author: WALINSKI, District Judge.

text:
    GREAT LAKES GAS TRANSMISSION CO., Plaintiff-Appellee v. GRAYCO CONSTRUCTORS, INC., and Seaboard Surety Company, Defendants-Appellants.
    No. 73-1948.
    United States Court of Appeals, Sixth Circuit.
    Nov. 8, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1330.

      James R. Hale, Miller, Johnson, Snell & Commiskey, Grand Rapids, Mich., Donald V. O’Brien, Joseph Bleich, New York City, and O’Brien & Trittipo, Walter E. Trittipo, Jr., Chicago, 111., for defendants-appellants.
    John C. Jones, J. Warren Eardley, Grand Rapids, Mich., John M. Rady, Gen. Counsel, Great Lakes Gas Transmission Co., Detroit, Mich., for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and WALINSKI, District Judge.

       The Honorable Nicholas J. Walinslri, Judge of the United States District Court for the Northern District of Ohio, sitting by designation.

   WALINSKI, District Judge.

This is an appeal from a verdict and judgment of $1,838,544.56, recovered by plaintiff from the company to whom it had awarded a contract to construct part of its pipeline project. After the work was completed and the pipeline had been placed in service, the pipeline ruptured for substantial distances on two separate occasions, thereby causing damages which required repairs and which resulted in loss of revenue.

On this appeal, error is charged in the admission of certain opinion evidence and in the rejection by the Court of evidence which would show that plaintiff had recovered substantial benefits in its rate allowance by changing its accounting procedures whereby the loss was passed on to plaintiff’s customers. Appellants also assign as error the lack of competent evidence to support the verdict on the issues of negligence and breach of warrranty; that plaintiff’s witness improperly construed the contract between plaintiff and its gas supplier ; that the verdict is excessive; and that defendant was prejudiced by the trial court’s jury charge. We find it necessary only to discuss the first two contentions.

Plaintiff is a Delaware corporation which was formed as a joint venture by two major North American natural gas distributing and pipeline companies: TransCanada Pipelines, Ltd., and American Natural Gas Company. The company was formed to build and operate a new and larger gas pipeline to extend across northern Minnesota, Wisconsin, the upper peninsula of Michigan, and through the lower peninsula to Sarnia, Michigan, where it would connnect with TransCanada’s facility at the international boundary. The construction of the line was divided into two phases, the first of which was completed in 1967 and ran from Sarnia to Farwell, Michigan. The second phase began in 1968 and' involved several pipeline eonstruction companies, one of whom was the defendant.

Defendant Grayco entered into a contract with plaintiff in which Grayco was to build a 60-mile section of the pipeline running from eastern Wisconsin into the upper peninsula of Michigan. Grayco’s obligation extended from unloading the pipe from railroad ears; clearing and excavating the land; welding pipe sections together; cleaning, priming and coating the pipe; laying the pipe into the ground and filling in the trench; final testing and purging of the pipeline; and “all things necessary to completely construct a gas transmission facility ready to be operated * * *.” (Pl. Ex. #2.) The steel pipe used in the line was, under the contract, to be capable of withstanding pressures of 65,000 pounds per square inch without rupturing or being deformed.

Grayco began work in the spring of 1968 and was to complete the section by November 1, 1968. Work was substantially finished by late October, 1968, in spite of unusually wet and cold weather which began in September. As part of its testing procedures, Grayco performed a hydrostatic test of the pipeline at pressures up to 105% of the specified strength with the pressure maintained for a 24-hour period. These tests were successful at the two sites with which we are here concerned, the pipe surviving long tests in excess of 100% of the specified minimum strength. Great Lakes assumed beneficial occupancy of the Grayco section by November 1, 1968, although certain rough cleanup work continued until severe weather conditions forced a halt to this activity on November 13, 1968.

Great Lakes began gradually after November 1, 1968, to build up the pressure in its new line to the allowable maximum. In spite of some “start-up” problems in the first weeks, the pipeline was operating by mid-December so as to enable Great Lakes to meet the requirements of certain gas transmission contracts.

However, on December 27, 1968, the line suddenly ruptured at milepost 403.2 (measured as 403.2 miles from the western terminus of the line) causing approximately 850 feet of pipe to be split and violently thrown out of the ground. Great Lakes immediately began repairs using Grayco equipment which had been stored in the vicinity for the winter. By January 10, 1969, the line had been completely repaired and gas pressure was gradually increased.

Great Lakes’ tranquility was to be short-lived, however. A few hours after gas transmission had resumed, the line ruptured again, this time at milepost 400.2 (nearly three miles west of the first rupture). Approximately 380 feet of pipe was split and thrown out of the ground, again completely severing the pipeline. Repairs were quickly begun, using Grayco equipment still in the area. On January 17, 1969, the line had been completely repaired and was restored to operation.

As a result of these two ruptures, the United States Department of Transportation ordered the operating pressure on the line to be severely limited between the nearest compressor stations on both ends of the Grayco section. Great Lakes undertook to make an internal examination, known as a Linalog survey, of the portion of the pipeline which was now suspect.

While awaiting completion of the necessary preparations for the Linalog survey, Great Lakes sought and was granted permission to raise its operating pressure, although still not near its planned capacity. After the Linalog survey had been completed, all pressure restrictions were completely removed, and the line began operating as planned on May 29, 1969.

When Great Lakes assumed possession of the line on November 1, 1968, it had changed its accounting procedures from the “under construction” mode to an “in-service” mode. After the ruptures occurred, Great Lakes reverted to the “under construction” system until May 29, 1969. The effect of this reversion was to place all of plaintiff’s costs during the period of repairs and pressure restrictions into its “plant” account, which was in turn used to determine its rate base by the Federal Power Commission.

The case was tried by a jury on three theories: negligence, breach of contract, and breach of implied warranty of fitness. Plaintiff submitted a total damage claim of $2,444,193.94 to the jury which returned a verdict as to all counts of $1,838,544.56, apparently reflecting a decision not to permit recovery of the revenue lost during the period of pressure restriction.

Defendant’s first major ground for appeal is that the district court erred in permitting plaintiff to introduce certain opinion testimony as to the cause of the two ruptures. In this regard, defendant also charges error in permitting the Order of the Department of Transportation of January 17, 1969, to be introduced because it also is alleged to have contained an opinion as to the cause of the ruptures which is assailed as being hearsay. We do not believe that prejudicial error was committed in either instance.

The opinion testimony to which appellant refers is that of the witnesses Holstead and Etchegary. Holstead is the executive vice president and general manager of plaintiff. According to his testimony, he had been in the pipeline business for at least twenty years at the time of the ruptures. He also had nearly ten years experience in the design, engineering and supervision of construction of gas pipelines while he was employed by TransCanada. While Holstead had a bachelor’s degree in civil engineering, he testified that he had acquired through his experience, a working knowledge of metallurgy and fracture mechanics. Moreover, it was uncontroverted that he had visited the sites of the two ruptures within hours after their occurrences and had examined the damaged pipe before it was removed. He testified at great length as to the specific facts which he personally discovered as to the type of fracture involved and its place of origin on the pipe. It was shown that the pipe had been badly gouged at the location of both ruptures and that this gouging had been inflicted after the welded pipe had been coated and wrapped, after the pipe had been laid in the ground and the ground filled in, and after the hydrostatic testing had been completed. Both sites were lowland areas which, because of the unusually wet weather, were soft and muddy. Heavy construction equipment was seen near both sites. Several witnesses saw a bulldozer driven back and forth across the pipeline itself, apparently while engaged in rough cleanup work.

With this foundation, Holstead was asked to give an opinion as to the cause of the pipe failure. Before he was permitted to answer, the trial judge cautioned the jury as follows:

“THE COURT: Ladies and Gentlemen of the jury, I am going to permit the witness to answer the question.
“What weight and credit you give to the testimony of a person who is qualified as an expert, that is a person who has some expertise beyond that which a normal person possesses, is up to you.
“It depends upon his background and his own statement and knowledge and expertise in the area concerning which he purports to testify to.
“Experts may give opinions, but the opinions may be considered by you only to the extent that you find the witness is qualified to act as an expert in that area and only insofar as it goes concerning factual matters forming the basis for his opinion which are established by other evidence or independent evidence in the case.
“I will be instructing you more fully on this at the conclusion of the trial.
“In the meantime I will permit him to answer the question and therefore the objection is overruled.”

Holstead then testified that in his opinion the gouges were inflicted by mechanical means on the pipe. He was then asked to give his opinion as to what mechanical means could or would have inflicted the gouges. Over the objection of appellants and after voir dire examination outside of the presence of the jury, the court permitted Holstead to answer. Before answering, the court cautioned the jury that the question as to what actually inflicted the gouge was for the jury to decide. The trial judge said:

<< * * * -phe witness may testify from whatever expert knowledge he may have of the process as to what would or could have caused it, but the ultimate question of what caused it being one for the jury to decide.”

The witness then answered that the gouging could have been inflicted by the pipe having been struck by some piece of heavy construction equipment. It is this opinion which appellant charges was prejudicial error.

