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songer_appnatpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BARROW et al. v. IRVING TRUST CO. No. 137. Circuit Court of Appeals, Second Circuit. Jan. 8, 1934. Abram P. Staples, of Roanoke, Va., for appellants. Cravath, de Gorsdorff, Swaine & Wood, of New York City (William D. Whitney, of New York City, of counsel), for appellee. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. This appeal raises no other questions than those which we dealt with in Manhattan Properties, Inc., v. Irving Trust Co., 66 F.(2d) 470, and Malavazos v. Irving Trust Co., 66 F.(2d) 482, except that here we must consider a point of Virginia law. The lessors, who are the claimants, assert that hy the law of that state when a lessee repudiates the lease, the lessor may sell the term and sue at once for liquidated damages; by which we mean the difference between the discounted future rents and the value of the term as realized. The claimants did not indeed take that course here; rather they procured from a Virginia court a receiver who is collecting the rents for the interest of whom it may concern. But their position is that the bankruptcy court may sell the term in their stead by way of liquidating the claim, and offset the sum received against the discounted future rents. We are not clear that under James v. Kibler’s Adm’r, 94 Va. 165, 26 S. E. 417, this course is open to a lessor; that is, whether he must not himself resell the term upon the lessee’s repudiation. However, we shall assume that he may leave the sale to the court, if he positively elects to pursue that remedy; just as we assume that the bankruptcy is a repudiation of the lease by the lessee. We have never held that the lessor would not have a provable claim in bankruptcy in case the lease contained a covenant that upon repudiation the lessee would pay the discounted future rents, less the present value of the term. In re Roth & Appel (C. C. A. 2) 181 F. 667, 31 L. R. A. (N. S.) 270, did not touch such a covenant; though the lessee had promised to pay the difference between the rent reserved as it fell due, and the rente received by the lessor on any reletting. We thought such a claim too contingent,' because each payment was conditional upon the continuance of the term, and the- covenant was as little absolute as the prime covenant to pay the rents. A covenant to pay at once the discounted rent would not be so conditioned; it would be, in substance, a covenant for liquidated damages, as we have already called it; and we reserve its provability. Arguendo we will assume that it would be provable. In James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the lessor was allowed to recover without such a covenant in the lease; the remedy was the same as though it had existed. If the lessee had entered, we should have to decide the question we have just reserved. However, he had not, and that was expressly mentioned as an important, if not controlling, circumstance; the situation was treated as an ordinary breach of contract. In Crowder v. Virginia Bank of Commerce, 127 Va. 299, 103 S. E. 578, the lessee had entered and the lessor had not resold the term. The lessee urged this as an excuse when the lessor sued for the full rent, his theory being that by neglecting to sell the lessor had failed in his duty to minimize his damages. This the court answered by distinguishing between the repudiation of a contract to lease and of the lease itself ; in the first the lessor must minimize damages, in the second he may let the rent roll up and sue for it. The last was a doctrine of real property, different from that applicable to contráete generally. Of course, it would be possible to say that the lessor has such a remedy after entry, but that for especial reasons he need not use it; it is possible to lay down any rule whatever. But at least the distinction made in Crowder v. Virginia Bank of Commerce leaves us doubtful whether the circumstances that in James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the term had not begun, may not have been the controlling factor. Certainly no such remedy was known to the common law in the absence of specific covenant. Branning Mfg. Co. v. Norfolk-Southern R. Co., 138 Va. 43, 121 S. E. 74, again concerned a lease in which the term had not begun; it adds nothing to James v. Kibler. Cook v. Payne, unreported, was merely a refusal without opinion to entertain an appeal; we have no means of knowing what were the court’s reasons; certainly they may have been other than what the claimants here assume. Our conclusion is that the law of Virginia has not been shown to vary from the common law, and that In re Roth & Appel, supra, 181 F. 667, 31 L. R. A. (N. S.) 270, rules this appeal. The order is affirmed, but if the appellants wish the mandate will be held up until the decision of the Supreme Court on the main issues now pending before it on certiorari. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Leoda NEWPORT, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY, a Division of Southern Railway, Defendant-Appellant. No. 74-1782. United States Court of Appeals, Sixth Circuit. Feb. 5, 1975. Don S. Stansberry, Jr., Baker, Worthington, Crossley & Stansberry, Huntsville, Tenn., for defendant-appellant. Richard W. Krieg, Morton, Lewis, King & Jones, John K. King, Knoxville, Tenn., for plaintiff-appellee. Before CELEBREZZE, PECK and McCREE, Circuit Judges. McCREE, Circuit Judge. This is an appeal from the denial of a motion for judgment notwithstanding the verdict or in the alternative for a new trial, entered after the jury returned a verdict for plaintiff-appellee in the amount of $55,000. Jurisdiction is based on diversity of citizenship, and the law of Tennessee applies. The case arises out of a railroad crossing accident in which plaintiff’s decedent was killed. On January 14, 1970, shortly before 4 p. m., Leland Newport, a resident of Scott County, Tennessee, was driving his truck in a westerly direction on Carson Road, a public road in Scott County. This road is intersected by two sets of railroad tracks constituting the main line of the Cincinnati, New Orleans & Texas Pacific Railway. The intersection is known as Pemberton Crossing and vehicular traffic is warned of the railroad tracks by a erossbuck warning sign located on the northeastern corner of the crossing. The railroad tracks south of Pemberton Crossing appear to be straight and level to a motorist driving west on Carson Road. Moreover, for a distance in excess of fifty feet east from Pemberton Crossing, Carson Road is also straight and level. The railroad right-of-way extends fifty feet east of the center line of the eastern set of tracks. Along the eastern right-of-way of the railroad south of Carson Road there is a bank covered with weeds and debris which, to some extent, prevents motorists driving west on Carson Road from seeing railroad trains traveling north. Nevertheless, a motorist who is driving west is able to see fifty feet to the south of Pemberton Crossing when he is on Carson Road fifty feet from the eastern track of the railroad; ninety feet when he is forty feet away; and four hundred fifty feet when he is twenty feet away. Near the crossing, on the western side of the track is a factory from which noise emanates. Leland Newport approached Pemberton Crossing from the east on Carson Road. At approximately the same time, one of appellant’s trains was proceeding north on the eastern set of, tracks at approximately 32 miles per hour and was, at the time Newport was proceeding into the crossing, some 75 to 80 feet south of it. The train had been continuously blowing its whistle for a quarter of a mile south of the crossing. Despite the train whistle and the crossbuck, Newport, who had driven across Pemberton Crossing before, drove straight into the path of the train without looking or stopping or even slowing down. When he approached within fifteen feet of the tracks and gave no indication that he was aware of the approaching train, the train’s engineer put the train into emergency in a futile attempt to stop it. Nevertheless, the train and the truck collided and Newport sustained fatal injuries. On October 9, 1973, Leoda Newport, the wife of the deceased, filed a complaint alleging that her husband was killed because the Railroad was negligent in the operation of its train, in maintaining the right-of-way adjacent to the crossing, and in failing to employ warning devices other than a crossbuck at Pemberton Crossing. The Railroad denied that it was negligent in any of these respects and responded that plaintiff’s action was barred because her husband’s conduct constituted proximate contributory negligence. The case was tried on March 14, 1974, before a jury which returned a verdict for plaintiff. On April 1, 1974, the Railroad’s post-trial motions were denied. On appeal, the Railroad contends that a judgment should have been entered for it for two reasons: (1) because it was guilty of no negligence which was the proximate cause of the accident and the death of Leland Newport; and (2) because Leland Newport was guilty of proximate contributory negligence as a matter of law. We conclude, after a careful examination of the record and of Tennessee law, that Leland Newport’s failure to stop or slow down, or even look for approaching trains at Pemberton Crossing despite the presence of a clearly visible crossbuck ^warning sign, constituted, as a matter of law, contributory negligence which was a proximate cause of his death. In light of this conclusion, we need not determine whether the Railroad was negligent in any respect. As a general rule, “[t]he law in Tennessee, as elsewhere, provides that whether or not a plaintiff acted with due care is [a question] for determination by the jury.” Doane Agricultural Service, Inc. v. Coleman, 254 F.2d 40, 43 (6th Cir.), cert. denied, 358 U.S. 818, 79 S.Ct. 29, 3 L.Ed.2d 60 (1958), citing Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510 (1945). Nevertheless, in some cases, where reasonable minds could reach only one conclusion — -that plaintiff failed to exercise ordinary care and that his negligence was the proximate cause of his injury — it is appropriate to remove the case from the jury’s consideration. In Tennessee, “a railroad crossing is a warning of danger and a motorist is required to exercise ordinary care for his own safety, including the precautions of stopping, looking and listening where ordinary care would require as much.” Maxwell v. Western Atlantic R.R. Co., 295 F.Supp. 740, 745 (E.D.Tenn.), aff’d, 406 F.2d 1326 (6th Cir. 1967). In that case, thiá court affirmed a judgment n. o. v. for the railroad in an action where the facts disclosed that plaintiff’s decedent attempted to cross railroad tracks without stopping to look for approaching trains .even though it was clear that he should have known he was at a train crossing. In Fluckey v. Southern Ry. Co., 242 F. 468, 470 (6th Cir. 1917), this court, again applying Tennessee law, affirmed a directed verdict for the railroad rendered because plaintiff’s decedent was guilty of proximate contributory negligence and explained: Upon the first question, it is unnecessary to go into great detail. We are satisfied that the court below was right. When the automobile reached a point 40 feet from the rail, the buildings and the standing cars on the driver’s left had so far ceased to obstruct his view that he could see 120 feet along the straight'5 track upon which the car was approaching, and at that moment the car was not more than 100 feet from the point of collision. It was broad daylight, there was neither smoke nor dust to obscure the view, there was no other moving train to drown the noise of the approaching car, nor was there anything to distract the driver’s attention. It is not to be disputed that, if the driver had looked at the first instant when looking would do any good, he would have seen the car coming. He was familiar with the crossing, and knew that, by reason of the obstructions, it was a dangerous crossing and must be approached cautiously. His clear duty was not only to look as soon as he could see, but to have his machine under such control that, if necessary, he could stop before getting into the danger zone. . . . [citations omitted]. Under these undisputed facts, there can be no tenable basis for a finding that Mr. Fluckey exercised that degree of care which would be observed by a reasonably prudent man in such a situation. In this case, although the railroad permitted debris to accumulate on the eastern side of the track to the south of Carson Road thereby obscuring the southerly view of a motorist approaching the crossing from the east, the undisputed facts disclose that.the crossbuck sign was clearly visible to Leland Newport and that he failed to look, stop or slow down for an approaching train. If he had slowed down and looked after seeing the crossbuck sign, the evidence of physical facts, including the sight measurements of a civil engineer already referred to and photographs of the crossing submitted as part of the record in this appeal, render inescapable the conclusion that Leland Newport would have seen the train. See Southern Railway Co. v. Hutson, 170 Tenn. 5, 91 S.W.2d 290 (1936). A motorist who proceeds across a railroad track without looking for danger of which he is warned by a crossbuck sign cannot be said to have exercised due, or any, care for his own safety, and if his view is obstructed, he should slow down or, if necessary, stop to permit him to see whether it is safe to cross. We hold, therefore, as a matter of law, that Leland Newport’s failure to slow down and look for approaching trains after being apprised of that danger by the crossbuck sign constituted contributory negligence which proximately caused his injury. Accordingly, the district court erred in refusing to grant appellant’s motion for judgment notwithstanding the verdict. Reversed and remanded with instructions to enter a judgment for appellant notwithstanding the verdict. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Carl Gregory WITT, Appellant, v. UNITED STATES of America, Appellee. No. 23065. United States Court of Appeals Ninth Circuit. June 6, 1969. Certiorari Denied Nov. 17, 1969. See 90 S.Ct. 272. J. Pierce Harris (argued) of Freeman & Harris, National City, Cal., for appellant. Edwin L. Miller, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal. (no argument by govt.) for appel-lee. Before CHAMBERS and KOELSCH, Circuit Judges, and BYRNE, District Judge. Honorable William M. Byrne, United States Senior District Judge, Los Angeles, California, sitting by designation. BYRNE, District Judge: On March 14, 1968, the appellant was indicted on a charge of smuggling marihuana in violation of U.S.C. Title 21, Section 176a. He was convicted in a trial by the Court without a jury. The appellant contends that Section 176a of the Statute under which he was convicted is unconstitutional, and relies upon Marchetti v. United States, 390 U. S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 716, 19 L.Ed.2d 906; and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. In Marchetti, the Supreme Court held that a plea of the Fifth Amendment privilege provided a defense to a prosecution for failure to register and pay the occupational tax on wagers as required by 26 U.S.C. Sections 4411 and 4412. The Court noted that 26 U.S.C. 6107 required lists of wagering taxpayers be furnished to state and local prosecutors on demand, and concluded that compliance with the Statutes would have subjected Marchetti to “real and appreciative” risk of self-incrimination. In Grosso the Court held that the same considerations required the claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. In Haynes the Court held, for the same reasons, that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act. Subsequent to the filing of the briefs and oral argument in this case, the Supreme Court, on May 19, 1969, decided the case of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. For reasons set forth in our discussion of Leary which follows, we hold that neither the cases relied upon by the appellant, nor Leary, require the reversal of the District Court in this case. This is a smuggling case; Leary was not. The indictment in Leary originally-charged smuggling marihuana into the United States in violation of 21 U.S.C. Section 176a. Second, it was charged that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of Section 176a. Third, it was alleged that Leary was a transferee of marihuana and had knowingly transported, concealed and facilitated the transportation and concealment of marihuana, without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4644(a) (2). After both sides had presented their evidence, the District Court dismissed the smuggling count. The Supreme Court theorized (note 4): “Petitioner had testified without contradiction that he had obtained the marihuana in New York, and the District Court apparently reasoned that an article taken out of the United States could not be ‘smuggled’ back into the country, as charged by the indictment.” The jury found Leary guilty on the other two counts. The Supreme Court granted certiorari to consider two questions: (1) whether Leary’s conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination ; (2) whether Leary was denied due process by the application of the part of 21 U.S.C. § 176a, which provides that a defendant’s possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. The Court held in favor of Leary on both issues and reversed the judgment of the Court of Appeals. But neither issue is in the instant case. This appellant was not charged with a violation of the Marihuana Tax Act, nor did his conviction rest upon the presumption of knowledge of illegal importation which was declared unconstitutional by the Court in Leary. In Marchetti, Grosso, Haynes and Leary, the Court’s decision in each instance was required by the impact of the registration provisions which, when considered with the statutory direction that the information be conveyed to state and local law enforcement officials, obliged the Court to conclude that a timely and proper assertion of the privilege against self-incrimination provided a complete defense to prosecution under those particular statutes. Appellant Witt was caught in the very act of smuggling marihuana which should have been invoiced and presented to the Customs officials for inspection in accordance with the Tariff Act of 1930. The Supreme Court has not legalized the smuggling of marihuana nor any other merchandise, nor has it declared the Tariff Act unconstitutional. We are not persuaded by the appellant’s argument that the Supreme Court’s decisions immunize smugglers from prosecution. The appellant asserts: “In the instant case, appellant Witt was required by Federal law to formally acknowledge possession of property which it was unlawful under State law for him to possess. Providing the Customs Officers with the information as required by law would surely establish a ‘link in the chain’ of evidence tending to establish his guilt.” The appellant reasons that a person bringing marihuana into the United States must smuggle it in, because to invoice it and present it for inspection would provide a “link in the chain” of evidence tending to establish his guilt, and would violate his Fifth Amendment privilege against self-incrimination. There is about as much logic in that reasoning as there would be in the contention of a bank robber that he was required to shoot the bank guard who ordered him to drop his gun and raise his hands, because to comply with the guard’s orders would be self-incriminating and would provide a “link in the chain” of evidence tending to establish his guilt, all in violation of his Fifth Amendment privilege against self-incrimination. The same claim might be made by the burglar who is accosted by a police officer as he crawls out of the window of a residence at three A.M. and is ordered to submit to an inspection of the luggage he is carrying. To hold that the privilege was available in any of these cases would border on the ridiculous and would effectively frustrate all criminal laws. The second issue in Leary was whether the application of the presumption contained in 21 U.S.C. § 176a denied Leary due process of law. The Court held that in that case it did. But, as noted above, that issue is not in this case. This was not a jury trial, and so of course there were no instructions involved. At the time of trial the appellant moved for dismissal on the ground that the presumption contained in the second paragraph of Section 176a was unconstitutional. The District Judge denied the motion, adding: “But as I have always held, that on the smuggling cases the presumption is not indulged in and cannot and should not be.” We agree. As an additional ground for reversal, appellant asserts that he had been denied his Sixth Amendment right to a speedy trial. Appellant was arrested December 22nd and taken before the Commissioner on December 26th, at which time counsel was appointed to represent him. He had a bail review on December 29th. The Customs Agency report was received in the United States Attorney’s office on March 9th, 1968. The Grand Jury returned the indictment on March 14th; he was arraigned on March 18th and an omnibus hearing was set for April 4th. The omnibus hearing was held on April 4th and the case was set for trial May 13th. The trial was held on May 15th. It will be observed that most of the delay is attributable to the late filing of the Customs Agency report. At the hearing on the motion to dismiss, the District Judge commented that the statistics show that between November 1967 and the early part of 1968, an unprecedented amount of marihuana came through the border and the number of arrests during that period increased almost one hundred per cent over the same period the previous year and that the Service got far behind in their reports. When the District Judge inquired whether the appellant had suffered any prejudice such as loss of witnesses or evidence as a result of the delay, appellant’s counsel replied that he believed there had been “damage to the defendant’s psychological attitude”. The appellant offered no evidence at the trial, both he and the co-defendant stipulated to the chain of custody and that the contraband seized from them whs marihuana. It should also be noted that the appellant, who was sentenced to ten years imprisonment, will receive credit for time spent in custody. We find here no deprivation of the constitutional right to a speedy trial in violation of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Collins v. United States, 157 F.2d 409 (CA 9); Buatte v. United States, 350 F.2d 389 (CA 9); Cohen v. United States, 366 F.2d 363 (CA 9). Affirmed. . The present offense is essentially one deriving from the Customs law, and the term “invoiced” as used in the statute carries the meaning attached to it in the Customs law, viz., lawfully entered or declared. See Thomas v. United States, 314 F.2d 936 (CA 5, 1963). Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_respond2_7_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Appellant, v. Bernard E. ROESSLING, etc., et al., Appellees. No. 17857. United States Court of Appeals Fifth Circuit. July 19, 1960. Rehearing Denied Aug. 30, 1960. William A. Montgomery, Morton Hollander, Atty., Dept, of Justice, Washington, D. C., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., George Cochran Doub, Asst. Atty. Gen., James L. Guil-martin and E. Coleman Madsen, U. S. Attys., Miami, Fla., for appellant. Paul Game, Tampa, Fla., B. E. Roes-sling, Green Cove Springs, Fla., for ap-pellees. Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges. RIVES, Chief Judge. The United States sought to collect a loan and to that end to foreclose a mortgage on real property. It obtained an in personam judgment against the mortgagors for the debt, but was denied foreclosure on the property. It appeals from such denial. The Government loan was made pursuant to the Emergency Relief Appropriation Act of 1935, 49 Stat. 115, and to the President’s Executive Order No. 7027, issued April 30, 1935, delegating to the Resettlement Administration the power to make loans under said Act. It was secured by a mortgage on real property owned by the mortgagors in Hills-borough County, Florida. The mortgage was duly recorded on April 19, 1937, in the public records of the County. Thereafter, the County taxes assessed against the land for the year 1940 were not paid. Florida law provided that a lien was imposed for the assessed amount, which was said to constitute “a first lien superior to all other liens” on the property, and to continue “in full force and effect until discharged by payment.” Fla.Stat.Ann. § 192.21. By statute the taxes became delinquent on April 1, 1941. Pursuant to Sections 193.51 and 193.54 of the Florida Statutes Annotated, the property was sold to the County and on July 7, 1941, a tax sale certificate in the amount of $19.63 was issued to the County. See Fla.Stat.Ann. § 193.59(1). The only notice of this sale which the statute required was publication in a newspaper “once each week for four consecutive weeks” before the sale, or, if no newspaper was published in the county, “posting in three public places in the county * * .” Fla.Stat.Ann. - § 193.51. In accordance with the provisions of Fla.Stat.Ann. § 194.47, the County, in 1943, filed an action in the Circuit Court of Hillsborough County to quiet title. Section 194.47 directs that, if the property covered by a tax sale certificate has not been redeemed or purchased within two years after the date of issuance of the certificate to a county, the county shall file a bill of complaint against the land. It expressly makes unnecessary the naming “as defendant in such bill of complaint, or proceeding, any person or persons owning or having any interest in or lien upon such lands,” and provides that “[j Jurisdiction of all of said lands and of all parties interested therein or having any lien thereon at the date of filing of such suit shall be obtained by publication of notice * The United States was not named in the suit filed by Hillsborough County in 1943. On August 28, 1944, the Circuit Court of Hillsborough County entered a decree under this statute declaring title to the property here involved to be vested in Hillsborough County, free and clear of all pre-existing claims and liens. The state statute provides that, upon the entry of such a decree, “ * * * all rights, titles, interests in or liens upon said property * * * shall be cut off and extinguished and forever declared null and void and the title to such lands when conveyed by the county shall be construed in all respects as a new, original title * * The County subsequently sold the. property and by mesne conveyances title thereto became vested in the appellees, James R. Holland and his wife. In a written opinion reported at 170 F.Supp. 459, the district court held that the Government’s mortgage lien was subordinate to the later County lien for taxes, and, accordingly, was extinguished by the state judicial proceeding to quiet title to the property. Despite the failure to make the United States a party to the state proceeding, that holding might not be subject to attack if it were, in the first instance, conceded that the Government’s mortgage lien was inferior to the later County lien for taxes. See United States v. Brosnan et al., (Bank of America, etc. v. United States), 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192. If, however, the Government’s mortgage lien was superior, then the County could not reach the paramount lien of the United States through its taxing powers. As indicated in United States v. Boyd, 5 Cir., 1957, 246 F.2d 477, 483, it is the nature and relative rank of the respective liens which determines whether or not the enforcement of the one destroys the other. It is well established that, in the-absence of a controlling federal statute, the priority of federally created tax liens. is determined by the rule that a lien first in time is first in right. United States v. City of New Britain, 1954, 347 U.S. 81, 85, 74 S.Ct. 367, 98 L.Ed. 520; Michigan v. United States, 1943, 317 U.S. 338, 340, 63 S.Ct. 302, 87 L.Ed. 312. That rule governing the priority of federal tax liens has been applied to federal mortgage liens as well. City of New Brunswick v. United States, 1928, 276 U.S. 547, 555, 48 S.Ct. 371, 72 L.Ed. 693; United States v. Latrobe Construction Co., 8 Cir., 1957, 246 F.2d 357, 364; Southwest Engine Co. v. United States, 10 Cir., 1960, 275 F.2d 106, 107. No state or county can tax the property interests of the United States in the absence of congressional consent. United States v. Allegheny County, 1944, 322 U.S. 174, 191, 64 S.Ct. 908, 88 L.Ed. 1209. There is no constitutional prohibition against a state or county assessing taxes against property on which the United States holds a lien on the basis of the full value of that property, but, in the absence of congressional consent, the state or county is without authority to enforce the collection of the taxes thus assessed so as to destroy the pre-existing federal lien. City of New Brunswick v. United States, supra, 276 U.S. 547, 556, 48 S.Ct. 371, 72 L.Ed. 693; S.R.A., Inc. v. State of Minnesota, 1946, 327 U.S. 558, 569, 66 S.Ct. 749, 90 L.Ed. 851; compare Bancroft Inv. Corporation v. City of Jacksonville, 1946, 157 Fla. 546, 27 So.2d 162. The Emergency Relief Appropriation Act of 1935, 49 Stat. 115, contains no language consenting to local taxation of property interests acquired by the Resettlement Administration under said Act. In fact, a later amendment to the Act indicates that the congressional intention was precisely the contrary. In the Act of June 29, 1936, 49 Stat. 2036, Congress provided that, with respect to certain kinds of property acquired under the 1935 Act, “[u]pon the request of any State or political subdivision thereof, or any other local public taxing unit, * * * the Resettlement Administration is authorized to enter into an agreement * * * for the payment by the United States of sums in lieu of taxes.” (Emphasis supplied.) We hold that the state court decree purporting to divest all prior encumbrances and to quiet title to the mortgaged realty in the County did not operate to extinguish the Government’s mortgage lien. Accordingly, the judgment is reversed and the cause remanded. Reversed and remanded. . This instrument provided that the mortgagors “granted, bargained and sold” the land to the Administrator of the Resettlement Administration or his successors, but that the mortgage would “cease and be null and void” if the mortgagors paid the note it secured, in addition to any other sums thereafter advanced, and performed certain specified obligations. Among these was the mortgagors’ duty to “pay all taxes which may accrue on said land * * The Florida doctrine is that a mortgagee “has no title to convey, and Ms interest in the land was a lien of a mortgage to secure the payment of a note * * (Emphasis supplied.) Jordan v. Sayre, 1892, 29 Fla. 100, 10 So. 823, 827. See, also, Hemphill v. Nelson, 1928, 95 Fla. 498, 116 So. 498, 499. In the case of Waldock v. Iba, 1934, 114 Fla. 786, 150 So. 231, 803, 153 So. 915, the Florida Supreme Court used the expression, “a mortgage does not create an interest in the land. It is a chose in action which creates a lien on land.” (Emphasis supplied.) Even so, the lien of the mortgage is clearly a property right, and it is not material that it be treated as equitable in nature. . Ela.Stat.Ann. § 193.51. . Ela.Stat.Ann. § 194.53. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Arthur J. PALMER, Appellant, v. UNITED STATES of America, Appellee. No. 19149. United States Court of Appeals Ninth Circuit. June 8, 1964. Rehearing Denied Aug. 25, 1964. Arthur J. Palmer, Leavenworth, Kansas, appellant pro se. Sidney I. Lezak, U. S. Atty., Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee. Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges. PER CURIAM: The order denying appellant’s motion under 28 U.S.C. § 2255 is affirmed. We are satisfied that the court’s finding that Palmer’s plea was entered understandingly and voluntarily is correct. We find no merit in Palmer’s contention that 26 U.S.C. § 4724 violates the Fifth Amendment. