author: RONEY, Circuit Judge:

text:
    Roy Paul PEREZ, Individually, etc., et al., Plaintiffs-Appellants, v. FORD MOTOR COMPANY, Defendant-Appellee, Traders & General Insurance Company, Intervenor.
    No. 73-1805.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.
    Rehearing and Rehearing Eh Banc Denied Oct. 7, 1974.

      Harvey J. Lewis, Samuel C. Gains-burgh, New Orleans, La., Jack B. Wise, Thibodaux, La., for plaintiffs-appellants.
    Robert G. Hebert, New Orleans, La., for Truman Hendley, amicus curiae.
    Allen R. Fontenot, William S. Penick, New Orleans, La., for defendant-appellee.
    Ben W. Lightfoot, Baton Rouge, La., for intervenor.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Seven years ago Roy Paul Perez and his young daughter were seriously injured and his wife was killed when the cab or passenger compartment of a 1966 Ford F-100 pickup truck in which they were riding separated from the chassis and overturned after being struck from the rear by another Ford automobile. The District Court ruled, as a matter of Louisiana law, that this collision did not constitute “normal use” of the vehicle and therefore Ford Motor Company could not be liable for design and fabrication negligence in manufacturing the truck. We reverse, holding that the collision in this case does not legally preclude recovery based on Louisiana products liability concepts.

Perez introduced evidence that Ford secured the F-100’s cab to its chassis with six sheet metal flanges, each approximately the thickness of a quarter. Should these flanges sever and the cab separate from the chassis by as much as one inch, the steering mechanism would be affected causing the driver to lose control of the truck. An expert witness testified that the rear-end collision occurred at a speed differential of approximately thirty miles per hour, which would be sufficient to sever the retainer flanges and free the cab from the chassis. Plaintiff contends the resulting loss of control of the truck compounded the injuries sustained by its passengers.

After four days of trial the District Court granted defendant Ford’s motion for directed verdict. Understanding the latest statement on Louisiana products liability law to be that a plaintiff must prove the product to be “unreasonably dangerous to normal use,” the District Court held as a matter of law that a rear-end collision at a thirty miles an hour speed differential was not “normal use” of the vehicle. The trial was aborted at this time because no party felt it necessary to go forward when the Court announced that it would, as a matter of law, exclude Ford from any liability for injuries which occurred in this accident.

On this appeal, Perez asserts three grounds for reversal: (1) error in holding that as a matter of law the collision involved in this case could not constitute “normal use” of the vehicle; (2) error in not allowing plaintiff’s negligence case to go to the jury after foreclosing his products liability theory; and (3) error in excluding evidence establishing that the allegedly defective parts would have failed from comparable noncollision stresses.

I.

Largely unsettled in most jurisdictions is the current controversy in accident law concerning what is loosely termed the “crashworthiness” of automobiles. The question of whether the intended purpose for which an automobile is designed and manufactured in-eludes the possibility of collisions has received conflicting treatment in various jurisdictions. Two polar opinions form the base of this dichotomy: Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1967), and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968).

In Evans, the Court affirmed the dismissal of a complaint alleging negligence, breach of implied warranty, and strict liability flowing from the alleged defect in design of the automobile’s frame because

[t]he intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur.

359 F.2d at 825. Accord, Schemel v. General Motors Corp., 384 F.2d 802 (7th Cir. 1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1030, 19 L.Ed.2d 1134 (1968); Shumard v. General Motors Corp., 270 F.Supp. 311 (S.D.Ohio 1967); Willis v. Chrysler Corp., 264 F.Supp. 1010 (S.D.Tex.1967). See also Hoenig ,& Werber, Automobile “Crashworthiness”: An Untenable Doctrine, 20 Clev.St.L.Rev. 578 (1971).

The Larsen court took an opposite approach. Although recognizing that there was no duty on the automotive manufacturer to design an accident-proof vehicle, it held the manufacturer to a duty of “reasonable care in the design of its vehicle ... in the event of a collision.” 391 F.2d at 502. This duty was premised on the fact that collisions are within the normal use of an automobile:

While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. .
The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts.

391 F.2d at 502, 503. Larsen and its progeny have recognized that collisions are a foreseeable and inevitable consequence of everyday automobile use given our nation’s crowded highways and have imposed upon manufacturers “a duty to guard against needlessly aggravated injuries.” Turcotte v. Ford Motor Corp., 494 F.2d 173, 182 (1st Cir. 1974). See also Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972); Grundmanis v. British Motor Corp., 308 F. Supp. 303 (E.D.Wis.1970); Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1968).

Although it is settled jurisprudence in Louisiana that a species of strict liability in tort is available against manufacturers for defects in their products, the Louisiana courts have not decided the question of whether the intended use of an automobile includes the possibility of collisions. In fact, the Louisiana courts do not speak in terms of the “intended use” of any product, but rather in terms of the “normal use.” Both sides rely on Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971) as a leading decision concerning Louisiana products liability law.

In Weber, the Louisiana Supreme Court established that a manufacturer is liable for injuries caused by a product which is unreasonably dangerous to normal use or defective by reason of its hazard to normal use. In the words of Justice Albert Tate, Jr.:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving the product was defective, i. e., unreasonably dangerous to normal use, and that plaintiff’s injuries were caused by reason of the defect. .
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

250 So.2d at 755, 756.

The plaintiff’s burden of proof in a products liability case, as stated by the court in Weber, is two-tiered. The plaintiff first must prove that the manufacturer’s product was defective. In order to establish defectiveness, the plaintiff must show that the product was in normal use and that the product was unreasonably dangerous in that use. After proving that the product was defective for normal use, the plaintiff must then show that his injuries were caused by the defect. When, in the instant case, the District Court ruled against plaintiff Perez on the basis that the rear-end collision in question did not constitute a normal use of the manufacturer’s product, the questions of the unreasonably dangerous nature of the construction, manufacture or design of the pickup truck and the causation of plaintiff’s injuries remained unresolved.

In Weber, seven prize winning cattle were killed when sprayed with a cattle dip found to contain an excessive proportion of arsenic. After finding that the plaintiffs properly mixed the solution, the Court discussed the alleged improper use of the dip on a “hot day”:

Likewise, the suggestion that untoward effects were produced by the spraying being done on a hot August day is not impressive. It is based upon one of the numerous directions as to use of the product, designed (according to its wording) to avoid “a burning of the skin.” Nothing on the label indicated that the cows will die if sprayed on such a day.

250 So.2d at 758.

In another similar Louisiana case, Williams v. Allied Chemical Corp., 270 So.2d 157 (La.Ct.App.1972), more cattle were poisoned, this time through the “improper” feeding of a protein supplement. Plaintiff had dispensed the feed via “free choice” instead of the slower “lick wheel” method as depicted in the manufacturer’s instructions. In holding the manufacturer liable, the court referred in the above passage in Weber and stated that

Nothing was indicated to plaintiff that if the feed was used other than by a lick wheel that his cows would die.

270 So.2d at 162.

The difficulty in applying the definition of “normal use” as outlined by the Louisiana courts in Weber and Williams to the facts of the Perez accident is that, under the facts of those cases, the injured parties had complete control over the use of the allegedly defective products. Young Weber mixed the solution of defective cattle dip himself and Williams intentionally employed the “free choice” method of administering the protein supplement to his cattle. In the case sub judice, however, there is no evidence other than that Perez was driving the pickup truck in a normal manner, i. e., at a legal rate of speed on an adequate highway, when this normal use of his truck was interrupted by a collision from the rear with another vehicle. The concept of “normal use” as it is factually defined by the Weber and Williams cases is not broad enough to cover a situation where the ordinary use of a product by the plaintiff is altered or interrupted by the actions of a third party.

Following what we believe the Louisiana courts would decide, we hold that the District Court erred in directing a verdict for defendant Ford on the grounds that, as a matter of law, a rear-end collision at a thirty miles an hour speed differential was not “normal use” of the Perez vehicle. Under our reading of the Weber case, the term “normal use” refers to the use of the product by the injured party or parties. In the instant case, normalcy refers to the use of the truck, not to the type or severity of collision encountered. Thus, the controlling fact is the use to which the vehicle was being put at the time of the accident and not the accident itself. If the vehicle was being used to travel on the streets and highways in the course of routine driving, it meets the “normal use” requirement found in Louisiana products liability jurisprudence. The fact that it was involved in an accident or that the accident involved uncommon occurrences does not legally preclude a claim predicated on defects in design or manufacture.

