d Cir. 1960). Rather the various prior art approaches employed, the types of problems encountered in the art, the rapidity with which innovations are made, the sophistication of the technology involved, and the educational background of those actively working in the field are among the factors which will ofttimes aid in developing a picture of what is the level of skill of the ordinary person in an art. Considerations such as commercial success and the failure of others, characterized as “secondary” in Graham, are nonetheless invaluable as real-life indicia not only of the level of skill in the art but also in the ultimate determination of validity. See, e. g., Safety Car Heating & Lighting Co. v. General Electric Co., 155 F.2d 937, 939 (2d Cir. 1946).

In this case, there is little evidence, other than the published prior art, bearing on the level of skill in the art. The problem of maintaining stability against underwater tides and currents was long known to those working with underwater devices, having been expressly recognized and defined by O’Rourke as early as 1934. In addition, O’Rourke had disclosed to the art a cable, winch, and anchor arrangement which not only provided stability but also afforded maneuverability of the bell along the ocean floor. In 1935, Romano disclosed a somewhat different maneuvering system for a diving bell, again using cables, anchors, and winches. With the advent of television and at least by 1952, underwater TV cameras and lights had been adopted as a technique for underwater scanning in salvage operations in lieu of sending a man down to survey the ocean floor.

In view of this knowledge, which must be deemed to have been possessed by those working with underwater-salvage devices, it is difficult to find anything unobvious in the selection and use of a cable, winch, pulley, and anchor system for maneuvering an underwater TV camera. Jacobson, confronted with problems of underwater currents and tides, adopted that combination for reasons of stability and maneuverability. O’Rourke, confronted with precisely the same problem, advanced the same solution for precisely the same reasons. While O’Rourke’s vehicle was a manned diving bell, there is nothing in the record that suggests that a frame-mounted TV camera presented problems any different in kind or degree from those confronting O’Rourke. In the absence of such evidence, the conclusion is inescapable that one ordinarily skilled in the art would readily recognize that the cable system of O’Rourke could be used to provide stability and maneuverability for any type of underwater apparatus, including a TV camera.

In reaching that conclusion, due consideration has been given to the evidence which demonstrates, beyond question, that the cable-maneuvering system was the key to the success, both of plaintiffs’ equipment and that of defendant’s. Before plaintiffs adopted such a system, their TV camera could not be used satisfactorily in deep water and, quite clearly, the failure of the alternative approaches attempted by defendant confirm the importance of this system to a workable combination. But, notwithstanding its importance, the idea of a cable-maneuvering system for stability and maneuverability was an old one. Hence, while that concept may have solved the problem, it is considered to have been an obvious concept to employ in view of the prior teachings of O’Rourke. Ellicott Machine Corp. v. United States, supra.

There being nothing unobvious, in light of O’Rourke, in using a cable-maneuvering system for controlling an underwater television device, there remains the question of whether the particular maneuvering system described in claim 1 is unobvious. When compared with O’Rourke, the difference between the two systems dissolves largely tó a matter of where the winches are placed. O’Rourke had the winches on the diving bell with the cables running out to the anchors, while Jacobson placed the winches on the surface vessel and ran the cables through pulleys out to the anchors.

The position of the winches appears to be largely a matter of choice, particularly in view of Romano who suggested placing the winches on a surface vessel. Since the Jacobson device, unlike O’Rourke, is not manned, there would seem to have been no reason even to consider placing the winches on the underwater device. Indeed, this would have created an additional problem, that of how to control the winches from the surface.

Irrespective of where the winches are located, both the patented arrangement and O’Rourke use a maneuvering system based on the principle of maneuvering cables secured to angularly spaced anchors, which serve as fixed points, with maneuvering of the underwater vehicle being accomplished by selective winding up and paying out of the cables so that the vehicle is maneuvered relative to those fixed points. The winches only provide the mechanism for winding up and paying out the cable. Merely moving the winches of O’Rourke to the surface vessel would necessarily result in the cables passing from the anchors, through pulleys on the underwater vehicle, to the winches, all as set forth in the claim. There is nothing in either Romano or O’Rourke that would suggest any problem in placing the winches on the surface vessel; nor is there any evidence in the record suggesting that by so doing, either a longstanding problem was solved or that this was the key to the development of a successful maneuvering system. It simply appears to have been a convenient, and indeed the most logical, place to position the winches when the underwater device is unmanned.

Plaintiffs, with justifiable pride, point out that the Jacobson apparatus was the first device to recover torpedoes in deep water. It is also undoubtedly true that, due to their equipment, developed on their own initiative and with their own funds, the public has been benefited by the saving of substantial sums. For this, they are to be commended and their contribution to the public good should not, in any way, be minimized. But the issue before the court is one of patentability and, on that issue, there is a very substantial public interest as well. Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969). It is the longstanding public policy of this country that everyone is to be free to practice that which is in the public domain, Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969); Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47 (1945), and only those patents which meet the statutory, and constitutional, standards of patentability are to be sustained. Graham v. John Deere Co., supra. In the application of those standards, the United States stands in the same position, no better and no worse, as any private defendant in a patent infringement suit. See, e. g., United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). For this reason, the benefits derived from plaintiffs’ achievement, except and to the extent they illumine the issue of obviousness of the claimed subject matter, are not a sufficient reason to sustain the claim as against the defendant here. Ellicott Machinery Corp. v. United States, supra; Martin-Marietta Corp. v. United States, 373 F.2d 972, 179 Ct.Cl. 70 (1967); Hanks v. Ross, 200 F.Supp. 605 (D.Md.1961).