In support of its contention, appellant cites the decisions in Washburn v. Lucas, 373 Mich. 610, 130 N.W.2d 406 (1964); and People v. Zimmerman, 385 Mich. 417, 189 N.W.2d 259 (1971), which it argues are controlling. In these cases the Michigan Supreme Court ruled that opinions of causation in negligence cases where the subject matter of the inquiry is of such a character that it may be presumed to lie within the ordinary experience of all men of common education, whether offered by experts or lay witnesses, are uniformly excluded as invasive of the province of the jury. It should be noted that both cases involved an opinion as to the cause of an automobile accident when there was already evidence before the jury in the nature of an eye-witness.

Putting aside the applicability of the maximum admissibility rule, Rule 43(a), Federal Rules of Civil Procedure, Patterson v. Norfolk & Western Ry. Co., 489 F.2d 303 (1973), we think these Michigan holdings are clearly distinguishable from the case at bar and therefore are inapplicable. As previously noted, the Michigan rule arose in the .context of opinions by investigating officers as to the causation of an auto accident, a subject for which many, if not all, of the causal factors lie within the ordinary experience of all men and women of common education. We do not feel that the potential sources for gouging %" thick steel pipe, specially made to the gas transmission company’s specifications, can be said to lie within the ordinary experience of most potential jurors. Hence, we find no error in the admission of Holstead’s opinion testimony, particulary in view of the scrupulous cautionary instruction given by the trial judge.

What we have said applies with equal vigor to the similar testimony of the witness Etchegary. In any event, appellant failed to make any objection at the time of Etchsgary’s testimony, thereby rendering it unavailable as grounds for appeal. Hines v. Prudential Ins. Co., 357 F.2d 726 (6th Cir. 1966); Talley v. Mitchell, 275 F.2d 244 (6th Cir. 1960); Bryant v. Sears, Roebuck & Co., 435 F.2d 953, 956 (4th Cir. 1970).

Appellants also argue that it was error to admit into evidence the January 17, 1969 order of the Department of Transportation in which the Acting Director of Pipeline Safety claimed to have met with representatives of plaintiff, the Michigan Public Service Commission and the Federal Power Commission for the purpose of deciding what regulatory measures were necessary in view of the two ruptures. The Director based his order in his letter, limiting the operating pressure in the gas pipeline of Great Lakes, on, inter alia, the following findings of fact:

“5. Preliminary investigation indicates that this [the first] rupture resulted from external damage to the pipe during construction.
* * *
“8. As in the case of the first rupture, preliminary investigation indicates that this [the second] rupture resulted from external damage to the pipe during construction.
“9. During the course of construction there were five test ruptures which resulted from prior external damage to the pipe.”

Appellant argues that it was error to permit the jury to have these “findings of fact” in that they are hearsay, and bases his argument on Derrick v. Blazers, 355 Mich. 176, 93 N.E.2d 909 (1959).

Plaintiff-appellee argues that the order was admissible under Rule 43(a), Federal Rules of Civil Procedure. See Patterson v. Norfolk & Western Ry. Co., supra. Moreover, Great Lakes argues that the defendant told the jury in its opening statement that the order was issued because the ruptures in the pipe had been lengthier than previously experienced. Grayco then contended that the pressure reduction which had been ordered resulted only because of doubts about the particular pipe used in constructing the pipeline and not because of anything Grayco had done. Therefore, it is argued, this statement sought to attack plaintiff’s damage claim for revenue lost due to the order restricting operating pressure, and Great Lakes was thus required to show that the order had been issued without any reference therein to the length of the ruptures. Plaintiff also claims it offered the order for the purpose of showing the basis on which it acted in an effort to mitigate its damages since the order left open the chance of getting the restrictions lifted.

When defendant objected to the introduction of the letter, plaintiff explained to the court that it was being offered for the purposes previously outlined. The court then instructed the jury as follows:

“This is one of those pieces of hearsay evidence that I was telling you about before you were sworn as jurors, after you were impaneled, ladies and gentlemen, where an exhibit can be received for one purpose but not for another because that is hearsay. * * * This is the letter that directed [plaintiff to restrict its operating pressure]. To that extent it is admissible and proper, to prove what the Department of Transportation did. It contains, however, certain findings which are to be received by you only as the understanding of the writer of the reasons, but not as proof themselves of the reasons, or as truth of the facts therein. That has to come elsewhere in this trial, if it be true at all. But I am going to allow it to be received for the purposes set forth, not for the truth of the specific factual matters. You may consider that this is what the writer himself believed as the basis for his action, but not that those facts are in fact true. * * *.”

The witness was then permitted to read the letter containing the order to the jury.

We find no error in the admission of this letter. It bears repeating, in this context, that the hearsay rule excludes extrajudicial statements only when they are offered to prove the truth of the matter asserted. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167 (10th Cir. 1968); Carantzas v. Iowa Mut. Ins. Co., 235 F.2d 193 (5th Cir. 1956). Where, as here, the trial judge has carefully instructed the jury as to the purposes for which a letter containing hearsay may be admitted, and where there is substantial evidence elsewhere in the record bearing on the subject which is contained in the hearsay, we hold there is no prejudicial error in the admission of the letter. Cf. Gray v. L. J. Navy Trucking Co., 475 F.2d 545, 550 (6th Cir. 1973).

The second major ground for appeal is that the court erred in excluding evidence, which appellant sought to introduce, that plaintiff has realized benefits which exceed its damages. After the two ruptures had occurred, plaintiff reverted to an accounting procedure whereby it was able to capitalize the costs of repairs as well as certain items, such as interest expense, which would normally have been charged as expenses deductible from income. Grayco thus argues that plaintiff’s capital account, now containing the repair costs and other usual expense items, will be used by the Federal Power Commission to set the rates which Great Lakes will charge its customers and that these rates will be sufficiently higher so as to permit plaintiff to recapture these extraordinarily capitalized costs. But for the accident, plaintiff would have been unable to revert to the “under construction” mode of accounting, and therefore plaintiff realized a benefit which far exceeded its damages; or so it is argued.

In his opinion, the trial judge offered three reasons for excluding Grayco’s evidence :

1) The public policy against permitting a wrongdoer either in tort or contract to pass the consequences of his wrong over to the public in general and thus escape responsibility for them;
2) The proof fails totally to show that, if any benefit was conferred, it was done so by defendant itself; and
3) The benefit itself is entirely conjectural and speculative.

While each of these reasons may be sufficient by itself, we feel that the first and last are particularly compelling within the context of this case. What appellant ignores throughout its argument on this point is that its position if accepted would mean that a tortfeasor should escape liability any time his victim can recover his damages from the general public. We do not read the relevant Michigan holdings to sanction such a policy. In Motts v. Michigan Cab Co., 274 Mich. 437, 264 N.W. 855 (1936), the Michigan Supreme Court cited with approval the following:

“ * * * a defendant owes to the injured compensation for injuries the proximate cause of which was his own negligence, and that their payment by third parties cannot relieve him of this obligation, and whether the motive impelling their payment be affection, philanthropy, or contract, the injured is the beneficiary of their bounty and not him who caused the injury.” [quoting Roth v. Chatlos, 97 Conn. 282, 116 A. 332, 334 (1922)]. 264 N.W. Id. at 858.

In Motts, the Michigan Court held that payment of a salary to an injured person by his employer during the time he is unable to work because of his injuries is not a ground for mitigation of damages to be paid by one who caused the injury. The plaintiff in Motts sought to recover, inter alia, loss of earnings even though his employer had continued his salary. Hence, we are of the opinion that the policies which underlie Michigan’s collateral source rule operate to deny appellant’s contentions as to the evidence it sought to introduce.

Moreover, it hardly needs showing that plaintiff operates in a highly regulated industry, and the rates it charges its customers are controlled by the Federal Power Commission. See 15 U.S.C., § 717 et seq. If it turns out that any recovery by plaintiff in this case would in effect be a double recovery because plaintiff had already been recovering damages through the rates it charges, then the Federal Power Commission has the power on its own to adjust plaintiff’s rates accordingly. Therefore, any benefit allegedly conferred on plaintiff by defendant is indeed conjectural and speculative since the Federal Power Commission could effectively take it away following any decision by this Court. We therefore conclude that the trial court’s ruling on defendant’s proffered evidence was not prejudicial error.

Finding no error in any of appellant’s remaining contentions, we conclude that the judgment of the district court must be affirmed in all respects.

Affirmed.


source: Caselaw Access Project

author: GIBSON, Chief Judge.

license: Public Domain

text:
    Max SLATTON, Jr., Appellant-Cross-Appellee, v. MARTIN K. EBY CONSTRUCTION CO., INC., d/b/a Eby and Associates of Arkansas, Appellee-Cross-Appellant.
    Nos. 74-1279, 74-1302.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Nov. 18, 1974.

      Henry Woods, Little Rock, Ark., for appellant.
    James W. Moore, Little Rock, Ark., for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Chief Judge.