Assuming that Perez can prove that his use of the truck on the night of the tragic accident was normal, he still must meet the further proof which the Louisiana Supreme Court established in the Weber case, i. e., he must show that the product was defective and that such defective product caused his injuries. In other words, he now must prove that, under the facts and circumstances of the accident, the truck, as constructed, was unreasonably dangerous.

This Court reviewed the Louisiana definition of the term “unreasonably dangerous” in the recent case of Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973). In Welch, a young boy was injured when the lawn mower which he was operating threw a piece of wire from its rear. There was conflicting expert testimony as to whether the design of the mower was unreasonably dangerous for normal use. Affirming the District Court’s judgment in favor of the manufacturer, we held that

a product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect.

481 F.2d at 254. We approved a jury charge substantially to that effect. In the instant case, Perez on remand may persuade the trier of fact that the Ford pickup truck was designed, manufactured or constructed in such a manner that a reasonable seller would not have sold the vehicle if he had known that the cab would separate from the chassis under certain conditions and that the risk of such separation was more than a reasonable buyer would expect.

We are not saying that an automobile manufacturer has a duty to produce a vehicle which provides absolute safety for passengers under any and all conditions. We are saying that plaintiff Perez should have the opportunity to present his evidence to a jury to prove that his Ford pickup truck was unreasonably dangerous when involved in a rear-end collision at a thirty miles an hour speed differential. No reasonable person would expect a truck to sustain such an accident without the slightest dent or injury to its passengers. But the question is whether what happened in the collision should have happened. We believe that reasonable men could differ as to whether or not the design, manufacture, or construction of the Perez truck was unreasonably dangerous under these circumstances.

II.

Neither the argument of Perez on appeal nor the record of the proceedings in the lower court clearly reveals the grounds upon which the District Court directed a verdict in favor of defendant Ford on the plaintiff’s negligence theory. A close review of the record suggests that the District Court concluded that the rear-end collision which it ruled was not a “normal use” under the plaintiff’s strict liability theory also precluded the plaintiff from bringing an action against defendant Ford for negligence in design, manufacture or construction of the pickup truck in question. As we already have stated that the “normal use” of a product must be determined by the injured party’s actual use of the product and not the function of intervening forces upon that use, we also hold that the District Court erred in directing a verdict in favor of defendant Ford on the issue of negligence, just because the automobile was involved in this collision.

Under Louisiana law, as stated by the Court in Leathern v. Moore, 265 So.2d 270 (La.Ct.App.1972),

. a manufacturer or vendor of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third party, who without fault on his part, sustains injury caused by a defect in the design, fabrication or manufacture of the article or instrument, if the injury might have been reasonably foreseeable or anticipatable.

265 So.2d at 276. Apparently, the District Court, in the case sub judice, decided that the rear-end collision was not such an injury which under Leathern, might have been reasonably foreseeable or anticipatable. On remand, Perez should be allowed to present evidence to prove that defendant Ford was negligent in the design, manufacture, or construction of the pickup truck. The question of whether or not the collision in question was a reasonably foreseeable or anticipatable event is, in essence, a question of fact for the jury.

III.

As to the assertion of Perez on appeal that the District Court erred in excluding evidence establishing that the allegedly defective parts would have failed from comparable noncollision stresses, we again find both the argument of Perez and the record of the proceedings in the District Court to be unclear. Apparently, however, the District Court excluded the plaintiff’s evidence on the basis that the rear-end collision was the central, operational fact in the instant case and that evidence of product failure under comparable noncollision stresses was not relevant to either the plaintiff’s action in strict liability or his action in negligence. Under the theory of our decision, the District Court can reexamine its ruling as to whether evidence as to product failure under comparable noncollision stresses has relevance both to the plaintiff’s strict liability action and to his negligence action.

Reversed and remanded.

      . See Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir. 1973) ; Soileau v. Nieklos Drilling Co., 302 F.Supp. 119 (W.D.La.1969); Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971).


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jimmie TOOMBS, Defendant-Appellant.
    No. 73-1830.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.

      Robert A. Harper, Jr., Gainesville, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., Melvin R. Horne, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
    Before MOORE , AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   AINSWORTH, Circuit Judge:

Appellant Jimmie Toombs and codefendant Lewis Knight (“Slim”) were indicted for conspiring to distribute and distributing 1.05 grams of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Knight entered a plea of guilty and subsequently testified on behalf of the Government. A jury found Toombs guilty as charged and he was sentenced on each count to ten years’ imprisonment, the sentences to run consecutively.

On February 20, 1973, prior to the empanelling of a jury, defense counsel filed a motion to compel disclosure of an alleged informant (known as “James”). In a bench conference the court denied the motion, saying:

“The Court has considered the motion and finds that it has not been timely filed and is not otherwise sufficient to require the Court to grant the motion.”

Counsel for defendant then indicated, in response to the court’s question, that pending the disposition of a previously filed motion for a continuance, the defense was ready for trial. No argument was had or requested on the motion for disclosure. The motion for continuance was denied, the jury empanelled, and the trial was recessed until February 23.

On appeal, appellant alleges (1) that the record fails to establish a conspiracy and (2) that the trial court erred in denying a motion to compel disclosure of the informer. We find no merit to these contentions and affirm.

Special Agent Ellis Dean of the Bureau of Narcotics and Dangerous Drugs and codefendant Knight testified to the events leading up to the sale of heroin. Appellant Toombs took the stand and testified to his innocence. Also called as defense witnesses were two individuals who were allegedly with Toombs at the time that the heroin changed hands. The substance of the defense testimony was that codefendant Knight was the perpetrator of the crime.

Special Agent Dean testified that on November 4, 1972, he and a confidential informant visited Knight at his residence in Gainesville, Florida, and purchased cocaine from him. Agent Dean then asked Knight if he knew where they could buy some heroin. Knight responded that he would take Dean and the informant to “Jimmie” [Toombs] for that purpose. Agent Dean, Knight and the informant then proceeded in a Government vehicle to a shoe-shine shop in Gainesville. Upon their arrival Knight exited the vehicle and walked to the rear of the shoe-shine shop. Approximately two minutes later Knight and another individual (later identified as appellant Toombs) walked over to a Cadillac parked approximately 10 yards from the Government vehicle. Toombs entered the right side of the Cadillac, which was subsequently established to belong to him. From where he was seated in the Government vehicle, Agent Dean saw a light go on in the glove compartment of the Cadillac “and then it appeared to [him] that someone was taking something out of the car.” Toombs then returned to the rear of the shop and Knight walked over to the Government vehicle where he told Agent Dean that Toombs “had a $50.00 piece” and if Dean wanted it he should give Knight the money for it. Dean complied and gave Knight $50 in bills, the serial numbers of which had been previously recorded. Dean complied whereupon Knight returned to the rear of the shop. Dean and the informant then exited the Government vehicle and proceeded in the same direction where they were met by Knight returning with a tinfoil packet which he handed to Agent Dean. The packet contained a white powdered substance. Dean and the informant, after discussing the light weight of the packet, entered the shop. Knight introduced Dean to Toombs. Dean asked Toombs if “this was the usual weight of a $50 piece from him because we asked him if whether or not Slim [Knight] had been in the package,” to which Toombs replied, “This is my usual weight on a $50 piece.” They talked about seeing Toombs later and possibly purchasing more heroin. After this discussion Dean drove Knight to his residence and Dean and the informant returned to Government headquarters where a test was made of the contents of the packet. The substance was determined to be heroin.

Except for minor variations, codefendant Knight’s testimony substantially corroborated that of Dean. He further described the incidents leading up to the sale.

Knight admitted that he was formerly a heroin addict and that James had been his principal supplier.

Defendant Toombs testified that he had never seen Agent Dean prior to the time that Dean entered his house to arrest him. He gave the following account of his activities on the night of November 4, 1972. He was playing a pinball machine at Woody’s shoe-shine parlor and engaging in a discussion. about a football game when Knight entered the shop for a brief time. About five minutes later Knight returned with the informant, known to him as “James.” Knight approached Toombs with a piece of tinfoil paper, handed it to him and asked if it was “a 50-cents piece.” Toombs took it and said it looked to him like a 50-cent piece and James said, “I just want to know because I got my money tied up in it.” Knight and James then walked back out the door. Toombs said that that was the extent of his conversation and activities with Knight that day. He said that although Knight and James had been to his house about four times trying to get drugs from him he had not then, nor ever had, sold drugs to either Knight or James. On cross-examination, Toombs admitted that the Cadillac parked in the vicinity of the shoe-shine shop on the night of November 4 was owned by him. He denied, however, having gone to the vehicle with Knight or telling Knight that he had 50-cent pieces of heroin worth $50. He said that the tinfoil packet exhibited to him at trial looked like the package Knight gave him to examine. Toombs denied that Knight was addicted to heroin and that he, Toombs, had ever supplied the drug to Knight.