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America v. Leonard SMITH, Appellant. No. 71-1852. United States Court of Appeals, District of Columbia Circuit. Sept. 26, 1972. As Amended Oct. 3, 1972. Messrs. Edgar H. Brenner and Steven P. Lockman, Washington, D. C. (appointed by this Court), were on the brief for appellant. Mr. Harold H. Titus, Jr., U. S. Atty., was on the brief for appellee. Messrs. John A. Terry, Warren L. Miller, and James F. McMullin, Asst. U. S. Attys., were also on the brief for appellee. Before McGOWAN, LEYENTHAL, and MacKINNON, Circuit Judges. PER CURIAM: Appellant was convicted of assault with intent to commit rape in violation of D.C.Code § 22-501 for which he received a sentence of one to five years in prison. His appeal principally challenges the admission into evidence of a benzidine test which was administered at the police station and allegedly indicated the presence of blood on his penis shortly after the assault. The trial judge held a pretrial hearing and denied appellant’s motion to suppress the results of the test. We sustain his ruling and the admission into evidence of the result of such test and affirm the judgment of conviction. I The jury found that appellant, with intent to rape, had assaulted the four and one-half-year-old daughter of a woman with whom he was living. The assault was viewed through a hole in a bedroom door by the six-year-old daughter and was corroborated by substantial physical evidence. The victim’s eyes were red and swollen and caked with tears, and her mother testified: I started to examine her and I screamed. I got the towel and I wet it so I could wipe her off. ... I saw blood and bowel movement and I saw some white stuff. ... I thought it was some of the sperms or discharge or something. ... I use the word torn and busted up. Her rectum was bleeding . . . she had blood, red all around her rectum. . . . (Tr. 64). A timely inspection by the victim’s grandmother and by a medical doctor (obstetrics and gynecology) at District of Columbia General Hospital confirmed abuse and damage to the child's rectum and vagina. Appellant and the grandmother’s husband were the only men known to be in the house at the time. The house was so arranged that the grandmother would have noticed any person entering the apartment where the children were playing. An immediate complaint was made to the police and two detectives came to the house to investigate the allegations. The detectives asked appellant to accompany them to police headquarters “to get the matter straightened out” and the trial judge concluded that this constituted an arrest. Appellant was advised of his constitutional rights from a form which he signed (Tr. 95, 181-183). In response to police questions appellant declared that none of the several women with whom he had had sexual relations during the past few days had been menstruating (Tr. 178, 185). It was then explained to appellant that the police would like him to undergo a benzidine test “to see if there was a show of blood” (Tr. 179). The mechanics of the test were outlined, and appellant was advised that if the test results were positive he would be charged with the offense, if negative, he would be released (Tr. 179). Appellant replied that “he had no fear about the test because he knew it wouldn’t come up positive” (Tr. 181). At headquarters the technician explained the principles of the test to appellant (Tr. 187). When simple visual inspection of appellant’s penis disclosed nothing unusual (blood would have been unusual), the benzidine test was performed (Tr. 188). “There was a positive color reaction” (Tr. 99). At trial, in response to evidence of the positive reaction which resulted from the benzidine test appellant changed the story he had given to the police at the time of his arrest and claimed that the night before the alleged offense he had had sexual relations with a neighbor, whose name he could not recall, who had begun to menstruate during their act of sexual intercourse (Tr. 118). When cross examined about this inconsistency with the prior statement that he had made to the police, appellant attempted to reconcile the inconsistency thus: But, see, they asked me have I had intercourse with anybody who was on a period. But I didn’t have intercourse with anybody who was on a period at that time. I had intercourse with somebody who came on the period. (Tr. 119-120). II Appellant now contends that the administration of the benzidine test upon his person was an unreasonable search and seizure in violation of the Fourth Amendment and resulted in a deprivation of his right to counsel as guaranteed by the Sixth Amendment. In reply to these claims the trial court found: (1) appellant was not entitled to counsel at police headquarters and did not seek counsel; (2) appellant consented to the test, even though his consent was not required; (3) the test was incident to a lawful arrest based upon probable cause; (4) the test was “purely chemical,” as opposed to “medical” within the meaning of Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)]. Appellant prefaces this claim by an assertion that the detectives did not arrest him. However, Form PD-47 (Tr. 182) which was read to him and which he signed states in the first sentence, “You are under arrest”; and the trial judge found that he had been arrested. We agree with the finding of the trial court which means that the test was a search incident to a lawful arrest. We also conclude that the search was reasonable since it was obviously necessary to conduct the test as promptly as possible because of the ease with which the evidence could be destroyed by a thorough washing. The simplicity of the test makes it unnecessary to have it conducted by a physician. It is a chemical test not a medical test and was properly administered by a trained police technician. His qualifications were not questioned. Having found that the test was administered pursuant to a valid arrest (for which there was probable cause), the constitutional validity of the test as a valid search is recognized by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It should also be noted that Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) stated: [I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. (Emphasis added.) Since we find the test was reasonable and was conducted pursuant to a valid arrest we need not go on to find, as the trial court found, that appellant had properly consented to the test. Ill With respect to appellant’s claim that he had a right to counsel at the police station when the benzidine test was administered we note: (1) he was advised of his right to counsel; (2) he did not request counsel (as the trial court found); and (3) counsel was not required. The last point was determined in United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) where the Supreme Court held that counsel was required at a lineup but not at “various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence- at such stages might derogate from his right to a fair trial.” (Emphasis added). The benzidine test is obviously one of the preparatory steps which is excluded from the Sixth Amendment right to counsel. Since it is constitutionally valid to take an internal blood sample for scientific analysis pursuant to a valid arrest where, as here, there was an urgency to prevent the destruction of evidence, certainly it is permissible to take an external sample of blood by a simple cotton swab. Schmerber v. California, supra, 384 U.S. at 770, 771, 86 S.Ct. 1826. We see no similarity to the situation present in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to the law there announced. If counsel had been present and counselled against submitting to the test, such advice would have been futile because the police were entitled to make the test. Schmerber v. California, supra, 384 U.S. at 765-766, 86 S.Ct. 1826. Lewis v. United States, 127 U.S.App.D.C. 269, 271, 382 F.2d 817, 819 (1967). The trial court so found and we agree. IV Finally, we deal with the contention made in appellant’s reply brief that since the Government admits that the benzidine test yields a positive response to substances other than blood the conviction of appellant must be set aside. The Government’s brief states: “Appellee is constrained to inform this Court that substances other than blood will also yield a positive color reaction, including rust, mud and shoe polish. The initial positive reaction rises to conclusive evidence of the presence of blood only when it is supported by microchemical analysis revealing the presence of hemoglobin, a compound unique to the red corpuscles of vertebrates.” (Emphasis added.) Government’s br. at 8, n.6. Appellant contends that his counsel did not have any reason to believe that the positive reaction which resulted could have been caused by any substance other than blood. The technician who conducted the test gave clear and unequivocal testimony as to the nature of the test, but never mentioned this very important fact. The impression created by his testimony was that the test result positively demonstrated the presence of blood on appellant’s penis. * * * » -X * The fact-finding process was seriously-tainted by the unqualified assertions of the Government witness and reliance thereon by Government counsel during his closing argument. Since disclosure of all the facts with respect to the test “might have led the jury to entertain a reasonable doubt about appellant’s guilt,” the conviction cannot stand. There might be some merit to this argument in a different context. What appellant here contends is that at trial the test was considered as proving that appellant’s penis had been exposed to blood. We fail to see how that could in any way be prejudicial to the appellant since at trial he admitted that his penis had been so exposed shortly before the test was administered. At trial in his testimony he attempted to attribute it to another source, and at closing argument his counsel stated, “It could be anybody’s blood.” While this later contention was too broad in view of the evidence of record which narrowed the possibilities to two persons, it did point out, what was not denied, that the test did not prove that it was the blood of the victim in this case. The test was never alleged to prove anything different than what appellant admits, i. e., that his penis had recently been exposed to blood. Since he admitted that, the fact that it was an overstatement to claim that the test alone proved the same thing is in no way prejudicial to him. After such testimony, the only issue was whether the jury would believe the Government’s testimony or appellant’s explanation and the rest of his testimony — their verdict indicates that they believed the Government witnesses. It was well within their province so to find. Affirmed. . D.C.Code § 22-501 provides: Every person convicted of any assault with intent to kill or to commit rape . . . shall be sentenced to imprisonment for not more than fifteen years. . A He said that he had had relations with other women in the past several days. Q And did he say whether or not any of those had been on their period? A He stated that none of them had been. Tr. 178. . The benzidine test consists in swabbing the suspected area with cotton that has been saturated with water. The cotton is then immersed in a benzidine solution. “If blood is present you will get a bright bluish-green reaction from the benzidine solution.” Even the most minute quantity of blood will trigger the reaction (Tr. 98). The instant test was administered to the area in “the ridge directly under the helmet [of the penis which] is a general catching place for stains. It doesn’t necessarily or normally come in contact with clothing and so on. So this is the area that I examined” (Tr. 99). . District Court memorandum opinion, p. 2. . Appellant’s brief states: We do not suggest that either the technician or the Government’s trial attorney deliberately withheld the exculpatory facts concerning the test from appellant and his counsel. . Appellant’s brief states : This was the impression created at tlie j)retrial suppression hearing as well. Judge Gesell’s opinion states that appellant “arrived at the precinct at C :00 p. m. and was formally charged at 6:25 p. m., after a benzidine test on his penis disclosed presence of blood.” . Appellant’s brief states : The technician’s testimony appears at transcript pages 97-100 and 187-188. The following interchange on cross-examination is illustrative: “Q. And is it not also the ease that your test is not the kind of test that indicates the person from whom the blood came? It really says whether or not you have Hood in the sample? A Yes sir, that is true.” (Emphasis supplied) Tr. 100. . That rust, mud or shoe polish would be present in the small highly protected area where the test was administered is highly unlikely and appellant makes no such claim. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Maurice BUTLER, et al., Petitioners, v. CONTINENTAL WESTERN LINES, A DIVISION OF TRAILWAYS, INC., et al. No. 80-2525. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 28, 1981. Decided Nov. 20, 1981. Theodore E. Lombard, Washington, D. C., for petitioners. •Richard W. Galiher, Jr., Washington, D. C., with whom Richard W. Galiher, William H. Clarke, Frank J. Martell, and William J. Donnelly, Jr., Washington, D. C., were on the brief, for respondents. Before MacKINNON and GINSBURG, Circuit Judges, and PHILIP NICHOLS, Jr., Judge, United States Court of Claims. Sitting by designation pursuant to 28 U.S.C. § 293(a). Opinion PER CURIAM. PER CURIAM: Petitioners, children of deceased worker Samuel Butler, sought death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, made applicable to the District of Columbia by D.C.Code § 36-501. The Act applies in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term “employer” shall be held to mean every person carrying on any employment in the District of Columbia, and the term “employee” shall be held to mean every employee of any such person. An administrative law judge denied the claim on the ground that the jurisdictional requirements of the Act were not met, and the Benefits Review Board, United States Department of Labor, agreed with that conclusion. We affirm the Board’s decision. The employment situation in this case did not bear any substantial connection to the District of Columbia. Therefore petitioners’ claim falls beyond the reach of the Act. See Director, OWCP v. National Van Lines, Inc., 613 F.2d 972, 979-81 (D.C.Cir.1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3049, 65 L.Ed.2d 1136 (1980) (citing and quoting Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 805, 91 L.Ed. 1028 (1947) (reach of the Act is limited to cases presenting “some substantial connection between the District and the particular employee-employer relationship”)). Samuel Butler, the deceased worker, formerly resided in the District of Columbia. He was divorced in 1968 and left the District in 1970. From 1972 until his death in 1976, he resided in California. During the period of his residence in California, he was employed as a bus driver by Continental Western Lines, a division of Trailways, Inc., a Texas corporation. Butler’s employment as a driver for Continental did not bring him within 2,000 miles of the District of Columbia. He died on the job in Canyon City, Colorado. Trailways, Inc. did not, except through corporate subsidiaries, employ anyone in the District of Columbia. Butler was not employed by Trailways or any Trailways affiliate prior to his departure from the District. Petitioners rely upon two factors to connect their claim to the District: three subsidiaries of the Trailways corporate family operate here; Butler’s children reside in the District and are the compensation claimants. The local operations of Trailways subsidiaries could not supply a legitimate basis for District of Columbia regulation of Butler’s west coast employment situation. Butler’s work for Continental never brought him east of the Mississippi and no aspect of his employment was supervised or managed from the District. Cf. Director, OWCP v. Boughman, 545 F.2d 210 (D.C.Cir. 1976) (facts relevant to application of District of Columbia law summarized in Director, OWCP v. National Van Lines, Inc., supra, 613 F.2d at 982) (District Act applied, although deceased employee resided in California, where employer’s national headquarters were in the District and employee, occasionally came here on business relating to his employment). Turning to the District residence of the claimants in this case, we find no authority for the suggestion that employers reasonably may be subjected to the compensation laws, and the obligation to insure, in any place in which their employees may have dependent children. Petitioners’ counsel stresses the clear interest the District has in the welfare of children living here. But counsel was unable to cite any reported case in which the residence of the claimants, when it differed from the residence of the deceased employee, was the connection successfully relied upon to invoke application of a workers’ compensation statute. In sum, we do not think the District’s Compensation Act is so pliable that it can be interpreted to reach an employment relationship as distant from the District- as the one between Continental and Samuel Butler. But even if we could fit petitioners’ claim to the terms of the statute we would hesitate to ascribe to Congress a design to sweep this case within the governance of District of Columbia law, cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), particularly in view, of the constitutional question such an extension of the District’s law would raise. See Cardillo v. Liberty Mutual Insurance Co., supra. For the reasons stated herein, we find no basis for disturbing the administrative decision on review. The order of the Benefits Review Board is accordingly Affirmed. . At argument, petitioners’ counsel confirmed that petitioners have filed a timely claim for workers’ compensation benefits in California. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_r_natpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Luisa A. DE ABADIA, et al., Plaintiffs, Appellees, v. Hon. Luis IZQUIERDO MORA, et al., Defendants, Appellants. Nos. 85-1505, 85-1520. United States Court of Appeals, First Circuit. Argued Sept. 13, 1985. Decided May 27, 1986. Rehearing and Rehearing En Banc Denied June 27, 1986. Marcos A. Ramirez Lavandera with whom Marcos A. Ramirez and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendants, appellants. Jose E. Fernandez-Sein with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiffs, appellees. Before CAMPBELL, Chief Judge, and ALDRICH and TORRUELLA, Circuit Judges. BAILEY ALDRICH, Senior Circuit Judge. This is our second installment in a saga of Puerto Rican politics following the gubernatorial election of November 1984. See Jimenez-Fuentes v. Torres Gaztambide, 779 F.2d 765 (1st Cir.1985) (since withdrawn and decision en banc now awaited). Plaintiff Luisa de Abadía, a member of the party (PNP) ousted in that election and former Executive Director of the Quality Control Program of the Department of Health, seeks monetary damages and injunctive relief under 42 U.S.C. § 1983 against Luis A. Izquierdo Mora, the recently appointed Secretary of the Department of Health, Guillermo Irizarry, the Administrator of the Department, and Sonia I. Colon Robles, the Department’s Personnel Director. She alleges that defendants violated her civil rights when they demoted her to a “career” position as a nutritionist within the Department. Specifically, she claims her demotion was due to her political affiliation, in violation of the strictures of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Defendants moved for summary judgment, arguing that the qualified immunity to which, as public officials, they were entitled, see Harlow v. Fitzgerald, 457 U.S. 800,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), precluded recovery in damages against them, whatever the outcome of the injunctive claim. The district court denied the motion, and defendants appeal. Strictly, defendants filed two motions. The court disposed first of their motion to delay discovery until the motion for summary judgment was acted upon. In denying this, by written order, the court said that although it might agree that officials might be entitled to a qualified immunity in claims for damages in a proper case, “this action is ... not an action seeking damages, but is also an action for injunctive relief against which the defendants may not be entitled to a claim of qualified immunity. Generally, the immunity doctrine is only applicable to actions for damages and cannot be employed in suits seeking declaratory or injunctive relief. Mitchum v. Foster, 407 U.S. 225 [92 S.Ct. 2151, 32 L.Ed.2d 705], Thus, the issue of immunity is not as clear cut as defendants argue in their motion to stay.” Our thought that the court was here confusing the making of an early ruling as to immunity with the right to an immediate appeal, where both damages and an injunction were involved, is confirmed by its later, oral, ruling denying the motion for summary judgment. When the parties discussed the merits of that motion, and the court stated it would deny it, it added, “It is not appealable, anyway.” The following then occurred. Mr. Ramirez: It is appealable if it denies qualified immunity, that’s one of the cases we cited on the motion. The Court: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things. Mr. Ramirez: It includes qualified immunity. The Court: You raised it, but in an injunction I am not so sure that qualified immunity applies or not, as I . said in my order denying your request to stay. Mr. Ramirez: Okay so Your Honor is denying then the— The Court: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment. This would seem to raise two points: whether it was correct to deny the motion for summary judgment, and whether an incorrect denial would be appealable. We consider first whether denial of summary judgment on a claim of qualified immunity which the Court held in Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), warranted an immediate appeal as a “final decision” in an action simply for damages, would not permit an immediate appeal if there were also a claim for injunctive relief. This question was left open in Mitchell, ante, at 2812, footnote 5. Before Mitchell, two circuits had divided on this question. The Fourth, Bever v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984) (2-1), denied appealability; Tubbesing v. Arnold, 742 F.2d 401 (8th Cir.1984), held contra. We have found no other cases since Mitchell, and it is a matter of first impression in this circuit. In Krohn v. United States, 742 F.2d 24 (1st Cir.1984), we held that the denial of qualified immunity is immediately appealable, but, as in Mitchell, ante, we had before us only a claim for damages. It seems to us, however, that the official’s concerns are the same when there is also a claim for an injunction and we conclude that the rule should extend to such cases. As the Court said in Mitchell, qualified immunity is more than an immunity from money damages; it is “an immunity from suit ... [which] is effectively lost if a case is erroneously permitted to go to trial.” Id. at 2816 (emphasis in original). This is so, the Court said, because, the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service.” Id. at 2815 (quoting Harlow, ante, 457 U.S. at 816, 102 S.Ct. at 2737). Plaintiff argues that because defendants must proceed to trial in any event on the injunctive claim, there is little purpose in allowing them to avoid trial on damages. Plaintiff would quote Bever, ante, 724 F.2d at 1086-87, to the effect that, [defendants remain] the principal defenders of the state’s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at trial. Whether or not they are immune from damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damages claims cannot avoid the diversion of their attention from official duties which the litigation will occasion. In these circumstances, the question whether a denial of the immunity claims is appealable would appear to have little effect upon the willingness of responsible persons to serve in public office. With due respect to the Fourth Circuit, we do not follow its reasoning. Its approach assumes that, for a public official, the threat of suit in his individual capacity is no worse than the threat of suit as representative of the state, and that the burdens of defending are no more onerous for the former than the latter. Although we recognize a public official’s obligation to defend a suit brought against him in his public capacity, the emotional, and perhaps physical, responsibility is not as great. “[T]he fear of being sued and held personally liable for damages is a far cry from a suit for reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties.” Bever, ante, 724 F.2d at 1091-92 n. 4 (Hall, J., dissenting). The threat may well include punitive, as well as actual damages. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473-74, 64 L.Ed.2d 15 (1980). Even if the actual time spent on the case away from his ordinary responsibilities were the same whether the damages claim was in or out, the official’s energy may be diverted from pressing public issues merely by the personal apprehension involved. At the least, the official sued for damages may have to retain, his own counsel at his own expense. Tubbesing, ante, 742 F.2d at 404 n. 3. In this litigious age all of these concerns are legitimate, and might easily deter individuals from taking public office. Finally, the Fourth Circuit’s approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune. In sum, we agree with the dissent in Bever, and with Tubbesing in all respects. We hold that an interlocutory appeal lies from the district court’s denial of summary judgment on a claim of qualified immunity from damages liability, even though a petition for injunctive relief is also pending. Perhaps because of its erroneous views on the availability of an advance ruling on qualified immunity, the district court did not discuss whether defendants had made a sufficient showing of immunity. Instead, it denied summary judgment on the basis of “clear issues of fact,” but made little showing as to their extent beyond reference to the “controversy whether Mrs. Abadía was or was not a confidential employee, what her duties were ... [tjhat’s why I cannot decide by summary judgment.” Obviously if there was a determining question of fact regarding defendant’s qualified immunity defense, denial of the motion was correct. See Fernandez v. Leonard, 784 F.2d 1209, 1214, note 2 (1st Cir.1986). There is a serious shortage of record. In their proposed pretrial order, the parties listed four disputed matters: 1) whether plaintiff’s position was “confidential”; 2) whether she was terminated for political reasons; 3) whether her position was “policy making”; and 4) whether “political loyalty is an appropriate requirement for the performance of the office.” Not all of these, however, are factual disputes upon which a determination of this motion for summary judgment depends. To start with Nos. 1 and 3, Branti makes it clear that these classifications do not, per se, excuse political demotions. In Branti, the Court pointed out that labels such as “policymaking” or “confidential” are not what controls; rather, the relevant inquiry is whether “party affiliation is an appropriate requirement for the effective performance of the public office.” 445 U.S. 507 at 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574. Thus, issue Nos. 1 and 3 really merge into, and are not separate from, issue No. 4. At the same time, issue No. 2 does not have to be decided in defendants’ favor if they can succeed on No. 4. Furthermore, with respect to the plaintiff’s claim for damages, defendants need not win on the merits of issue No. 4 if they are entitled to the defense of qualified immunity. If the defendants make a sufficient showing of objective good faith, viz., that at the time of the demotion the law was not “clearly established” against their action, they are immune from suit. Harlow, ante, 457 U.S. at 818, 102 S.Ct. at 2738. The first question is what is meant by “clearly established.” We consider it to be something less than requiring the public official to show that the principle of law did not exist, or there would be little left; there would be few cases on which officials could succeed. Only rarely do legislatures or courts introduce or change whole principles. More often, the process of change involves a sharpening of lines in the law’s grey areas, absent which there could reasonably be excusable mistakes. The case law supports this broad interpretation. See Harlow, ante, 457 U.S. at 815-19, 102 5. Ct. at 2736-39; Procunier v. Navarette, 434 U.S. 555, 560-65, 98 S.Ct. 855, 859-61, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 315-22, 95 S.Ct. 992, 997-1001, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 240-48, 94 S.Ct. 1683, 1688-92, 40 L.Ed.2d 90 (1974). In each of these cases, the Court laid heavy emphasis on the officials’ good faith, now defined by Harlow as objective good faith, as the criterion by which their actions are to be judged. [T]he public interest requires decision and action____ Public officials ... who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity ... is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error than not to decide or act at all. Scheuer, ante, 416 U.S. at 241-42, 94 S.Ct. at 1689. The good faith standard is the Court’s attempt to accommodate this need for discretionary action in areas of uncertainty with the protection of individual rights. “The official cannot be expected to predict the future course of constitutional law, but he will not be shielded from liability if he acts ‘with such disregard of ... clearly established rights that his action cannot reasonably be characterized as being in good faith.’ ” Procunier, ante, 434 U.S. at 562, 98 S.Ct. at 860, (quoting Wood, ante, 420 U.S. at 322, 95 S.Ct. at 1001) (citations omitted). These are concerns that apply just as forcefully to refinements or clarifications of existing doctrine as to radical changes of direction. The cases are also clear that the limits of good faith vary with “the scope of discretion and responsibilities of the office and all the circumstances as they appeared at the time of the action.” Scheuer, ante, 416 U.S. at 247, 94 S.Ct. at 1692. Where, as in this case, the official’s responsibilities are broad, he must be afforded a correspondingly broad range of discretion. While employment decisions may not appear initially to be the type of critical actions for which wide discretion is appropriate, at least at the higher levels, they are essential to the effective implementation of important government policies. See Elrod, ante, 427 U.S. at 367, 372, 96 S.Ct. at 2686-87, 2689. On this basis, the question becomes, not whether defendants were in fact correct in believing party affiliation to be an appropriate requirement for plaintiff’s position, but whether, viewed objectively, they were reasonable in so believing. If this were an issue of subjective good faith, there might always be a question of fact; it is difficult to think there could ever be summary judgment. However, in the case of objective good faith, that a reasonable man in defendants’ position could have believed his conduct to be warranted, Malley v. Briggs, — U.S. -, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), may be a purely legal question, Mitchell at 2816-17 n. 9, so that it may be possible for an appellate court to rule that a defendant was reasonable as a matter of law. In that event, no purpose would be served by remanding to the district court. We believe this is such a case. We start with the fact that Elrod and Branti marked a substantial change in the law. That “party affiliation be an appropriate job requirement” is much easier to say than to apply to the wide number of factual situations bound to occur in any government employing a large number of individuals. In the present state of the law, whatever may be the ultimate resolution on the merits — an issue not before us — of a particular case, may frequently not be easy to say in advance. Certainly at the top there must be political as well as other guidelines for the conduct of the Commonwealth’s Department of Health. Plaintiff, in accordance with governmental regulations, had executed her own official job description as Executive Director of the Department of Health. Plaintiff’s own responsibilities appear to mesh directly therein. With these compare Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95. [I]t is ... clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. Plaintiffs affidavit that her true employment was mundane, only, non constat that she had prepared a quite different job description, ante, on the asserted basis of her actual performance, might create an issue of fact ultimately on the merits, but to permit a proffer of an oral contradiction of her own signed description to create an issue of fact destroying defendants’ qualified immunity would emasculate the entire principle. No official would be free of suit. We would add that an official should have at least a qualified right to regard an office as embracing the characteristics normal to its nature. If, in fact, the preceding governor withheld the duties embraced in plaintiff’s job description this should not foreclose his successor from naming a replacement with the higher duties. As the court said in Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir. 1985), [The] focus is on the “inherent powers” of the office, not what any individual officeholder actually does. Elrod and Branti require examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office. Ness v. Marshall, 660 F.2d 517, 522 (3d Cir.1981); Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591, 593 n. 4 (1st Cir.1977); Mummau v. Ranck, 531 F.Supp. 402, 405 (E.D. Pa.1982), affd, 687 F.2d 9, 10 (3d Cir. 1982). Thus, if an officeholder performs fewer or less important functions than usually attend his position, he may still be exempt from the prohibition against political terminations if his position inherently encompasses tasks that render his political affiliation an appropriate prerequisite for effective performance. In this court’s reiteration of the Branti formulation, we emphasized the functions of the office involved, not the officeholder: “The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decision making on issues where there is room for principled disagreement on goals or their implementation.” Nekolny v. Painter, 653 F.2d 1164,1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The unarticulated purpose behind this approach seems to be two-fold: first, to resolve the issue entirely in one proceeding, thereby relieving the courts of the burden of having to reexamine a certain position every time a new administration changes the mix of responsibilities bestowed upon the officeholder; and, second, to provide certainty to litigants. Tomczak v. City of Chicago, 765 F.2d 633, 640-41 (7th Cir.1985). Therefore barring some radical transformation that goes to the core of the nature of the position, the district court need not concern itself with what past or present administrations have done with the office. Indeed, to labor the point, the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiff’s favor. In Tubbesing v. Arnold a section 1983 discharge action depended upon the meaning of a “personnel policy manual.” In granting defendants qualified immunity the court said, 742 F.2d at 406, Insofar as there is a disputed issue concerning the Manual, it involves the differing interpretations of Tubbesing and the Board. There is no dispute that the manual was in effect and no dispute about the contents of the Manual. The only question involves its interpretation, and this is a question for the court. Rather than precluding summary judgment, the fact that the application of the Policy Manual [to the directors] is disputed merely emphasizes that the law at the time of the conduct complained of was not clearly established. Even considering the evidence in the light most favorable to Tubbesing, and giving her the benefit of all reasonable inferences, we cannot conclude that there is a genuine issue of fact concerning whether Tubbesing had a “clearly established” right to continued employment. So viewed we consider that, as a matter of law, defendants could reasonably believe, although on the merits they may ultimately prove to be mistaken, that the position of Executive Director of the Quality Control Program was one that allowed substantial responsibility for the development and implementation of high level policy as detailed in the job description, n. 3 ante, requiring a political outlook compatible with the Secretary’s; in short, that it was a position for which political affiliation was an appropriate requirement. Particularly it should not lie in plaintiff’s mouth, on the issue of defendants’ good faith, to say that they could not regard the job as being what she herself had described it to be. (See n. 5, ante.) In sum, we are presently concerned not with the correctness of defendants’ determination, on the one hand, nor their subjective state of mind on the other, but of the “objective reasonableness” of their conduct. See Floyd v. Farrell, 765 F.2d 1, 4 & n. 1 (1st Cir.1985). We cannot say that the incorrectness of their conduct was clearly established. Harlow demands not prescience, but objective good faith. In some cases the application, vel non, of Elrod-Branti may be clear; in others it will be sufficiently fraught with uncertainty that an official could not be faulted for failing to apprehend. We are not without sympathy for district judges who would like full guidance in this difficult area, but we must hesitate to write a textbook providing resolution of all future questions. For now we merely hold, finding appellants to be at least reasonable in believing the law was not clearly established, that they are entitled to qualified immunity from suit. We therefore vacate and remand with directions to grant summary judgment on the issue of personal liability and to dismiss the counts as to defendants’ personal damages. . Conceivably there is a further question whether the court misspoke itself in the second paragraph. Qualified immunity is, of course, no defense to equitable relief. That is the cause of our problem. 