Plaintiff Max Slatton, Jr., while working on a barge in the Arkansas River, injured his back and elected to bring this action for damages therefor under the Jones Act, 46 U.S.C. § 688, and under the maritime doctrine of unseaworthiness. A trial to a jury resulted in a verdict of $85,000. The trial court, after offsetting $1,732.96 for workmen’s compensation benefits already received by Slatton, ordered a remittitur of $33,267.04, leaving a net judgment of $50,000. The plaintiff refused to accept the remittitur and a new trial was ordered on the issue of damages. After an interlocutory appeal on the remittitur was denied, Slatton v. Martin K. Eby Construction Co., 491 F.2d 707, (8th Cir. 1974), the case was by agreement tried to the court solely on the issue of damages.

The trial court assessed damages at $19,000 and entered judgment for that amount less the workmen’s compensation benefits offset. The plaintiff appeals, contending that there was a clear abuse of discretion by the trial court in granting a partial remittitur of the jury’s verdict. The defendant, Martin K. Eby Construction Co., cross-appeals, contending that the District Court lacked admiralty and Jones Act jurisdiction because Slatton was neither a seaman nor a crew member of a vessel in navigation at the time of his injury.

The plaintiff, a 32-year-old welder, sprained his lower back on May 16, 1972, when he and a coworker were attempting to move by hand a heavy (300-400 pound) piece of 12 inch diameter metal pipe across the deck of a floating work barge moored to a bank of the Arkansas River. The barge, 20 by 46 feet in size, was also secured to a ‘ template,” a temporary circular working platform made of steel, utilized in constructing a “dolphin.” A dolphin is a permanent river structure to which vessels can be moored. The plaintiff and his coworker would cut lengths of metal pipe to be used in constructing the dolphin. These would then be moved from the barge to the template encircling the dolphin. On prior occasions a crane had been used to move the pipes from the barge to the template. No crane was available on May 16, and the employees attempted to transfer the pipe manually, one pulling while plaintiff pushed or scooted the pipe across the deck of the flat work barge. Halfway to the template, the plaintiff felt a sharp pain in his back and became numb in his extremities.

He spent a day in the hospital and then returned home. After a day at home he was readmitted to the hospital for a few days of therapy and traction. No surgery was performed, and the medical testimony concerning the injury, its permanency, and the prognosis for recovery were in sharp contrast. Aside from two attempts at light work with his former employer, he did no work from the summer of 1972 until about three weeks before the case was tried in October of 1973 when he finally took a job driving and parking automobiles at about half of his former income.

The plaintiff testified about recurring pain and inability to do heavy work. Neurological tests failed to reveal a ruptured disc or a tendon injury. An electromyographic study secured by plaintiff’s doctor showed the plaintiff was basically normal with some “very mild changes” in his left tibial nerve. Another specialist secured by plaintiff’s doctor performed a myelographic study in an attempt to determine whether or not the plaintiff had a ruptured or bulging disc in his lower back. The myelograph disclosed no abnormality or irregularity along the spinal canal and the specialist testified that his examination was completely negative. The plaintiff’s physician, Dr. Rooney, thought he might possibly have a ruptured disc, but that if he did have one, it was healed by February 23, 1973. Dr. Rooney had released the plaintiff for light work within a month of the accident.

The trial court, in ordering the remittitur, found the jury’s verdict to be “grossly and shockingly excessive” in light of the evidence. Plaintiff contends that this action was an abuse of discretion. The first question we must consider is the extent of our review of the action of a trial court in requiring a remittitur as a condition for denying a motion for new trial. Defendant asserts that decisions of this circuit indicate we will only reverse such an action of a district court when there has been a “plain injustice” or a “monstrous” or “shocking” result.

We have indicated that this is the standard we apply for review of the refusal of the trial court to set aside a jury verdict on the grounds of exeessiveness or inadequacy. As stated by Judge Blackmun, now Mr. Justice Blackmun, in Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961);

[W]e shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is “plain injustice” or a “monstrous” or “shocking” result.

Whether this in fact is a different standard than the abuse of discretion standard applied by other courts of appeals, as argued by defendant, is subject to some doubt, for as Judge Blackmum went on to say in Solomon, supra at 447-448;

Perhaps this is saying nothing more and nothing different than what the other courts of appeals have said in varying language. Perhaps in practice this court has observed a somewhat tighter standard than the others. In any event, we still adhere to it.

(Footnote omitted.)

But whatever view may be taken of our standard for review of a trial court’s action in refusing to overturn a jury award is not dispositive of the question before us in this case. Here we are not confronted on review with a jury determination as to a particular measure of damages buttressed by the conclusion of the trial court, who had the benefit of hearing the testimony and observing the demeanor of the witnesses, that the verdict should stand. When confronted with the concurrence of these two factors “an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial.” Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145, 148, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969).

The situation presented by the present case requires an assessment of opposing considerations. A jury, upon consideration of the evidence, has awarded one quantum of damages. The trial court, upon his review of the evidence on the motion for new trial has determined that the damages were excessive, in fact “grossly and shockingly excessive.” We are always mindful that the primary judge of the facts is the jury, and that its decision on the facts deserves great weight. Opposed to this in the present case is the decision of the trial court that the jury’s award is excessive. We have traditionally given trial judges a large range of discretion in ruling on motions for new trial, particularly on the weight of the evidence, in recognition of the fact that they have heard the testimony and observed demeanor of the witnesses and are more aware of the community and its standards. Solomon Dehydrating Co. v. Guy-ton, supra, 294 F.2d at 447. Further, it is settled that the action of the trial court in setting aside a jury verdict is not in derogation of the right to trial by jury, “but is one of the historic safeguards of that right.” Altrichter v. Shell Oil Co., 263 F.2d 377, 380 (8th Cir. 1959), quoting Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 353 (4th Cir. 1941).

The issue presented as to the standard of review of a remittitur ordered as a condition of denying a new trial motion is one of first impression in this circuit. We have carefully considered the competing considerations mentioned above and the decision in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970), where the same issue was presented for decision. We conclude that the standard we will apply in determining whether there was an abuse of discretion in ordering the remittitur is whether the remittitur was ordered for an amount less than the jury could reasonably find. Gorsalitz v. Olin Mathieson Chemical Corp., 456 F.2d 180 (5th Cir. 1972). Cf. Taylor v. Washington Terminal Co., supra, 409 F.2d at 148:

In this jurisdiction particularly, District Court judges have given great weight to jury verdicts. They have stated that a new trial motion will not be granted unless the “verdict is so unreasonably high as to result in a miscarriage of justice,” or, most recently, unless the verdict is “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”
At the appellate level, in reviewing a trial judged grant of a new trial for excessive verdict, we should not apply the same standard. The trial judge’s view that a verdict is outside the proper range deserves considerable deference. His exercise of discretion in granting the motion is reviewable only for abuse. Thus we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within “the maximum limit of a reasonable range.”

(Emphasis in original.)

The trial court’s determination of a reasonable limit to the jury award will be given considerable deference in our review.

In applying that standard to the facts of this case, we find no abuse of discretion on the part of the trial court. The trial court found the verdict to be “grossly and shockingly excessive.” Our review convinces us that the trial court was justified in determining that $50,000 was the maximum limit justifiable under the evidence.

It is also clear from the District Court’s statement in ordering the remittitur that it gave proper consideration to the jury’s role in assessing damages. See note 3, supra. The court’s statement indicates that in ordering the remittitur it was allowing the maximum limit sustainable on a jury verdict even though it thought that $15,000 to $20,000 was fair and reasonable compensation.

In summation, we reiterate what was stated in Solomon, supra, 294 F.2d at 447, “that in our opinion, inadequacy or excessiveness of a verdict is basically, and should be, a matter for the trial court * * *.” We will not disturb its action on appeal absent a clear abuse of discretion. No clear abuse of discretion is shown here.

We turn now to the issue of subject matter jurisdiction raised by defendant. The defendant challenges the admiralty and maritime jurisdiction of the court by denying that plaintiff was a seaman or a crew member of a vessel of the defendant at the time of his injury. The defendant views plaintiff’s exclusive remedy as either Arkansas workmen’s compensation benefits or under the federal Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., since the accident occurred upon navigable waters.

The Jones Act is an expansion of the common law admiralty jurisdiction under Congress’ Commerce and Necessary and Proper Clause powers. U.S.Const. art. I, § 8; Swanson v. Marra Brothers, 328 U.S. 1, 5, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 39, 63 S.Ct. 488, 87 L.Ed. 596 (1943). The defendant points to Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir.), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969), as excluding from the definition of “vessel” in navigation and consequent admiralty jurisdiction floating dry docks and inland construction barges which have no navigational crews nor motive power of their own. In Atkins the court affirmed a summary judgment denying subject matter jurisdiction over an unseaworthiness claim by a shorebased welder injured on a floating dry dock. The court noted that the dry dock was moored in the exact position where it was constructed and that it was neither designed nor used for transportation.

The Fifth Circuit reached a similar decision in Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 (1973), in holding that a floating platform moored in navigable waters, secured to a dock by ropes and functioning only as a stationary construction platform not designed for transportation, was not a “vessel” for purposes of general maritime or Jones Act jurisdiction. The defendant here analogizes that its floating barge, moored to the bank and the template, was nothing more than a floating stage and not a vessel in navigation as a matter of law.