Defendant’s two companions at the shoe-shine shop on the night in question corroborated his testimony in regard to the conversation about a 50-eent piece. They also said that the only person who entered the shop with Knight was a short black man, not Agent Dean.

Defendant’s wife corroborated his testimony that Knight had been to their home on several occasions to ask her husband about drugs, that the men had argued on those occasions and that her husband had told Knight that he was never to return to the house.

Appellant contends that the Government’s testimony shows that the informant was a material witness and an active participant in the alleged transaction and that therefore disclosure of his identity and whereabouts was relevant, helpful to the defense and essential to a fair determination of the cause. Because of the disparities between the testimony of the Government’s two principal witnesses, Agent Dean and Knight, as well as the conflict between the testimony of the prosecution and defense witnesses, appellant contends the credibility of the Government’s witnesses is weakened.

Public policy forbids disclosure of the identity of an informer except where it is essential to the defense. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 (1938). The purpose of the informer’s privilege is “the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The privilege, however, has its limitations and disclosure is required where it may be “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.” Roviaro, supra, 353 U.S. at 60, 61, 77 S.Ct. at 628. The Supreme Court in Roviaro set certain standards for weighing the need for disclosure against the privilege of withholding such information. “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each ease, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62, 77 S.Ct. at 628, 629. See also Rugendorf v. United States, 376 U. S. 528 at 534, 535, 84 S.Ct. 825 at 829, 11 L.Ed.2d 887 (1964).

Applying this test to the facts, it is apparent that nondisclosure of the informer did not inhibit appellant’s preparation of his defense. In his motion for disclosure and accompanying affidavit, appellant’s allegations that the informant was an active participant and a material witness to the alleged transaction were merely conjectural. He made no showing of how disclosure of the informant’s identity would be helpful to his defense. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). Entrapment was neither asserted nor argued. To the contrary, appellant’s defense was simply that Knight, and not he, was the owner of the packet of heroin referred to in the indictment. The informant was not charged with dealing with defendant. Nowhere in the indictment against defendant is there any reference to any joint activities or confederation between the accused and anyone who could possibly be construed as the informant. Cf. Portomene v. United States, 5 Cir., 1955, 221 F.2d 582; Sorrentino v. United States, 9 Cir., 1947, 163 F.2d 627. Nor was the informant an active participant in setting the stage in creating the atmosphere of confidence beforehand and continuing it by his close presence during the moments of critical conversation. Cf. Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565, 567. Appellant’s allegation, in his affidavit to support the motion for disclosure, that the informant was “the only known witness who observed and/or overheard the alleged transaction,” is contradicted by the actual evidence presented by both the prosecution and defense. Unlike the informant in Roviaro, referred to by the Supreme Court as “the sole participant, other than the accused, in the transaction charged,” 353 U.S. at 63, 64, 77 S.Ct. at 630, the informant here had no participation in the transfer of the heroin packet, much less sole participation. According to the Government’s evidence, this entire transaction was handled between Knight and defendant Toombs. Both Agent Dean and Knight testified that the money was given to Knight who exchanged it for the packet from Toombs. It was only after this transaction was completed did Agent Dean, accompanied by the informant, confront Toombs to question him relative to the weight of the package. The obvious purpose of this face-to-face meeting, to verify the fact that Toombs was the seller, was accomplished when Toombs told Dean that it was his “usual weight on a $50 piece.” Thus, immediately following the sale, the Government agent had advantages, unavailable to the agent in Roviaro, of a direct confrontation with the accused for the purpose of establishing both identity and evidence that he was in fact the heroin distributor. The informant’s participation was minimal. His primary role as an informant was to lead Dean to Knight, the cocaine distributor. But it was Knight who supplied the name and whereabouts of Toombs. It was Knight and not the informant who received the packet from Toombs. Knight was present at the trial and cross-examined extensively by the defense. Under the circumstances, there was little, if anything, to be gained from testimony of the informant. Conceding, arguendo, the unlikely possibility that the informant would have corroborated defendant’s account of the events, his testimony would have been cumulative to that of the two defense eyewitnesses, whom the jury chose to disbelieve.

Turning now to the other side of the Roviaro balancing test, we find serious relevant factors here which require nondisclosure. The necessity of anonymity of the informant for his personal safety is greater than the theoretical necessity possibly underlying refusals to disclose. This informant, according to the prosecutor’s in-chambers declaration, had been shot three times subsequent to the incident in question. His usefulness to law enforcement officials has already been demonstrated by his role in supplying information relative to Knight, another narcotics law offender. Disclosure of his identity would not only destroy any future usefulness but possibly jeopardize his life. We find no error in the district court’s refusal to permit disclosure. The positive advantages to the Government in withholding the informant's identity far outweigh any speculative benefits to the accused.

Appellant contends that the alleged conspiracy and substantive offense arose out of the same set of facts and transactions, was simply a sale to a willing purchaser, and constituted one offense only. We do not agree. The crime of conspiracy is completed upon an agreement among the conspirators to commit an unlawful offense attended by an overt act by one or more of the conspirators in furtherance of the conspiracy. Pettibone v. United States, 148 U. S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893); United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915); United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); United States v. McGann, 5 Cir., 1970, 431 F.2d 1104; United States v. Lowry, 5 Cir., 1972, 456 F.2d 341. The agreement, however, need not be a formal one. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Norfolk Monument Co. v. Woodlawn Mem. Gardens, 394 U.S. 700, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1969). The conspiracy count here charged that Knight and Toombs conspired to distribute a controlled substance and that in furtherance of this conspiracy the defendants committed several overt acts. One of the overt acts alleged is that the coconspirators sold and distributed approximately 1.05 grams of heroin, the same offense alleged in the substantive count.

It has long been recognized that the commission of the substantive offense ánd the conspiracy to commit it are separate and distinct offenses and that separate sentences for the same overt act charged in both the conspiracy and substantive counts do not constitute double punishment. Pinkerton v. United States, 328 U.S. 640, 643, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); Castro v. United States, 5 Cir., 1961, 296 F.2d 540; Walker v. United States, 5 Cir., 1965, 342 F.2d 22; United States v. Jasso, 5 Cir., 1971, 442 F.2d 1054. It is only an identity of offenses which is fatal. See Pinkerton v. United States, supra, 328 U.S. at 644, 66 S.Ct. at 1182.

The evidence in this case was sufficient for the jury to have reasonably inferred two separate offenses. Knight knew that Toombs had heroin for sale. He so informed Agent Dean and directed him to a location where Toombs could be found. As far as Knight knew, Dean in his undercover capacity was simply another purchaser. A reasonable inference of conspiracy is deduced from the following sequence of events: Knight’s meeting with Toombs at the rear of the shop for the prior announced purpose of acquiring heroin for Dean; the entering by Toombs and Knight of defendant’s vehicle where they conversed for a short time; and finally, Knight’s information to Dean that the heroin was available for sale immediately following that conversation. The transfer of money and heroin between Knight (acting as a conduit for Dean) and Toombs subsequent to their conversation constituted evidence of the actual distribution. Under these circumstances, all of the elements of a conspiracy were present.

Affirmed.

      . In chambers, on February 23, prior to the actual proceedings, Government counsel informed the court that the informant had been shot three times since the time of the incident in question.

      . According to Knight, it was the informant who introduced Agent Dean to Toombs. Further, Knight said he delivered the tinfoil packet to the informant. When asked from whom he had received the $50, Knight said, “I believe I received the $50.00 from James [the informant].”

      . Q. Mr. Knight, do you recall the evening of November 4th when Mr. Dean came to your house?
      A. Yes, sir.
      Q. At that time did you distribute some cocaine to him?
      A. Yes, sir.
      Q. After that did he make any inquiries as to whether you knew where he could get some heroin?
      A. Yes, sir, he did.
      Q. What happened after that?
      A. I told him yes, and we got in his car and we went up on to a place called the Smoke Shop on 5th Street, then he parked and I got out of the car and I went over and seen Jimmie, so I asked him, I wanted to purchase $50.00, what we call a $50.00 piece of heroin, so we got in the car and sat down in the car, sat down.
      Q. Which car is this? Is this Jimmie’s car?
      A. Yes.
      Q. What kind of car is it?
      A. A 1968 blue Cadillac, I believe.
      Q. All right.
      A. And so he had it ready for me and so when I got out of the car to come back to the car where a fellow by the name of Dean and James was sitting, I told them to give me the money and so they give me the money and I went back to the Smoke Shop, on the side of the Smoke Shop, where I give Jimmie the money for the purchase of heroin. By the time I turned, fixing to go back, I met Dean and Jimmie halfway meeting me, so I give the package to James. He looked in the package, he looked at it, opened it right there and said it didn’t look right for $50.00, so by that time he went on and made hisself recognized to Jimmie. I guess he thought I had done went in the package, so he asked Jimmie, is this what he gave me for $50.-00, and Jimmie received the package and said yes, I hadn’t been in it, that is what he give me. At that time James introduced himself and then he introduced Dean to Jimmie.