2. The Fourth Circuit suggested that the interest in prompt results also militates against allowing these appeals: "[Defendants] might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.” Id. at 1087. This is a red herring, totally irrelevant to the overriding concern, expressed in Harlow and Mitchell, for the official’s right to avoid trial, and not merely to obtain an expeditious resolution of his immunity defense. . With respect to issue No. 1, it is not apparent how it could be thought that plaintiff was other than a "confidential employee” as defined in the Puerto Rico Personnel Law. See P.R.Laws Ann. tit. 3, § 1350 (1978 & Supp.1984). . Harlow is only the most recent pronouncement on qualified immunity. The doctrine has roots that antedate all of these cases, which simply developed its contours. Harlow’s significance lies in its rejection of the subjective good faith prong of the doctrine. 457 U.S. at 817-18, 102 S.Ct. at 2737-38. . See, e.g., "2. Advise the Secretary, Governors’ Aids, and Legislators in the establishment of the philosophy, public policy, goals and objectives related to the health services. “7. Recommend drafts of bills and bills directed to implement, amend or derogate provisions allowing for the development of the functions assigned to the Program; discuss them; process for the consideration of the Secretary, the Governor or the Legislature and give follow up to determine the action taken." . "Detail the work you perform in the order of importance of the different tasks, starting with the most important____” Our dissenting brother’s reference to plaintiffs separate count for damages under the Commonwealth statute, for which pendent jurisdiction is asserted, is to a matter not presently before us. However, the writer of this opinion, the matter having been raised, would call the district court’s attention to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNDERWRITERS AT LLOYD’S UNDER POLICY NO. LHO 10497, Norton-Simon, Inc. and McCall Publishing Company, Plaintiff-Appellants Cross-Appellees, v. PEERLESS STORAGE COMPANY and Peerless Transportation Company, Defendant-Appellees Cross-Appellants. Nos. 76-1302, 76-1303. United States Court of Appeals, Sixth Circuit. Argued June 13, 1977. Decided Sept. 8, 1977. Jon M. Sebaly, Smith & Schnacke, Dayton, Ohio, William T. Smith, Richard A. Getty, Calfee, Halter & Griswold, Robert J. Amsdell, F. Rush McKnight, Cleveland, Ohio, for appellants. Robert P. Bartlett, Jr., Thomas L. Cze-chowski, Estabrook, Finn & McKee, Dayton, Ohio, for appellees. Before WEICK and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge. WEICK, Circuit Judge. We are required in this diversity case to determine the applicable Ohio statute of limitations governing an action by a subro-gated insurer against a bailee to recover the value of personal property injured by fire. The case was tried by the District Judge without a jury, and in a published opinion he adopted findings of fact and conclusions of law. He followed the decision of the Supreme Court of Ohio in Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951), and the decision of this Court in Sears, Roebuck & Co. v. Cleveland Trust Co., 355 F.2d 705 (6th Cir. 1966), and held that the action was governed by Ohio’s two-year statute of limitations, Ohio Rev. Code § 2305.10. Underwriters at Lloyd’s etc. v. Peerless Storage Co., 404 F.Supp. 492 (S.D.Ohio 1975). Although the insured’s proof of loss on the insurer’s form was dated June 2, 1971, the insurer did not file suit until about three and one-half years after the date of the fire. It was therefore barred by the statute of limitations. The District Judge dismissed the action and the plaintiffs have appealed. We affirm. There was no substantial dispute as to the facts. Norton-Simon, Inc. and McCall Publishing Company (McCall) entered into a verbal month to month storage agreement with the defendants, Peerless Storage Company and Peerless Transportation Company (herein referred to jointly as Peerless), in which agreement Peerless agreed to store in its Warehouse Number 15 in Dayton, Ohio, a quantity of Norton-Simon’s and McCall rolled paper stock. On February 27, 1971 a fire destroyed Warehouse 15. The paper stock was damaged extensively, with losses valued at $850,096. No proof was offered as to the cause of the fire but there was substantial evidence that the warehouse had no sprinkler system and no fire walls, and was operated in violation of fire codes. Norton-Simon and McCall were able to recoup only $8,000 in salvage value from its damaged property. Subsequently Underwriters at Lloyd’s (Lloyd’s) paid Norton-Simon and McCall $750,096. for the loss and damage to said rolled paper stock caused by the fire, against which Lloyd’s had insured under its policy of fire insurance. By reason of this payment Lloyd’s became subrogated to the rights of Norton-Simon and McCall against the defendants for recovery of the loss and damage to the paper stock. Norton-Simon and McCall incurred an uninsured loss of $100,000. On June 25, 1974 Lloyd’s filed a suit against Peerless in the Federal District Court, some forty months after the fire, claiming damages of $750,096. The complaint alleged that Peerless had breached the oral bailment contract by its failure “to exercise good faith and reasonable skill and diligence in discharging its obligations and responsibilities under said agreement.” In July, 1975 Norton-Simon and McCall intervened as co-plaintiffs under Fed.R.Civ.P. 24(b) claiming damages for $100,000 on the uninsured portion of the loss allegedly resulting from Peerless’ breach of contract. On October 17, 1974 the District Court entered an order denying Peerless’ motion for summary judgment. In its published opinion, however, the District Court held that plaintiffs had established a prima facie case of liability and that Peerless as bailee had failed to rebut the plaintiffs’ prima facie case. The District Court, as noted above, ruled that the two-year limitation in § 2305.10 was applicable. The two Ohio statutes of limitation under consideration provide as follows: § 2305.07 Contract not in writing. Except as provided in section 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued. § 2305.10 Bodily injury or injury to personal property. An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose. Plaintiffs argue that § 2305.10 does not apply to the present cause of action. They contend that the case of Andrianos v. Community Traction Co., supra, is limited to cases involving bodily injuries and injuries to personal property, and not to cases involving predetermined arm’s-length bargained contractual rights and obligations. Plaintiffs assert also that § 2305.10 does not apply to causes of action as in the present case for violation of rights in personal property or for violation of rights arising out of an injury to personal property, but rather that § 2305.10 applies to actions involving injury to persons or tangible things, which actions arise generally in situations where there is fortuitous damage to personal property such as damages resulting from an automobile collision. Peerless, on the other hand, maintains that the Andrianos decision controls in suits to recover damages for injury to personal property irrespective of the form of the action filed. In Andrianos a bus passenger suffered bodily injuries when the bus driver struck a pillar or stanchion of a viaduct. Nearly four years after the accident the passenger sued the common carrier for violation of an implied contract to provide safe carriage, claiming $30,000 damages. The sole issue before the Ohio Supreme Court was whether the six-year statute of limitations for bringing a contract action under Section 11222 of the General Code (now Ohio Rev. Code § 2305.07), or the two-year statute of limitations on bodily injury under Section 11224-1 of the General Code (now Ohio Rev.Code § 2305.10), applied to the cause of action. The Court ruled that the latter statute was applicable and dismissed the cause of action. It adopted what it termed the “majority rule” as follows: The rule prevailing in by far the larger number of jurisdictions is that where a statute, specific in terms, limits the time within which an action for “injuries to the person” or “bodily injury” may be brought, such statute governs all actions the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, and a general statute, limiting the time for bringing an action growing out of a contractual relationship, is without application. (Id., 155 Ohio St. at 50, 97 N.E.2d at 552.) The Court also held that the two-year statute of limitations applied to all actions concerning bodily injury regardless of the form of action brought. The Andrianos Court noted at 51, 97 N.E.2d at 552: No matter what form is adopted, the essence of the action is the wrongful injury, and that it arose from the breach of an express or implied contract is immaterial. Thus, the limitation statutes are concerned with the nature or subject matter of the cause of action, even though the plaintiff may choose whether to sue for damages under a contract or under a tort theory. The Court concluded at 53, 97 N.E.2d at 553: In conclusion, Section 11224-1, General Code, is complete in itself and suggests no legislative intent to distinguish between bodily injuries directly and forcibly caused under circumstances where no contractual relationship exists between or among the persons concerned and those resulting from a breach of contract. Until such time as the General Assembly sees fit to make such distinction by an enactment carrying appropriate language to accomplish that purpose, this court must accept and apply the statute as it exists, regardless of hardship to a particular litigant. It is manifest from a perusal of the amended petition that this is an action for damages upon a claim for bodily injury. It was instituted after the expiration of two years from the date upon which liability arose, and it comes squarely within the two-year limitation prescribed by Section 11224 — 1, General Code. (Footnote added) Because § 2305.10 refers to injury to personal property as well as bodily injury, it is clear that the Andrianos case applies to both situations. Farbach Chem. Co. v. Commercial Chem. Co., 101 Ohio App. 209, 211-12,136 N.E.2d 363 (1956). See generally, 34 Ohio Jur.2d Limitation of Actions § 30 (1958). The Ohio lower courts have developed Ohio case law since the Andrianos decision and have applied the limitation of § 2305.10 to cases where contracts have been involved, even to an oral bailment contract such as in the present case. For example, the Andrianos case was followed, applying § 2305.10, in a case involving violations of a written car-rental agreement in which a rented automobile had been damaged. National Car Rentals v. Allen, 1 Ohio App.2d 321, 204 N.E.2d 554 (1964). In Bauman Chevrolet, Inc. v. Faust, 66 Ohio Law Abs. 145, 113 N.E.2d 769 (Ct. of Common Pleas of Erie County 1953), the plaintiff sued for breach of an oral bailment contract for the bailee’s alleged failure to return an automobile in as good condition and repair as when the bailee took possession thereof; the car had been damaged beyond repair. The Court relying on the Andrianos decision, applied the two-year statute of limitations under Section 11224-1 of the General Code (now § 2305.10) holding that “a cause of action for damages to personal property arising out of a bailment contract, is governed by [that statute].” Id. at 147, 113 N.E.2d at 771. Moreover, this Court in the case of Sears, Roebuck & Co. v. Cleveland Trust Co., 355 F.2d 705 (6th Cir. 1966), relied on the Andrianos decision and applied the statute of limitations under § 2305.10 to a lessee’s contract suit for the lessor’s alleged breach of its covenant to deliver a leased building to the lessee in good condition and repair, and for damages to personal property resulting therefrom. Among other things, the Court quoted the following from the District Court’s decision in Tomle v. New York Cent. R.R., 234 F.Supp. 101, 104 (N.D. Ohio 1964): The Andrianos opinion continues on in language equally forceful and unequivocal to reinforce the Ohio Supreme Court’s pronouncement that the two-year statute of limitations applies to any and all actions to recover for personal injuries. In light of the Andrianos decision, plaintiff’s contention that he is entitled to the benefit of the six-year statute must be rejected. (355 F.2d at 707) Cf. Mahalsky v. Salem Tool Co., 461 F.2d 581 (6th Cir. 1972) (two-year statute of limitations on injury to personal property applied to claim of express and implied warranties arising out of a sale of an alleged defective augering machine), and Levin v. Bourne, 117 Ohio App. 269, 192 N.E.2d 114 (1962) (§ 2305.10 applicable to automobile negligence suit against minor’s parents for alleged bodily injuries). In 34 Ohio Jur.2d Limitation of Actions § 31 (1958) it is stated, in part: § 31. Bailments. If a breach of a bailment contract by the bailee gives rise to a situation where the action may be brought either in tort or contract, the bailor may elect which remedy he will pursue. Irrespective of the remedy chosen by the bailor, however, where the purpose of the action is solely to recover damages for injury to personal property, such action is governed by the statute of limitations relating to the recovery of damages for injury to personal property, namely, the 2-year statute, and not those relating to recovery of damages for the breach of contract. [Footnotes omitted] Therefore it is clear that § 2305.10 is applicable to an action arising out of a breach of an oral bailment contract, even where the breach occurred due to a fortuitous situation of fire, as here, and it is equally clear that the pivotal decision in this area of law is the Andrianos case. In the present case the plaintiffs had the option to sue either under a tort theory for injury to Norton-Simon’s and McCall’s personal property, the rolled paper stock, or under a contract theory for breach of the oral bailment contract. Although the plaintiffs chose the latter option, this Court is bound, under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), by Ohio substantive law which applies the rule in Andrianos to suits for injury to personal property. It matters not that the case involves a large sum of money or that it will take time to investigate. Since the proof of loss was dated June 2,1971 it appears that the insurer had plenty of time to investigate. Plaintiffs offered no proof that they could not, in the exercise of ordinary diligence, have filed within the two-year statutory period, the same type of short complaint which was filed in the present case. Here the sole purpose of plaintiffs’ lawsuit was to recover damages for the paper destroyed in the fire, and this Court holds that when the complaint is stripped of its legal terminology, plaintiffs’ cause of action in substance and effect was one for recovery of injury to personal property, and not, as plaintiffs contend, for violation of rights in personal property or for violation of rights arising out of an injury to personal property. This holding does not mean that in every case wherein personal property has been damaged a suit in contract may not lie which applies a limitation different from § 2305.10. See, e. g., Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (Ct. of Common Pleas of Franklin County 1968). There are various cases under Ohio law wherein the cause of action sounded in contract and in no way sought recovery for injuries to body or personal property or where recovery under a tort theory was incidental to the lawsuit. The following cases are examples of this principle and are distinguishable from both the case at bar and the Andrianos decision. In R. & H. Cartage Co. v. Fought, 111 Ohio App. 230, 171 N.E.2d 369 (1960), the Court applied the fifteen-year statute of-limitations in a suit for a breach of a contract of indemnity for negligence in making delivery of a cargo shipment (spoilage and delay in delivery). The subrogee had already paid the shipper for any losses, but the cause of action did not arise “until the refusal of the defendant to comply on demand under the terms of its contract” covering the shipment with the lessee. Id. at 232, 171 N.E.2d at 371. In Farbach Chem. Co. v. Commercial Chem. Co., 101 Ohio App. 209, 136 N.E.2d 363 (1956), the Court applied the six-year statute of limitations to a suit for an alleged breach of contract warranting good workmanship — the defendant allegedly failed to remove an offensive substance from brake fluid. The Court said at 213, 136 N.E.2d at 366: The language of Section 2305.10, Revised Code, implies [sic] a positive injury to the property, not a negative contractual failure to render a product harmless. The latter situation was the circumstance in the Farbach case. Lastly, the Court in American Ins. Group v. McCowin, 7 Ohio App.2d 62, 218 N.E.2d 746 (1966), applied the limitation in § 2305.-07, rather than the limitation in § 2305.10, in a suit between an employer’s insurance carrier (subrogee) and an employee’s admin-istratrix because the cause of action rested upon an implied contract of indemnity pursuant to the doctrine of primary and secondary liability. The insurance company had paid damages to a third party for personal injuries sustained by that party caused by the employee’s negligent operation of an automobile. Cf. Val Decker Packing Co. v. Corn Prods. Sales Co., 411 F.2d 850 (6th Cir. 1969) (action for breach of implied warranty of merchantability or fitness for a particular purpose pursuant to a written sales contract governed by the four-year statute of limitations specifically provided for under the Ohio Uniform Commercial Code). Plaintiffs also argue in the alternative that the cause of action here is based upon an implied contract of indemnity, and thus the six-year limitation in § 2305.07 is applicable. Plaintiffs rely generally on this Court’s decision in Ohio Cas. Ins. Co. v. Ford Motor Co., 502 F.2d 138 (6th Cir. 1974), which was an opinion by a divided Court. In the Ohio Casualty case plaintiff insurance company paid damages to injured third parties who had suffered personal and property damages when the brakes on the insured’s truck failed because of an alleged defect. The insurance company, as subro-gee to the rights of the insured, then sued the automobile manufacturer upon an implied contract of indemnity. The insurance company claimed that it was secondarily liable for the wrongful injuries while the automobile manufacturer was primarily liable as the party who actually created the wrong. Because the settlement payments were all made more than two years before the suit for subrogation was filed, but, with one exception, within six years of the filing of the complaint, the issue arose over what statute of limitations applied to the cause of action. This Court ruled that the real purpose of the action was “to obtain indemnification for monies paid to the injured third persons who suffered the damage” rather than “to gain compensation for personal injury or property damage.” Id. at 140. Thus the six-year limitation for contracts in § 2305.07 was held applicable “to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable . . ..” Id. at 141. However, the situation here is different. As recognized by the District Court, plaintiffs have proceeded upon the theory of a breach of an oral bailment contract, and not as an action for indemnification. The real purpose of plaintiffs’ action was to recover for injury to personalty. Moreover there is no primary-secondary liability involved in the present case. Lloyd’s, as subrogee, has no rights greater than those of the insured, Norton-Simon and McCall. As noted by the Court in the Ohio Casualty case: Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had- paid the claim and sued appellee for indemnification. 50 O.Jur.2d Subrogation § 26. (502 F.2d at 139) Because Norton-Simon and McCall were limited to the two-year limitation in § 2305.10, so also was Lloyd’s. We are of the opinion that the Supreme Court of Ohio would adhere to its decision in Andrianos, and approve the subsequent appellate decisions applying it to personal property damage. Cf. United States Fidelity & Guar. Co. v. Truck & Concrete Equip. Co., 21 Ohio St.2d 244, 257 N.E.2d 380 (1970). For the reasons stated above, plaintiffs were barred from bringing their cause of action because of the running of the two-year statute of limitations in § 2305.10, and thus their cause of action was properly dismissed. The judgment of the District Court is affirmed. . The syllabus in the Andrianos case, which is the law of the case in Ohio, states: 1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable. 2. Section 11224-1, General Code, providing that an action for bodily injury shall be brought within two years after the cause thereof arose, governs all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed on the cause of action and the form in which the action is brought is immaterial. 3. Where a fare-paying passenger sustains bodily injury during his transportation by a common carrier of passengers and thereafter institutes an action against the carrier to recover damages for such injury and the results thereof based on a claimed breach of the implied contract for safe carriage, the two-year limitation for bringing an action prescribed by Section 11224-1, General Code, is controlling and not the six-year limitation contained in Section 11222, General Code, relating to an action on an implied contract. . But see Slick Airways, Inc. v. Reinert, 114 Ohio App. 124, 175 N.E.2d 844 (1961), for a case which applied the statute of limitations for a contract action wherein a tort action was possible without discussing the Andrianos decision. See also Schiffman v. Itts, 88 Ohio Law Abs. 389, 183 N.E.2d 423 (Ohio App.1961), wherein the Court refused to apply the two-year statute of limitations under § 2305.10 in a suit for a breach of a bailment contract because the defendant never affirmatively raised the defense of the statute of limitations. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Donald Alan MILLER, Petitioner-Appellant, v. James ROWLAND, et al., Respondents-Appellees. No. 92-15875. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1993. Decided July 8, 1993. Jeffrey L. Staniels, Chief Asst. Federal Defender, Sacramento, CA, for petitioner-appellant. Joan W. Cavanagh, Supervising Deputy Atty. Gen., Sacramento, CA, for respondents-appellees. Before: BROWNING, CHOY and CANBY, Circuit Judges. PER CURIAM: Donald Miller, a California prisoner serving an indeterminate life sentence for conspiracy to commit murder, appeals the denial of his petition for writ of habeas corpus. He claims his due process and contract clause rights were violated by the California Department of Correction’s refusal to grant him work credits pursuant to Cal.Penal Code § 2933. I. Until May 1983, Miller earned credits at the rate of one day of credit for every two days of good behavior or participation in certain “work, educational, vocational, therapeutic or other prison activities.” Cal.Penal Code § 2931. Under § 2931, Miller’s term of confinement could be reduced by as much as one third. In 1982, the California legislature adopted a new system for awarding credits to prisoners sentenced after January 1, 1983. Under the new system, prisoners may earn one day of credit for each day of participation in work assignments or educational programs, thus reducing their term of confinement by as much as one half. See Cal.Penal Code § 2933. For prisoners sentenced before 1983, the legislature provided that “a prisoner subject to the provisions of Section 2931 may waive the right to receive time credits as provided in Section 2931 and be subject to the provisions of Section 2933.” Cal.Penal Code § 2934. In May 1983, Miller signed an “irrevocable” waiver giving up his right to earn § 2931 credits for the chance to earn credits under § 2933. In 1987, the California Attorney General issued Opinion No. 86-1102, which concluded § 2933 credits are not available to inmates like Miller who are serving indeterminate life sentences under Cal.Penal Code § 190. The Department of Corrections informed Miller he could no longer earn § 2933 credits and henceforth could receive only § 2931 credits. Corrections officials also informed inmates they would receive § 2931 rather than § 2933 credits for the work they had already completed. In In re Monigold, 205 Cal.App.3d 1224, 253 Cal.Rptr. 120 (4th Dist.1988), the California Court of Appeal affirmed the Attorney General’s decision that § 2933 credits were not available to prisoners serving indeterminate life sentences, but held such inmates were entitled, under an equitable estoppel theory, to the § 2933 credits they had already earned. Miller has received credits under § 2931 for good behavior up to June 1983, § 2933 credits for worktime between June 1983 and February 1989 (when the mandate issued in Monigold), and § 2931 credits for his good behavior since February 1989. After an unsuccessful state habeas petition, Miller filed this petition under 28 U.S.C. § 2254, claiming his due process and contract clause rights were violated when the state refused to comply with the terms of the § 2934 waiver, which Miller asserts is a binding and “irrevocable” contract. The district court denied the petition. n. The state contends Miller failed to exhaust his contract clause claim. In his pro se petition for review in the California Supreme Court, Miller argued his “waiver contract with the State entitling him to continued receipt of worktime credits is a valid, enforceable contract which by its own terms cannot be revoked, certainly not unilaterally, and is in full force. The State’s refusal to abide by its terms and the State’s unilateral revocation of same violates due process.” The court denied review. Although “the California Supreme Court’s denial of a habeas petition without comment or citation constitute[s] a decision on the merits of the federal claims,” Hunter v. Aispuro, 982 F.2d 344, 347 (9th Cir.1992), we must determine whether Miller’s due process claim that the § 2934 waiver is a binding contract “fairly presented” the contract clause issue. A federal claim “is fairly presented [to the state courts] if the petitioner has described the operative facts and legal theory on which his claim is based. A habeas petitioner may, however, reformulate somewhat the claims made in state court; exhaustion requires only that the substance of the federal claim be> fairly presented.” Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986) (citation omitted); see also Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (claim is exhausted if “ ‘the ultimate question for disposition’ will be. the same despite variations in the legal theory or factual allegations urged in its support”) (citation omitted). Although Miller characterized his claim as a due process claim, we conclude his contract clause claim was fairly presented as well since the ultimate question for disposition under both claims is the validity and effect of the § 2934 waiver agreement. See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (federal courts have a’ duty to construe pro se pleadings liberally). III. We review de novo the district court’s decision to deny Miller’s petition for a writ of habeas corpus; “[t]o the extent it is necessary to review findings of fact, the clearly erroneous standard applies.” Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). A. The Contract Clause Claim. Miller argues the § 2934 waiver was a valid and enforceable, contract that bound both him and the state. The attorney general’s opinion and In re Monigold establish as a matter of California law that Miller is not eligible for § 2933 credits. The Department of Corrections was therefore not authorized to contract with Miller for such credits. See also In re Diaz, 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395 (6th Dist.1993) (discussing Monigold); In re Oluwa, 207 Cal.App.3d 439, 255 Cal.Rptr. 35 (2d Dist.1989) (discussing the relationship between § 190 and § 2933). “[N]o contractual obligation may be enforced against a public agency unless it appears the agency was authorized by the Constitution or statute to incur the obligation; a contract entered into by a governmental entity without the requisite constitutional or statutory authority is void and unenforceable.” Air Quality Products, Inc. v. California, 96 Cal.App.3d 340, 349, 157 Cal.Rptr. 791 (1979); see also 1 Witkin, Summary of California Law: Contracts § 77, at 111 (1987). Since the waiver agreement is void and unenforceable by either party, Miller’s contract clause claim is without merit. B. The Due Process Claim. Miller has already received credits for his earlier participation in the § 2933 program, but claims the plain language of the statute and the terms of the § 2934 waiver agreement give him a liberty interest in continuing to earn work credits. We ruled in Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir.1986), that § 2933 does not create a liberty interest in eligibility for work credits where an inmate has not engaged in work that would entitle him to such credits. See also Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir.1989) (prisoner does not have liberty interest in § 2933 credits during period he was available for work but was not given any work to do). We have also determined the § 2934 waiver agreement is void and unenforceable under California law; accordingly that agreement cannot serve as the basis for a liberty interest in future work credits. Affirmed. . Section 190 provides that "[e]very person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life.” Miller claims the fact that he is guilty of conspiracy to murder compels a different interpretation of § 190 than the interpretation given that statute in cases involving murderers. However, under Cal.Penal Code § 182(a)(6), conspiracy to commit murder is punishable under § 190 as if it were first degree murder. The issue in this case is not which of the two crimes Miller committed, hut the meaning of § 190, under which persons convicted of either crime are to be sentenced. In the absence of any contrary suggestion by the California courts, we decline to give a separate meaning to the language of § 190 when it is applied pursuant to § 182(a)(6) to persons convicted of conspiracy to murder. . The state also contends Miller has not exhausted his contract clause claim because the California Court of Appeal ruled Miller's petition was procedurally defective due .to a pleading deficiency that he could have corrected. We need not consider this argument because the state failed to pursue it in the district court. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In any event, the Court of Appeal cited the alleged pleading defect only as a ground for denying Miller relief under an equitable es-toppel theory, and not as a basis for refusing to reach the merits of Miller's claims. . We need not defer to the Attorney General's opinion and the decisions of the California Court of Appeal if their interpretation of California law is "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.” Taylor v. Kincheloe, 920 F.2d 599, 609 (9th Cir.1990) (citations and internal quotation marks omitted); see also Ward v. Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920). Although Miller advances several arguments against the state court's interpretation of §§ 2933 & 2934, the court's rulings are straightforward and reasonable. Miller's arguments for a different reading are not cognizable in federal habeas review. See Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir.1990). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIGITAL PAGING SYSTEM OF TOLEDO, INC., Respondent. No. 80-1470. United States Court of Appeals, Sixth Circuit. Sept. 17, 1981. Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner. Ward Summerville, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for respondent. Before KEITH and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge. ORDER The National Labor Relations Board is applying to the Court under § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order against the Digital Paging Systems of Toledo, Inc., issued on April 29, 1980, to cease and desist from unfair labor practices, to reinstate an employee and to bargain with the Union. The Company filed an answer to the application. The application has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. In August, 1978, the Company demoted Carol Van Tuinen from the position of manager to salesperson in the Toledo office. She and the only two other employees in the bargaining unit became concerned over the security of their jobs and contacted a union agent. The three signed union authorization cards. The union agent met with the new manager to demand recognition. The manager began to interrogate Ms. Van Tuinen and the others about their knowledge of the union. On September 19, 1978, Company officials learned of the demand and two days later Ms. Van Tuinen was discharged. The Company thereafter refused to bargain with the Union, which then filed unfair labor charges against the Company. As a result of the charges, the National Labor Relations Board held a hearing before an Administrative Law Judge. He found that the Company had unlawfully interrogated employees about union activity, improperly discharged Ms. Van Tuinen and refused to bargain with the Union in violation of § 8(a)(5) and (1). The ALJ recommended, inter alia, an order be issued requiring the Company to bargain with the Union. The Company filed exceptions to the latter two findings. The Board affirmed the ALJ’s decision and adopted his recommendations. That decision is reported at 249 NLRB No. 15 (1980). The standard of review in Board cases is whether the Board’s determination is supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Conflicts in the evidence are for the Board to resolve and, if supported by substantial evidence, such resolutions must be accepted by this Court. NLRB v. Pinkerton's Inc., 621 F.2d 1322, 1324 (6th Cir. 1980). The same is true for determinations of credibility. NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029 n.5 (6th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974). Upon review, the Court has examined the record, including portions of the hearing held before the Administrative Law Judge. We find substantial evidence in the record to support the Board’s findings of the unfair labor practices listed above. We also find the Board properly applied the guidelines of NLRB v. Gissell Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) in ordering the Company to bargain with the Union. Accordingly, enforcement of the Board’s order of April 29, 1980, is hereby granted. Rule 9(d)3, Rules of the Sixth Circuit. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_respond1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. TALBOT TRACTOR COMPANY, INC., Plaintiff, v. HINOMOTO TRACTOR SALES, USA and Southern Tractor Corporation, Defendants-Third-Party-Plaintiffs-Appellants, v. KANEMATSU-GOSHO, (U.S.A.) INC., Third-Party-Defendant-Appellee. No. 82-3389. United States Court of Appeals, Fifth Circuit. April 18, 1983. Jerry Saporito, Albert C. Miranda, Metairie, La., for Hinomoto Tractor Sales USA. Hayes, Durio & Richard, Steven G. Durio, Lafayette, La., for Southern Tractor Corp. Franklin, Moore & Walsh, R. Michael Caldwell, Baton Rouge, La., Richard K. Jeydel, New York City, for Kanematsu-Gosho, Ltd. Before TUTTLE, POLITZ and GAR-WOOD, Circuit Judges. Circuit Judge of the Eleventh Circuit, sitting by designation. TUTTLE, Circuit Judge: This is an appeal from the dismissal by the trial court of a third-party action against Kanematsu-Gosho, (U.S.A.) Inc., for want of personal jurisdiction in the State of Louisiana. I. STATEMENT OF FACTS AND PROCEEDINGS BELOW The parties in this action are as follows: 1. Toyosha Company of Japan — a tractor. manufacturer; 2. Kanematsu-Gosho, (U.S.A.) Inc. (“KG”) — an importer of products that receives Toyosha tractors at West Coast ports and delivers them to Hinomoto in Houston for national distribution; 8. Hinomoto USA, Inc. — national distributor of Toyosha tractors; 4. Southern Tractor and Talbot Tractor — competing tractor distributors in Louisiana. Talbot Tractor filed an action against Southern Tractor and Hinomoto alleging that Hinomoto had breached its non-exclusive Louisiana dealership contract with Talbot and that Southern had wrongfully induced the breach. Hinomoto and Southern then filed third-party demands against Toyosha and K-G alleging that if there was a failure to meet their contractual obligations, Toyosha and K-G had caused the damages alleged by Talbot. K-G moved to dismiss the third-party complaint for lack of personal jurisdiction. The facts are largely undisputed. In 1978, Toyosha and Hinomoto entered into a contract granting Hinomoto the right to distribute Toyosha products in the United States and Canada. As a corollary to this agreement, Hinomoto and K-G agreed that K-G would serve as importer of Toyosha products for Hinomoto and would deliver them anywhere in the United States specified by Hinomoto. Hinomoto and K-G also agreed that K-G would aid in the processing of warranty claims by consumers of Toyosha products. It is undisputed that K-G does not conduct or solicit any business, activity in Louisiana. Its contract with Hinomoto was not executed in Louisiana and called for no performance by K-G in that state (though, presumably, if Hinomoto requested the goods to be delivered to Louisiana, K-G would have to comply). K-G takes title to the goods at the West Coast and its relationship with them ceases in Houston. The record is not clear as to whether K-G delivers Toyosha tractors to Hinomoto in any place other than Houston. K-G had no role to play in picking dealers. II. STATEMENT OF ISSUES 1. Does the district court have personal jurisdiction over K-G? a) doing business? b) minimum contracts? c) fair and reasonable? 2. (Secondary Issue) If the Due Process Clause would not block the exercise of jurisdiction, does § 3201(d) of the Louisiana Longarm Statute provide personal jurisdiction over an out-of-state contract breacher simply because a victim of the breach resides in-state? Hinomoto’s claim of personal jurisdiction is based on the Louisiana Longarm Statute, which provides: A Court may exercise personal jurisdiction over a non-resident, who acts directly or by an agent, as to a cause of action arising from the non-resident’s (a) doing business in the state; sfc * ¡k s¡c (d) causing injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of the state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state. La.Rev.Stat.Ann. § 13:3201(d). This Court has held: “This statute was intended to permit the full exercise of in personam jurisdiction allowable under due process standards in cases when the suit ‘arises from’ the non-resident’s contacts with the forum.” Standard Fittings Co. v. Sapag S/A, 625 F.2d 630, 638-40 (5th Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299, (1981). “Business activity which will satisfy the requirements of due process will thus necessarily satisfy the ‘transacting business’ requirement of the [Louisiana] Longarm Statute.” Austin v. North American Forest, 656 F.2d 1076, 1089 (5th Cir.1981). III. THE DISTRICT COURT OPINION The district court relied on Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974) to reject the notion that K-G had sufficient minimum contacts with the state to be haled into court. The court found that K-G had not purposefully availed itself of the benefits of conducting business in the state, and its contacts with Louisiana were not “reasonably foreseeable.” The court held that the mere knowledge by K-G that Hinomoto had a national distributorship was insufficient since K-G never shipped any goods to Louisiana or performed any warranty work in the state. Without citing any cases, the district court also stated that courts were less willing to assert jurisdiction over a party alleged to have breached a contractual duty than over a party “standing in the shoes of” the manufacturer of an injury-causing product. Finally, the court (again without citing cases) asserted that even if K-G was subject to jurisdiction under the Due Process analysis, § 3201(d) only addresses tortious misconduct and that no portion of the Statute provides for jurisdiction over a “breaching” party with only attenuated contacts in the state. IY. DISCUSSION OF ISSUES The appellant bases its argument on the notion that K-G should reasonably have foreseen that some of the products handled by it would be sold or used in Louisiana. Appellant also urges that K-G “derives revenue” from the state since each tractor sold in Louisiana means an additional tractor shipped by K-G. The appellant attempts to distinguish Volkswagen, the case relied on by the district court in which the Supreme Court refused to allow an Oklahoma state court to exercise jurisdiction over the sellers of an automobile in a products liability suit brought by persons who had purchased the automobile in New York as New York residents. The Court held that the mere fact that the accident occurred in Oklahoma was not enough and rejected the plaintiffs’ contention that the “reasonably foreseeable” doctrine should subject the seller to suit in every state. The appellant urges that the contacts in the present case were not “simply fortuitous” (as the Supreme Court labeled those in Volkswagen) and cites Austin v. North America Forest Products, 656 F.2d 1076 (5th Cir.1981) where this Court stressed that jurisdiction may be exercised where contacts with the state are “purposeful and deliberate.” The appellant urges that the present case bears no factual semblance to Volkswagen since K-G and Hinomoto were parties to an agreement specifying that Hinomoto was a distributor for an area including Louisiana. Hinomoto also argues that notions of fairness and judicial economy compel the assertion of jurisdiction over K-G. Hinomoto notes that it was itself haled into court in Louisiana and urges that to require it to file a separate suit for indemnity in Texas would not create any inconvenience to K-G and would waste judicial resources. The appellee K-G relies heavily on Volkswagen. As for the foreseeability of any product transported by K-G entering Louisiana, K-G quotes: The foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. K-G urges that the foreseeability doctrine is especially inapplicable to it given that it is not a manufacturer and that Hinomoto’s claim rests on a breach of contract rather than a tort. K-G stresses that the manufacturer, Toyosha, had a direct distribution agreement with Hinomoto and that K-G acted for Hinomoto to transfer the goods to Houston. The appellee stresses that its revenues and its activities with regard to Toyosha products were not directly connected in any way to the degree of Hinomoto’s sales in Louisiana. K-G urges that it should not be subject to the jurisdiction of the Louisiana court simply because Hinomoto’s national sales area happens to include Louisiana. K-G attacks the appellant’s “fairness” argument on two grounds. First, K-G urges that it deliberately structured its relationship with Hinomoto and Toyosha so as to be subject to suits only in a limited number of states; the legal system should have a “degree of predictability ... that allows potential defendants to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable to suit.” Volkswagen, supra, at 297, 100 S.Ct. at 567. As evidence of this intent, K-G points to its written arbitration agreements with Hinomoto and Toyosha and urges that Hinomoto can hardly claim that the present suit represents the most efficient resolution of this dispute. Both parties recognize that the Supreme Court’s pronouncements in Volkswagen, supra, must be carefully analyzed for our determination whether personal jurisdiction exists in this case. Appellee contends that Volkswagen controls because the facts here neatly meet those in Volkswagen. Appellant, to the contrary, points to the fact that there is an important distinction in the facts, to wit: that the only basis for jurisdiction in Volkswagen was the fact that an automobile manufactured or sold by the out-of-state defendant ended up in the State of Oklahoma where it figured in a tortious incident whereas here, the out-of-state defendant is in the chain of national distribution of equipment that ultimately found its way to the State of Louisiana. Appellant cites only one Fifth Circuit case, Austin v. North American Forest, supra, in its effort to find a matching state of facts based on a breach of contract. In Austin, this Court found in favor of longarm jurisdiction under the Louisiana statute because of the very significant fact present in that case, that the out-of-state defendant was actually required to, and did, submit to the Louisiana plaintiff a certificate of compliance with federal standards, which was required under federal regulations before the contract for the purchased materials could be approved. 656 F.2d at 1090. This, undoubtedly, furnished sufficient contact, not only with the State of Louisiana, but with the particular plaintiff, to warrant, as found by this Court, a determination that the Louisiana statute conferred jurisdiction. Another Fifth Circuit case, Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974), was cited by the trial court. In that case the Court held that the plaintiff failed to connect Jacques Cousteau and his French company to the contract entered into between Product Promotions, Inc., and CEMA on the basis of agency. It then discussed the nature of proof required to support personal jurisdiction over CEMA, the other party to the contract. It first held that the contract was actually made in Texas. The court then said: ... since the contract was made in Texas, CEMA had reason to foresee that enforcement and protection of its own rights under the contract might depend on the laws of Texas. In short, CEMA voluntarily entered a transaction with one it knew to be a Texas resident, a transaction which had a substantial connection with Texas and which CEMA had reason to know would have consequences in Texas. (Footnotes omitted). 495 F.2d at 497. See also, Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973), a breach of contract case, which we feel fully supports the trial court’s decision here. In Volkswagen, the court cited six factors which it considered in determining that long-arm jurisdiction over the defendant did not reside in the Oklahoma courts: (1) defendant conducts no activity in the state; (2) it closes no sales and performs no services in the state; (3) it avails itself of none of the privileges and benefits of state law; (4) it solicits no business either through sales persons in the state or ads reasonably calculated to reach the state; (5) it makes no regular sales to state residents; and (6) it does not “indirectly, or through others, serve or seek to serve the [state] market.” 444 U.S. at 295, 100 S.Ct. at 566. All of these factors apply to K-G in the present case except possibly the final one, for it is not entirely clear that K-G does not “indirectly, or through others, ... seek to serve the [state] market.” However, with respect to this factor the Court said: “[Financial benefits accruing to the defendant from a collateral relationship to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.” 444 U.S. at 299, 100 S.Ct. at 568. Here, there was no effort made by the appellants to show that the sale of a tractor in Louisiana even added substantially to profits of K-G. Since we conclude that the trial court was correct in finding against personal jurisdiction on due process grounds, we do not reach the question whether subsection (d) would otherwise provide a basis for jurisdiction. As to appellant’s argument that jurisdiction should be found because of “fairness” in permitting it to litigate against all parties where it was forced into court by the plaintiff, it is clear that fairness itself cannot overcome the requirement of some necessary minimum contacts. In Volkswagen, the Court said: Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. 444 U.S. at 294, 100 S.Ct. at 565. The judgment is AFFIRMED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:
songer_genapel2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Kenneth L. DUVAL, and Cheryl Duval, on behalf of themselves and all other Nebraska residents similarly situated, Jerry K. Mason and Linda L. Mason, Appellees, v. MIDWEST AUTO CITY, INC., a corporation, Appellant, Dave Studna, Individually, Dave Studna d/b/a E & J Motor Sales, American Truck Sales, Global Tank Trailer Sales, and D. Studna Auto Sales, Ervin Delp, Individually, Appellant, Midwest Auto City, Inc., and Ervin Delp d/b/a Tecumseh Motors and Bernard Flaherty. No. 77-1910. United States Court of Appeals, Eighth Circuit. Submitted April 12, 1978. Decided June 12, 1978. Herbert J. Friedman, Lincoln, Neb., on briefs for appellant. Alan L. Plessman, Lincoln, Neb., on brief for appellees. Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge. The Honorable TALBOT SMITH, Senior United States District Judge for the Eastern District of Michigan, sitting by designation. ROSS, Circuit Judge. Midwest Auto City, Inc. (Midwest) sells automobiles in Lincoln, Nebraska. In 1975 Midwest sold to each of the plaintiffs, the Duvals and the Masons, a used car which had had its odometer rolled back to give the impression that the car was a low-mileage vehicle when in fact its true mileage was much higher. Alleging that they had been victimized by conduct made unlawful under Title IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq., plaintiffs commenced this suit. They sought to recover treble damages together with the costs of the action and an award of attorney fees, all as provided in 15 U.S.C. § 1989. Following a bench trial the district court entered findings of fact and conclusions of law holding the defendants liable to both plaintiffs. A hearing was later held to determine the amount of attorney fees and costs, and an award was entered. Plaintiffs’ complaint had named as defendants, in addition to Midwest, several other individuals and entities, including Midwest’s president Ervin Delp; only Midwest and Delp have appealed. Together they assert that the trial judge (1) erred in failing to grant judgment of dismissal at the close of the plaintiffs’ case, (2) erred in certain of his findings of fact and conclusions of law, and (3) abused his discretion in making the award of attorney fees. We affirm the judgment of the district court. The facts of the case are fully and accurately set out in the district court’s reported opinion and will be reiterated here only where necessary to discuss the issues presented by this appeal. I. During their case in chief, plaintiffs introduced evidence tending to show that Midwest and Delp were part of a scheme whereby Midwest would buy high-mileage vehicles with low-mileage odometer readings from a car dealer in Kansas. Midwest in turn would resell these cars as low-mileage vehicles. The district court described the workings of this arrangement as follows: Two paths predominated. One would begin with the purchase of a car in Kansas, the certificate of title showing high mileage, whereupon the car would be sent to Bennie Motors in Missouri and titled there, where the state law does not require a mileage certification, and then the car would be transported to Nebraska for sale. ' * The other path consisted of the purchase of an automobile in Kansas and sending the ear to Nebraska for sale with a copy of the certificate of title sufficiently mutilated by erasure or ink smudge to render the high-mileage odometer reading illegible, thus obscuring to a potential purchaser the fact that the odometer itself had been turned back. Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1385 (D.Neb.1977). At the close of the plaintiffs’ case, defendants moved for involuntary dismissal under Fed.R.Civ.P. 41(b) on the ground that the plaintiffs’ evidence was insufficient to show a right to relief. Ruling on this motion was reserved and defendants proceeded to their proof. On áppeal, defendants argue essentially that liability could be established against Midwest and Delp only by considering evidence of the market value of the various automobiles as high-mileage and as low-mileage cars. Only by correlating these values with the prices actually paid by Midwest, and the prices actually charged on resale, could it be determined whether Midwest was a participant in, or itself a victim of, the alleged scheme. Evidence of market value was introduced only during the defendants’ presentation. Thus, defendants argue, the district court erred in failing to grant their motion for dismissal. This argument is stated in defendants’ brief as follows: The trial court forced the defendants to proceed with their case without ruling on the motion to dismiss and then allowed the plaintiffs to bootstrap their faulty case with evidence adduced by the defendants. The court should not have permitted this and should have dismissed the plaintiffs’ case pursuant to the motion of the defendants. Under the circumstances here presented, defendants are foreclosed from raising any issue concerning the sufficiency of the evidence as it stood at the close of plaintiffs’ case. If a defendant, after moving for involuntary dismissal at the close of the plaintiff’s case, introduces evidence in his own behalf, his right to a judgment of dismissal is thereby waived. See, e. g., Wealden Corp. v. Schwey, 482 F.2d 550, 551-52 (5th Cir. 1973); A. & N. Club v. Great American Insurance Co., 404 F.2d 100, 103-04 (6th Cir. 1968); 9 Wright & Miller, Federal Practice & Procedure § 2371, at 221 (1971). In such situations the sufficiency of the evidence is tested on appeal by viewing the entire record, reversal being warranted only if the district court’s findings are clearly erroneous. This conclusion is not altered by the fact that the trial judge reserved ruling on the motion when made. Rule 41(b) expressly authorizes the ruling to be so reserved. The judge did not thereby “force” defendants to do anything. “If defendants wished to challenge this decision, their avenue for doing so was to refuse to offer their evidence, accept a judgment for plaintiffs, and appeal it on the ground that plaintiffs’ evidence was insufficient.” Wealden Corp. v. Schwey, supra, 482 F.2d at 552. II. On the issue of liability the district court concluded that both Midwest and Delp had violated 15 U.S.C. § 1986 by conspiring with the other named defendants to violate other sections of the Act, including 15 U.S.C. § 1984, which provides: No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon. Finding sufficient evidence to conclude that Midwest and Delp were part of a conspiracy to violate this section, and that the vehicles of both plaintiffs fell within the ambit of the conspiracy, the judgment of the district court is, on this basis, affirmed. As an additional basis of liability the district court found that Delp violated 15 U.S.C. § 1988, which states in pertinent part: (a) Not later than 90 days after October 20, 1972, the Secretary [of Transportation] shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle: (1) Disclosure of the cumulative mileage registered on the odometer. (2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled. The district court found that Delp violated this section by failing to furnish the plaintiffs with the required statement disclosing that the true mileage of the vehicles was unknown. We disagree with this holding of the district court. As the above-quoted statutory language makes plain, liability is imposed upon a transferor who fails to make the required disclosure to a transferee “in connection with the transfer of ownership of a motor vehicle.” In the implementing rules prescribed by the Secretary of Transportation, “transferor” is defined as “any person who transfers his ownership in a motor vehicle.” 49 C.F.R. § 580.3 (emphasis added). No liability could attach to Delp under this section since, with respect to each plaintiff, the owner of the vehicle, and thus its transferor, was Midwest, not Delp. See Romans v. Swets Motors, Inc., 428 F.Supp. 106, 107-08 (E.D.Wis. 1977) (corporate manager not a transferor); Coulbourne v. Rollins Auto Leasing Corp., 392 F.Supp. 1198, 1199-1200 (D.Del.1975) (corporate sales agent not a transferor). III. Following trial, a separate hearing was held to determine the amount of costs and reasonable attorney fees as provided for in 15 U.S.C. § 1989(a) of the Act. Upon consideration of the evidence presented and the briefs of counsel, Judge Urbom awarded plaintiffs attorney fees in the amount of $14,205.65. In making this award the court applied the guidelines recommended in the American Bar Association’s Code of Professional Responsibility, Disciplinary Rule 2-106. Those guidelines have frequently been approved by this court as a standard for determining reasonable attorney fees. On appeal defendants concede the appropriateness of the factors considered by Judge Urbom and likewise agree that this court should accept the district court’s judgment except upon a showing of an abuse of discretion. Arguing that such an abuse occurred in this case, defendants assert (1) that the Duvals were not awarded damages and such fact should have reduced the amount of attorney fees, and (2) that the award is greatly in excess of the amount of damages and is, for that reason, patently unreasonable. We reject both arguments. A. Upon finding that the defendants had violated the Act in connection with the sale of the Duval automobile, Judge Urbom concluded that the Duvals were entitled to recover as damages the difference between the amount they had paid for the car and the fair market retail value of the same car with the number of miles it had actually traveled. This amount was determined to be $247 which, if tripled, is less than the $1500 minimum provided in 15 U.S.C. § 1989(a)(1). Therefore, the court determined that the Duvals were entitled to recover $1500. However, as a result of an earlier settlement between themselves and another defendant, the Duvals had actually received $2500. Because this amount exceeded the total amount of recovery, the court concluded that the Duvals were entitled to no more, except attorney fees and costs. Under the circumstances of this case, we conclude that the above-described settlement does not require a reduction in the total amount of attorney fees awarded. Following the settlement the case proceeded to trial against the remaining defendants on the claims of both the Duvals and the Masons. Violations were proved against all defendants and their individual liability to each plaintiff thereby established. The extent of the preparation required to establish this liability was commented upon by Judge Urbom as follows: Over two hundred separate automobile transactions between the parties were investigated in detail by the plaintiffs’ counsel, although many less than that were detailed at the trial. Nonetheless, the fact is that the patterns developed by extensive documentation of similar automobile transactions between Midwest Auto City, Inc., David Studna, and Bennie Studna formed the strongest evidence of a conspiracy between those persons and knowledge on the part of Midwest Auto City, Inc. and Ervin Delp that the odometers of the plaintiffs’ automobiles had been altered. * * * It cannot be doubted that massive investigation preparatory to the trial was necessary if any reasonable likelihood of success was to be realized. We agree with the district court’s assessment of the work required of plaintiffs’ counsel to adequately prepare this case for trial. We also conclude that the nature of the case was such that, to be successful, the same preparation was required whether there was one plaintiff or two or more. Defendants apparently made no attempt in the court below, and have made none here, to show that any significant portion of the total work product specifically attributable to the Duvals’ claim was performed by the plaintiffs’ attorney after the settlement of the Duval claim, which work would not have been performed had the case proceeded only on the Masons’ claim. Accordingly, we hold that defendants have failed to present any factual basis for concluding that the district court abused his discretion in calculating the amount of attorney fees. B. The combined statutory damages found by the district court to be recoverable by the two plaintiffs was $3,960; the attorney fees awarded amounted to over $14,000. Defendants insist that the disparity between these two figures makes the latter award unjust. We disagree. By its enactment of Title IV of the Motor Vehicle Information and Cost Savings Act, Congress sought to “establish a national policy against odometer tampering and prevent consumers from being victimized by such abuses.” S.Rep. No. 92-413, 92d Cong., 2d Sess., 3 U.S.Code Cong. & Admin. News, pp. 3960, 3962 (1972). This policy is carried over in 15 U.S.C. § 1981, which states: “[i]t is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers * * To accomplish its remedial purposes the Act provides in 15 U.S.C. § 1989 for the recovery of treble damages or $1500, which ever is the greater. The same section makes recovery of reasonable attorney fees a mandatory feature of a defendant’s liability upon proof of a violation. See 15 U.S.C. § 1989(a), quoted in note 4 supra. We agree with the district court’s observation that these provisions are a response to legislative recognition that, as a practical matter, “in many situations, the amount of damage under the Act will be so small that few attorneys will pursue his client’s case with diligence unless the amount of the fee be proportionate to the actual work required, rather than the amount involved.” In rejecting defendants’ argument, we do not minimize the significance of the amount of recovery as a factor in determining the reasonable value of an attorney’s services. That factor, however, must be placed alongside the others, and all must be placed in the context of a concrete case. We hold that where, as here, a remedial statute requires the awarding of attorney fees as an element of recovery, a showing that the trial court’s award exceeds the amount of damages does not, standing alone, amount to an abuse of discretion. The judgment of the district court is affirmed. . Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381 (D.Neb.1977). . Defendants do not seriously contend that the record as a whole fails to support the district court’s findings on this particular issue; indeed, defense counsel candidly acknowledged at oral argument that there never was any question that the odometers had in fact been tampered with. Instead, defendants’ primary argument was that discussed in section I of this opinion, i. e. that the evidence necessary to establish a conspiracy was introduced during the defendants’ presentation. . In view of our holding that the district court correctly found that Delp violated 15 U.S.C. § 1986, our conclusion that he did not also violate 15 U.S.C. § 1988 does not affect the outcome of this appeal. However, the issue presents a question of first impression in this circuit concerning the scope of liability under this statute and we deem the question to be one of sufficient significance to warrant brief discussion. . 