However, what is a vessel and who is a crew member are ordinarily jury questions. Offshore Company v. Robison, 266 F.2d 769, 780 (5th Cir. 1959). The issue of whether the barge was a vessel within the meaning of the law and whether the plaintiff was a member of the crew of that vessel at the time he was injured was submitted to the jury for its determination. The District Court in its memorandum opinion summarized the jury’s verdict as finding that the plaintiff was injured in the course of his employement on a barge which was a vessel within the meaning of the law, that the plaintiff was a member of the crew of that vessel at the time he was injured, and that the injury was proximately caused by the defendant’s negligence or by unseaworthiness of the barge or by both negligence and unseaworthiness.

Here the barge was in navigable waters and the men were working on a maritime installation. Part of plaintiff’s work was on the barge itself in connection with his other duties constructing the dolphin. There appears to be a sufficient nexus between the plaintiff’s work on the floating barge and the installation of the maritime dolphin structure to merit submitting the issue to the jury. In light of the record, we cannot say as a matter of law that the jury’s verdict was legally erroneous. The jury can approve Jones Act coverage if there is evidence that (1) the injured workman performed at least a substantial part of his work on the vessel (virtually any floating structure used for transport in navigable waters) and (2) the capacity in which he was employed and duties which he performed contributed to the function of the vessel or to the accomplishment of its mission. Offshore Company v. Robison, supra at 779.

The facts of this case fall within the marginal area of Jones Act or maritime jurisdiction. However, since we believe the issues were properly submitted to the jury, we are not prepared to hold as a matter of law that the barge in question was not a vessel or that the plaintiff was not a crew member within the liberal definition of those terms under the Jones Act or the admiralty doctrine of unseaworthiness. As an appellate court, we must view the evidence in the light most favorable to sustaining the jury’s verdict, and we accept as established all reasonable inferences which tend to support the jury’s determination. We therefore find no error in the court’s refusal to direct a verdict for the defendant.

The judgment of the District Court is affirmed.

      . The Honorable J. Smith Henley, Chief Judge of the United States District Court for the Eastern District of Arkansas.

      . The grant of a new trial is reviewable on appeal after the judgment is entered in the second trial. As noted in Altrichter v. Shell Oil Co., 263 F.2d 377, 379 (8th Cir. 1959), the “ruling on this motion [for a new trial in the first case], in the circumstances here present, presented a question of law reviewable on this appeal. If this ruling of the court constituted error as a matter of law, then xtlaintiff would be entitled on this appeal to have the original verdict and judgment returned and entered on the first trial of the case restored.”

      . In its review of the verdict on Eby’s motion for substantial remittitur the District Court stated:
      There is no question that plaintiff sustained an injury to his back, and the Court thinks that the jury could properly find, as it obviously did find, that the injury was permanent, and that plaintiff is going to have some difficulty with his back in the future and has sustained some diminution of his ability to work and earn money in the future.
      But the Court is forced to agree with defense counsel that the jury’s verdict was grossly and shockingly excessive in the light of the evidence even after the defendant is allowed credit for the workmen’s compensation that plaintiff has received.
      Personally, the Court thinks that an award within the range of $15,000 to $20,000 would have been fair and reasonable compensation to plaintiff, but the Court recognizes that the amount to be awarded in a case of this kind rests largely in the discretion of the jury. The Court thinks that the jury might have been justified under the evidence in awarding plaintiff as much .as $50,000, but that any award in excess of that sum would have been so grossly excessive as to shock the conscience of the Court.

      . In its review of the evidence when passing upon a motion for new trial, the trial court is not limited to viewing the evidence in the light most favorable to the prevailing party. It may weigh evidence, disbelieve witnesses, and grant a new trial even when there is substantial evidence to sustain the verdict. Bates v. Hensley, 414 F.2d 1006, 1011 (8th Cir. 1969); Altrichter v. Shell Oil Co., supra, 263 F.2d at 380.

      . The Act states in relevant part:
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in eases of personal injury to railway employees shall apply * * ®.
      46 U.S.C. § 688.

      . Although the defend ant also relies on Rotolo v. Halliburton Co., 317 F.2d 9 (5th Cir.), cert. denied, 375 U.S. 852, 84 S.Ct. 111, 11 L.Ed.2d 79 (1963), and Powers v. Bethlehem Steel Corp., 477 F.2d 643 (1st Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 160, 38 L.Ed.2d 106 (1973), we agree with the courts deciding those cases that their circumstances did not meet the Offshore standard stated here.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Melvin FRIEDMAN et al., Appellants. UNITED STATES of America, Appellee, v. SOONER STATE NEWS AGENCY, INC., Appellant.
    Nos. 74-1224 to 74-1227.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 18, 1974.
    Rehearing Denied Jan. 7, 1975.

      Gilbert H. Deitch, Atlanta, Ga., for appellants Mitchum and Fishman.
    John M. Fincher, North Little Rock, Ark., for appellant Boyd.
    Robert Eugene Smith, Baltimore, Md., for appellant Friedman.
    O. H. Storey, Asst. U. S. Atty., Little Rock, Ark., for appellee.

      Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

These consolidated appeals are the result of convictions of individual defendants Melvin Friedman, Robert L. Mitchum, Phillip Fishman and Wendell Boyd on a single count indictment alleging a conspiracy to violate 18 U.S.C. §§ 1465 and 2 all in violation of 18 U.S.C. § 371. Corporate defendant Sooner State News Agency, Inc. (hereinafter Sooner State News) appeals its conviction in a related case on two counts of knowingly transporting in the United States mail obscene literature for the purpose of sale and distribution in violation of 18 U.S.C. §§ 1465 and 2.

In addition to the conspiracy count, individual defendant Friedman was originally indicted in two separate indictments on some thirteen counts alleging substantive violations of 18 U.S.C. §§ 1465 and 2. However, at the conclusion of the evidence the trial court granted Friedman’s motion for judgment of acquittal on these counts.

The individual defendants received sentences ranging from thirty months imprisonment (15 days incarceration with balance on probation) and $1500 fines to 42 months (30 days incarceration with balance on probation) and a $5000 fine. Sooner State News was fined $2500 on each of two counts the government elected to prosecute on.

The overt acts which culminated in the indictments of the defendants consisted of the use of the United States mail to ship allegedly obscene printed materials from Atlanta, Georgia, and Tulsa, Oklahoma, to Little Rock, Arkansas, bookstores. These acts allegedly occurred on July 6, 1972, and February 15, 1973. The magazine type literature before us, which was the basis of the indictments, depicts photographically adult men and women participating in various sex acts including sexual intercourse with penetration, anal intercourse, fellatio, cunnilingus and masturbation. The participants in the various photographs are both heterosexual and homosexual. The magazines include textual material in article form which is largely factual in nature but almost totally unrelated to the accompanying pictures described herein. The jury found that the material in question was obscene under the three-pronged test found in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

Defendants Friedman and Mitchum were incorporators and officers of Sooner State News located in Tulsa, Oklahoma, which mailed part of the above described literature to recipients in Little Rock, Arkansas. Mitchum was also the president of Paris Bookstall, Inc., d/b/a Books Limited No. 1 and Books Limited No. 2, the recipients of the allegedly obscene material in Little Rock. Both men were officers in Peachtree National Distributors, Inc., of Atlanta, Georgia, from which part of the allegedly obscene material came. Defendant Wendell Boyd was the manager of the recipient adult bookstores in Little Rock. Defendant Fishman was an employee of Peachtree National Distributors, Inc. and was primarily responsible for establishing Hot Springs and Fayetteville, Arkansas, adult bookstores. He also assisted the owners of the Little Rock bookstores in establishing their operations.

In this appeal the individual defendants contend: (1) That their conviction under the general conspiracy statute, 18 U.S.C. § 371, violates the constitutional rights guaranteed them by the first, fifth and sixth amendments of the federal constitution; and (2) the evidence is insufficient to sustain the convictions of conspiracy. Additionally, the individual defendants and Sooner State News, the corporate defendant, contend: (1) The indictment under 18 U.S.C. § 1465 is fatally defective because the statute denies defendants equal protection, due process and freedom of speech in violation of the first, fifth and sixth amendments to the federal constitution; and (2) that 18 U.S.C. § 1465 violates the due process clause of the fifth amendment because it is unconstitutionally vague even with Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), read into it. Defendant Friedman further contends that the doctrines of double jeopardy and collateral estoppel prevent the government from maintaining the conspiracy prosecution against him under 18 U.S.C. § 371 when substantive indictments alleging violations of 18 U.S.C. § 1465 had previously been dismissed as to him.

Defendant Sooner State News initially contends the indictment charging violations of 18 U.S.C. § 1465 is fatally defective because § 1465 on its face and as applied abridges certain rights guaranteed by the first, fifth and sixth amendments. The individual defendants join in this constitutional challenge to § 1465. Specifically they argue that at the time of the alleged offense § 1465 was not limited to any specifically defined sexual conduct as is required by Miller v. California, supra, that an unworkable “national standard” for judging obscenity is contemplated by § 1465, and that the indictment incorporated the pre-Miller “utterly without redeeming social value” test for obscenity articulated in Memoirs v. Massachusetts, supra, 383 U.S. at 418, but rejected in Miller. We find defendants’ contentions to be without merit.