      . In Roviaro, the Government relied on the testimony of two federal narcotics agents, Durham and Fields, and two police officers, Bryson and Sims, each of whom knew petitioner by sight. On the night in question these four men met “Doe,” an informer, searched him and his Cadillac and found no narcotics. Bryson secreted himself in the trunk of Doe’s Cadillac and Doe drove to a certain location, followed by Durham in one car and Fields and Sims in another. Roviaro subsequently arrived at the location and entered Doe’s Cadillac. They then proceeded to another location by a circuitous route. Durham managed to follow the Cadillac and when it stopped Durham likewise stopped his vehicle approximately 100 feet away. Durham saw Roviaro walk a few feet to a nearby tree, pick up a small package, return to the Cadillac, make a motion as if depositing the package in the car, wave to Doe and then walk away. Durham immediately, went over and recovered a package from the floor of the Cadillac. Petitioner reentered his vehicle and drove away. Bryson in the meantime had heard, from his concealed position in the trunk, petitioner greet Doe and direct him where to drive, telling him at one time to pull over and turn out the lights in order to lose a “tail,” and also that he had brought him “three pieces this time.” After the car stopped, Bryson raised the lid of the trunk, saw Roviaro walk to a tree, pick up a package and return toward the car. He heard Roviaro say, “Here it is,” and “I’ll call you in a couple of days.” At Durham’s signal shortly thereafter, Bryson emerged from the trunk and found Durham holding a package, which was later proved to contain an opium derivative. Roviaro v. United States, 353 U.S. at 56, 57, 77 S.Ct. at 625, 626.

      . Much more than speculation is required. There must be a compelling reason for the disclosure. “If the informer’s relation to the acts leading directly to or constituting the crime may be assumed from a fertile imagination of counsel, the government in practically every ease would have to prove affirmatively that the informant had not done any such likely acts. Having done that, all would be revealed and the informer privilege, deemed essential for the public interest, for all practical purposes would be no more.” Miller v. United States, 5 Cir., 1959, 273 F.2d 279, 281. See also Bruner v. United States, 5 Cir., 1961, 293 F.2d 621; Lira-Ortega v. United States, 5 Cir., 1968, 401 F.2d 506; United States v. Huacho-Acuna. 5 Cir., 1971, 440 F.2d 1199.

      . See n. 1, supra.

      . Our conclusion is not related to or influenced by the untimeliness of appellant’s motion.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mariela ZAPATA, Defendant-Appellant.
    No. 73-3350.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.
    Jack V. Eskenazi, Federal Public Defender (Court-appointed not under Act), Edward B. Greene, Theodore J. Sakowitz, Asst. Federal Public Defenders, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The appeal is from an adjudication of the appellant’s guilt of importation of 2000 grams of cocaine, a Schedule II controlled substance, into the United States in violation of Title 21, U.S.C., § 952(a). The sole question presented for our review is whether the trial judge properly instructed the jury as to the intent necessary to be proved to constitute guilt under § 952(a), and the accompanying penalty statute Title 21, U.S.C., § 960(a)(1). We reverse for what we consider the prejudicial deficiency of the jury instruction.

The appellant, Mariela Zapata; arrived in the United States at Miami International Airport on July 29, 1973, on a flight from Baranquilla, Colombia. She passed through a preliminary customs inspection by offering her suitcase for search and by presenting a standard passenger declaration form stating that she was carrying no gifts which she was required to declare. Following this preliminary inspection, as Ms. Zapata bent over to retrieve her suitcase, Customs Patrol Officer O’Connell noticed that she appeared to have on unusually bulky undergarments beneath her outer-clothing, a pants suit. She was detained by Officer O’Connell and referred to a private room for a secondary customs inspection. This second inspection, which consisted of Ms. Zapata’s removing her clothing in the presence of two female customs inspectors, yielded six packets containing approximately 2000 grams of 76% pure cocaine. The packets had been concealed underneath a girdle and corset which Ms. Zapata wore when she entered the United States. After being read a card advising her of her rights, Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by a Spanish-speaking customs inspector, Ms. Zapata was questioned concerning her possession of the cocaine. She indicated an awareness of wrongdoing on her part, but denied knowledge that the substance contained in the packets was cocaine. She further disclosed to customs inspectors her entry under a false passport. The record is open to the inference that a separate prosecution was at least initiated for this offense.

A grand jury returned an indictment charging Ms. Zapata in two counts as follows: Count I, knowingly and intentionally importing the 2000 grams of cocaine into the United States in violation of Title 21 U.S.C., § 952(a); and Count II, possession of the 2000 grams of cocaine with the intent to distribute it in violation of Title 21, U.S.C., § 841(a)(1). The external facts, as we have set them forth, were not in dispute at trial. The primary issue for decision by the jury was whether Ms. Zapata possessed the requisite intent to violate the two code sections at the times charged.

Ms. Zapata took the stand and related through an interpreter that the events culminating in her arrest at the Miami airport began in mid-July 1973, in the small town of Medellin, Colombia, where she resided. She testified that she was approached by a stranger, a foreigner, who offered her a sum of money if she would agree to transport some “raw materials” to the United States for him. She consented because of her desperate need of money to support her four children. A plan was arranged that day under which Ms. Zapata later met the stranger in Baranquilla. She was there supplied with a false passport, an airline ticket to Miami, traveling money in the amount of $500, and the cocaine and undergarments in which to secrete it. The stranger agreed to meet Ms. Zapata upon her arrival in Miami. She was reassured several times by the stranger that everything which she would be doing was perfectly legal and that she would incur no penalties as a result of her actions.

At the close of all the testimony, counsel for the defendant and for the United States engaged in a lengthy charge conference with the district judge as to jury instructions to be given covering the requisite proof of intent under Title 21, U.S.C., §§ 952(a) and 960(a)(1).

The prosecution requested an instruction which tacitly assumed that conviction required a showing that the defendant knew that the substance she was importing was cocaine. But the requested instruction permitted the jury to return a verdict of guilty upon a finding that the defendant consciously avoided learning the nature of the substance she imported into the United States. Defense counsel, for his part, requested simply that the jury be charged that the government had the burden of proving the defendant’s actual knowledge that the substance she was importing was cocaine, or, in the alternative, that she knew that the substance was a controlled substance.

The trial judge rejected both of the proposed instructions and gave the following :

[T]he government, in order to establish [that the cocaine was imported knowingly and intentionally], need not prove that this defendant knew that there was cocaine on her person.
But the government must prove beyond a reasonable doubt, if there is to be a conviction, that there was, in fact, cocaine imported into the United States; and that at the time it was imported, the person importing it had the guilty mind, was aware of the fact that he was committing some kind of wrong, or some sort of crime — not necessarily the crime of bringing in cocaine itself.
* * * -» * -x-
What we are saying is, to convict, in addition to Count I, the government must show that the act was done willfully, intentionally, the very act itself, and with a bad purpose to do something which the law forbids, not just an innocent mistake or accident, or with no purpose to do anything which the law forbids; but not necessarily any knowledge of this particular crime, nor that it was cocaine itself within the equipment there. [Emphasis supplied.]

As to Count II, which charged Ms. Zapata with possession with intent to distribute in violation of Title 21, U.S.C., § 841(a)(1), the trial judge charged the jury that the government had the burden of proving “that the defendant knowingly had cocaine in his [sic] possession, and he [sic] knew what it was.” The judge amplified his Count II instruction in response to a question propounded by the jurors after they had retired for their deliberation by stating: “The government does have to prove [the defendant] in fact knew it was cocaine, because of the specific intent proposition in the charge that I gave you, as distinguished from any general intent.”

Before the jury retired defense counsel objected to the charge on Count I on the stated ground that it failed to inform the jury that the government was required to prove that the defendant knew that she was importing either cocaine specifically or a controlled substance generally. From the jury verdict of guilty as to Count I and the consequent judgment and sentence, this appeal was timely taken.