Nor is the apparent obviousness of the claimed arrangement altered by the commercial success enjoyed by Jacobson’s apparatus. Although it has been said previously, it bears repeating that the invention was made prior to the time when the problem of recovering torpedoes in deep water arose and, hence, it was not a response to a long-felt need in that field. At the time the invention was made, Jacobson’s contribution, over and above the teachings of O’Rourke, consisted of his specific arrangement of cables, pulleys, and winches in an underwater-salvage device. Since, to be of value on the issue of obviousness, the commercial success must be shown to be attributable to the patentee’s claimed contribution, Palmer v. United States, 182 Ct.Cl. 896 (1968), it was incumbent on plaintiffs to show that it was Jacobson’s arrangement of the winches, cables, and pulleys, at least in substantial part, that made his device a success in the recovery of torpedoes. This they have failed to do. In the absence of some evidence of this character, there is as much reason to accord the commercial success to the teachings of O’Rourke incorporated in the Jacobson device as there is to attribute it to Jacobson’s contribution.

In summary, it is concluded that the differences between claim 1 and the prior art are such that the subject matter, when viewed as a whole in the light of all circumstances, would have been obvious to one of ordinary skill in the art.

Claims 2 and 7 add details regarding the mounting of the camera and lights and do not lend anything of patentable significance to the claimed combination. Providing an adjustable mounting for the camera so that it is capable of pan and tilt movements must, as a broad concept, be considered an obvious expedient.

Claim 6 merely specifies that at least three maneuvering lines are employed. O’Rourke discloses the use of three cables and Romano suggests that three or four lines be used.

Claim 4 adds the limitation of a grasping mechanism for grasping an object. This too is a well-known expedient, being disclosed in Romano who employed mechanical arms on the diving bell for the purpose of grasping and lifting objects. Adding a grasping mechanism to the combination of claim 1 would have been an obvious technique for picking up objects from the ocean floor.

Having concluded that claims 1, 2, 4, 6, and 7 cannot be sustained in view of the prior art, it follows that the petition must be dismissed.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover, and the petition is dismissed.

       Whereas the court adopts the judge’s separate findings of fact, which are set forth in his report filed November 6, 1974, they are not printed herein since such facts as are necessary to the decision are contained in his opinion.

      . Plaintiffs’ claim to recover compensation under 28 U.S.C. § 1491 for damages sustained as a result of an alleged breach of an implied contract relating to the subject matter of the patent in suit was dismissed, with prejudice, by stipulation of the parties.

      . By agreement of the parties, the only issues before the court are the validity and infringement of the patent in suit with the issue of accounting, if any, deferred to later proceedings.

      . Claims 2, 4, 6, and 7, dependent on claim 1, provide:
      “2. An underwater television device as in claim 1 including a first means for tilting said camera in a vertical plane and a second means for moving said camera in a horizontal plane. * * * * * *
      “4. An underwater television device as in claim 1 including means secured to said cage for grasping an object.
      “6. An underwater television device as in claim 1 wherein the cage maneuvering lines are three or more.
      “7. An underwater television device as in claim 1 wherein the illuminating means comprises a plurality of electric lamps and said camera is mounted in a water-tight case and the electric lamps are mounted about the case and directed to illuminate the area in the view of the camera.”

      . Although defendant also alleges invalidity of the claims under 35 U.S.C. § 102, it is clear that no one publication or patent discloses all of the claimed elements arranged in the manner claimed. Not being identically “disclosed or described,” the defense of anticipation cannot be sustained and resort must be had to 35 U.S.C. § 103 to determine the nonobviousness of the differences.

      . To focus only on the differences, without placing those differences in the context of the invention as a whole, would render almost every invention unpatentable since those differences, necessarily comprised at least in large part of old elements, could always be found in some context. It is the selection and employment of those elements in the claimed combination that must be scrutinized from the standpoint of obviousness. B. G. Corp. v. Walter Kidde & Co., 79 F.2d 20, 22 (2d Cir. 1935).

      . One exhibit suggests that this was done as early as 1947. The Hartman patent, dated November 10, 1936, suggests even an earlier date.

      . Of course, through their many contracts with the Navy, plaintiffs have been compensated for all of the torpedo-recovery work they performed.

      . The evidence regarding the Navy’s failures does not supply the missing link since it appears that the Navy’s efforts were largely directed toward developing recovery apparatus that did not employ the rather time-consuming and laborious cable-maneuvering approach. The modified cable-maneuvering system they ultimately adopted indicates that it was the principle, not Jacobson’s specific arrangement, that was critical to a successful device.