The lack of a specifically defined standard for obscenity in the federal obscenity statutes has not been and is not a constitutional barrier to prosecution under those statutes. Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). In Roth the Court said:

This Court * * * has consistently held that lack of precision is not itself offensive to the requirements of due process. “ * * * [T]he Constitution does not require impossible standards” ; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * * [Citation omitted.] * * *
[W] e hold that [the federal obscenity statutes], applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited. [354 U.S. at 491-492, 77 S.Ct. at 1312-1313.]

Moreover, the language of 18 U.S.C. § 1461 has previously been construed to apply only to that which is obscene under the then prevailing obscenity guidelines. See e. g. United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). Such prior construction is permitted by Miller to uphold an obscenity statute. Miller v. California, supra, 413 U.S. at 25, 93 S.Ct. 2607. More recently in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2906, 41 L.Ed.2d 590 (1974), the United States Supreme Court “made 'clear [their] willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller.” See United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Groner, 494 F.2d 499, 501 (5th Cir. 1974). In our view the exhibits before us unquestionably fall within the “hard-core” pornography which may be permissibly proscribed under either Memoirs or Miller. Accordingly, § 1465 does not and did not prior to Miller lack constitutionally required specificity.

Prior to trial all defendants requested that the trial be conducted under the Roth-Memoirs standards for obscenity including the use of a national standard.” The trial court agreed and the jury was so instructed despite the fact that Miller v. California, supra, which provided for “community standards" had been decided. Defendants now argue that it was a denial of due process to convict them on the basis of an unworkable “national standard.” A party cannot be heard to complain on appeal of that which he requested and received in the trial court without objection. Similarly, the defendants cannot here complain that the indictment incorporated the Memoirs “utterly without redeeming social value” test for obscenity which has been rejected in Miller. If there was such an incorporation, it was by defendants’ own request that they be tried under Roth-Memoirs rather than Miller:

The defendants next argue that 18 U.S.C. § 1465 is unconstitutionally vague even with Miller v. California, supra, read into it. We note that the language found in 18 U.S.C. §§ 1461 and 1462 is similar to that found in § 1465. Referring to § 1461, the Court in Roth v. United States, supra, 354 U.S. at 492, 77 S.Ct. at 1313, said:

[This] statute, applied according to the proper standard for judging obscenity, do[es] not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.

This same language was cited with approval in Hamling v. United States, su pra, 418 U.S. at 99, 94 S.Ct. 2887. The Court has not changed its position with respect to the constitutionality of § 1461. United States v. Sulaiman, 490 F.2d 78, 79 (5th Cir. 1974), cert. denied, -- U.S. --, 95 S.Ct. 192, 41 L.Ed.2d 153 (1974). Section 1462 has likewise been upheld against a vagueness challenge. United States v. Groner, 494 F.2d 499, 501 (5th Cir. 1974). We hold that 18 U.S.C. § 1465 is not unconstitutionally vague. See United States v. New Orleans Book Mart, Inc., 490 F.2d 73, 75 (5th Cir. 1974); United States v. Manarite, 448 F.2d 583, 594 (2d Cir. 1971); United States v. Marks, 364 F.Supp. 1022, 1026 (E.D.Ky.1973).

The individual defendants argue that certain constitutional rights guaranteed by the first, fifth and sixth amendments to the federal constitution were violated by the use of the federal conspiracy statute, 18 U.S.C. § 371, to prosecute them. Specifically, defendants contend that the conspiracy statute may not be used to prosecute individuals for acts which are protected by the first amendment. The short answer to defendants’ argument is that obscenity is not protected by the first amendment. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Since the federal obscenity statutes are to be construed to prohibit the interstate transfer of “hard-core” pornography only, United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), we do not find that prosecution under the general conspiracy statute for conspiring to violate 18 U.S.C. § 1465 has any chilling effect on protected first amendment rights. The cases cited by defendants, such as United States v. Spock, 416 F.2d 165 (1st Cir. 1969), are inapposite here because they deal with protected first amendment rights such as voicing their opposition to the government.

The individual defendants contend that to sustain a conviction under 18 U.S.C. § 371 (conspiracy) the Government must show that the defendants had actual knowledge of the contents of the allegedly obscene material and that they knew the material was legally obscene. Defendants attempt to distinguish the scienter requirement for conspiracy from that in the substantive offense, here § 1465. Where conspiracy is charged, the Government has the burden of establishing that a defendant had the specific intent to violate the substantive statute. United States v. Cangiano, 491 F.2d 906, 909 (2nd Cir. 1974). The required intent is no less nor no more than that necessary to commit the substantive crime. United States v. Mauro, 501 F.2d 45, 51 (2d Cir. 1974). With reference to prosecutions for substantive violations of federal obscenity statutes, the Supreme Court has held that “knowledge of the contents [,] * * * character and nature of the materials” is sufficient to satisfy the intent requirement. Hamling v. United States, supra, 418 U.S. at 123, 94 S.Ct. at 2910. The convictions in Hamling were on both substantive and conspiracy counts. Although the Supreme Court did not consider the issue, the Ninth Circuit rejected the defendants’ proposed instruction that not only must they know the contents of the materials mailed, but that they must also have had a specific intent to mail what was known and believed to be obscene literature. United States v. Hamling, 481 F.2d 307, 318-319 (9th Cir. 1973), aff’d, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). We agree and now hold that in a prosecution for conspiracy to violate a federal obscenity statute, the Government does not have the obligation of showing that the defendants knew the contents of the material in question were legally obscene. It is sufficient to show that a defendant had knowledge of the contents of the materials he conspired with others to transport in interstate commerce and that he knew the character and nature of the materials. See Hamling v. United States, supra; United States v. Marks, 364 F.Supp. 1022, 1027 (E.D.Ky.1973); United States v. Luros, 260 F.Supp. 697, 702 (N.D.Iowa 1966), rev’d on other grounds, 389 F.2d 200 (8th Cir. 1968). There is ample evidence in the record to support a jury finding that the individual defendants were aware of the nature and contents of the material which the jury found to be obscene.

The individual defendants challenge the sufficiency of the evidence to sustain a conspiracy conviction. In considering the sufficiency of the evidence to support a verdict in a criminal case, the evidence must be considered in the light most favorable to the prevailing party. United States v. Lodwick, 410 F.2d 1202, 1204 (8th Cir. 1969). In our review of the record we find abundant evidence to support the conspiracy convictions. Defendants Friedman, Mitch-um, Fishman and Boyd were unquestionably knowingly involved in a large scale operation to distribute “hard-core” pornographic material via the United States mails in violation of 18 U.S.C. § 1465 and 2.

Two multiple count indictments charging defendant Friedman with substantive violations of 18 U.S.C. §§ 1465 and 2 were dismissed during the trial. The same publications which were the basis of the substantive counts were used as evidence of overt acts committed by Friedman in furtherance of the conspiracy. Friedman argues that the doctrines of double jeopardy and collateral estoppel require reversal of his conspiracy conviction. Such argument is without merit. A plea of double jeopardy is not appropriate where there is a lack of identity between the two offenses due to the dissimilarity in the elements of proof. Ferina v. United States, 340 F.2d 837, 839 (8th Cir. 1965). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) the Supreme Court held:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

The federal conspiracy statute, and 18 U.S.C. § 1465 are separate and distinct statutory provisions. See Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The factual proof for one is different from the other. The doctrine of collateral estoppel in criminal cases requires that the same issue must have been determined favorably to the accused in prior or concurrent litigation between the parties. Ferina v. United States, supra. The issue of Friedman’s guilt of violating § 1465 is not the same as his guilt of conspiracy to violate said section. The commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses. Pinkerton v. United States, supra; see United States v. Cole, 449 F.2d 194, 201 n.4 (8th Cir. 1971). Thus the dismissal of substantive counts against defendant Friedman does not bar prosecution for conspiracy to violate the substantive offense.

We have considered other assignments of error by the various defendants and find them to be without merit.

Judgments affirmed as to all defendants.

      . Although the trial occurred after the Supreme Court’s decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the trial court granted defendants’ request that they be tried under the Memoirs criteria for obscenity. On appeal defendants suggest it was error to use the Memoirs criteria after Miller was decided. However, defendants asked for, received, and did not object to instructions based on Memoirs. Accordingly they cannot successfully claim as error that which they themselves advocated and did not object to at trial.

      . 18 U.S.C. § 1465 provides in pertinent part:
      Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
      The indictment itself uses the following terminology:
      [O]n or about the 12tli day of July, 1972, * * * the defendant Sooner State News Agency, Inc., * * * knowingly did transport and caused to be transported in interstate commerce * * * an obscene, lewd, lascivious and filthy book and publication * * * for the purpose of the sale and distribution of said book and publication, all in violation of [18 U.S.C. § 1465].