The appeal raises the same question raised and preserved for review below, the sufficiency of the jury instruction as to appellant’s knowledge that the substance brought into the country by her was cocaine specifically or a controlled substance generally, which she asserts is requisite under Title 21, U.S.C., § 952(a). The government answers that the instruction given by the trial court here was in substance equivalent to the charge requested by the appellant and, further, that the instruction was basically the same charge given by the trial court and approved by this Court in United States v. Jiminez, 5 Cir. 1973, 484 F.2d 91.

Viewed in the context of the testimony and evidence in this particular case, we agree that the jury charge was defective, but we take a different approach from that urged by appellant. The instruction given was fundamentally misleading in that it allowed the jury to convict appellant on an incorrect theory of criminal liability. The defect is brought into sharp focus by the peculiar circumstances of this case. We do not reach the broader legal question whether the instruction as given was sufficient to charge specific intent under the statute as construed by Jiminez, supra.

The defect in the instruction arises from its conjunction with testimony that Ms. Zapata stated that she knew she was doing something wrong. The ambiguous nature of this statement was pointed out in Note 3, supra. This ambiguity coupled with the judge’s instruction to the jury that they could convict Ms. Zapata on Count I if the government proved that she “was aware of the fact that [she] was committing some kind of wrong, or some sort of crime — not necessarily the crime of bringing in cocaine itself,” raises a likelihood that the jury found Ms. Zapata guilty under Count I under an erroneous theory of law. The jury was entitled to conclude from the judge’s instruction that Ms. Zapata’s possession of the cocaine on arrival coupled with either (1) her failure to declare the cocaine to customs officials or (2) her entering the United States under a false passport was sufficient to support a finding of guilty under Count I. The conviction on Count I viewed in contrast to the acquittal on Count II, raises a strong inference that the jury did precisely this. Neither of these assumptions is supported by a correct legal theory, and a conviction under either theory would constitute a violation of Fifth Amendment due process. Cameron v. Hauck, 5 Cir. 1967, 383 F.2d 966, 973, cert. denied 1968, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 828. In the circumstances here, the record makes it impossible to determine whether such an impermissible constitutional foundation undergirds the guilty verdict. A new trial is in order as to Count I of the indictment.

Reversed.

      . Mariela Zapata is the name appearing on the passport produced by the appellant upon her arrival in the United States. Testimony below indicates that the passport was false and that the appellant’s true name is Glorida Stella Barbosa-Uopez. We refer to her as Ms. Zapata hereinafter.

      . We note that appellant, although travelling under a passport stating her name as Mariela Zapata, stated her name on her customs declaration form as Gloria L. Barbosa. She testified that a fellow passenger on the flight filled out the declaration form card for her.

      . The transcript of proceedings below does not disclose clearly to what this comment refers. There are three possible meanings: (i) Ms. Zapata’s importation of an illegal substance, such as cocaine; (ii) her commission of an offense in failing to declare that she had packages concealed on her person ; and (iii) her commission of an offense by entry in this country under a false passport. This uncertainty, which we consider surely existed undisposed of in the minds of the jurors at the time of trial, is crucial to the outcome of this appeal. See text accompanying note 7, infra.

      . As to Count II, the charge of possession of the cocaine with intent to distribute, the court and both counsel were agreed that proof of a specific intent to distribute was required. Such a charge was given and, as noted infra, Ms. Zapata was acquitted under that count, so that this appeal concerns only the conviction under Count I, the violation of § 952(a).

      . The government’s proposed charge on intent was as follows:
      In considering this defense [of no knowledge] , the jury is instructed that while negligence is never sufficient to charge a person with knowledge, one may not wilfully and intentionally remain ignorant of a fact important and material to his conduct; or, to put it another way, one cannot intentionally avoid knowledge by closing his eyes to facts which should prompt him to investigate. The test is whether there was a conscious purpose to avoid enlightenment; therefore, in considering the defense of no knowledge, you are instructed that if the jury believes that the defendant did not have a conscious purpose to avoid learning that the substance she is accused of carrying was in fact cocaine, the defendant should be acquitted. If, however, the jury finds from all the evidence beyond a reasonable doubt that the defendant did have a conscious purpose to avoid learning that the substance she is accused of carrying was in fact cocaine, and if the jury further finds that every essential element of the crimes charged in Counts I and II of the indictment have been proved, the defendant may be convicted.

      . The defendant’s proposed charge on guilty knowledge was;
      The crimes charged in this case are serious crimes which require proof of a specific intent before the defendant can be convicted. Specific intent in this case means more than the general intent to possess and import the substance the defendant was carrying. Proof of specific intent requires proof that the defendant knew the substance she was carrying was cocaine. If you find that the defendant intended to possess the substance and intended to bring it into the country; but did not know the substance was cocaine: then you must find the defendant not guilty.
      During the charge discussion with the judge, defendant’s counsel orally requested an alternative instruction:
      “In the alternative, I ask you to give that instruction, but substitute for the word ‘cocaine’ where it appears, the phrase ‘a controlled substance’.”

      . We record, however, our opinion that § 952(a) is a specific intent statute and requires an instruction that makes clear to the jury the burden upon the government to prove in a prosecution for its violation the defendant’s knowledge of the nature of the substance imported. We indicated as much in Jiminez where we said:
      The jury understood it still had to decide whether the government proved Miss Jiminez knew what her panties contained. This is well established by the jury’s post-instruction inquiry to the judge as to whether knowing, intentional importation required knowledge that the substance in her panties was cocaine in particular or whether it was sufficient if she knew it whether a Class II narcotic in general.
      Decisions under Title 21, U.S.C., § 174, the predecessor statute of current § 952(a), clearly required a showing that the defendant in prosecutions under that section had knowledge that the substance he was importing was a narcotic substance. See, e. g. United States v. Lasalandra, 2 Cir. 1970, 421 F.2d 1261, 1262, cert. denied 398 U.S. 931, 90 S.Ct. 1830, 26 L.Ed.2d 97; United States v. Mont, 2 Cir. 1962, 306 F.2d 412, 416, cert. denied 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272; United States v. Christmann, 2 Cir. 1962, 298 F.2d 651, 652. The wording in the new statute is of course slightly changed from that in § 174. The former statute penalized those who “fraudulently or knowingly” imported narcotic substances; the new statute applies to those who “knowingly or intentionally” do the proscribed acts. This change in the language used does not suggest to us that the burden of the government as to proof of intent has been lightened under the new statute, nor does the legislative history, which is silent on the matter, support such a conclusion. U.S.Code Cong. and Admin.News, 91st Cong. 2d Sess., pp. 4637 et seq. (1970). In our view the government continues to have the burden of proving the specific intent denounced by the statute. Cf. Dixon v. United States, 1954, 347 U.S. 381, 384-386, 74 S.Ct. 566, 568-569, 98 L.Ed. 785, 788-789.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Otis Thurmond CURRY, Defendant-Appellant.
    No. 74-1089
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.

      Theodore Klein, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

After a jury trial a judgment of conviction was entered against Otis Thurmond Curry on several counterfeiting charges. A co-defendant, Julian Wilkerson, testified that in exchange for his favorable testimony the prosecution only agreed to make his cooperation known to the sentencing judge. In his motion for a new trial the appellant Curry has alleged that newly discovered evidence indicates that Wilkerson was not only promised that his cooperation would be made known, but that he was, in fact, promised a sentence not to exceed two years. Mr. Wilkerson did indeed receive a sentence of two years imprisonment; Curry, in contrast, was sentenced to eight years. The motion for a new trial was denied without an evidentiary hearing by the same district judge who presided during the entire case and sentenced all the defendants. We affirm.

If the appellant Curry was convicted on testimony known to the Government to be perjured a new trial would be required. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). By denying the motion for a new trial the district court has necessarily determined that Wilkerson’s testimony was truthful and that he was not promised a sentence not to exceed two years. The question arises, however, as to whether it is necessary to hold an evidentiary hearing before arriving at this determination.

The law of this circuit has previously been well established that a motion for new trial may ordinarily be decided upon affidavits without an evidentiary hearing. United States v. Dara, 429 F.2d 513, 514 (5th Cir. 1970); Gurleski v. United States, 405 F.2d 253, 267 (5th Cir. 1968), cert. denied 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969). As in Gurleski the appellant here has not offered an affidavit from the challenged witness. He did not present affidavits from the other persons mentioned in his affidavit as the source of his factual claims. One of the parties was his trial counsel who also represented him on direct appeal. Essentially this is an attack on a witness whose credibility has already been weighed by the jury. Speaking for the court in Gurleski Judge Goldberg stated:

The new evidence bore solely on the question of the credibility of the witness. Appellate courts are particularly cautious about reversing denials of motions for new trial on the ground of newly discovered evidence where such evidence relates solely to matters of credibility of witnesses against the accused. (Citation omitted) 405 F.2d 253, n. 12.