15 U.S.C. § 1989(a) provides: (a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of— (1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and (2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court. . DR 2-106(B) states in part: Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent. . A detailed analysis of the factors listed in DR 2-106 was articulated by the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). That court’s discussion has been cited with approval in this circuit on a number of occasions. See, e. g., Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 516 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977). Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America ex rel. Richard Charles GEIGER, Petitioner-Appellant, v. Lt. Col. Willie H. McBEE, Respondent-Appellee. No. 18325. United States Court of Appeals, Seventh Circuit. June 5, 1970. Rehearing Denied Aug. 28,1970. Stanley A. Bass, Community Legal Counsel, Michael E. Povieh, Cook County Legal Assistance, Chicago, 111., for petitioner-appellant. Thomas A. Foran, U. S. Atty., Eugene Robinson, Chicago, 111., for respondent-appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel. Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge and CUMMINGS, Circuit Judge. DUFFY, Senior Circuit Judge. On March 5, 1970, petitioner Geiger submitted to induction pursuant to an order of his Draft Board. He then immediately filed a petition for a writ of habeas corpus challenging the validity of the order. The District Court denied the petition and petitioner appealed to this Court. We temporarily enjoined the commanding officer of the Induction Station from removing petitioner from the district for a period to and including March 11, 1970. Thereafter, we continued the injunction pending this appeal. After petitioner’s eighteenth birthday in 1965, he registered for the draft with Michigan Local Board 102. He then lived in Michigan. Petitioner’s questionnaire disclosed that he was, at that time, a full time student at the University of Michigan. On April 21, 1965, petitioner was classified II-S by Local Board 102. For a short period thereafter, petitioner was classified I-A because of his failure to advise the Board that he still was attending school. Then, on February 16, 1966, he was reclassified as II-S, and for the next two years (until July 9, 1968) this classification continued. When he was graduated from the University of Michigan, he was again classified as I-A. On September 11, 1968, petitioner was classified II-A because of his teaching activities in Detroit “core-area” schools. On October 9, 1968, Local Board 102 received notification from the University of Illinois, advising that Geiger had enrolled as a first year law student. On December 10, 1968, Geiger was reclassified as I-A and ordered on January 15, 1969 to report for a physical examination to be held February 3, 1969. There were other shifts in petitioner’s classification which need not be detailed except to note that on July 16, 1969, Geiger wrote to the Clerk of Local Board 102, requesting an application form for status as a conscientious objector. This form was promptly mailed to him but he did not return same to the Board. In the summer of 1969, Geiger was working for VISTA (Volunteers In Service To America), a branch of the Office of Economic Opportunity (O.E.O.). He requested draft deferment for the summer. This was denied on August 26, 1969 which was four days before the end of his summer employment with VISTA. Geiger again secured employment with VISTA, this time for a one-year period until October 1970. On September 23, 1969, Kenneth Howell, a Division Director of the Program, wrote to Board 102 requesting an occupational deferment for Geiger. Howell advised that Geiger had organized tenant unions and had successfully caused the rehabilitation of apartment buildings. Howell stated that Geiger offered a unique and valuable contribution to work that must continue. On October 22, 1969, Local Board 102 advised that “ * * * the information submitted did not warrant reopening of * * * ” Geiger’s classification. On November 5, 1969, Geiger wrote a letter to the Government Appeal Agent in which he elaborated on facts connected with his VISTA employment which, he claimed, demonstrated he could not be replaced. This letter was received on November 10, 1969. He requested the Appeal Agent to unequivocally advise the Board to reopen his case. Previously, two similar letters had been sent by Geiger to the State Director and the National Director. On November 14, 1969, the Appeal Agent wrote to Local Board 102 stating “ * * * that the services rendered by [Geiger] to the Community Legal Counsel indicating his employment in the Office of Economic Opportunity, VISTA, is not that type of service commanding an occupational deferment.” Previously, on November 10, 1969, the Local Board had issued an order for Geiger to report for induction on December 8, 1969. Later, the induction was transferred to Chicago where Geiger was residing and working, and Geiger was ordered to and did report on March 5, 1970 as hereinbefore stated. Congress has provided for deferment from training and service in the armed forces, for persons whose employment is found to be necessary to the maintenance of the national health, safety or interest, providing such deferments be upon the basis of the individual status of each registrant. Title 50 App.U.S.C. § 456(h) (2). On April 19, 1968, the Director of Selective Service issued Local Board Memorandum No. 95 concerning the policy of that Agency with respect to occupational deferments. Each Local Board was thereafter vested with the discretion to grant, in individual cases, occupational deferments based on a showing of essential community need. On August 26, 1969, the Michigan State Appeal Board which had jurisdiction of the area in which Geiger’s Local Board is located, made a final determination of Geiger’s classification. Prior correspondence contained in the file concerned Geiger’s summer employment with VISTA and also contained a specific request for an occupational deferment based on that employment. On this appeal, Geiger does not challenge that determination of the Michigan Appeal Board. On this appeal, he argues that his subsequent assignment to the VISTA program for a one-year period was not considered by the Board when he was classified. He also argues that a state memorandum issued by the State Director of Selective Service for the State of Illinois recommending that a registrant’s engagement in VISTA be considered for occupational deferment was sufficient to create a basis for the reopening of his classification. This Court may take judicial notice of the recent public announcement by the Office of Economic Opportunity stating it would no longer support draft deferments for VISTA volunteers. However, we must judge the action of the Board here in question in light of the conditions which existed as of the date when the Board’s decision was made. Very likely, at that time, a number of such deferments were granted by various Boards. The burden is upon the registrant to establish his entitlement to any classification other than I-A. United States of America ex rel. Luster v. McBee, 422 F.2d 562 (7 Cir., 1970); United States of America v. Porter, 314 F.2d 833, 835 (7 Cir., 1963), 32 C.F.R. § 1622.1 (c) (1969). In Luster, supra, at page 566, we also stated “ * * * the scope of judicial review of a draft classification is limited to the narrow question of whether there was any basis in fact for the board’s order. * * * So long as there is a basis in fact for the board’s decision to classify the appellant I-A and to deny his request for a III-A deferment, this court’s scope of review ends * * Petitioner Geiger argues that the Local Board was under an obligation to reopen his classification upon receipt of the information concerning his one-year employment with VISTA. Such information came from Geiger and from various of his superiors at VISTA. The question of when a Local Board is required to reopen was recently clarified by this Court in the case of United States of America ex rel. Luster v. McBee, supra, at page 567. We stated therein “There is no dispute as to the legal standard for determining whether the local board was under a duty to reopen appellant’s classification. A local board is required to reopen a registrant’s classification, upon receipt of new information presenting facts not considered when he was previously classified, which facts, if true, would require or entitle him to reclassification, i. e., a prima facie case. * * * Accordingly, a local board may properly determine not to reopen if either 1) the information presented by the registrant ‘fails to present any facts in addition to those considered when the registrant was [previously] classified’ or 2) ‘even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in the registrant’s classification.’ 32 C.F.R. § 1625.4 (1969).” The Local Board had the discretion to grant or deny occupational deferments for VISTA service for both the summer and the one-year employment. It is very clear from this record that the Local Board did know of Geiger’s employment by VISTA, first for the period of a summer vacation and thereafter for a one-year period. In fact, on November 14, 1969, the Government Appeal Agent returned Geiger’s file to his Board and in a letter to it, stated he was of the opinion that Geiger’s VISTA employment was not of the type which commanded an occupational deferment from his Local Board. It is quite apparent that Geiger and his friends in VISTA made a determined, extended and persistent effort to obtain a change in Geiger’s classification. Appeals were made to the State Director. Thereafter, Geiger’s file was forwarded to the Director of Selective Service at Washington, D. C. for review. We think it was reasonable for the Board to believe that the national health, safety or interest would not be affected unless Geiger were deferred. The Board undoubtedly did not believe that the VISTA objectives of the Community Legal Counsel would experience a loss of effectiveness by Geiger’s departure for the service. The record before the Board showed that Geiger had commenced his employment for one year only a very short time before his employer requested a deferment for him. We are of the view that there was a substantial compliance by Local Board 102 with the requirements of the pertinent regulations; that the Board did not act arbitrarily and capriciously in classifying Geiger as I-A and in its denial of Geiger’s request for reopening. We hold that the record clearly shows a basis in fact for Geiger’s I-A classification. The Order of the District Court denying Geiger’s petition for a writ of habeas corpus will be and is affirmed. The restraining order and injunction hereinbefore entered will be dissolved. Affirmed and injunction dissolved. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_usc2	26	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. MID-SOUTH MUSIC CORPORATION, Plaintiff-Appellant, v. Alvin H. KOLAK, Sid Wissand, Harvey Haskins, Rose Baumgarter, Chris Workman, Charles Stamphill, Bruce Thomas, Darrell Hall, Roy Oakes, Tommy Kain, and the United States of America, Defendants-Appellees. No. 83-5867. United States Court of Appeals, Sixth Circuit. Decided Oct. 30, 1984. Krupansky, Circuit Judge, concurred in part and dissented in part and filed opinion. John B. Link, III (Lead), John B. Owens, Jr. (argued), King, Ballow & Little, Nashville, Tenn., for plaintiff-appellant. Robert E. Rice, Glenn L. Archer, Jr., Michael L. Paup, Thomas Gick (argued), U.S. Dept, of Justice, Tax Div.-Civil Trial Section, Washington, D.C., for defendants-appellees. Before MERRITT and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge. MERRITT, Circuit Judge. Plaintiff Mid-South Music Corporation, appeals from the District Court's dismissal of its suit against the United States and various officials of the Internal Revenue Service seeking compensatory and punitive damages for alleged violation of its statutory and constitutional rights. The alleged violations arose from a pre-filing letter sent by IRS officials in Nashville to investors in a tax shelter marketed by Mid-South, informing them that based on IRS review of Mid-South “purported tax deductions” from that investment would not be allowed and investors claiming such deductions would be subject to penalties. In its second amended complaint, plaintiff claims that this letter caused the destruction of its business and loss of income, depriving it of property in violation of the Fifth Amendment’s requirement of due process. In addition, Mid-South argues that this letter revealed its identity as a taxpayer and the fact that it was subject to IRS audit, thereby disclosing tax return information in violation of 26 U.S.C. § 6103. The District Court held that the United States had not waived sovereign immunity from the constitutional claim and that a cognizable Fifth Amendment property interest had not been alleged in any event. He also ruled that the individual defendants were not amenable to suit for the statutory violations because 26 U.S.C. § 7431(a)(1) provides for suit against the United States as the exclusive remedy for violations of Section 6103. On the statutory claim against the United States, the Court held that no violation of Section 6103 had been stated in the complaint. The District Court correctly dismissed the constitutional claim against the United States and. the individual defendants. No constitutional claim is stated against the individual defendants because the plaintiff has alleged no property interest cognizable under the Fifth Amendment. Construed in the light most favorable to the plaintiff, its complaint alleges that the pre-filing letter has caused investors to withdraw their money from Mid-South and thereby caused the destruction of its business. It is settled, however, that not every expectation is entitled to the due process protections of the Fifth Amendment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Leis v. Flynt, 439 U.S. 438, 441-443, 99 S.Ct. 698, 700-701, 58 L.Ed.2d 717 (1979). The plaintiff is in effect claiming that its business interests should be protected from IRS communications intended to convey to taxpayer investors information which will prevent them from being penalized for erroneously taking deductions on their income tax returns. A similar situation was before the Supreme Court in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), where the taxpayer sought an injunction restraining the IRS from withdrawing advance assurance to donors that contributions to the taxpayer’s organization would constitute charitable deductions under the Tax Code. The Court rejected the taxpayer’s argument that prohibition of the desired injunc-tive relief under the Anti-Injunction Act (26 U.S.C. § 7431(a)) would violate its Fifth Amendment rights because withdrawing the assurance of tax deductions would cause a reduction if not elimination of donations and the destruction of its organization. The Court reasoned that: ... although the Congressional restriction to postenforcement review may place an organization claiming tax-exempt status in a precarious financial position, the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference ... and of the opportunities for review that are available. 416 U.S. 725, 747-748, 94 S.Ct. at 2051-2052. Our conclusion is buttressed by the fact that the causal connection between the IRS’s actions and the alleged business injury is attenuated. Here, there was no IRS action directly depriving the plaintiffs of property. Accord Investment Annuity, Inc. v. Blumenthal, 609 F.2d 1, 7 (D.C.Cir. 1979). On the issue of an alleged violation of the non-disclosure provisions in 26 U.S.C. § 6103, we affirm the District Court’s decision that under 26 U.S.C. § 7431(a)(1) the only proper defendant to such a suit is the United States, and that no claim is stated against the individual defendants for such a statutory violation. We reverse the District Court’s ruling that as a matter of law, the plaintiff has failed to allege that return information was disclosed within the meaning of section 6103. Such information is defined by Section 6103(b)(2) to include a “taxpayer’s identity” and “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Construed favorably, Mid-South’s complaint asserts that the pre-filing notice revealed its identity as a taxpayer and the fact that it had been under IRS investigation, since the investors’ names were allegedly obtained through that investigation (a fact then revealed to them upon receiving the pre-filing letter). These allegations state a colorable claim. At oral hearing defendants argued that the pre-filing letter’s legality might be saved under section 6103(e)(7) and perhaps other subsections which create exceptions to the non-disclosure provision, allowing disclosure to certain authorized persons. However, this issue was not presented to the District Court, was not briefed or thoughtfully considered by the parties, and it is not suitable for our resolution at this time. We therefore affirm the District Court’s judgment dismissing both the constitutional and statutory claims against the individual defendants, and the constitutional claim against the United States as a party defendant. We remand to the District Court for reconsideration of the statutory claim against the United States under 26 U.S.C. § 7431(a)(1), and the issue of a possible exception under Section 6103(e)(7) and other similar provisions. . In relevant part, 26 U.S.C. § 6103 provides: (a) General rule. — Returns and return information shall be confidential, and except as authorized by. this title— (1) no officer or employee of the United States, shall disclose any return or return information obtained by him ... (b) Definitions. — For purposes of this section (2) Return information. — The term "return information” means— (A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other offense____ . 26 U.S.C. § 7431(a)(1) provides: "If any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States." Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. BANK ONE TEXAS, N.A., Plaintiff, Appellee, v. A.J. WAREHOUSE, INC., et al., Defendants, Appellants. No. 91-1826. United States Court of Appeals, First Circuit. Heard March 3, 1992. Decided June 30, 1992. Bernard J. Bonn III, with whom John P. Dennis, Timothy C. Blank and Dechert Price & Rhoads, Boston, Mass., were on brief, for appellants. Kathryn S. Shea, with whom John M. Harrington, Jr. and Ropes & Gray, Boston,Mass., were on brief, for appellee. Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, Senior Circuit Judges. Of the Third Circuit, sitting by designation. TORRUELLA, Circuit Judge. The cast of characters in this case reads like a García Márquez novel. It involves an appeal from a summary judgment issued by the United States District Court for the District of Massachusetts in favor of Bank One Texas, N.A. (“Bank One”), and against Leaseway Transportation Corporation and its related corporations, (collectively “the Companies”). The Companies allege that there are material issues of genuine fact which make summary judgment in this case inappropriate. We disagree and affirm the judgment of the district court. FACTS The Merger Leaseway Transportation Corporation (“Leaseway”), is a holding company organized and existing under the laws of Delaware. Leaseway has approximately 70 subsidiaries at the present, from which it derives all of its revenue. Until June 25, 1987, Leaseway was a publicly held company with its capital stock listed on the New York Stock Exchange. On that date, LTC Acquisition Company, a wholly-owned subsidiary of Leaseway Holdings, Inc., (“Holdings”), was merged with Leaseway, and as a result of the merger, Leaseway became a wholly-owned subsidiary of Holdings. Holdings is a privately owned corporation. The Loans To obtain part of the funds to finance the referenced merger and to obtain additional working capital, revolving credit funds and letters of credit, Holdings, Leaseway and substantially all of Leaseway’s subsidiaries, (i.e., the Companies), on June 25, 1987, executed and delivered a Revolving Credit Term Loan Agreement (“credit agreement”), to a consortium of 20 lending banks (collectively “the Banks”), including MBank Dallas, N.A., predecessor-in-interest to Bank One, with the First National Bank of Boston, as agent. Since the date of its execution the credit agreement has been amended 18 times. In May of 1990, Credit Agricole replaced First National as the agent bank under the credit agreement as amended, and Pittsburgh National Bank became the administrative agent. The Banks loaned the Companies the aggregate sum of $382,000,000, consisting of $230,000,000 in revolving credit loans and $152,000,000 in term loans. Each bank’s revolving credit loan was subject to the terms and conditions of the credit agreement and was evidenced by a separate promissory note (“revolving credit note”) payable to that bank. Similarly, each bank’s term loan was subject to the credit agreement and was evidenced by a second separate promissory note (“term note”) payable to the bank. MBank Dallas’ initial commitment was approximately 3% of the amounts loaned. Thus, MBank made a $10,440,000 revolving credit loan and a $4,560,000 term loan, for a total of $15,000,000. These notes were passed on by MBank to its successor, Bank One. The Credit Agreement The credit agreement was structured to permit ongoing credit advances to the Companies by the participating Banks. If a participating bank withdraws from providing ongoing credit advances under the credit agreement, thus reducing its commitment percentage to zero, it becomes a “terminating bank.” A key provision of the credit agreement, for the protection of the “non-terminating banks,” prevents terminating banks from interfering with the administration of the credit by providing, in section 14.2, that if for any reason a Bank receives any payment of past due principal or interest from the Companies, it may not retain any portion of the payment in excess of its “ratable share” of the payments received by all banks. Under the same section, each individual bank’s “ratable share” of payments received under the credit agreement is defined as its “commitment percentage.” On December 31,1989, Bank One became a terminating bank under section 2.2 of the credit agreement by reducing its “commitment percentage” under the credit agreement to zero when it refused to participate in further loans to the Companies under the credit agreement terms. Loan Payments Section 6.7 of the credit agreement requires that the Companies make all payments under the credit agreement, including those under the notes, to the administrative agent (Pittsburgh National Bank). The administrative agent then remits to each bank its pro rata share of the payment. The notes themselves also provide for direct payment to the agent bank. On October 5, 1990, Credit Agricole, Bank One’s agent bank, informed Bank One that under section 14.2 of the credit agreement Bank One’s ratable portion of any payment from the Companies, as a terminating bank, was zero. Bank One responded on November 14, 1990, stating its disagreement with that position and thereafter, on November 26, 1990, demanded payment from the Companies in the amount of $1,774,834 which it alleged was the principal and interest past due. On November 29, 1990, Credit Agricole wrote Bank One claiming that, pursuant to the credit agreement, if it received any payment from the Companies, it would be required “to distribute the entire payment to other Banks.” Nevertheless, on December 4, 1990, the Companies replied to Bank One, supporting the administrative agent’s position and adding that the Companies would be at risk to other Banks if they made any payment to Bank One without approval of the other Banks. The Law Suit On January 31, 1991, plaintiff-appellee, Bank One, filed this diversity action in district court against defendants-appellants, the Companies, i.e., Leaseway Transportation Corporation and its related corporations. The complaint alleges that the Companies owe Bank One accrued principal and interest under the credit agreement and the notes. Bank One moved for summary judgment. The Companies sought discovery relating to Bank One’s negotiation, preparation and execution of the credit agreement and the notes, the obligations of the Companies under those documents, and the factual basis for the statements and contentions in the Edge affidavit. The district court denied discovery. The Companies filed a Motion to Dismiss on the grounds that Bank One had failed to join indispensable parties. The district court denied the Companies’ Motion to Dismiss, and ruled on the Motion for Summary Judgment without allowing discovery. It entered judgment in favor of Bank One in the amount of the past due principal, $3,258,287.54. 137 F.R.D. 631. The Companies appeal, STANDARD OF REVIEW Summary judgment is proper when there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The district court’s grant of summary judgment is subject to de novo review by this court. Fowler v. Boise Cascade Corp., 948 F.2d 49 (1st Cir.1991); Catrone v. Thoroughbred Racing Assocs. of N.A., 929 F.2d 881, 884 (1st Cir.1991). We consider the facts in the light most favorable to the non-movant. See, e.g., Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987). LEGAL ANALYSIS I. The Credit Agreement Appellants submit that summary judgment should have been denied because there are genuine issues of material fact to be adjudicated. They specifically allege that the district court incorrectly concluded that the Companies’ and all of the non-terminating banks’ interpretation of section 14.2 of the credit agreement does not present an issue of fact. Rather, they claim, Bank One and the Companies directly dispute whether, under the credit agreement, Bank One is entitled to any payments at this time since Bank One is a terminating bank. Bank One asserts that it is entitled to payment, while the Companies contend that Bank One is not so entitled. The credit agreement specifically provides that it is to be construed in accordance with Massachusetts law. It is well settled in Massachusetts, with regard to written contracts, that it is only where more than one view can be taken of the evidence respecting the circumstances of the parties and the condition of the subject with which they are dealing that a proper case arises for the jury, and that where, as here, there is no dispute as to the facts to be applied to the terms of the contract, the interpretation of the contract in their light is still to be treated as a question of law for the judge. Ober v. National Casualty Co., 318 Mass. 27, 60 N.E.2d 90, 91 (1945) (citations omitted) (emphasis added). Moreover, “so long as the words of an agreement are plain and free from ambiguity, they must be construed in their ordinary and usual sense.” McDonald’s Corp. v. Lebow Realty Trust, 888 F.2d 912, 913-14 (1st Cir.1989) (citing J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 494 N.E.2d 374, 378 (1986)). Furthermore, a contract is to be construed so as to give reasonable effect to each of its provisions. J.A. Sullivan Corp., 494 N.E.2d at 378 (citing McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264, 186 N.E.2d 827 (1962)). Having established the legal framework, we turn to the credit agreement at issue in the present case. We recount at the outset the undisputed facts. It is undisputed that MBank Dallas, one of the banks, and the predecessor in interest to Bank One, and the Companies entered into a credit agreement. It is also undisputed that Bank One holds two notes subject to the terms of the credit agreement, both of which are past due, i.e., there is no question that the Companies are in default. As the district court found, Bank One is clearly authorized under the plain terms of section 14.1 of the credit agreement to bring suit for amounts past due against any or all the borrowers in the event of default. More specifically, section 14.1of the credit agreement reads: Rights of Banks. If any one or more of the Events of Default specified in § 12 shall have occurred and be continuing, and whether or not acceleration of the Notes shall have occurred pursuant to § 12, (a) any Bank may proceed to protect and enforce its rights by suit in equity, action at law and/or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and, if the Notes shall have become due, by declaration or otherwise, proceed to enforce the payment of such Notes or any other of its legal or equitable rights ... (Emphasis added). There is no ambiguity in the language of section 14.1 and appellants point to no term giving rise to any ambiguity. Instead they argue that section 6.7 directs the Companies to make payment to the administrative agent. While this is true, it is no less true that section 6.7 does not operate in the event of default. It is sections 12 through 14 that address default specifically, with section 14.1 clearly stating that in the event of default any bank may take legal action against the borrowers and secure a judgment. However, appellants argue that because Bank One is a terminating bank whose commitment percentage is zero, it is not entitled to any payment by the Companies. According to the Companies’ interpretation of section 14.2, Bank One is only entitled to payment from the Companies if the Non-Terminating banks consent, or if they are paid in full. We find no language in section 14.2 that supports this argument. In fact, section 14.2 would seem to indicate to the contrary: § 14.2. Set-Off. ... Each Bank further agrees with the other Banks that if such Bank shall both (i) receive from the Companies or from any other source whatsoever, whether by voluntary payment, exercise of the right of set-off, counterclaim, cross action, or enforcement of any claim evidenced by the Notes or this Agreement, or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and (ii) retain and apply to the payment of the amounts owing with respect to the Notes or of any amounts due to such Bank under this Agreement any amount which is in excess of its ratable portion of the payments received by all of the Banks, then such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution until the amount of such excess has been exhausted, assignment of claims, subro-gation or otherwise, as shall result in each such Bank receiving in respect of its Notes and the amounts due such Bank under this Agreement its ratable share of all such payments. For purposes of this § 14.2, each Bank’s ratable share of payments received hereunder shall be deemed to be its Commitment Percentage of such payments. (Emphasis added). A close analysis of section 14.2 demonstrates that the credit agreement envisioned a law suit by any bank in the event of default. The purpose of this section is to specify what portion of the payments made by any of the Companies to a particular bank may be retained by that bank. This section provides that if a bank receives a payment from a company and such payment is in excess of that bank’s “ratable portion of the payments received by all the banks,” then such bank will distribute said excess among the other banks until the amount retained equals that bank’s ratable share. Thus, section 14.2 anticipated that payment would be made to a bank directly, even if said bank’s commitment percentage was zero. Therefore, the language of section 14.2 provided no support for appellants’ argument, since it only addresses how payments to the banks will be shared or divided. We find it significant that section 14.1 precedes section 14.2 in the Credit Agreement, so that the agreement first grants the banks the right to sue for any amount due to it under the notes, and then, in section 14.2, it designates what portion of the amount recovered may be kept by the bank. Thus, for purposes of the present case, the language of section 14.2 is irrelevant as no payment has yet been made. Section 14.2 goes into effect only when payment is made. Appellants also cite a letter from the agent bank in support of their proposition. They claim that: Credit Agricole asserted in various letters to Bank One that because Bank One was a Terminating Bank, as defined in the Credit Agreement, it was not entitled to any payments from the Companies. Appellants’ Brief at 21 (emphasis in original). We read Credit Agricole’s letter differently. In its letter to Bank One dated November 29, 1990, the agent bank stated: Please be advised that ... if you receive any payments from the Companies pursuant to your demand, such payments will be for the pro rata benefit of the banks ... § 14.2 requires you to distribute the entire payment to the other banks. Letter of Credit Agricole, dated November 29, 1990 (emphasis added). It is clear from the language of the letter that the agent bank was well aware that Bank One may sue the Companies for any amount owed under- the notes. In fact as the letter reads: “if you receive any payment from the Companies,” — it indicates that the author envisioned the possibility of payment being forwarded to the bank itself as a result of a court judgment. Thus the letter simply served as a warning that if Bank One was successful in recovering any money from the Companies, section 14.2 would come into effect and Bank One would be required to share said money with the other banks. Nowhere in the letter does the agent bank even suggest that Bank One was not entitled to any payment. The Companies suggest that if judgment is accorded Bank One, they will be liable to the other banks in the case that Bank One refuses to share the payments with the other banks as directed by section 14.2. We find it unnecessary to enter into such speculations to properly render a decision in this ease. The intent of the parties is clear from the plain language of the Credit Agreement. Accordingly, as there are no genuine issues of material fact, we affirm the decision of the district court. II. Denial of Discovery Appellants also appeal from the district court’s order denying discovery. Appellants sought discovery on the issue of whether Bank One is presently entitled to any payments under the terms of the credit agreement. More specifically the Companies urged the district court to allow discovery so as to ascertain the intent of the parties when they entered into the credit agreement. To satisfy Rule 56(f), a party must “articulate a plausible basis for the belief that discoverable materials exist which would raise a trialworthy issue.” Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.1991). The district court’s denial of a Rule 56(f) motion is reviewable only for abuse of discretion. Id. We note that “a court may grant summary judgment despite an opposing party’s claim that discovery would yield additional facts where the opposing party has not alleged specific facts that could be developed through such discovery.” Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir.1984). Thus, where like here, the intent of the parties is clear and free from ambiguity from the plain language of the agreement, discovery was not compelled. The only fact on which appellants sought discovery was regarding the intent of the parties when they entered into the Credit Agreement. However, as we stated above, when the intent of the parties is clear from the written language of the agreement, the interpretation of such agreement is a matter of law for the judge to decide from the plain terms of the document. See Ober, supra, 60 N.E.2d at 91. Therefore we find no abuse of discretion on the part of the district court in denying discovery. III. Rule 19(a) Last, appellants submit that the district court erred when it failed to dismiss Bank One’s complaint for nonjoinder pursuant to Rule 12(b)(7) and 19(a)(2) of the Federal Rules of Civil Procedure. According to the Companies, the Banks were all indispensable parties to the resolution of this dispute. Under Rule 19(a)(2) a party is only necessary if: (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. Fed.R.Civ.P. 19(a)(2). Appellants assert that under the factual inquiry prescribed by Rule 19(a)(2), the Banks must be joined to fully adjudicate this matter, though they are not holders of the notes giving rise to this action. In light of our previous analysis, we do not feel that disposition of this action in the absence of the Banks would leave the Companies subject to a substantial risk of incurring double obligations. To so hold would necessarily require our entering into issues not relevant to the disposition of this case — essentially whether Bank One is obligated to share any payment it receives from the Companies, and if so, whether Bank One will share said payments. We do not reach, nor need we reach these issues to fully adjudicate this matter. Nor are we impeding the Banks from protecting any interest they might have in the payments made to Bank One by not joining them to this action. In fact, the district court noted in its Memorandum of Decision, 137 F.R.D. at 632 n. 2, that “[a]l-though they are aware of it, the other banks have yet to show any interest in participating in this litigation.” The reason for this is clear, the other Banks will have no interest in this litigation until Bank One has actually recovered the amount due. Thus, the Banks are not necessary parties under 19(a) nor can they be indispensable parties under 19(b). See Pujol v. Shearson American Express, Inc., 877 F.2d 132, 135, 138 (1st Cir.1989). AFFIRMED. . There are a total of 71 defendants-appellants— A.J. Warehouse, et al. . While the complaint filed by Bank One says the term note was in the amount of $4,506,000, the term note itself says the amount due thereunder is $4,560,000. We cite the amount on the term note. Further, appellants claim that the actual amount of the credit revolving loan is $6,900,000. We cite the amount on the revolving credit note — $10,440,000. We note that since Bank One is suing only for past due amounts, these discrepancies do not present an issue of material fact. . Bank One alleged that the Companies owed Bank One principal payments under the term note in the amount of $800,000 as of December 31, 1990, and in the amount of $974,834 under the revolving credit note as of December 31, 1990. . Section 17 provides that the Companies jointly and severally “agree to indemnify and hold harmless ... each Bank ... from and against all damages [or] losses” resulting from transactions contemplated under the terms of the Credit Agreement. In addition, section 11.2 prohibits the Companies from permitting any lien to be imposed on their assets except in accordance with the provisions of the Credit Agreement. The actions of Bank One can only result in the imposition of liens on the Companies’ assets which is inconsistent with the terms of the credit agreement, and to the detriment of the other non-terminating banks. . On July 19, 1991, despite earlier assertions that no interest was owed, the companies paid interest to Bank One. The amounts paid were $94,574.30 on the term note and $273,349.69 on the revolving credit note. According to Bank One, these amounts covered the period of December 31, 1990 to June 30, 1991 and were actually higher than they should have been as per the bank’s calculations. Thus, the issue of interest is moot. As of July 31, 1991, the past due and owing principal was $1,499,999.90 under the term note, and $1,758,287.64 under the revolving credit note for a total of $3,258,287.54. This is the amount Bank One seeks to recover. . Bank One filed its motion for summary judgment based on the affidavit of Cheryl D. Edge, the keeper of records of Bonnet Resources Corporation, an agent for Bank One, who had no personal knowledge of the negotiation of the Credit Agreement. . See Credit Agreement, section 21. . Section 6.7 reads: Place and Mode of Payments. All payments due hereunder shall be made by the Companies to the Administrative Agent at its Head Office, in immediately available funds by 12:00 noon Eastern time.... Upon receipt by the Administrative Agent of any such payment, the Administrative Agent shall remit to each Bank on the same day, its pro rata share of such payment. The Companies' payment of any amount due hereunder to the Administrative Agent shall conclusively evidence their payment of such amounts due hereunder. . The Companies also sought discovery relating to the amount allegedly borrowed from Bank One, the calculation of amounts allegedly due and owing to Bank One, and if payments were due, to whom such payments should be made. However, appellants have offered no evidence to contradict the appellees assertions as to each of these issues, accordingly the prima facie case of Bank One stands uncontested. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_usc1	28	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Clennie H. SAYLOR, Petitioner-Appellant, v. Roger T. OVERBERG, Supt., Respondent-Appellee. No. 79-3135. United States Court of Appeals, Sixth Circuit. Sept. 14, 1979. Clennie H. Saylor, Marillyn Fagen D’Amelio, Cleveland, Ohio [Court-Appointed CJA], for petitioner-appellant. William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee. Before LIVELY, ENGEL and KEITH, Circuit Judges. ORDER This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. Petitioner appeals from the District Court’s dismissal of his application for a writ of habeas corpus. 28 U.S.C. § 2254. This was petitioner’s second attempt at ha-beas corpus, his first application having been denied by the District Court, with affirmance by this Court and certiorari denied by the Supreme Court of the United States. In the present proceedings, the District Court held that petitioner had not exhausted his state remedies with respect to his claim that he was denied effective assistance of counsel in the state proceedings. This particular claim may be raised under Ohio’s Post-Conviction Act, Ohio Rev. Code § 2953.21, et seq. State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976); Burrows v. Engle, 545 F.2d 552 (6th Cir. 1976). This Court’s subsequent decision in Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979), does not require a contrary conclusion under the facts of this case. The District Court held that the other two claims in his application for habeas corpus have been included, in somewhat different form, in petitioner’s previous ha-beas corpus action, and declined to consider them. Rule 9, Rules Governing Section 2254 cases. We find no abuse of discretion in this action of the District Court. One of the previously considered grounds was the claim that there was insufficient evidence to support petitioner’s conviction for perjury. The District Court in the earlier habeas corpus action applied the test of “totally devoid of evidentiary support,” Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), in finding petitioner had not made out a case of due process violation. Subsequently, the Supreme Court and this Court have announced a less stringent test in considering habeas corpus claims based on insufficiency of the evidence. Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979). Applying the less stringent standard, we find that the evidence was such that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of perjury under Ohio law. The petitioner is not entitled to habeas relief on the basis of an alleged insufficiency of the evidence at his state trial. The panel concludes that the questions on which decision of this case depends are so unsubstantial as not to require further argument. The judgment of the District Court is affirmed. Rule 9(d)3, Rules of the Sixth Circuit. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_appfiduc	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JONES v. COMMISSIONER OF INTERNAL REVENUE. No. 9863. Circuit Court of Appeals, Eighth Circuit. July 5, 1934. Frank T. Gladney, of St. Louis, Mo. (Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, Mo., on tbe brief), for petitioner. John MaeC. Hudson, Sp. Asst, to Atty. Gen. (Frank J. Wideman, Asst. Atlv. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before SANBORN and WOODRQUGH, Circuit Judges, and DEWEY, District Judge. Rehearing denied Oct. 15, 1934. SANBORN, Circuit Judge. This is a petition to review an order of the United States Board of Tax Appeals redetermining a deficiency in income taxes of the petitioner for the year 1926. The sole question involved is the amount of taxable income received by the taxpayer from the sale in 1926 of a piece of improved real estate in the city of St. Louis, Mo. The controlling facts, which are undisputed, are briefly as follows: The petitioner, as trasteo under a declaration of trust, on September 10, 1020, purchased the real estate in question for $76,000', and held it until 1936, when it was sold for $100,000. For the years 1920, 1921, and 1922, no deduction from the gross income of the petitioner for depreciation was claimed or allowed. For the years 1923, .1021, and 1925 the petitioner claimed deductions from gross income because of depreciation, but these claims were disallowed by the Commissioner. At the time the property was sold, the total accumulated allowable depreciation was $13,22.7.50'. In determining the taxable gain from the sale, the peiitioner took the difference between the pnrcha.se price and the sale price of the property; while the Commissioner of Interna) Revenue deducted the amount of depreciation from the purchase priee, which increased the taxable gain by the amount of the depreciation, and this xasulted in the deficiency complained of. The petitioner appealed to the Board, which affirmed the Commissioner. The question is whether the Commissioner had the right, in determining the taxable gain resulting from the sale, to deduct the allowable but unallowed depreciation of $13,-227.50 from the purchase price of the property. The Revenue Act of .1926 provides [section 204 (a), c. 27, 44 Stat. 9, 14, 26 USCA § 935 (a)] that “the basis for determining the gain or loss from the sale 0 c of property acquired after February 28, .1013, shall be the cost of such property”; and [section 202 (b), (2), c. 27, 44 Stat. 13, 26 USCA § 933 (b) (21)] that “the basis shall be diminished by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property under this title or prior income tax laws. * * t Article 1561, Treasury Regulations 69', provides, among- other things: “ * * In computing the amount of gain or loss, however, the cost or other basis of the property must be increased by the cost of capita! improvements and betterments made to the property since the basic date, and by carrying charges, such as taxes on unproductive property. fc “ * The cost or other basis of the property must then be decreased by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property, whether or not such deductions were claimed by the taxpayer or formally allowed. M * * ” That the method pursued by the Commissioner in determining the taxable gain from the sale of the property here in question is justified by the law and the regulations appears long since to have been settled. Appeal of Even Realty Co., 1 B. T. A. 355; Hardwick Realty Co. v. Commissioner, 7 B. T. A. 1108, affirmed (C. C. A. 2) 29 F.(2d) 498, certiorari denied 279 U. S. 876, 49 S. Ct. 349, 73 L. Ed. 1010; Kalb v. Commissioner, 15 B. T. A. 865; Franklin Lumber & Power Co. v. Commissioner, 18 B. T. A. 1207; United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054; Hardwick Realty Co. v. Commissioner (C. C. A. 2) 29 F.(2d) 498; Ricek v. Heiner (C. C. A. 3) 25 F.(2d) 453, certiorari denied 277 U. S. 608, 48 S. Ct. 603, 72 L. Ed. 1013; Fidelity-Philadelphia Trust Co. v. Commissioner (C. C. A. 3) 47 F.(2d) 36; Koepfli v. Commissioner (C. C. A. 9) 41 F.(2d) 606. The petitioner, however, argues that to increase the taxable gain from the sale of this property by reducing the original cost to the extent of depreciation which was allowable but not allowed, is in effect adding to income that which is not income, but a loss, and results in the imposition of a tax upon something which is not taxable under the Sixteenth Amendment to the Constitution. It is true, as the petitioner says, that the constitutionality of the method used for ascertaining the gain from a sale was not directly involved or specifically passed upon in the case of United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054, supra. It appears from the opinion in that case that the power of Congress to provide for the deduction of depreciation from original cost was conceded. However, it is not conceivable that the Supreme Court would have approved the method held to be proper in that ease merely because of this concession, if, in fact, in violation of the Constitution, particularly since the contention in that ease was that Congress, at the time of the sale there in question, had not in terms required the deduction of depreciation from the cost price in determining taxable gain. The court said (pages 300, 301 of 274 U. S., 47 S. Ct. 603, 610): “The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant a gradual sale is made of it. The depreciation charged is the measure of the cost of the part which has been sold. When the plant is disposed of after years of use, the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. Any other construction would permit a double deduction for the loss of the same capital assets.” And, on pages 303, 304 of 274 TJ. S., 47 S. Ct. 608, 611: “The aggregate for depreciation and depletion claimed by Ludey in the income tax returns for the years 1913, 1914, 1915, and 1916, and allowed, was only $5',156. He insists that more cannot be deducted from the original cost in making the return for 1917. The contention is unsound. The amount of the gain on the sale is not dependent on the amount claimed in earlier years. If in any year he has failed to claim, or has been denied, the amount to which he was entitled, rectification of the error must be sought through a review of the action of the bureau for that year. He cannot choose the year in whieh he will take a reduction. On the other hand, we cannot accept the government’s contention that the full amount of depreciation and depletion sustained, whether allowable by law as a deduction from gross income in past years or not, must be deducted from cost in ascertaining gain or loss. Congress doubtless intended that the deduction to be made from the original cost should be the aggregate amount which the taxpayer was entitled to deduct in the several years.” As we read Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 51 S. Ct. 418, 75 L Ed. 1049, it does not detract in any way from what was said in the Ludey Case. While the petitioner’s contentions are. not without force, it seems plain to us that the Supreme Court of the United States has approved the method provided by law and used by the Commissioner in determining the amount of taxable gain received by the petitioner in the year 1926. This court would not now be justified in holding the method so approved to be violative of the Sixteenth Amendment. The order of the Board of Tax Appeals is affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Willie A. WOMACK, Appellant, v. UNITED STATES of America, Appellee. No. 21629. United States Court of Appeals District of Columbia Circuit. Argued March 28, 1968. Decided May 1, 1968. Petition for Rehearing En Banc Denied May 24, 1968. Mr. Jerome H. Simonds, Washington, D. C., (appointed by this Court) for appellant. Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the opposition, for appellee. Before Bastían, Senior Circuit Judge, and Burger and Wright, Circuit Judges. PER CURIAM: After a direct appeal from his criminal conviction had been noted, appellant moved to hold that appeal in abeyance pending disposition by the District Court of a motion under 28 U.S.C. § 2255. The motion filed below alleged denial of due process under the principles announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The District Court refused a hearing on appellant’s allegations, holding that it had no jurisdiction to entertain a Section 2255 motion while a direct appeal was pending in this court. Appellant noted an appeal from this order and has moved for summary reversal. We are of the view that there is no jurisdictional bar to the District Court’s entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances. A motion under Section 2255 is an extraordinary remedy and not a substitute for a direct appeal. Moreover, determination of the direct appeal may render collateral attack unnecessary. In the case at bar, the District Judge properly refused to entertain the Section 2255 motion. Although the trial was held prior to the Supreme Court’s decision in Stovall v. Denno, swpra, and the record on direct appeal may, therefore, be insufficient to warrant reversal of the conviction, this court may nonetheless remand for further proceedings if there appears to be a nonfrivolous Stovall claim. See Wright v. United States, No. 20,153 (D.C.Cir. Jan. 31, 1968). Since such an evidentiary hearing is all that appellant seeks by way of Section 2255, we think that an adequate remedy is available on direct appeal. Appellant would, of course, be free to renew his Section 2255 motion after disposition of the direct appeal, should relief still be necessary. Motion for summary reversal denied. . Where tlio District Judge concludes that the motion is or may be appropriate, he may follow the procedure outlined in Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). See also Smith v. United States, 109 U.S.App.D.C. 28, n. 9, 283 F.2d 607 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961). . Thornton v. United States, 125 U.S.App.D.C. 114, 117-118, 368 F.2d 822, 825-826 (1966). . United States v. Brilliant, 274 F.2d 618 (2d Cir.), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960) ; Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); Bell v. United States, 265 F.Supp. 311 (N.D. Miss.1966), aff’d, 375 F.2d 763 (5th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 121, 19 L.Ed.2d 175 (1967). Cf. Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). . The only factor in this case running in favor of granting a hearing is that more than seven months had elapsed since sentencing when the District Court refused to entertain the Section 2255 motion. More than seventeen months have now elapsed since appellant’s allegedly improper pre-trial identification. Much of the delay since the conviction is attributable to appellant’s seeking extraordinary relief rather than pursuing his direct appeal. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_altdisp	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". LITTLE SIX CORPORATION, Appellant, v. UNITED MINE WORKERS OF AMERICA, LOCAL UNION NO. 8332, Appellee. No. 82-1377. United States Court of Appeals, Fourth Circuit. Argued Dec. 7, 1982. Decided Feb. 22, 1983. Edward G. Stout, Bristol, Va. (James P. Jones, Penn, Stuart, Eskridge & Jones, Bristol, Va., on brief), for appellant. Gerald F. Sharp, Castlewood, Va., for ap-pellee. Before WIDENER, HALL and ERVIN, Circuit Judges. ERVIN, Circuit Judge: In July, 1981, three members of Local No. 8332 of the United Mine Workers (“the Union”) filed a grievance with the Little Six Corporation (“the Company”), claiming that they had “panel rights” (employment rights) at a mine the Company was operating in Dickenson County, Virginia. The Company responded by obtaining from a state court a temporary injunction forbidding pursuance of the grievance. The Union then removed the case to federal court pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185. An evidentiary hearing was held on the Union’s motion to dissolve the injunction. The district court, noting that the state court’s order already had expired, held that the National Bituminous Coal Wage Agreements of 1978 and 1981 (“the Contract”) required the Company to submit the dispute to arbitration, and therefore denied the Company’s motion for injunctive and declaratory relief. We affirm. I. In June, 1980, Contracting Enterprises, a mining company in Dickenson County, Virginia, ceased operations and terminated all its employees. Several of the younger employees were hired by the Company to work at a mine about thirty miles from the Contracting Enterprises site. Senior Union members responded by filing a grievance contending that the Company and Contracting Enterprises were in fact the same employer and that the Company was therefore violating their panel rights based on seniority. The Company denied the claim and the matter proceeded to arbitration. The Union presented evidence that the two companies had a substantially integrated operation and that they shared the same executive officer. Nevertheless, the arbitrator denied the grievance because he concluded that the two companies were in fact separate and distinct operations. In early summer, 1981, the Company began mining operations on or near the old Contracting Enterprises site. Three senior Union members once again filed a grievance, this time arguing that they were enti-tied to panel rights at the old site because the Company was the successor-employer to Contracting Enterprises. In federal district court, the Company contended that it was not obligated to arbitrate because the issue presented by the current grievance is substantially the same as that decided by the arbitrator in 1980. The Union maintained, and the district court agreed, that the preclusive effect of the 1980 arbitration award was itself arbi-trable. The court, as an alternate ground for its decision, also concluded that the Company had not shown the identity of issues necessary to support applying the bar of res judicata. 537 F.Supp. 216 (W.D.Va. 1982). II. Article XXVII of the 1981 Contract under which the current grievants are seeking to proceed states that The United Mine Workers of America and the Employers agree and affirm that, except as provided herein, they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the “Settlement of Disputes” Article of this Agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract and by collective bargaining without recourse to the courts. The Employer, however, expressly authorizes the Union to seek judicial relief, without exhausting the grievance machinery, in cases involving successorship. The autonomy of the settlement resolution “machinery” (the grievance procedure culminating in arbitration) is specifically guaranteed by Article XXIII(c) which states that “[t]he arbitrator’s decision shall be final and shall govern only the dispute before him.” It is the clear intent of the parties to the Contract to avoid resorting to litigation in all matters arising under it: “differences ... as to the meaning and application of the provisions of this Agreement, or . .. about matters not specifically mentioned in this Agreement ... [and] any local trouble of any kind” are all to be resolved by the Contract’s “machinery.” Article XXIII(c). In the Steelworkers Cases, the Supreme Court severely restricted judicial intervention into arbitration machinery established by labor-management agreements, stating that the parties should be required to arbitrate “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). In light of this special canon of labor contract interpretation, it would seem that this issue, like any other arising under the Contract, is arbitra-ble. The Company responds that the question here is not a substantive labor dispute, but rather a disagreement over the effect of the 1980 arbitral award. The Steelworkers Cases’ solicitude for arbitration, according to the Company, indicates that the district court should have decided the question of the award’s res judicata effect, and decided it in the Company’s favor. Only thus, the Company maintains, can the autonomy mandated for arbitration by the Supreme Court and agreed to by the parties to the 1978 and 1981 Contracts be provided. The Company cites several cases that it claims support its position. The district court in Todd Shipyards Corp. v. Industrial Union of Marine & Shipbuilding Workers, 242 F.Supp. 606 (D.N.J. 1965), held that the preclusive effect of an earlier arbitral award was a question for judicial and not arbitral resolution, substantially for the reasons, autonomy and finality, advanced by the Company here. The Third Circuit, however, subsequently clearly repudiated the Company’s position and the rationale of Todd Shipyards. That court has stated that “[i]t is the function of the arbitrator, not the court, to decide whether the ‘same question or issue’ had been the subject of [previous] arbitration.” Local 103, Int’l Union of Elec., Radio and Mach. Workers v. RCA Corp., 516 F.2d 1336, 1339 (3d Cir.1975); accord, Westinghouse Broadcasting Co. v. Local 804, Int’l Alliance, 616 F.2d 97 (3d Cir.1980). Panza v. Arnaco Steel Corp., 316 F.2d 69 (3d Cir.1963), cert. denied, 375 U.S. 897, 84 S.Ct. 174,11 L.Ed.2d 125 (1963), is factually distinguishable from the present controversy. It involved an attack on a previous arbitral award as fraudulently obtained. The appeals court affirmed the district court’s dismissal on res judicata grounds. The Third Circuit’s subsequent decisions in Local 103 and Westinghouse Broadcasting demonstrate the fallacy of the Company’s reliance on Panza. In the third case cited by the Company, Int’l Chemical Workers Union Local No. 189 v. Purex Corp., 427 F.Supp. 338 (D.Neb. 1977), aff’d, 566 F.2d 48 (8th Cir.1977), the district court assumed, without addressing the issue, that it could decide whether an arbitral award should be accorded preclu-sive effect. The court therefore determined that, in the absence of “a strict factual identity,” res judicata would not apply, and ordered the parties to submit the dispute to arbitration. 427 F.Supp. at 339. The appeals court’s one paragraph per cu-riam simply stated that it was resolving a “single, tightly-drawn issue: Is a party to a collective bargaining agreement bound by an arbitrator’s interpretation of a clause in an identically-worded prior contract although that interpretation was dictum?,” 566 F.2d at 49, and affirmed the lower court’s order. The narrow proposition thus endorsed by the Eighth Circuit is obviously inapplicable to this case. Not only do the Company’s authorities wilt under examination, but there is solid, well-reasoned case law holding that the preclusive effect of a prior arbitral award is itself a question for arbitration. In addition to the Third Circuit cases mentioned above, the Fifth Circuit has stated that “[w]hether [a prior] award can be given an effect akin to res judicata or state decisis with regard to future disputes ... neither the district court nor this court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration.” New Orleans S.S. Ass’n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), aff’d sub nom. Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen’s Ass’n., -U.S.-, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). The First Circuit also has endorsed this position in a recent decision. See Boston Shipping Ass’n v. Int'l Longshoremen’s Ass’n, 659 F.2d 1 (1st Cir.1981). The district court below in the present case considered the question and adopted the view of the Third and Fifth (and now First) Circuits. We agree. The core to the Company’s argument is the claim that unless the courts prevent the Union from pressing this grievance, the finality of the 1980 award will be undermined. But this is an unwarranted speculation. “Open to the Union [and, of course, to the Company], before the arbitrator, is the same contention it has presented to the courts, i.e., that the ‘same question or issue’ was previously ‘the subject of arbitration.’ So viewed, finality, consistent with the provisions of the agreement, will be preserved.” Local 103, 516 F.2d at 1341. It is of course true that numerous cases support the application of res judicata or collateral estoppel when the losing party in an arbitration proceeding seeks to reopen its case in federal court. See, eg., Milos v. Spector Freight Systems, Inc., 464 F.Supp. 754 (M.D.N.C.1979). These cases are clearly distinguishable. Here the victorious party in the prior arbitration has gone into court in an attempt to foreclose arbitration. Cases like Milos stand only for the proposition that courts will hold the parties to a labor contract to their bargain. Here it is the Company, not the Union, which is seeking to escape from its agreement to arbitrate disputes. III. We hold that the district court correctly decided that the question of the preclusive effect of the 1980 arbitration award is itself arbitrable. We therefore need not, and should not, reach the question of the 1980 arbitration’s present effect. The decision of the district court is affirmed. AFFIRMED. . There is one exception to the exclusiveness accorded arbitration by the Contract: in suc-cessorship disputes (like the present case) the Union is authorized to bypass the grievance machinery and seek judicial relief. See Article XXVII. This exception is plainly of no help to the Company. Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. TOUPET-TAYLOR ENGINEERING CO. v. RED DOG MFG. & SUPPLY CO. (Circuit Court of Appeals, Third Circuit. December 6, 1926. Rehearing Denied January 26, 1927.) No. 3397. 1. Patents <§=141 — Enlargement of specifications and claims In reissue held unwarranted, where patentee, with full knowledge, failed to include such matters in original patent. Where patentee, with full knowledge that unslaeked lime or Portland cement could be used as binder in bricks, confined claims, specifications, and disclosures to unslaeked lime, his patent rights were limited to original disclosure, and subsequent enlargement of specifications and claims in reissue to include Portland cement, on ground of inadvertent mistake, was unwarranted. 