      . The terms “obscene, lewd, lascivious, or filthy” are used to describe proscribed activity in the federal obscenity statutes. 18 U.S.C. §§ 1461-1465.

      . The government objected to the use of the Roili-Memoirs standard for obscenity and requested that the trial be conducted under Miller.

      . Without deciding the issue raised herein, we note that the Supreme Court lias not required as a constitutional matter that federal obscenity cases be tried under any precise geographic area standards. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

      . Defendants were entitled to be tried under Miller since it liad been decided after the alleged offense but before their trial. Nevertheless defendants are entitled to the benefit of any constitutional principle enunciated in Miller. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). However, as the Court in Ilamling stated:
      Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction eoncededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller. [418 U.S. at 116, 94 S.Ct. at 2907.]

      . The Supreme Court has recently denied certiorari in several obscenity cases in which the constitutionality of state and federal statutes was challenged. See 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

      . The issue of the propriety of these dismissals is not before us in this appeal.

      . 18 U.S.C. § 371 provides :
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . Furthermore, the Eighth Circuit has consistently held that inconsistency of a verdict on separate counts of an indictment does not entitle a defendant to a reversal on the count he was convicted of. United States v. Wetzel, 488 F.2d 153, 155 (8th Cir. 1973). Thus, Friedman’s acquittal on the substantive counts does not require reversal of his conviction on the conspiracy count.


author: STEPHENSON, Circuit Judge.

text:
    Ransom GANT, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1453.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1974.
    Decided Dec. 3, 1974.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1449.
    Thomas Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant.

      Robert Ulrich, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal from a jury conviction for wilfully failing to appear for trial as required challenges the sufficiency of the evidence to convict and claims that prejudicial comment by the trial court denied appellant a fair trial. We affirm.

The indictment upon which appellant was convicted charged that appellant, having been arrested on the charge of violating the Mann Act, 18 U.S.C. § 2421, and having been released pursuant to the provisions of 18 U.S.C. § 3146 upon a $10,000 secured bond and his promise to appear at all his scheduled hearings as required by the United States District Court at Springfield, Missouri, on July 23, 1973, wilfully and unlawfully failed to appear for trial as required, in violation of 18 U.S.C. § 3150.

The trial record discloses that appellant was released from custody after his arrest on the Mann Act charge by posting a $10,000 secured bond in Indiana. Thereafter he appeared before a United States Magistrate in Springfield, Missouri, where he signed a form entitled “Order Specifying Methods and Conditions of Release,” which specifically provided that he would, among other things, report his residence address, employment address, or office address each week in writing to the United States Attorney. He also agreed therein to notify the magistrate or court promptly in the event he changed the address indicated thereon. Subsequent thereto he appeared for an omnibus hearing before the magistrate and, thereafter, before the district court at his arraignment on April 16, 1973. Attorney Wayne Smith was then appointed to represent him.

The criminal docket of the United States District Court at Springfield, Missouri for July 23, 1973 was prepared and mailed to attorneys of record for all parties approximately two weeks prior to the setting. The first entry listed appellant’s case for trial.

At the docket call the trial court announced that “the first ease that was to be tried this morning (appellant’s) * * * will be reset for tomorrow morning at nine-thirty.” Attorney Smith then advised the court he had been unable to get in touch with appellant despite the fact that he had mailed notice to two addresses furnished by appellant and had made several phone calls to two numbers supplied by appellant. Appellant’s co-defendant and his attorney, who were present, also indicated they had no knowledge as to appellant’s whereabouts. After directing that appellant’s name be called three times, the court ordered that appellant’s bond be forfeited and a warrant issue for his arrest.

The testimony further disclosed that appellant was using names other than his own during the summer of 1973 and at the time of his arrest on the instant charge on September 20, 1973. Appellant in his testimony admitted that at no time had he contacted the United States Attorney’s Office or the Magistrate’s Office concerning a change of address, but he did claim he had contacted Attorney Smith’s office each time he changed his address but at no time received notice of a trial date. The matter of credibility was, of course, for the jury.

The thrust of appellant’s claim in this appeal with respect to the insufficiency of the evidence charge is that “there never was any order entered setting [his] case for trial” July 23, 1973. He contends the criminal docket which was mailed to his attorney does not indicate that his appearance with his attorney at the docket call was required. His contention is completely devoid of merit. The criminal docket mailed to appellant’s attorney approximately two weeks ahead of time clearly orders appellant’s case as the first case for trial July 23, 1973. His attorney promptly attempted to locate him by mail and by telephone. Had appellant kept his attorney, the United States Attorney, or the magistrate informed of his whereabouts, he would have received the notice of the trial setting. Appellant cannot avoid his responsibility to appear for trial by wilfully becoming a fugitive from justice. See United States v. DePugh, 434 F.2d 548 (8th Cir. 1970). The evidence strongly supports the jury’s finding that appellant wilfully failed to appear for trial as required.

Appellant contends that the court’s comments to the jury at the close of the case in connection with the giving of the instructions were of such a nature as to indicate bias and prejudice against the appellant and that his evidence was not as credible as the government’s, thus denying appellant a fair trial. More particularly, appellant argues that the court’s summary of appellant’s evidence was comparatively brief; implied that appellant’s testimony was not believable; emphasized that it was appellant’s duty to keep his attorney and the district attorney advised of his current address and thereby implied that the jury could convict the appellant for failure to abide by the conditions of release rather than solely for failure to appear as required.

The trial judge is not limited to abstract instructions. He may comment upon the evidence so long as he does so fairly and impartially, and he may express his opinion upon the facts so long as he makes it clear to the jury that all matters of fact are submitted to their determination. “The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” It is therefore the duty of the trial judge to use great care that an expression of an opinion upon the evidence “should be given so as not to mislead, and especially that it should not be one-sided.” Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1932); United States v. DePugh, 434 F.2d 548, 554-555 (8th Cir. 1970). The court may express its opinion of the guilt of the accused only where all the facts are admitted by the accused and only a question of law remains. When the essential element of intent is in dispute, an expression by the court that such element has been established by the government is the equivalent of an expression of an opinion of guilt, which is reversible error. United States v. Brandom, 479 F.2d 830 (8th Cir. 1973).

We have reviewed the record in light of the foregoing principles and are satisfied that the comments of the trial court in summarizing the evidence were within the bounds of propriety and did not constitute reversible error. In giving the instructions the trial judge explained to the jury that he had a right to summarize the evidence but the jury was the sole judge of the facts.

In summarizing the evidence with respect to the three essential elements that the government had the burden of establishing beyond a reasonable doubt, the trial court expressed the view that the only factual issue in dispute was whether the defendant wilfully failed to appear as required by the court. There was no question but what defendant was released on bond pursuant to 18 U.S.C. § 3146. The bond and “Conditions of Release” were in evidence. The defendant acknowledged he had signed them. Similarly, there is no question but what the trial docket was mailed to defendant’s attorney of record indicating defendant was required to appear on July 23, 1973. The third element was the only issue in dispute — whether defendant wilfully failed to appear as required.

Appellant’s principal objection relates to the court’s summarization on the issue of wilfulness. He particularly argues that the court’s references to the appellant’s duty to keep his attorney and the district attorney advised on his current address interjected issues into the case which were not properly before the jury and implied that the jury could convict the appellant for failure to abide by the “Conditions of Release” rather than solely for failure to appear as required. Violation of one of the conditions of his release by failing to keep his attorney or the district attorney advised of his whereabouts is not alone sufficient to establish a violation of 18 U.S.C. § 3150, but it is one of the factors to be considered in connection with wilfulness. United States v. DePugh, supra; United States v. Reed, 354 F.Supp. 18 (W.D.Mo.1973). The court’s comments must be considered as a whole and in the context of all the evidence. For example, the court advised the jury that if the defendant had an address by which his own attorney or the district attorney or the magistrate could have notified him of the trial setting, “I think you should acquit him.”

Although we are satisfied, after considering as a whole all of the instructions and the court’s summarization, that no reversible error was committed, we emphasize again: “ * * * The trial court commands the attention and respect of the jury. Great care must be exercised so as to avoid the appearance of advocacy for a particular party. * -x- Scruggs v. United States, 450 F.2d 359, 362-363 (8th Cir. 1971).

Affirmed.

      . Apparently replacing other counsel who no longer represented appellant.

      . One of the addresses was the same as specified by appellant on the “Conditions of Release” form furnished by appellant to the magistrate. One of the letters was dated July 9, 1973, postmarked July 10, 1973, and returned marked “addressee not at this address.”


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Rafael WILSON, Defendant-Appellant.
    No. 74-2247.
    United States Court of Appeals, Ninth Circuit.
    Nov. 11, 1974.

      Arthur Mabry (argued), Los Angeles, Cal., for defendant-appellant.
    Richard J. Henny, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and WALLACE, Circuit Judges, and VOORHEES, District Judge.

       Honorable Donald S. Voorhees, United States District Judge, Western District of Washington, sitting by designation.