Furthermore, the insights gained by the presiding judge during the course of the trial make him exceptionally qualified to pass on affidavits supporting a new trial motion. United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562 (1945).

Quite recently, however, in DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501, 503 (1974) the Supreme Court suggested that an evidentiary hearing would be appropriate when the veracity of a co-defendant prosecution witness is challenged concerning his plea bargaining agreement. Nevertheless, the unusual procedural posture of DeMarco leads us to believe that an evidentiary hearing is not required in the present case. In DeMarco the alleged concealed plea bargain and false testimony were discovered at the co-defendant’s sentencing hearing. It was clear that there was a plea agreement between the witness and the Government; the remarks of the United States Attorney arguably indicated that the agreement may have been reached prior to the witness’ testimony in DeMarco’s trial.

Without presenting the matter to the district court DeMarco pressed the issue in the Court of Appeals. The latter court accepted the tendered issue and after examining the record concluded that no promises had been made by the Government prior to the witness’ testimony. The Supreme Court held that it would have been better practice not to resolve the factual issue in the Court of Appeals based on the materials then before that court. The issue should have been remanded for initial findings of fact and disposition in the District Court after an evidentiary hearing.

In the instant case an initial factual determination and disposition have been made by the trial court, albeit without an evidentiary hearing. We feel, however, that the acumen gained by the trial judge who presided during the entire course of these proceedings makes him well qualified to rule on the motion for a new trial on the basis of the affidavit and makes a time consuming hearing unnecessary. In ruling on Curry’s contentions on direct appeal we concluded that the evidence of his guilt was overwhelming. (See note 1) If the Government had in fact promised a sentence not to exceed two years, this recommendation would necessarily have been communicated to the sentencing judge to ensure fulfillment of the bargain. One self-serving affidavit containing hearsay allegations of matters with which the trial judge should be familiar does not necessitate an evidentiary hearing. Accordingly, the order of the district court denying a motion for new trial is affirmed.

Affirmed.

      . This court affirmed. See United States v. Curry, 471 F.2d 419 (5th Cir. 1973).

      . Mr. Curry’s affidavit supporting his new trial motion states that on the last day of his trial, March 14, 1972, he was informed by his counsel, Mr. Lesperance, that Wilkerson had “made a deal” with the Government. The affidavit further asserts that prior to the time Curry was sentenced, April 6, 1972, counsel for another co-defendant also informed Curry that Wilkerson had “made a deal” whereby he would receive a sentence not to exceed two years. This issue was not presented to the district court at that time and therefore it was not presented on direct appeal to this court. It was not until October 19, 1973, that Curry presented his present contentions to the district court.

      . It was clear to all parties that the Government would move to dismiss counts II and III when Wilkerson pleaded guilty. No issue is raised with respect to this fact.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.
    No. 73-2602.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Talbot D’Alemberte, Miami, Fla., Morton Stavis, Doris Peterson, Nancy Stearns, Center for Constitutional Rights, New York City, Larry G. Turner, Gainesville, Fla., Cameron Cunningham, Brady Coleman, Austin, Tex., for Briggs.
    Jack S. Graff, Pensacola, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Elliot Richardson, Atty. Gen., Erwin N. Griswold, Sol. Gen., of the U. S., Guy Goodwin, Robert A. Dierker, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   DYER, Circuit Judge:

The inherent tension between two fundamental constitutional guarantees — the freedom of the press and the right to a fair trial — is manifest in this appeal by the Columbia Broadcasting System from a series of district court orders which restricted the making and publishing of sketches. The lower court forbade not only in-court sketching, but also proscribed the publication of sketches of courtroom scenes, regardless of where the sketches were made. Because the orders are unconstitutionally overbroad, they must be vacated.

This controversy began during the pre-trial stage of the criminal prosecution of individuals, popularly known as the “Gainesville Eight,” who were accused of conspiring to disrupt the Republican National Convention in 1972. CBS News sent correspondent Jed Duvall and artist Aggie Whelan to cover the trial, which was scheduled to begin on July 31, 1973. A pre-trial hearing was held on June 20, 1973, and on that date the trial judge announced orally that “no sketches in the courtroom would be permitted to be made for publication.” Pursuant to these instructions, Whelan took no sketch materials into the courtroom, but did enter to observe the proceedings. After two hours she left and began sketching outside in the hall. When the judge learned of this activity, he called both Duvall and Whelan into his chambers, confiscated the sketches and issued another verbal order. No court reporter was present during this meeting, but the judge later stated that he

made explicit the direction that no sketches for publication of proceedings in the courtroom or its environs were to be made, even though such sketches were made not in the courtroom or its environs but from memory. . . .

After this order, the artist did not re-enter the courthouse, but later sketched the trial participants from memory, based on her observations both inside and outside of the courtroom. Four of the sketches were televised on the CBS Morning News on June 22, 1973. On July 7, CBS was adjudged guilty of having defied ■ the district court’s order.

The judge later issued two other orders pertaining to sketching. On July 12, an order was entered promulgating a number of rules applicable only to the “Gainesville Eight” case. The following day the judge entered another order identical in substance to the sketching provisions of the previous day’s order, but which was intended to supplement the local rules applicable in the district court. The order of July 13 reads:

During the progress of or in connection with any judicial proceedings now or hereafter pending before the undersigned . . . sketching in the courtroom or its environs, whether or not court is actually in session, is prohibited.
This order extends to and prohibits the publication of any sketch of the courtroom or its environs or any proceedings therein, regardless of the place where such sketch is made.

CBS immediately appealed, and both CBS and NBC sought writs of mandamus to require the district judge to vacate the parts of the July 12 and 13 orders which restricted sketching. On July 20 we suspended the effect of the orders and held the mandamus petitions in abeyance pending resolution of this appeal.

The orders issued by the district court present two distinct issues. First we must examine the constitutionality of the order banning the publication of sketches, regardless of whether the sketches were made in the courtroom, its environs, or elsewhere. Then we must consider the prohibition on sketching itself in the courtroom or its environs during any judicial proceedings.

At the outset we wish to make clear that it is not our intention to deprecate the efforts of the district court in attempting to maintain the dispassionate forum essential for a fair trial. A heavy obligation rests on trial judges to effectuate the fair-trial guarantee of the Sixth Amendment:

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to insure that the balance is never weighed against the accused.

Sheppard v. Maxwell, 1966, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600. Nor are we unmindful of the difficult problems confronting the court in this particular case. The trial judge’s concerns were summarized in the statement accompanying the July 12 order:

There has been a great deal of publicity concerning this case and, in all probability and likelihood, there will continue to be. Moreover, it is clear that defendants are actively seeking publicity and in so doing are trying to place before the public, including persons who are potential jurors", their own version of the merits of the case. In the material on file they make statements such as: That they are not guilty and that the government brought the prosecution for the purpose of attempting to destroy the VVAW [Vietnam Veterans Against the War]; that the time prior to trial would be spent in educating the jury and the people through the media that the trial is a farce, a political repression and a political trial; that the indictments should be dropped and that the “illegal use of the federal Grand Jury system” by the Nixon administration be discontinued. That this conduct, if continued, might be prejudicial to a fair and impartial trial cannot be doubted.

However, to recognize that the trial court is obligated to take “stong measures” to protect the rights of the accused is but the first step in our consideration of the validity of the publishing ban. The difficulty, of course, is that a countervailing constitutional guarantee, freedom of the press, must also be taken into account. Happily, our task is made easier by a recent decision of this Court, authored by Chief Judge Brown, which thoroughly examines the delicate balance between the First and Sixth Amendments in the context of a judicial ban on publication. United States v. Dickinson, 5 Cir. 1972, 465 F.2d 496. That case stands for the proposition that before a prior restraint may be imposed by a judge, even in the interest of assuring a fair trial, there must be “an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Craig v. Harney, 1947, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. See also Wood v. Georgia, 1962, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569; Bridges v. California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192.

We entertain no doubt that the publication ban in the case before us must be measured in the terms of this high standard. If there was ever any question that the free-press guarantee encompassed more than the written word, it was dispelled by the decision in Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, which extended First Amendment protection to motion pictures. The prior restraint standard cannot be avoided by the Government’s suggestion that this case involves only a “minor restriction prohibiting the publication of certain sketches.” True, we are not confronted with the kind of blanket restraint condemned in cases such as New York Times v. United States, 1971, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822; Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, or Dickinson, supra, but we know of no authority for the proposition that First Amendment standards can be “tempered” according to the degree of the restraint imposed.

In testing the prior restraint imposed by the district judge, we have the additional guidance of the Kaufman Committee Report, a study by a group of judges charged with the responsibility of making suggestions to implement the fair-trial mandate of Sheppard v. Maxwell, supra, without unnecessary infringement on the freedom of the press. The court below properly employed several of the recommendations of the Report concerning highly publicized trials. By imposing the ban on the publication of sketches, however, the district court disregarded the express caveat of the Report:

The Committee does not presently recommend any direct curb or restraint on publication by the press of potentially prejudicial material. Such a curb, it feels, is both unwise as a matter of policy and poses serious constitutional problems.

45 F.R.D. at 401-402.

Despite that warning, the Government now urges that the constitutional obstacles to a direct restraint on publication can be overcome. In arguing that the sketching ban is not an invalid restraint under the First Amendment, the Government relies heavily on the Supreme Court’s decision in Estes v. Texas, 1965, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. In that case the Court held that live telecasting from the courtroom had deprived the defendant of a fair trial, partly because of the potentially prejudicial “awareness” of the trial participants that the proceedings were being broadcast. The Government urges that we focus on the “awareness” aspect of the Estes decision to conclude that sketching is merely “unnecessary dramatization” which raises the same danger of prejudice and justifies the publication prohibition.

We are not persuaded, however, that the impact of being sketched for later publication can be equated with the uniquely prejudicial impact of telecasting. Mr. Chief Justice Warren commented on the problem of distraction occasioned by television in the Estes trial, even after a special television booth had been constructed at the rear of the courtroom:

It was impossible for any of the trial participants ever to be unaware of the presence of television cameras in court for the actual trial. The snouts of the four television cameras protruded through the opening in the booth, and the cameras and their operators were not only readily visible but were impossible to ignore by all who were surveying the activities in the small courtroom. No one could forget that he was constantly in the focus of the “all-seeing eye.”

Id. at 568 (concurring opinion) (footnote omitted). By contrast, sketching requires only a writing instrument and sketch pad and can be done quite unobtrusively, or even, as in this case, from memory completely outside the courthouse.

Aware of these differences in physical distractions, the Government suggests that we consider the more subtle psychological implications of the “awareness” of being sketched. We agree that such factors cannot be ignored, but disagree that we must reach the same result as the Estes Court, even though we approach the problem in the same pragmatic fashion.

Recognizing that television can shape public sentiment and thereby affect the trial participants, Mr. Justice Clark in Estes rejected the contention that the psychological factors had to be disregarded because they were “purely hypothetical.” Instead, he examined the response of the nation’s courts to the supposed dangers of televised trials and found that psychological considerations, although difficult of ascertainment, were “real enough to have convinced the Judicial Conference of the United States, this Court and the Congress that television should be barred in federal trials by the Federal Rules of Criminal Procedure; in addition they have persuaded all but two of our States to prohibit television in the courtroom.” Id. at 550. From such uniform disapproval of the practice, the Court concluded that to permit the use of television in the courtroom would be “inconsistent with our concepts of due process in this field.” Id. at 544.

An examination of the position of the various courts on sketching suggests precisely the opposite conclusion from that reached by the Estes Court. To our knowledge, no state or federal court has prohibited the publication of sketches. Of the eighty federal district courts which have written rules, only three have provided, pursuant to a suggestion in the Kaufman 'Committee Report, that in certain widely publicized cases the court may direct “that the names and addresses of jurors or prospective jurors not be publicly released except as required by statute, and that no photograph be taken or sketch made of any juror within the environs of the court.” 45 F.R.D. 410-411. We express no views, of course, on the wisdom or validity of such rules, but mention them only to demonstrate that virtually no courts have found it necessary to restrict the publication of sketches. It is also significant that those jurisdictions which have regulated sketching have done so in very narrowly drawn circumstances. Even if we were to determine that sketching presented a danger sufficient to warrant a prior restraint, it is basic constitutional law that the limitation can be no broader than necessary to accomplish the desired goal. See e. g., Shelton v. Tucker, 1960, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Dorfman v. Meiszner, 7 Cir. 1970, 430 F.2d 558.

In the matter sub judice, even though the district court was legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, we conclude that the total ban on the publication of sketches is too remotely related to the danger sought to be avoided, and is, moreover, too broadly drawn to withstand constitutional scrutiny. We hold, therefore, that the portions of the district court’s orders which ban the publication of sketches are unconstitutional.

Turning now to the second issue in this appeal, we further hold that in the circumstances of this case the rule which forbids in-court sketching is also invalid. In so doing, we do not question the power of the district court to issue orders regulating conduct in the courtroom. Ordinarily the trial judge has extremely broad discretion to control courtroom activity, even when the re-striction touches on matters protected by the First Amendment. Seymour v. United States, 5 Cir. 1967, 373 F.2d 629. We are unwilling, however, to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive. As noted earlier, some districts have adopted narrowly drawn rules applicable only to highly publicized cases. Though this is not the appropriate occasion to pass on the constitutionality of more limited restrictions, we are firmly of the view that the restraint imposed by the court below is overly broad and thus invalid. See Shelton and Dorfman, supra.

Orders vacated.

      . This quotation, as well as the preceding statement attributed to the court, appears in the “Notice of Hearing and Order to Show Cause” issued on June 27, 1973. The June 20 orders were ' first reduced to writing in the show-cause order.

      . The appeal from the criminal contempt conviction is considered in a separate opinion, United States v. Columbia Broadcasting System, Inc., 5 Cir. 497 F.2d 107.

      . The order purports to supplement Local Rule 16 which proscribes radio and television broadcasting from the courtroom. However, there is no indication that a copy of the amendment was sent to the Supreme Court as required by F.R.Civ.P. 83, hence the July 13 order does not appear to have been properly promulgated as a local court rule.

      . Report of the Committee on the Operation of Issue, 1968, 45 F.R.D. 391. the Jury System on the Free Pre&s-Fair Trial

      . By local rule, the following district courts have adopted the language quoted in the text: S.D.Ind., Rule 29(5); D.Minn., Rule 7(c)(5); and W.D.Okla., Rule 26(m)(5).

      . American Bar Association Canon 35 would not permit in-eourt sketching. Only two states, New Jersey and Rhode Island, have adopted that provision of Canon 35, however, and just recently the Supreme Court of New Jersey decided as a matter of policy that the ban should be lifted. In re Application of National Broadcasting Co., Inc., 64 N.J. 476, 317 A.2d 695, M-210, April 3, 1974. The state supreme court noted that on the date of its decision the new Code of Judicial Conduct of the American Bar Association, which contains no sketching prohibition, became effective in New Jersey and replaced the Canons of Judicial Ethics.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.
    No. 73-2615.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Talbot D’Alemberte, Miami, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Guy L. Goodwin, Robert A. Dierker, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   DYER, Circuit Judge:

Having determined in a companion case this day decided that the district court orders banning the publication of sketches of courtroom scenes are unconstitutional, United States v. Columbia Broadcasting System, Inc., 5 Cir., 497 F.2d 102, [No. 73-2602, July 11, 1974], we must now consider whether the contempt conviction of CBS for violating those orders should stand.

Because this appeal, in our opinion, turns on the question whether the district judge should have disqualified himself, and we think under the circumstances sub judice that he should have done so, we need not and do not reach the subsidiary issues raised by CBS.

The factual focus of this appeal centers on the events which culminated in the district court’s issuance of a contempt citation to CBS for televising several sketches of various participants in the “Gainesville Eight” trial. The sketching controversy began about 12:45 p. m. on June 20, 1973, when the district j'udge informed CBS News correspondent Duvall that no sketching would be allowed in the courtroom during proceedings related to the prosecution of Vietnam veterans accused of conspiring to disrupt the 1972 Republican National Convention. DuVall relayed this message to Aggie Whelan, a sketch artist covering the trial for CBS News, who had been in the courtroom observing the proceedings prior to the j'udge’s order. Upon learning that she could not sketch in the courtroom itself, Whelan moved to the hall outside the courtroom and there began sketching from memory. Her artistic endeavors were noticed by a United States marshal who brought the matter to the attention of the district court. At approximately 3:45 p. m. the j'udge called Whelan and Duvall to his chambers, and at that time broadened his orders to prohibit the publication of any scenes of the “Gainesville Eight” trial, regardless of where the sketches were actually made.