   OPINION

PER CURIAM:

Wilson appeals his conviction of robbing a mailman with a dangerous weapon in violation of 18 U.S.C. § 2114, pursuant to which he received a twenty-five-year sentence. He does not appeal his conviction of aiding and abetting a person in possession of stolen mail (18 U.S.C. § 1708), for which he received a five-year concurrent sentence. His frontal attack is upon the statutory twenty-five-year sentence as provided for in section 2114. We affirm.

Wilson first challenges the twenty-five-year sentence as cruel and unusual punishment in violation of the Eighth Amendment. We rejected this contention in United States v. Beverley, 416 F.2d 263, 265 (9th Cir. 1969). Accord, Sansone v. Zerbst, 73 F.2d 670, 672 (10th Cir. 1934); United States v. Andrews, 170 F.Supp. 380, 381-382 (S.D.N.Y.1958), aff’d, 263 F.2d 608 (2d Cir. 1960), cert. denied, 363 U.S. 854, 80 S.Ct. 1636, 4 L.Ed.2d 1736 (1960). We cannot do otherwise here.

In Beverley we also rejected the argument that this statutorily specified sentence violates equal protection because other crimes of equal seriousness do not carry such extreme penalties. 416 F.2d at 265. It is the responsibility of Congress, not the judiciary, to determine the seriousness of crimes and the need for deterrence. Thus, the statutory penalty of twenty-five years does not unconstitutionally fetter the federal judiciary. Smith v. United States, 284 F.2d 789, 791 (5th Cir. 1960).

Moreover, the penalty specified in 18 U.S.C. § 2114 is not truly mandatory. For example, the trial court could have suspended Wilson’s sentence and placed him on probation. United States v. Hardaway, 350 F.2d 1021, 1022 (6th Cir. 1965); United States v. Donovan, 242 F.2d 61, 64 (2d Cir. 1957). Additionally, the court may, as it did here, make the convicted defendant eligible for immediate parole. United States v. Price, 474 F.2d 1223, 1228 (9th Cir. 1973).

Wilson also argues that his sentence was so disproportionate to his crime that it offends fundamental notions of justice inherent in due process. Wilson robbed a postal employee by force with a handgun. Because serious bodily harm or death could have resulted from his crime, we cannot categorize his sentence as one that shocks the conscience of the court.

Finally, Wilson contends that it was error for the trial judge to instruct the jury that punishment is exclusively a matter for the court when, as here, there is a statutorily imposed sentence. See 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 17.08 (2d ed. 1970). We disagree. The jury’s the law to determine guilt; the judge imposes sentence. Even if the statutory sentence were mandatory, it is still the exclusive province of the court to pronounce it. United States v. Del Toro, 426 F.2d 181, 184 (5th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 60 (1970).

•Affirmed.


author: SNEED, Circuit Judge:

text:
    LOCAL UNION 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Appellant, v. PUGET SOUND POWER AND LIGHT COMPANY, Appellee.
    No. 72-2194.
    United States Court of Appeals, Ninth Circuit.
    Nov. 20, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1429.
    David E. Williams (argued) of Critchlow, Williams, Ryals & Schuster, Rich-land, Wash., for appellant.
    Bruce Michael Cross (argued) of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for appellee.
    Before TRASK and SNEED, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation.

   OPINION

SNEED, Circuit Judge:

Appellant union brought this action to compel arbitration of an employee grievance pursuant to a collective bargaining agreement. The employee, while working at one company facility, had “bid” for and been awarded a position in another company facility. When the employee refused to change his place of residence, as was required in the company’s solicitation of the job bid, he was returned to his former position. A grievance was filed and the company refused to arbitrate.

Shortly after the complaint in this action was filed, the employee was promoted to the position of foreman. He therefore had no further interest in obtaining the job on which he had bid. Based on this changed circumstance and on the fact that the employee sought no monetary damages such as back wages, the district court dismissed the case as moot. We reverse.

There is a continuing and live controversy between the union and the company concerning the arbitrability of the practice of conditioning job bids on change of residence. There is no evidence that the company intends to change its present policy. As we have stated in a related context, “an issue remains ‘live’ unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Pacific Maritime Association v. ILWU, 454 F.2d 262, 263 (9th Cir., 1971). See Pittsburgh Newspaper Printing Pressmen’s Union v. Pittsburgh Press Co., 479 F.2d 607 (3rd Cir., 1973); Avco Corp. v. Local 787, UAW, 459 F.2d 968 (3rd Cir., 1972); Atlantic Richfield Co. v. Oil Workers Union, 447 F.2d 945 (7th Cir., 1971). The company cannot avoid its obligation to arbitrate this controversy, if in fact the district court ultimately finds such an obligation to exist, by promoting the employee whose grievance initiated the dispute over the meaning of the contract. We do not imply that this promotion was made in bad faith but the strong policy favoring arbitration would be frustrated if the company were permitted to moot a continuing general issue by taking amelioratory action in individual cases after they have come before the court.

Appellee Puget Sound has attempted to belatedly raise in its brief the denial by the district court of its motion under 28 U.S.C. § 1404(a) for transfer to another district. This issue has never properly been brought before us by petition for writ of mandamus or by notice of appeal. We therefore will not consider it.

The order of the district court dismissing this action as moot is reversed and the cause remanded to determine whether the issue is subject to arbitration.

Reversed and remanded.


text:
    Roy G. VANASCO and Joseph Ferris, Plaintiffs-Appellants, v. Arthur H. SCHWARTZ, Individually and in his capacity as Chairman of the New York State Board of Elections, et al., Defendants-Appellees.
    Docket 74-2414.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 1, 1974.
    Decided Nov. 4, 1974.

      Alan H. Levine, New York Civ. Liberties Union, New York City (Melvin L. Wulf, American Civ. Liberties Union, Paul AsofSky, New York City, of counsel), for plaintiffs-appellants.
    David E. Blabey, Sp. Counsel, Albany, N. Y. (Guy L. Heinemann, Chief Atty., Stanley L. Zalen, Associate Atty., New York State Bd. of Elections, Albany, N. Y., of counsel), for defendants-appellees.
    Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.
   PER CURIAM:

Roy G. Vanasco, a candidate in the forthcoming election to be held on November 5, 1974, for the office of New York State Assemblyman in the 57th Assembly District and Joseph Ferris, a candidate in the same election for the office of Assemblyman in the 51st Assembly District, appeal from an order of the United States District Court for the Eastern District of New York dismissing their complaint in an action for declaratory and injunctive relief pursuant to Title 42 U.S.C. § 1983. They seek the convocation of a three-judge district court pursuant to Title 28 U.S.C. §§ 2281 and 2284 for the purpose of declaring unconstitutional and enjoining the enforcement of New York’s Fair Campaign Code, Title 9, Subtitle V, Part 6201, Compilation of Codes, Rules and Regulations of the State of New York, on the ground that it constitutes an unjustified prior administrative restraint upon their First Amendment right to distribute campaign literature, see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed 1357 (1931); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). In addition the district court denied plaintiffs’ application for a preliminary injunction.

Pending appeal plaintiffs sought an order (1) staying the enforcement of the decision of the State Board of Elections issued on October 23, 1974, finding that Vanasco had violated § 6201.1 (f) of the Fair Campaign Code and ordering him to surrender certain literature or submit a plan for remarking it, and (2) restraining the defendants from holding a hearing or taking any other action with respect to a complaint directed at campaign literature of plaintiff Ferris. Because the election would be held in a few days we heard the parties on Friday, November 1, 1974.

The application for a stay pending appeal is denied. Circuit Judge Mansfield dissents as to the denial with respect to appellant Ferris.

After review of the papers and argument we are satisfied that the complaint raises constitutional issues that are sufficiently substantial to require that a three-judge court be convened. See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Smith v. Follette, 445 F.2d 955 (2d Cir. 1971). Accordingly the order of the district court is reversed and the case remanded for the convocation of a three-judge court pursuant to Title 28 U.S.C. §§ 2281 and 2284.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellant, v. OZARK AIR LINES, INC., Appellee.
    No. 74-1317.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 14, 1974.
    Decided Nov. 13, 1974.
    Richard I. Chaifetz, Atty., Government Regulations Section, Criminal Div., Dept, of Justice, Washington, D. C., for appellant.
    Paul L. Bradshaw, Neale, Newman, Bradshaw & Freeman, Springfield, Mo., for appellee.
    Before VOGEL, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

On July 18, 1973, the United States, plaintiff-appellant, commenced a civil action against Ozark Air Lines, Inc., defendant-appellee, alleging violations of the Federal Aviation Act and the Federal Aviation Regulations, and sought to collect some $15,000 in penalties. On cross motions for summary judgment based upon a stipulation of facts, the District Court, Harper, J., granted appellee’s motion for summary judgment.

We affirm.

The single issue on appeal is whether the District Court erred in adopting the construction of Section 121.471(d) (see fn. 1) of the Federal Aviation Regulations proffered by appellee, that “backup reserve status” is not included within the definition of “duty” as it is used in that regulation.