Both orders- issued on June 20 were delivered orally in the judge’s chambers, and at neither time was a court reporter present. Consequently, the directives were not reduced to writing until June 27 when the court ordered CBS to show cause why it should not be held in contempt for its disobedience in telecasting the sketches on June 22. Since the original orders were verbal only, it was necessary to prove their content at the contempt trial by the testimony of those individuals who had witnessed the conversation between the judge and the journalists. The persons privy to the June 20 conversations and called as witnesses at the contempt trial were the judge’s secretary, his law clerk, and a local newspaperman. In all significant respects the testimony of these three witnesses was completely harmonious. Since CBS introduced no evidence on its behalf, we must rely on the testimony of the prosecution’s witnesses to learn what transpired at the June 20 meetings in chambers.

The second meeting, from which came the orders leading to this appeal, lasted some fifteen minutes, but the essence of the discussion can be succinctly summarized by quoting from the testimony of the local newspaperman:

I recall Mr. Duvall asking Judge Arnow whether it would be permissible for Ms. Whelan to go back to her motel room and sit down and sketch from memory, taking no additional notes in the courtroom, and His Honor instructed Mr. Duvall again that absolutely no sketches were to be broadcast, regardless of where they were made.

The witnesses also agreed that the judge had remarked: “If you want to sketch anyone downtown or even walking into the court house, that is within your rights. I can’t do anything about that.”

The sketching restriction induced the president of CBS News on June 21 to telegram his network’s protest to the district court. The next day, four of Whelan’s sketches were televised on the CBS Morning News. On the same day the sketches were telecast, the following exchange between the judge and Duvall occurred in the presence of the judge’s law clerk:

[T]he judge really emphasized this, he said, “I want to make this perfectly clear. We have no dispute of issues of fact or law here. You knew my order. You figured you had a right to publish [the sketches] and you went ahead and published [them] anyway, is that right?” And Mr. Duvall said “Yes,” and nodded his head

The district court ordered CBS on June 27, 1973, to show cause why it should not be held in contempt. On July 3, CBS petitioned this Court for a writ of prohibition and a writ of mandamus. Both petitions were denied the same day. A notice of appeal and a “Motion to Suspend Injunction” were filed on July 6, and this Court on July 20 suspended the district court’s orders until the merits of the appeal could be heard. CBS was tried for criminal contempt before the district court on July 7, was found guilty and fined $500.

We are faced with the unusual setting of a judge trying a case in which he was a principal actor in the factual issues to be determined. Essential to the proof of the prosecution’s case were acts committed by the judge himself, i. e. the verbal, unrecorded orders. The judge had to determine whether what he said was said was really said. He obviously could not be a witness and a judge in the same proceeding. To prove what the judge must have thought he already knew, his secretary, his law clerk and a local reporter were called as prosecution witnesses.

A criminal contempt action for violation of a court order is somewhat different than other criminal proceedings. The judge whose orders were allegedly violated has a keener interest in the outcome, especially if those orders are outside of the judicial mainstream. Although contempt proceedings may be initiated by a judge on his own motion, the prosecution, taken over by Government attorneys, nevertheless must prove a charge of criminal contempt beyond a reasonable doubt. Hood v. United States, 5 Cir. 1964, 326 F.2d 33; Yates v. United States, 10 Cir. 1963, 316 F.2d 718; James v. United States, 8 Cir. 1960, 275 F.2d 332; Parker v. United States, 1 Cir. 1946, 153 F.2d 66; Western Fruit Growers v. Gotfried, 9 Cir. 1943, 136 F.2d 98. Thus, although the court’s verbal orders in this contempt proceeding must meet the test of reasonable certainty, Scull v. Virginia, 1959, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865, a trier of fact must find no reasonable doubt as to their meeting that test. This is unlike civil contempt which could be proved by preponderance of the evidence. A. H. Robins Co. v. Fadely, 5 Cir. 1962, 299 F.2d 557.

The recondite niceties of contempt law coupled with the strange milieu of a judge passing on the clarity of his own orders, which had to be substantiated largely by his own legal staff, should make us particularly sensitive to the demands of justice, and more particularly, to the appearance of justice. The guarantee to the defendant of a totally fair and impartial tribunal, and the protection of the integrity and dignity of the judicial process from any hint or appearance of bias is the palladium of our judicial system. Cf. Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532; Grizzell v. Wainwright, 5 Cir. 1973, 481 F.2d 405.

Although Mayberry and Grizzell are not directly in point, the underlying principles they establish have a parallel application here and require a trial by another judge, especially in view of the fact that no exigent circumstances militate otherwise. This result can be reached without deciding any constitutional issue. This Court has the authority to disallow such a practice under its supervisory powers. The trial judge in this case may well have had the unique ability to be an impartial judge in the circumstances, but regardless of that fact, such a trial does little to protect the judicial process from any possible suspicion of bias.

The conviction for contempt is reversed and the cause is remanded for a new trial before a different judge. We leave open for consideration by the court below all other issues presented on this appeal, and the advisability of pursuing the contempt action in view of our determination that the verbal orders issued are unconstitutional. Cf. United States v. Schrimsher, 5 Cir. 1974, 493 F.2d 842 [1974]; United States v. Dickinson, 5 Cir. 1972, 465 F.2d 496; State v. Payne, Cir.Ct.1974, 40 Fla.Supp. -.

Reversed and remanded.

      . For a broader account of the facts of '.this case, see our decision in the companion ease.


text:
    COLUMBIA BROADCASTING SYSTEM, INC., Petitioner, v. The Honorable Winston E. ARNOW, Chief Judge, United States District Court For the Northern District of Florida, Respondent.
    No. 73-2709.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Talbot D’Alemberte, Miami, Fla., Morton Stavis, Newark, N. J., Doris Peterson, New York City, Larry G. Turner, Gainesville, Fla., Brady Coleman, Austin, Tex., for Briggs.
    Jack S. Graff, Pensacola, Fla., for petitioner.
    William H. Stafford, U. S. Atty., Pensacola, Fla., Guy Goodwin, Robert A. Dierker, Dept, of Justice, Washington, D. C., for respondent.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   PER CURIAM:

The petition for mandamus is dismissed as moot.

      . See our companion opinion in United States v. Columbia Broadcasting System, Inc., 5 Cir. 497 F.2d 102, [No. 73-2602, July 11, 1974],


text:
    NATIONAL BROADCASTING COMPANY, INC., Television 12 of Jacksonville, Inc., and WKRG-TV, Inc., Petitioners, v. The Honorable Winston E. ARNOW, Chief Judge, United States District Court For the Northern District of Florida, et al., Respondents.
    No. 73-2691.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Corydon B. Dunham, Vice Pres. & Gen. Counsel, Nat’l. Broadcasting Co., Inc., New York City, James A. Mc-Kenna, Jr., James R. Cooke, Washington, D. C., Floyd Abrams, Eugene R. Seheiman, New York City, W. Spencer Mitchem, Pensacola, Fla., Morton Stavis, Newark, N. J., Doris Peterson, New York City, for Briggs.

      Larry G. Turner, Gainesville, Fla., Brady Coleman, Austin, Tex., for Briggs and others.
    Talbot D’Alemberte, Miami, Fla., for Columbia.
    Elliot Richardson, Atty. Gen., Erwin N. Griswold, Solicitor Gen., U. S. Dept, of Justice, Washington, D. C., William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., for respondents.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   PER CURIAM:

The petition for mandamus is dismissed as moot.

      . See our companion opinion in United States v. Columbia Broadcasting System, Inc., 5 Cir., 497 F.2d 102, [No. 73-2602, July 11, 1974],


text:
    John MUSGRAVE and Bart Savage, and all others similarly situated, Petitioners, v. The Honorable Winston E. ARNOW, Chief Judge, United States District Court For the Northern District of Florida, Respondents.
    No. 73-2776.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1974.
    Stephen N. Bernstein, Gainesville, Fla., for petitioners.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., for respondents.
    Before BROWN, Chief Judge, and GOLDBERG and SIMPSON, Circuit Judges.
   PER CURIAM:

Petitioners sought by mandamus to prevent the District Court from enforcing its order of July 12, 1973, which prohibited persons not parties to the case from making public statements during the pendency of the trial. The case has been fully tried resulting in judgments of acquittal and we therefore dismiss the request for relief as moot.

      . For related cases see United States v. Columbia Broadcasting System, Inc., 5 Cir. 1974, 497 F.2d 102; United States v. Columbia Broadcasting System, Inc., 5 Cir. 1974, 497 F.2d 107; National Broadcasting Company, Inc. v. Arnow, 5 Cir. 1974, 497 F.2d 110; Columbia Broadcasting System, Inc. v. Arnow, 5 Cir. 1974, 497 F.2d 110.