Appellant contends that by scheduling flight crewmembers for back-up reserve during the 24-hour rest periods prescribed by Section 121.471(d), Ozark has failed to provide relief to those crew-members “from all further duty.” This contention by appellant is based on an interpretation of “duty” which includes any work status by crewmembers which could conceivably result in flight duty, as well as actual duty aloft.

Section 121.471(d) has remained essentially unchanged since it was first promulgated in 1926. Agency interpretations of the regulations since that time have variously held that back-up reserve status did or did not count as “duty” within the meaning of the regulation.

In a soundly reasoned and carefully documented opinion published as United States v. Ozark Airlines, Inc., 374 F.Supp. 234 (E.D. Mo.1974), Judge Harper concluded that “duty” in Section 121.471(d) does not include a crewmember on back-up reserve status. Instead, a crewmember may properly be available for duty during a period of rest so long as he is not actually called to duty.

We are in accord with Judge Harper’s opinion and on the basis thereof we affirm.

      . The statute and regulations involved are: Section 601(a)(5) of the Federal Aviation Act, 49 U.S.C. § 1421(a)(5):
      (a) The Administrator is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:
      * * s|: * *
      (5) Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air car riers;
      Section 901(a)(1) of the Act, 49 U.S.C. § 1471(a)(1), provides in pertinent part:
      (a)(1) Any person who violates (A) any provision of subchapter * * * VI * * * of this chapter or any rule, regulation, or order issued thereunder * * * shall be subject to a civil penalty of not to exceed $1,000 for each such violation. If such violation is a continuing one, each day of such violation shall constitute a separate offense * * *.
      Section 121.471 of the Federal Aviation Regulations, 14 C.F.R. § 121.471, provides:
      § 121.471 Flight time limitations: All flight crewmembers.
      (a) No domestic air carrier may schedule any flight crewmember for duty aloft in scheduled air transportation or in other commercial flying if that crewmember’s total flight time in all commercial flying will exceed:
      (1) 1,000 hours in any calendar year.
      (2) 100 hours in any calendar month.
      (3) 30 hours in any seven consecutive days.
      (b) No domestic air carrier may schedule a flight crewmember for duty aloft for more than eight hours during any 24 consecutive hours without a rest period at or before the end of that eight hours, equal to twice the number of hours of duty aloft since the last rest period, but not less than eight hours. However, in conducting a scheduled transcontinental nonstop flight, an air carrier may schedule a flight crewmember for more than eight but not

        more than 10 hours of continuous duty aloft without an intervening rest period, if
      (1) The flight is in an airplane with a pressurization system that- is operative at the beginning of the flight;
      (2) The flight crew consists of at least two pilots and a flight engineer.
      (c) Each flight crewmember who has been on duty aloft for more than eight hours during any 24 consecutive hours must be given, upon completion of his assigned flight or series of flights, at least 16 hours of rest before being assigned to any duty with the air carrier.
      (d) Bach domestic air carrier shall relieve each flight crewmember engaged in scheduled air transportation from all further duty for at least 2J/. consecutive hours during any seven consecutive days. (Emphasis supplied.)

      . “Back-up reserve status” is a work status established by Ozark Air Lines for its flight crewmembers. A crewmember on back-up reserve status is free from immediate duty but is required to be available to be contacted within a two-hour period and to report for duty within two hours after being contacted.


text:
    In the Matter of Guy Hamilton JONES, Sr., Appellant.
    No. 74-1510.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1974.
    Decided Dec. 9, 1974.

      Phil Stratton, Conway, Ark., for appellant.
    Phillip Carroll, Little Rock, Ark., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, and WEBSTER, Circuit Judge.

       Associate Justice Tom O. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

Appellant, Guy Hamilton Jones, Sr., was convicted on December 8, 1972, by a jury in the United States District Court for the Eastern District of Arkansas on four counts of making and subscribing false income tax returns for the years 1965 and 1966 in violation of 26 U.S.C. §§ 7201 and 7206(1). On April 3, 1973, he was sentenced on Count I to pay a fine of $5000, but “the imposition of sentence as to imprisonment only” was suspended and he was placed on probation for three years. Imposition of prison sentence on Counts II, III, and IV was likewise suspended, and he was placed on probation for a period of three years to run concurrently with the probationary period imposed on Count I.

On April 24, 1973, the Chief Judge of the Eastern District, but not the judge who presided at the trial of Jones, wrote the Clerk of the Eastern District, instructing him to strike Jones’ name from the list of attorneys authorized to practice in the District under Rule 1(f) of that Court which provided that anyone convicted of a felony “shall ipso facto be disbarred.” A year thereafter, Jones moved the Court to recall, rescind, or revoke its letter to the Clerk on the ground that no notice was given Jones and no hearing was afforded him. On May 1, 1974, the Court gave notice that a hearing would be had’on May 2 “relevant to the validity” of Rule 1(f) as well as to “the validity of its application to” Jones. At this hearing Jones contended that the want of provision in the Rule for notice renders the rule invalid as lacking due process, and that there was no final judgment in the criminal tax case because the “suspension of imposition of sentence is not a final appealable order.” Jones admitted “that he was indicted, that he was tried, that he was found guilty.”

It is elementary that a fundamental requirement of due process is notice that apprises the interested parties of the pendency of the action and affords them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The same principle applies to disbarment proceedings. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866). Rule 1(f) does not provide for any notice and is, therefore, deficient. Of course, disbarment may be premised upon a felony conviction, see Ex Parte Wall, 107 U.S. 265, 273, 2 S.Ct. 569, 27 L.Ed. 552 (1882), and it may appear superfluous to require notice in such circumstances, especially where the conviction was had in the same court or before the same judge; nevertheless, questions of identity, finality, mitigation and the like may be foreclosed by summary action. Due process, therefore, requires the issuance of a show cause order or similar notice affording the accused the right to appear and be heard.

In this case, however, we note that notice was subsequently given on Jones’ application, and a hearing was held. At this hearing Jones admitted his indictment, trial, and conviction of a felony but argued that, since the imposition of his sentence was suspended, the judgment was not of such finality as to constitute a conviction. This contention is frivolous on its face, since a $5000 fine was imposed under Count I. Moreover, the suspension of jail sentence on all of the Counts would not in our view operate to remove the conviction from the operation of the Rule.

At argument here, Jones contended that he was deprived of his right to present mitigating circumstances, and other matters to the trial court. As we read the record, the trial judge not only opened up the merits in his notice but, during the hearing, reemphasized that “this is a hearing on the merits.” Jones brought forward no evidence of mitigation or other defense. The Court, therefore, continued the disbarment which under the circumstances of the case was entirely justified, since Jones was a highly placed legislative official of the State of Arkansas who had been convicted of cheating on his income tax for two successive years. He had rendered himself unfit to practice law.

Nevertheless, in light of his claim of being deprived of a full hearing, we remand the case with instructions that Jones be permitted to present any evidence of mitigation, etc., that he desires. In the event the trial judge feels, after such a hearing, that the mitigating circumstances are so compelling that disbarment was not appropriate, he may then amend his judgment by ordering suspension or such other penalty as is deemed appropriate under the circumstances.

It is so ordered.


text:
    UNITED STATES of America, Appellee, v. Patrick Lee MURPHY, Appellant.
    No. 74-2432.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1974.
    Rehearing Denied Dec. 11, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1433.

      Donald B. Marks, Beverly Hills, Cal., for appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Before LUMBARD, ELY, and WRIGHT, Circuit Judges.

       Honorable J. Edward Lumbard, Senior United States Circuit Judge of the Second Circuit, sitting by designation.

   OPINION

PER CURIAM:

Murphy was convicted of possession of goods stolen in interstate commerce, a violation of 18 U.S.C. § 659. The evidence established that large amounts of stolen goods were discovered in a trailer located in a warehouse in Orange, California. The warehouse was under lease to Murphy. Murphy contends that the trial court erred in denying his motion to suppress evidence discovered by officers in their search of the warehouse.

Murphy concedes that his employee, one Tucker, consented to the search of the warehouse but claims that this consent was not voluntary. Applying the “totality of all the circumstances” test of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we hold that Tucker’s consent to the search was freely and voluntarily given. Prior cases in which our court has found that consent to search was involuntary have involved circumstances much more coercive than those found to exist in this case. See United States vs. Rothman, 492 F.2d 1260 (9th Cir. 1973); Channel vs. United States, 285 F.2d 217 (9th Cir. 1960).

Alternatively, Murphy argues that Tucker lacked the authority to consent to the search. It is pointed out that Tucker had no status as a lessee of the warehouse and was given the key to the warehouse by Murphy only on occasions when Tucker was to perform work on the premises. In considering all of the circumstances surrounding the search, we attribute special significance to the fact that Murphy delivered the key to Tucker. We conclude that Tucker’s custody of the key gave him sufficient dominion over the premises to enable him to grant the necessary consent. Since Murphy himself put the premises under the immediate and complete control of Tucker, who voluntarily consented to the search, we hold that the search was not unreasonable. See Gurleski vs. United States, 405 F.2d 253, 260-263 (5th Cir. 1968), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969); United States vs. Eldridge, 302 F.2d 463 (4th Cir. 1962).

Affirmed.