2. Patents <@=328 — Reissue No. 15,829, for making brick and hollow tile, held invalid. Engélbrecht’s reissue, No. 15,829, for making brick and hollow tile by use of Portland cement as binder, held invalid. ' Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge. Patent infringement suit by the ToupetTaylor Engineering Company against the Red Dog Manufacturing & Supply Company. Bill dismissed, and plaintiff appeals. Affirmed. Charles M. Clarke, of Pittsburgh, Pa., for appellant. George E. Stebbins and Byrnes, Stebbins & Parmelee, all of Pittsburgh, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. This case concerns the making of brick and hollow tile from “red dog,” .a by-product of bituminous coal mining. In such operation great quantities of slate and other strata near the coal have to be mined in connection with the coal, by reason of the thinness of the coal vein. This worthless substance is dumped in huge piles near the pit mouth, where it often takes fire by spontaneous combustion and the burning produces a substance, equally worthless, which the miners call “red dog.” The proofs in the ease show that some of this red dog was sent to one Engelbr'eeht, whose patent is here involved, with a view to ascertaining whether it could be used in making fireproof bricks. He experimented and found that, when used in proper proportions with Portland cement, it could be made into bricks having very desirable qualities, and he made some sample bricks by the use of such ingredients. He also found it was possible to< use imslacked lime as a binder and he made bricks of those ingredients. After thus demonstrating the practical possibility of each of the binders, viz. Portland cement and unslaeked lime, he, on May 25, 1921, made application for, and on July 24, 1923, was granted, patent No. 1,462,596 for slate bricks. Why he did so is inexplicable but for some reason he made no disclosure in his specification that Portland cement could be used as a binder, but confined his disclosure to the use of unslaeked lime. His specification made no suggestion of the use of any other binder than unslaeked lime, and his claims were limited, respectively, to unslaeked lime, viz. “a proportionately small amount of unslaeked lime,” and “from 3 to 5 per cent, of unslaeked lime.” The disclosure of his specification was that after describing red dog, the proportions to be used and preliminary grinding thereof were as follows: “I then add a small proportion of unslaeked lime, in the neighborhood of from 3 to 5 per cent.; the greater the percentage of lime, the stronger the brick;” and “my invention consists in part in grinding this mixture properly, the object being to much more thoroughly mix the substances by grinding in conjunction with < the proper amount of water, so as to cement together with the lime as great a surface area of the grains of slate as is possible, thereby making the brick stronger and less liable to be disintegrated by intense heat. * * * The grinding, however, is carried on while the mixture is still moist and the lime is slacking, and it is continued until a coherent mass is formed, which will not crumble apart when pressed together.” It will thus be seen the case is not one where, for example, an inventor had found a single binder for his mixture, and had disclosed all he knew about binders, but had mistakenly confined his claim to that particular binder, or where he had suggested the possible use of some other bind of binder; but the case is one where, with full knowledge and the practical demonstration’ that each of two binders could be used to produce red dog bricks, he confined his claim, specification, and disclosure to one binder, and neither disclosed the other binder nor told of its possible use. So far as his patent is concerned, the public at the end of 17 years would still remain ignorant of the possibility of the use of Portland cement. In view of the full knowledge of Engelbrecht of the use of such cement, and his making neither disclosure nor claim of it, there was no basis for a reissue on the ground of “inadvertence, accident, or mistake,” so as to then disclose and elaim cement as a binder, and thereby make infringers of cement users, such as the defendant, who were not so when Engelbrecht’s patent was issued. Oh the contrary, the case is one where, with full knowledge of the use of Portland cement in connection with “red dog,” Engelbrecht saw fit not to disclose such demonstrated use, and asked for claims limited to his disclosure of lime as a binder. Under such facts, his patent rights were limited to what his original disclosure showed, and the subsequent enlargement of his specification and addition of claims, in his reissue No. 15,829, so as to cover Portland cement, must be adjudged unwarranted and invalid. So holding, the decree of the court below, dismissing the plaintiff’s bill, is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_origin	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. BRIGGS v. HUNT, ELLIS & CO. et al. Petition of BRIGGS. (Circuit Court of Appeals, First Circuit. February 2, 1926.) Nos. 1927, 1937. 1. Bankruptcy <§=¿>465 — Appeal dismissed! on same matter coming before court on petition to revise. Appeal from decree affirming order of referee in bankruptcy limiting time for filing reclamation claims will be dismissed, where matter is also before the court on petition to revise the same decree. 2. Bankruptcy <§=¿>446 — Question of authority to enter order not considered on petition of one not adversely affected. Question of authority of referee in bankruptcy before adjudication to limit time to file reclamation petitions will not be considered; no right of petitioner, so far as disclosed, being adversely affected, he not alleging that he was thereby prevented from filing any such petitions, and it appearing that he did file two within the time limited. Appeal from and Petition to Revise the Proceedings of the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge. In the matter of Hunt, Ellis & Co. and others, bankrupts. Walter S. Briggs appeals from a decree affirming an order of the referee, and files petition to revise the same decree. Appeal and petition dismissed. Mark M. Horblit, of Boston, Mass. (Herbert A. Baker and Horblit & Wasserman, all of Boston, Mass., on the brief), for appellant and petitioner. Daniel J. Lyne, of Boston, Mass., pro se. Lee M. Friedman, of Boston, Mass. (Friedman, Atherton, King & Turner, of Boston, Mass., on the brief), for other appellees and respondents. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. BINGHAM, Circuit Judge. No. 1927 is an appeal from a decree of the federal District Court for Massachusetts affirming an order of a referee in bankruptcy limiting the time for filing reclamation claims in a bankruptcy matter where, before adjudication, composition had been offered and accepted by a majority of the creditors, but as yet not approved by the court. No. 1937 is a petition to revise in matters of law the same decree from which the appeal was taken in the previous case. The matter is.properly before us on petition to revise, and the appeal should be dismissed. It appears that on August 10,1925, an involuntary petition in bankruptcy was filed against William Hunt and L. Guy Dennett, copartners carrying on a stock and brokerage business under the name of Hunt, Ellis & Co.; that on October 12, 1925, the alleged bankrupts filed a petition for composition; that on October 13, 1925, the ease, with the petition, requesting a meeting of creditors to consider the offer of composition, was referred to the referee in bankruptcy, “to take such further proceedings therein as are authorized by the act and as in his judgment .may be necessary or advisable for the preservation of the estate or business of the alleged bankrupt, including the appointment of receivers and appraisers, if necessary; to hear and determine all matters of fact relating to said meeting and the proposed offer in composition; to call such meetings, give such notices, and make such further orders as may be necessary in the premises while said petition and offer in composition are pending, and to file his report under this order within 40 days hereafter”; that on October 17, 1925, notice of a meeting to consider the composition was duly given; that' at said meeting held October 30, 1925, on motion of counsel for the alleged bankrupts, the referee fixed December 30, 1925, as the time on or before which claims in the nature of reclamation or in the nature of impressing funds with a trust must be filed, which order was later reduced to writing, notice of which was mailed to all creditors on November 4, 1925; that said order, after setting out the name of the ease and the motion of counsel, the time when and the circumstances under which the oral order was made, reads as follows: “It is hereby ordered that the time on or before which persons in interest herein may herein file any proceeding in reclamation, in the nature of reclamation or in the nature of impressing with trust securities or funds within the jurisdiction of this court, be and the same hereby is fixed at December 30, 1925, being sixty (60) days from the date hereof and it is further ordered that all persons in interest failing on or before such date to file any such claim be forever thereafter barred from filing the same herein.” On November 11, 1925, the present petitioner filed a petition to review said order by the District Judge, and on November 23, 1925, the District Judge, having reviewed the order, entered a decree dismissing the pefcition and affirming the order of the referee. No order of 'adjudication has been entered, and the petition for composition is still pending before the referee. It further appears that the petitioner had, within the time fixed by said order, filed in said proceeding two or more petitions for reclamation. The contention on the part of the petitioner is that the court erred in affirming the order of the referee on the ground that the latter had no authority to enter the order before adjudication. We are unable to see wherein the petitioner, in view of the facts set out in his petition, is in any way aggrieved by the order. The petition does not allege that he has been prevented by the order from filing such reclamation petitions as he deemed necessary, and the answer to the petition discloses that he has “within the time fixed therefor by said order filed two petitions in the nature of reclamation, one on December 1, and the other on December 30, 1925.” We listened with interest to the extended arguments of counsel and have spent much time examining the eases called to our attention as bearing on the question argued, but as no right of the petitioner, so far as the facts disclose, is adversely affected by the order, we do not feel called upon to consider it. It may be doubtful whether the order properly construed operates further than to preclude the filing of reclamation claims in the bankruptcy proceeding after the date fixed by the order and to bar proceedings against the receiver individually in ease he turned over the estate to the bankrupts with knowledge of outstanding reclamation claims which had not been seasonably filed, a composition having been confirmed. It would seem, however, that to this extent it would operate to preclude the filing of claims thereafter and as a bar, and that the District Court had jurisdiction to enter such an order. It will be sufficient to consider the question whether the District Court, after a petition for composition has been filed, either before or after adjudication, has jurisdiction to enter an order barring reclamation claims as against the debtor, not presented within the time limited, when a case presenting the question is before us. It is one thing to say that adverse claimants to property in the custody of the bankruptcy court may have their rights determined in that court, pending a composition, and quite another to say that a bankrupt debtor may, distribution of the estate being suspended by a pending composition, compel such adverse claimants to have their rights in the property determined in that court or be thereafter barred. In No. 1927, Briggs v. Hunt, Ellis & Co., the appeal is dismissed without costs. No. 1937, Walter S. Briggs, Petitioner, the petition is vdismissed, with costs to the respondents. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Harry Earl POLLARD, by next friend, Sol G. Cherry, Appellee, v. William Patrick FENNELL and Tillie Michel Fennell, Appellants. No. 12077. United States Court of Appeals Fourth Circuit. Argued May 7, 1968. Decided July 18,1968. F. T. Dupree, Jr., Raleigh, N. C., (David R. Cockman, and Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, N. C., on brief) for appellants. Joe McLeod, Fayetteville, N. C., (Quil-lin, Russ, Worth & McLeod, Fayetteville, N. C., on brief) for appellee. Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges. WINTER, Circuit Judge : In a jury trial in which liability was conceded, plaintiff, an eighteen-year-old minor, was awarded judgment for $42,-500 for a permanent one-inch shortening of his right leg and for pain and suffering as a result of an accident which occurred when he was approximately sixteen years old. At that time, plaintiff, a pedestrian, was struck by a motor vehicle owned by one defendant and operated by the other. In the action no claim was made for medical expenses or for loss of services during minority. Defendant in appealing assigns as error (a) the manner in which the district judge conducted the trial, his interrogation of witnesses and his repetition of testimony favorable to plaintiff, (b) the district judge’s limitation on defendants in the efforts of their counsel to cross-examine plaintiff on the basis of his pretrial deposition, and (c) the district judge’s interruption of defendants’ counsel’s closing argument and his admonition. The amount of the verdict, standing alone, does not shock us, but we are constrained to reverse the judgment and award a new trial because of the district judge’s improper and unwarranted participation in the trial. To treat defendants’ contentions in inverse order, we see no merit in the claim of error in the interruption of closing argument. In the case liability was conceded. Yet in closing argument defendants’ counsel told the jury “We hope that our fairness and our approach to the whole thing has been evidenced by our giving up the right to show that this was, indeed, a pure accident and one that couldn’t be helped. We hope that — .” Quite properly, we think, the district judge interrupted the argument and told the jury that there was no evidence at all that the accident could not be helped. In advising counsel that he would not permit the argument that the accident was unavoidable after the driver (William Patrick Fennell) pleaded guilty to responsibility for the accident and both defendants admitted liability at the trial, the district judge correctly exercised his function as governor of the trial. The district judge did unduly limit defendants’ counsel in his cross-examination of plaintiff, but we cannot say that the limitation, as such, constituted reversible error. On cross-examination, counsel asked plaintiff in regard to pain experienced during his hospitalization whether the pain continued for about two weeks. Plaintiff replied that the pain persisted for over two weeks. After an exchange with the district judge, in which the latter volunteered that “there is no question in my mind he hurt all the time for a long period of time,” counsel attempted to interrogate plaintiff about his deposition testimony that the pain' he experienced in, the hospital continued “not long” and specifically “about two weeks.” The district judge interrupted the interrogation, ruling “You want to introduce his deposition, introduce it, let the jury read it,” gratuitously and incorrectly observing “there is no evidence that this boy has changed his story in the slightest.” After counsel voiced an objection, the district judge repeated his erroneous comment, saying “I am not going to let you infer or make a statement that the boy has changed his story when there isn’t a bit of evidence to indicate that he has.” Ordinarily, counsel should be permitted to interrogate a party or a witness on the basis of his deposition about apparent inconsistencies between his testimony in court and his testimony on deposition with regard to all matters relevant to the issues at trial. There was an apparent inconsistency in plaintiff’s testimony on the two occasions in regard to the duration of pain in the hospital, an item of injury for which recovery was sought, and counsel should have been permitted to inquire. Plaintiff’s deposition, under Rule 26(d) (2), Fed.R.Civ.Proc., because he was a party, could be used by defendants for any purpose. While we neither commend nor approve of the district judge’s failure to observe the provisions of Rule 26(d) (1), Fed.R.Civ.Proc., that a deposition “may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness,” defendants’ counsel could have achieved the same practical result by adopting the suggestion of the district judge and offering plaintiff’s deposition so that he could call to the jury’s attention plaintiff’s apparently inconsistent statement. This counsel failed to do, and we conclude that the district judge’s error in this regard was not sufficiently prejudicial to warrant reversal. However, more basic and fundamental considerations do require that result. As we have adverted to in our discussion of defendants’ counsel’s argument to the jury, in this circuit the rule is well-established that the district judge is the governor of the trial. United States v. Chase, 372 F.2d 453 (4 Cir. 1967); Fields v. United States, 370 F.2d 836 (4 Cir. 1967); United States v. Godel, 361 F.2d 21 (4 Cir. 1966); Wallace v. United States, 281 F.2d 656 (4 Cir. 1960), cert, den., 370 U.S. 923, 82 S.Ct. 1564, 8 L.Ed.2d 503 (1962); Simon v. United States, 123 F.2d 80 (4 Cir.), cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). This is so because he is the only disinterested lawyer connected with the proceeding; his only interest is to see that justice is done. As the only disinterested lawyer whose only interest is to see that justice is done, and especially as one who, in the eyes of the jury, occupies a position of preeminence and special persuasiveness, the district judge must be assiduous in performing his function as governor of the trial dispassionately, fairly and impartially. On this record we regret that the district judge fell short of the required standard. By acting, not as a disinterested prober for the truth, but as an advocate and, in addition, by acting as a witness, he created a record from which we must infer that defendants and the jury, with justification, concluded that he unduly favored plaintiff over defendants in regard to the point in issue. A recitation of parts of the record show the basis for these conclusions. First, the record shows that repeatedly and consistently the district judge was not content to permit counsel to interrogate the witnesses, and the record discloses no reason why the excessive intervention of the district judge in this regard was necessary. We agree with the statement of the Third Circuit that: “Where both sides are represented by eminently competent counsel we think it important that the court minimize its own questioning of witnesses, to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.” Groce v. Seder, 267 F.2d 352, 355 (3 Cir. 1959). More objectionable was the fact that the district judge’s questions were usually leading in form. It must be remembered that this was a trial before a jury, and the impact of a question by the court on both the witness and the jury, together with the natural reluctance of counsel to object to the court’s questions, which is even greater when the questioning is in the presence of a jury, should not be underestimated. See, In re United States, 286 F.2d 556 (1 Cir. 1961). In the margin we set forth part of the direct examination of the plaintiff by his own counsel. Aside from apparently unnecessary interrogation by the district judge, a close reading of the remarks shows that the district judge supplied the testimony that plaintiff was “strapped down to the bed,” that “this cast [was] clear up to the shoulder and all the way down” and that plaintiff was “in a solid cast from the chest down.” In assuming a role as witness, the district judge far exceeded his function as judge. Advocacy on the part of the district judge was also exhibited in his apparent impatience to bring to the attention of the jury demonstrative evidence of the extent of plaintiff’s injuries, as the following extract from the record shows. Again, we add, the record shows no reason why the intervention of the district judge at this part of the examination of the plaintiff by his counsel was necessary. Groce v. Seder, supra. We have adverted to the district judge’s misstatement of the contents of plaintiff’s deposition in regard to the' duration of the period that he experienced pain while in the hospital. If' the aura of impartiality on the part of' the district judge had not been diminished up to this point in the trial, it was. demolished in the full exchange which, took place. Again, the district judge acted as witness. He made his position crystal clear that, irrespective of the evidence, plaintiff’s pain persisted over a considerable period of time; worse, he depicted counsel for defendants as taking an unfair advantage when counsel undertook only to represent his clients’ interests and sought to inquire about a manifest inconsistency between plaintiff’s testimony and his earlier deposition. We conclude that the manner in which the district judge conducted the trial in the instances set forth ineluctably had its influence on the jury to the prejudice of defendants. Notwithstanding their admission of liability, defendants are entitled, in a new trial, to the fair and impartial assessment of plaintiff’s damages, which they were denied. Reversed and remanded. . In the earliest statement of the rule, in this circuit, Judge Dobie said: “ * * * It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. I-Ie sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. He should not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other. * * * The judge is the only disinterested lawyer connected with the proceeding. He has no interest except to see that justice is done, and he has no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury.” Simon v. United States, 123 F.2d 80, 83 (4 Cir.). cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). . DIRECT EXAMINATION OF HARRY EARL POLLARD By Mr. McLeod: Q. Okay. What if any treatment did you receive while you were in the hospital? THE COURT: Just tell the jury, son, in your own words, not technical, what you remember of how they had you in bed, what they did to you, just in boy’s language; don’t worry about doctor language; they will tell that when they get here. Tell them what they did to you. Did they keep you in bed or have you stretched out? THE WITNESS: Yes, sir. THE COURT: Tell the jury. THE WITNESS: I remember waking up in a operating room where they had taken a steel pin and run it through my right knee through the bone and afterwards fell asleep and woke up pulling my leg down at the foot of the bed and the head of the bed, and my left leg was in traction. THE COURT: How long did they keep you in bed when you were under traction, couldn’t move? THE WITNESS: From the night I got hit until sometime in January. THE COURT: From November until January they had you in, strapped doion to the bed where you couldn’t move? THE WITNESS: Yes, sir. THE COURT: All right. Go ahead. Q. How long were you in the hospital bed at your home? THE COURT: So the jury will thoroughly understand, was this oast clear up to the shoulder and all the way doion, you couldn’t move? THE WITNESS: No, sir. THE COURT: Somebody had to carry you or move you, you couldn’t walk or move at all? THE WITNESS: I could. THE COURT: Move your arms, but you couldn’t move your body or hips or anything, could you? THE WITNESS: No, sir. THE COURT: All right. So the jury understands he was in a solid cast from the chest down. All right. Go ahead. (emphasis supplied) . CONTINUATION OF DIRECT EXAMINATION OF MR. POLLARD By Mr. McLeod: Q. What is the condition of your leg at this time? A. I can’t bend my right leg all the-way back and it is an inch shorter. THE COURT: Get down and show the jury. Get down and show them where you can’t bend it and how, so-walk in front of them. Pull your trousers up and let them see it if you. want to, I mean if they can’t. MR. McLEOD: Take your pants off.. THE COURT: Let him do whatever he wants to. MR. McLEOD: Take your pants off if you will and show the jury your right leg. You might take your shoes: off. THE COURT: He can walk up there and let you look at it. MR. McLEOD: Take your shoes off and your pants all the way off so you won’t trip. (Witness complied) MR. McLEOD: You walk down here. (Witness complied) THE COURT: Stop right there. Let them look over, the jury can. You point out to them, son, about the knee and bend it, show them where the trouble is. THE WITNESS.: Right there is as far as I can bend the leg, (demonstrating) . THE COURT: In other words, you can’t sit down or squat all the way down. THE WITNESS: No, sir. . CROSS-EXAMINATION OF MR. POLLARD By Mr. Dupree: Q. And that went on for about two weeks, didn’t it? A. Longer than that. Q. About two weeks? THE COURT: Let’s be fair with the boy. It went on for a year. What do you mean two weeks, Mr. Dupree? I can’t be operated on — I don’t care what he said in that deposition. MR. DUPREE: I follow it with some questions. THE COURT: Yes, sir. But I don’t want you to take this young boy like this and say he only had two weeks of pain when he was in a cast from his chest down to his toes for four months and then went back for two operations, and there is no question in my mind he hurt all the time for a long period of time. You take it from there. There isn’t any question about it. MR. DUPREE: No, sir. THE COURT: Is there? MR. DUPREE: Your Honor, I would just like to ask him the length of time over which he experienced this pain. THE COURT: You can aslc him, hut I will tell the jury to use their own experiences on that. I am not going to alloio this young hoy loho obviously doesn’t know if he is under medication to have the record show that he only had tico loeeks of pain on a broken leg of this type and the time that he was in the cast and coming hack a year later and wheel chair. You know it isn’t right yourself. And he had to have a cast to sleep on at night. I mean I want the jury to get the facts. Go ahead. MR. DUPREE: Yes, sir. Q. Your deposition in this case was taken by me on the eleventh of March, 1967, wasn’t it? A. I think so. Q. And at that time you were asked questions concerning your injury, were you not? A. Yes, sir. Q. Is your recollection of how you felt at that time as good as it is now? A. When I was sitting down talking to you my leg was hurting. Q. The question, sir, is whether or not your recollection of how you had felt in the hospital and everything at the time when your deposition was taken was as good as it is now? A. No, sir. Q. What have you done since that time to refresh your recollection or make you know anything more about it than you did at that time? THE COURT: Mr. Dupree, wait a minute, I am not going to permit this. That is not fair at all. You want to introduce his deposition, introduce it, let the jury read it. I mean there is no — this boy — there is no evidence that this hoy has changed his story in the slightest. There isn’t. I am not going to stand still for it on this kind of a case. This is an infant. MR. DUPREE: May I have an exception ? THE COURT: You may have all the exceptions you want. MR. DUPREE: Yes, sir. THE COURT: Yes, sir. But I want the record to show that this is an infant, and I am not going to let you infer or make a statement that the hoy has changed his story when there isn’t a hit of evidence to indicate that he has. (emphasis supplied) Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). ITEN LEASING CO., a Minnesota corporation, Appellant, v. BURROUGHS CORPORATION, a Michigan corporation, Appellee. No. 81-2323. United States Court of Appeals, Eighth Circuit. Submitted June 15, 1982. Decided July 28, 1982. James F. Finley, Alan W. Weinblatt, St. Paul, Minn., for appellant. Joseph T. Dixon, Jr., Bruce C. Recher, Henson & Efron, P.A., Minneapolis, Minn., for appellee. Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and STEVENS, District Judge. The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western and Eastern Districts of Missouri, sitting by designation. ROSS, Circuit Judge. Iten Leasing Company (Iten) appeals a judgment of the district court which failed to find Burroughs Corporation (Burroughs) liable for misrepresentation, fraud and breach of express warranty in the sale of a computerized accounting system to Iten but rather found Burroughs liable only for damages in regard to two devices sold as part of the system. We affirm. On April 1, 1974, Iten purchased a Burroughs L-8500 accounting machine, internal memory for the system, a data-save device and a reader/feeder/stacker (R/P/S) attachment. Iten also purchased software support including an amortization and depreciation program, an accounts receivable program and standard Burroughs payroll and general ledger programs. In late June 1974, the L-8500 was delivered to Iten and Iten used the L-8500 for its payroll from July 1974 until July 1975 when it discontinued use of the equipment. During July, August and early September 1974, Burroughs delivered and installed the general ledger program and the billing and accounts receivable programs used by a Salt Lake City leasing company. In November 1974 the R/F/S attachment was delivered and installed. On July 14,1975, Iten notified Burroughs that it was discontinuing use of the accounting system due to numerous problems and demanded rescission of the contracts of sale. The magistrate found that the R/F/S never worked satisfactorily and adjustments to the R/F/S worked only temporarily. The magistrate also found that the data-save device failed to operate properly except on two occasions and Burroughs was unable to correct the problem during the time the system was in use. The magistrate held that Burroughs knew or should have known that its representations as to the R/F/S and data-save device on which Iten relied were false. The magistrate held that these misrepresentations were material to the purchase of the R/F/S and data-save device but were not material to the purchase of the total accounting system. The magistrate recommended that Iten be awarded the cost of the R/F/S and data-save device plus an additional $400 for an amortization and depreciation schedule which Iten never received. A. Review of the Magistrate’s Recommendations Iten contends that the district court erred in adopting the magistrate’s conclusions of law without reviewing the trial transcript. On August 1, 1979, the parties filed a stipulation that this case could be tried before the United States magistrate and the parties expressly waived their right to object to the magistrate’s recommended order, agreeing that any appeal would be directly to this court. The district court accepted the stipulation and ordered that the case be tried before the magistrate. However, the district court indicated that although the parties’ waiver of review by the district court of the findings of fact would be ordered, the parties would have the right to object to the magistrate’s recommended conclusions of law and order of judgment. The district court apparently allowed review of the conclusions of law based on this court’s opinion in Duryea v. Third Northwestern National Bank, 602 F.2d 809 (8th Cir. 1979). In Duryea, this court held that Rule 53(e)(4) of the Federal Rules of Civil Procedure allowed the parties to stipulate to the finality of the magistrate’s findings of fact but that questions of law should be reviewed by the district court. Id..at 810. Considering that the district court was only called upon to review the magistrate’s recommended conclusions of law, we fail to see the relevancy of the trial transcript to the review of written conclusions of law. Iten has attempted to mischaracterize many issues of fact as issues of law. Iten is apparently trying to avoid the clear terms of the stipulation and the subsequent order of the district court. In any event, Iten’s waiver of objection to the district court regarding the magistrate’s findings of fact does not affect our review of those findings of fact under the clearly erroneous standard. B. Representations of Future Acts Iten concedes that the magistrate correctly stated the eleven elements necessary to prove fraud under Minnesota law as outlined in Clements Auto Co. v. Service Bureau Corp., 444 F.2d 169, 175 (8th Cir. 1971). Iten contends, however, that the magistrate erred in finding that certain representations were representations of future acts rather than, as required under Clements, representations of “past or present fact.” Id. at 175. The five representations Iten alleges were not regarding future acts are as follows: 1) Burroughs’ representation that an in-house ledger card would provide a month-to-month profit analysis of each leased vehicle. 2) A representation that Iten would receive an amortization schedule. 3) A representation that Burroughs would provide a flow chart and written instructions to Iten. 4) A representation that Burroughs would support Iten’s personnel to obtain an efficient operation of the equipment. 5) A representation that Burroughs’ system would satisfy Iten’s needs. As to these representations, we have reviewed the record and hold that the factual findings of the magistrate as to “future acts” are not clearly erroneous. Other factual findings influence our review of these representations regarding future acts. The magistrate held that Iten’s evidence failed to establish as false Burroughs’ representation that its system would accomplish the objectives, needs and requirements of Iten. The evidence established that Burroughs had explained to Iten the difference between more expensive, custom programs and the package programs Iten chose to order. The magistrate found that both parties recognized that modifications to the package programs would be necessary, noting that Burroughs had successfully modified the programs. Although there was evidence which might support a finding that the representations regarding a profit figure, an amortization schedule, and general support of the system were representations of past or present fact, we cannot say that the magistrate’s view of the evidence was clearly erroneous. It also is important that in each instance where the magistrate found a representation regarding a future act, he also held that there was no evidence that Burroughs did not intend to perform that representation at the time it was made. See Northwestern State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn.1979) and Vandeputte v. Soderholm, 298 Minn. 505, 216 N.W.2d 144, 147 (1974). This finding is also supported by the evidence. Iten also argues that this case is factually similar to the Clements case where this court found that a computer company had fraudulently misrepresented, as fact rather than as simple prediction, that their system “ ‘would constitute an effective and efficient tool to be used in inventory control.’ ” Clements, supra, 444 F.2d at 181. In contrast to Clements, however, the magistrate held that Iten failed to prove that Burroughs’ representation that its system would accomplish Iten’s objectives, needs and requirements was false. C. Materiality of the Misrepresentations Iten argues that the magistrate erred in determining that the misrepresentations regarding the data-save device and R/F/S were not material to the purchase of the accounting system, thus limiting Iten’s damages to the cost of the R/F/S and data-save device. The determination of whether there has been a misrepresentation of a material fact is a factual question. Strouth v. Wilkison, 302 Minn. 297, 224 N.W.2d 511, 513 (1974). Minnesota law also limits damages for misrepresentations “to the actual out-of-pocket loss sustained by the plaintiff as a proximate result of the defendant’s fraud and the purchaser’s reliance thereon.” Id. at 514. The magistrate’s memorandum made the following factual findings regarding materiality: Having found some of the representations to be false, it must be determined if they were material. Plaintiff operated defendant’s system for several months before the R/F/S was delivered, and for several months after plaintiff ceased using the R/F/S because of its defects. When the data-save device failed, plaintiff at first was required to have defendant’s service man restart the system and later, after instructions by defendant’s employees, restart the machines themselves. Delay in each instance was brief. Plaintiff wanted to eliminate delay in obtaining financial information and to obtain hard copies of financial records, including individual leases. While the R/F/S was an important factor in influencing plaintiff to decide to purchase the system, neither it nor the data-save device was at the heart of plaintiff’s decision to undertake a new accounting system. Therefore, neither of the representations were material [to the purchase of the system] and plaintiff has failed to establish its claim for misrepresentation. Iten argues that the R/F/S and data-save device cannot be separated from the system as a whole and any material misrepresentation affected the system as a whole. However, we do not believe the magistrate’s findings are clearly erroneous. As the magistrate noted, Iten used the accounting system both before and after the R/F/S’s failure. Additionally, the magistrate found that Burroughs’ representation that the system would accomplish Iten’s needs and objectives was not shown to be false. In view of these facts we do not find error in the magistrate’s findings that the failure of the R/F/S and data-save device was not material to the system as a whole. Thus, the magistrate could properly limit damages to those proximately caused by the failure of the R/F/S and data-save device and award only the purchase price of the R/F/S and data-save device. D. Revocation of Acceptance Iten contends that under Minn.Stat. § 336.2-608 its acceptance of the accounting system could be revoked. The Minnesota Supreme Court has stated the following: Section 336.2-508 prescribes the following requirements for an effective revocation of acceptance: (1) the goods must be nonconforming; (2) the nonconformity must substantially impair the value of the goods to the buyer; (3) the buyer must have accepted the goods on the reasonable assumption that the nonconformity would be cured; (4) the nonconformity must not have been seasonably cured; (5) the buyer must notify the seller of his revocation; (6) revocation must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects; and (7) the buyer must take reasonable care of the goods for which he has revoked acceptance. Jacobs v. Rosemont Dodge-Winnebago South, 310 N.W.2d 71, 76 (Minn.1981), quoting Durfee v. Rod Baxter Imports, 262 N.W.2d 349, 353 (Minn.1977). The magistrate found that the failure of the R/F/S and data-save device did not substantially impair the value of the system and that the notice of revocation did not occur within a reasonable time. The same facts cited in part C of this opinion regarding materiality support the magistrate’s finding regarding a lack of substantial impairment. Regarding the timeliness of the July 1975 revocation notice, the magistrate found that the last contact between the parties prior to the revocation was a phone call in early March 1975. During the phone call Iten’s employee stated the system was in use and was performing more satisfactorily. Iten’s employee made no request for further changes or corrections in the system. These facts are supported by the record and the findings of the magistrate regarding the timeliness of the revocation are not clearly erroneous. Affirmed. . Trial was held before United States Magistrate J. Earl Cudd. The recommendations of the magistrate were adopted and judgment was entered by the Honorable Harry H. MacLaugh-lin, United States District Judge for the District of Minnesota. . The court in Duryea v. Third Northwestern National Bank, 602 F.2d 809 (8th Cir. 1979) also noted that legislation was pending which would enlarge the jurisdiction of the United States magistrates. Id. at 810 n.2. Such legislation was subsequently passed, and effective October 10, 1979, the parties by agreement may appeal the final judgment of the magistrate directly to the United States court of appeals. See 28 U.S.C. § 636(c)(3) and Robinson v. Moreland, 655 F.2d 887, 888 (8th Cir. 1981). . Although the magistrate found this representation to be regarding a future act, the magistrate did recommend that Iten be awarded $400, the cost of the amortization schedule, because it was never delivered. . The magistrate also found that it was unclear whether the representation regarding the flow chart was ever made and Iten failed to sustain its burden of proof as to this representation. . It should be noted that one of Iten’s major problems with the system was in regard to inaccurate age analyses and late charge calculations. The magistrate found that these inaccuracies were attributable to Iten’s employees failing to properly record information, rather than problems with the system or Burroughs’ training of the employees. . Prior to purchasing the Burroughs system Iten sent its accounting information to a Chicago firm and there was a 5-6 day delay before accounting reports were received by Iten from the firm. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_usc1sect	27	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". In re FOSTER CONST. CORPORATION. Appeal of POPKIN. No. 431. Circuit Court of Appeals, Second Circuit. June 24, 1931. See, also, 49 F.(2d) 213. Louis Jersawit, of New York City, for appellant. Leo J. Linder, of New York City, for creditor-appellee and intervener trustee in bankruptcy. Before MANTON, SWAN, and CHASE, Circuit Judges. MANTON, Circuit Judge. The appellee is a creditor of the bankrupt, which was adjudicated such on failure to answer a petition filed against it on September 23, 1929, in the Eastern district of New York. The trustee qualified June 30, 1930. Appellee, on January 27, 1930, procured an order in the Eastern district of New York for the arrest of the appellant, president of the bankrupt. The order of arrest was based on a petition of Mr. Lind-er, appellee’s attorney, and the affidavit of one Satloff. On December 4, 1930, on the sole petition of the appellee, the bankrupt’s trustee not joining therein, a District Judge in the Eastern district of New York authorized and empowered the appellee “to apply to the United States District Court for the Southern District of New York and for the District of New Jersey, and for an ancillary order of examination of such witnesses within the jurisdiction of said courts as may be necessary as to the acts, conduct or property of the bankrupt corporation herein, and for orders ne exeat directed to the Marshals for the Southern District of New York and for the District of New Jersey.” On the same day, appellee, on its sole petition, without the trustee joining therein, obtained ex parte, in the Southern district of New York, an ancillary order ne exeat, and an ancillary order for the examination of the appellant before a special commissioner in bankruptcy was signed. It was therein ordered : “That the United States Marshal for the Southern District of New York, or any of his deputies, be and he is hereby commanded that, without delay, he apprehend and take into custody Joseph Popkin, an officer of the bankrupt corporation above named, and bring him forthwith before me for examination or, at his option, cause him to give sufficient bail or security in the sum of $10,-000 to be approved by this Court or the Clerk thereof, that he, the said Joseph Popkin, will not depart from or go, or attempt to depart from or go beyond the territorial juiisdietion of this Court without its leave, and will at all times and in all manner, respect and things, obey and comply with the lawful orders and decrees of the Court herein for his examination, which shall or may be made on behalf of the said petitioner or other creditor of the said bankrupt.” A warrant of arrest was executed by the marshal in the Southern district, and the appellant taken into custody^ Appellant furnished the required bail, and moved to vacate the ancillary order ne exeat. Prom an order denying this motion, this appeal is taken. It is conceded that the order ne exeat was made pursuant to such authority as is found in section 2, subd. 15, of the Bankruptcy Act, 11 USCA § 11 (15). It provides: “That the courts of bankruptcy * * * are hereby invested * * * with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings * * * [to] (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this title.” Neither the court of primary jurisdiction nor the court below of ancillary jurisdiction has authority to issue such an order unless it be so pursuant to section 9, subd. b, of the Bankruptcy Act, 11 USCA § 27 (b). A writ obtained under section 9, subd. b, of the Bankruptcy Act, requires a petition against a person to be obtained before the expiration of one month, after the qualification of the trustee upon satisfactory proof by affidavits of at least two persons that the bankrupt is about to leave the district in which he resides or has his principal place of business and is attempting, by his departure, to avoid examination and defeat the proceedings in bankruptcy. The section also provides for the arrest of the bankrupt and holding under bail for his appearance and examination. No attempt was made by the appellee to comply with section 9, subd. b, 11 USCA § 27 (b), and the appellee rests its contention as to the validity of the order on section 2, subd. 15,11 USCA § 11 (15), giving authority to the District Courts to make such orders, issue such process, and enter such judgments provided for and necessary for the enforcement of the provisions of the Bankruptcy Act. The writ and use of the writ of ne exeat is referred to and limited by section 261 of the Judicial Code (28 USCA § 376) in equity proceedings, where it is provided that it’ may be granted by a judge, “but no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States.” Limitations for permitting such, an arrest are made clear by tbe statute. If tbe bankrupt is to be taken into custody, be may be detained only ten days, and be must be arrested upon an order based upon the affidavits of two persons, which must show the facts, not opinions, and must be reasonably conclusive. The bankrupt cannot actually be imprisoned within these limitations. Collier on Bankruptcy, 13th Edition, vol. 1, p. 390. The writ is punitive in its effect, and Congress recognized, by section 9, subd. b, of the act, 11 USCA § 27 (b), the high degree of proof necessary upon which to base such a writ. It is to be issued only as an order of arrest with the care that Congress intended. The general authority to issue orders contained in section 2, subd. 15, 11 USCA § 11 (15), cannot be regarded as extending a writ so specifically granted to a District Judge. The only other statutory authority to issue the writ is section 261 of the Judicial Code, which applies to suits in equity, and the writ can only be issued against a party defendant. This writ is intended to be issued against the bankrupt only. In re Hale, Fed. Cas. No. 5,911. In the Hale Case, Judge Choate said: “It can hardly be doubted that so great a power, practically reviving imprisonment for debt, and touching so seriously the personal liberty of a very large class of' citizens, would, if intended to be given, have been given expressly and not left to be inferred merely from the grant of other powers, and that, if given, its exercise would have been carefully limited by the act, to prevent hardship and abuse. The express grant of the power in one case shows that the attention of the framers of the law was called to the subject, and they are silent as to all other cases. This raises a presumption of some strength against the existence of the power in other eases. & * * And the fact that no provision has been made * * for a warrant of arrest in any other case than that expressly provided for in the act, indicates the opinion of the supreme court that no such remedy is available.” See In re Hassenbusch (C. C. A.) 108 F. 35. In the court below, In re Lipke (D. C.) 98 F. 970, 971, was referred to, but the question there presented was whether a bankrupt, about to abscond with the assets, can be detained by a writ, and under the general power of section 2, subd. 15, 11 USCA § 11 (15), it was ruled that he could. Judge Brown said: “The necessity of the occasional exercise of this power for the efficient administration of the bankrupt law is evident. Without it the bankrupt might easily defy, and largely nullify, all adverse proceedings against him, by absconding with his assets.” In re Cohen (D. C.) 136 F. 999, and the Matter of Berkowitz (D. C.) 173 F. 1012, to which our attention is also called, both District Court cases, we think disregard the limitations of section 9, subd. b, 11 USCA § 27 (b), and erroneously hold the power, did exist to issue the writ of ne exeat under section 2, subd. 15. However, in both instances, the writ was against the bankrupt. We think it better to follow the apparent intent of Congress to permit the writ to issue when and as specifically granted under section 9, subd. b, and when the terms of that section are complied with. Moreover, there is no provision in section 9, subd. b, which vested jurisdiction or authority in the court below to issue a writ of ne exeat against an officer of a bankrupt corporation. And there is no inherent power to issue such an order and thus hold him to be examined concerning the acts of the bankrupt. Congress by the general provision of section 2, subd. 15, did not intend the issuance of orders of arrest, for, at the same time, by section 9b, it provided specific requirements before arrests might be granted. An officer of a bankrupt corporation is not the bankrupt. Kaufman v. United States (C. C. A.) 212 F. 613, Ann. Cas. 1916C, 466. The section is without application to him. Congress recognized this in prescribing punishment for crime (section 29b) under the Bankruptcy Act, 11 USCA § 52 (b). Such a drastic remedy as an arrest provided for by section 9 (b) of the Bankruptcy Act, 11 USCA § 27 (b), is one directed against the liberty of a person, and should be strictly construed and carefully applied. In re Schenkein (D. C.) 113 F. 421. It is the bankrupt, not an officer, who is referred to as subject to arrest in section 9 (b). It was intended to be issued only against the bankrupt, not a third party. If an officer of the corporation fails to appear for examination under section 21 (a) of the act, 11 USCA § 44 (a), or becomes a recalcitrant witness, he may be punnished for contempt. This remedy is ample; at least it is all Congress has provided. Another sufficient reason why the order was improperly granted below is the fact that it was applied for by a creditor and not the trustee in bankruptcy. In re Lewensohn, 121 F. 538, 539 (C. C. A. 2). There the court said: “The trustee represents every creditor. • * * If the trustee should, without sufficient reason, refuse to proceed, tlie'court, by its order, could compel him to do so, or remove him for disobedience. It has been held under the present act that a creditor cannot prosecute an appeal from the judgment of a court of bankruptcy allowing the claim of another creditor, and that the trustee is the only party who can do so.” See, also, In re Rogers-Johnson Bldg. Co. (C. C. A.) 30 F.(2d) 359. While the trustee is serving as such, any controversy arising out of and connected with the bankrupt’s estate must be instituted by the trustee, for no useful purpose can be served by a creditor’s duplication. Any other interpretation of the act would leave the bankrupt at the mercy of every creditor for his real or fancied wrongs. The creditor cannot usurp the power conferred upon the trustee while the trustee is in office. Order reversed, and motion to vacate granted. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number. Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Roy H. HAMM, Defendant-Appellant. No. 85-1362. United States Court of Appeals, Seventh Circuit. Argued Sept. 23, 1985. Decided March 26, 1986. Ronald Lee Bell, Deerfield, 111., for defendant-appellant. Paul L. Kanter, U.S. Atty. Office, Dan-ville, 111., for plaintiff-appellee. Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge. The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation. GRANT, Senior District Judge. A jury convicted defendant-appellant of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. The jury acquitted him of a second count charging possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial court sentenced him to twelve years’ imprisonment. We affirm the conviction, but remand the case for resentencing. Facts In October 1984, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation, were conducting an undercover narcotics investigation into the activities of Schiavone, a co-defendant in the instant case who pled guilty. The Department suspected Schiavone of narcotics trafficking in the Kankakee, Illinois area. During the course of the investigation, agent Grant sought to purchase one kilogram of cocaine from Schiavone. When agent Grant refused to help finance Schiavone’s purchase of the cocaine, Schiavone borrowed $25,000 from Savinski, a Michigan City, Indiana, friend who was the other co-defendant in this case and who also pled guilty. Savinski learned of the purpose of the loan some days later and, when Schiavone appeared to be having trouble finding a supplier of the cocaine, Savinski suggested defendant-appellant Hamm. Savinski contacted Hamm and told him that Schiavone had a purchaser for ten kilograms of cocaine. Hamm later confirmed the availability of a quantity of cocaine and indicated that his source of the cocaine was “Columbians.” Savinski passed this information to Schiavone who passed it to agent Grant. On October 23, 1984, Schiavone and agent Grant met in a room at the Bradley, Illinois, Holiday Inn. They called Savinski at Gratty’s, a Michigan City bar, to finalize their transaction. They informed Savinski that agent Grant wished to purchase one, rather than ten, kilograms of cocaine and that agent Grant did not want to travel from the Kankakee area to complete the deal. Savinski told Hamm, who was with him at Gratty’s, about the changes in the plan. Hamm made a phone call and told Savinski that the changes were acceptable. Savinski called Schiavone a short time later and worked out the remaining details. Hamm and Savinski met the next morning to leave for Kankakee. Hamm carried a duffle bag and asked Savinski if he wanted to check it before they left. Savinski declined. While Hamm and Savinski drove in Savinski’s van to Kankakee, Schiavone and agent Grant awaited their arrival in the Bradley Holiday Inn. At approximately 1:00 P.M., Savinski called Schiavone at the Holiday Inn and told Schiavone that they were waiting for him at the Bonanza Restaurant on Court Street in Kankakee. Schiavone left to meet them. Savinski waited for him in the restaurant. Hamm waited in the van. Schiavone met Savinski in the restaurant and, after briefly discussing the money still owed Savinski by Schiavone, the two went to the van where Schiavone met Hamm. From the front passenger seat, Hamm handed the duffle bag to Schiavone who was sitting in the rear seat. Schiavone checked the contents and returned to agent Grant at the Holiday Inn to get the money. Whereupon agent Grant arrested him. A short time later, other agents arrested Schiavone and Hamm in the restaurant parking lot. In a search of the van subsequent to the arrest, agent King found the duffle bag which contained 994.1 grams of 78.8% pure cocaine. Hamm’s arraignment occurred on December 4, 1984. On January 3, 1985, all three defendants viewed a video tape of the arrest. On January 8, Hamm filed a Motion to Suppress the cocaine based upon the lack of probable cause for the search of the van and the coercion of Schiavone who told the agents where they could find the cocaine. On January 9, the trial court ordered that all pending motions would be heard on January 14, the day of trial. At the hearing on the motions, the trial court denied Hamm’s Motion to Suppress. When Hamm learned that his co-defendants had entered into plea agreements, he moved for a continuance of trial which the court also denied. Instead, the trial court delayed the jury selection and the beginning of the Government’s case to allow Hamm an opportunity to consult with his attorney. The jury found him guilty and he appeals. Issues Hamm presents three issues on appeal: I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance; II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine; and, III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report? I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance? Savinski and Schiavone entered pleas of guilty on the morning of trial. Hamm’s counsel moved for a continuance seeking time to compare their statements to the evidence as he already knew it. Instead of granting a continuance, the trial court delayed the selection of the jury until that afternoon and postponed the beginning of the Government’s case until the next morning. The trial court felt that this delay would provide Hamm’s counsel sufficient time to compare the former co-defendants’ testimony with the 18 U.S.C. § 3500 material he had received three days earlier. Transcript at 3. This Court may review the trial court’s denial of a request for a continuance only for an abuse of discretion. To establish an abuse of discretion, Hamm must show that actual prejudice resulted from the denial. United States v. Rodgers, 755 F.2d 533, 539 (7th Cir.), cert. denied, — U.S. —, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985); United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir.1980). Hamm claims that ineffective assistance of counsel resulted from the denial of the continuance. Therefore, this Court must inquire into Hamm’s counsel’s actual performance at trial. Rodgers, 755 F.2d at 540. We measure counsel’s performance by the totality of the circumstances as revealed by the trial transcript. United States v. Flick, 719 F.2d 246, 248 (7th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2178, 80 L.Ed.2d 560 (1984). The transcript reveals that Schiavone and Savinski did not present testimony so complicated that Hamm’s counsel required a great amount of time or expert assistance to understand it. Trial counsel conducted extensive and effective cross-examination of both Schiavone and Savinski. He challenged their versions of the facts and attempted to impeach their credibility. We conclude that Hamm’s counsel’s trial performance surpassed the minimum professional standards. Therefore, no prejudice resulted to Hamm. Rodgers, 755 F.2d at 541. II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine? The trial court arraigned Hamm on December 4, 1985. The Order for Pretrial Discovery and Inspection directed that motions “be filed within fifteen (15) days of the arraignment (or such later time as may be set by the Court).” Record at 20. On January 8, 1985, after viewing a video tape of the arrest, Hamm filed his Motion to Suppress. Hamm based his motion on an alleged violation of Schiavone’s fifth amendment rights. Id. at 38. When the trial court considered the motion on the morning of trial, Hamm’s counsel stated that he was basing the motion on information received from Schiavone’s and Savinski’s counsels through their innuendoes. Transcript at 5. After discussing the motion, the trial court, finding that it had no merit, denied it for being untimely filed. Id. at 8. “Failure by a party to raise defenses ... at the time set by the court ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed.R.Crim.P. 12(f). A trial court has discretion when considering an untimely motion and a reviewing court may disturb the trial court’s decision only for clear error. United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982). In order to gain relief under Rule 12(f), a party must present a legitimate explanation for his failure to make a timely motion, United States v. Davis, 663 F.2d 824, 831 (9th Cir.1981), and absence of prejudice, Brooks v. United States, 416 F.2d 1044, 1048 n. 1 (5th Cir.1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970). “[Ajbsence of prejudice by itself may justify a district court’s refusal to grant relief from the waiver resulting from non-timely filing____” United States v. Hirschhorn, 649 F.2d 360, 364 (5th Cir.1981) (citing Brooks, 416 F.2d at 1048 n. 1). In the instant case, this Court finds no prejudice and, therefore, will not disturb the trial court’s denial of the untimely motion. First, Hamm based his Motion to Suppress on an alleged violation of Schiavone’s rights. “A defendant ‘may not obtain exclusion of evidence on ground that someone else’s rights were violated.’ ” United States v. Davies, 768 F.2d 893, 897 (7th Cir.) (quoting United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1354, 84 L.Ed.2d 377, (1985)), cert. denied, — U.S. —, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985). Second, a trial court need only grant a suppression hearing when a defendant presents facts justifying relief, that is, facts which are definite, specific, detailed and nonconjectural. United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985); United States v. Harrelson, 705 F.2d 733, 737 (5th Cir.1983). The facts alleged by Hamm fail to meet this standard. III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report? At the sentencing hearing, Hamm challenged several items in the presentence investigation report. Those items included an allegation by Savinski that Hamm had contracted for Savinski’s murder, a probation violation charge which occurred when Hamm was arrested for a murder, a probation violation charge for possession of a gun, an offense in which Hamm was charged with conspiracy to commit burglary, assault and battery, intent to kill, and committing a felony while armed, and the opinion of a probation officer that Hamm had no legitimate source of income. Hamm informed the trial judge that he had not contracted for Savinski’s murder, that neither of the alleged probation violations had been prosecuted or affected his probation, that the alleged offense had resulted in a prosecution and conviction for voluntary manslaughter, and that he derived legitimate income from manufacturing custom-made clocks. The Government declined to question Hamm and, in its argument, stated that it found the presentence report to be very complete and thorough. The trial court denied Hamm’s motion to strike the contested material from the presentence investigation report and, in sentencing Hamm, declared that he was an outlaw. See Transcript at 233-48. In United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), a case heard on the same day as the instant case, this Court, relying on United States v. Rone, 743 F.2d 1169 (7th Cir.1984), and Rule 32, Federal Rules of Criminal Procedure, stated: Rone requires that the sentencing judge ask the defendant three questions in order to comply with Rule 32: (1) whether the defendant has had an opportunity to read the report; (2) whether the defendant and defense counsel have discussed it; and (3) whether he or she wishes to challenge any facts in the report. Id. at 1174. This questioning process establishes a record reflecting that the defendant has had a realistic opportunity to read, discuss, and object to the report. If the defendant disputes a fact in the report, the requirements of subsection (D) are triggered. Rone, 743 F.2d at 1175. The sentencing judge is then obligated either to make written findings concerning the disputed matter or a written determination that the disputed matter will not be relied on for sentencing, and then attach it to the presentence report. Id. at 1175. These procedures, when strictly followed, ensure that the defendant's sentence is based on accurate and reliable information and that subsequent recipients of the report are aware of whatever resolutions occurred at sentencing. ... Thus all a defendant needs to show in order to be resentenced for a violation of Rule 32(c)(3)(D) is that (1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing. Eschweiler, 782 F.2d 1385, 1389 (citations omitted) (footnotes omitted). In this case, the trial court made neither findings regarding the controverted matters nor a determination that the information would not be used in sentencing. Rule 32(c)(3)(D) compels us to remand the case for resentencing. Conclusion This Court Affirms Hamm’s conviction, but Remands the case for resentencing consistent with the procedures set forth in Eschweiler and Rule 32(c)(3)(D), Federal Rules of Criminal Procedure. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_usc1sect	115	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". MEYER v. COMMISSIONER OF INTERNAL REVENUE. No. 9039. Circuit Court of Appeals, Third Circuit. Argued Feb. 4, 1946. Decided Feb. 27, 1946. Sydner A. Gutkin, of Newark, N. J. (David Beck, of Newark, N. J., on the brief), for petitioner. S. Dee Hanson, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before MARIS, McLAUGHLIN and O’CONNELL, Circuit Judges. MARIS, Circuit Judge. The taxpayer asks this court to review a finding by tlie Tax Court that the redemption by Bersel Realty Company during the years 1938, 1939, 1940 and 1941 for $125,-000 of 1,250 shares of its 5% noncumulative preferred stock which he owned was accomplished at such times and in such manner as to be essentially equivalent to distributions of taxable dividends to him within the meaning of Sectioin 115(g) of the Revenue Act of 1938 and the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 115(g). This was a conclusion which ordinarily would not be reviewable here. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; John Kelley Co. v. Commissioner, 1946, 66 S.Ct. 299. In the present case, however, this conclusion was based tipon a finding that in the years in question the company had undistributed surplus earnings in excess of the amounts distributed in redemption of the stock. That finding in turn depended in part upon a further finding that on December 31, 1937 the earned surplus of the company was $374,433.37. This represented the earned surplus as shown by the company’s hooks of account on that date. The Tax Court also found, however, that in the years 1931, 1934 and 1935 the company had redeemed 5,500 shares of the taxpayer’s preferred stock for $550,-000. While the Tax Court found that these redemptions were all charged against the capital account it did not find, and the present record does not disclose any basis for finding, that the redemptions made in 1931, 1934 and 1935 were accomplished at a time and in a manner so different from those made in 1938, 1939, 1940 and 1941 as not to be also essentially equivalent to distributions of taxable dividends. On the contrary every factor upon which the court relied in concluding that the later redemptions were of this character would seem, so far as appears from the record now before us, equally applicable to the earlier ones. If, however, the earlier redemptions which totalled $550,000 are also to be treated as essentially equivalent to distributions of taxable dividends, it is obvious that, looked at from the tax standpoint, they must have operated to distribute so much of the earned surplus of $374,433.-37 shown by the company’s books at the end of 1937 as had accumulated up to the time of the last of these earlier redemptions in 1935. In that case only the earnings accumulated since that last redemption would, for tax purposes, have remained available for distribution in 1938 and later years. The Tax Court made no finding as to the amount of the earnings accumulated in 1936 and 1937 and there is no evidence in the record upon which such a finding could be based. The Tax Court, as we have said, concluded that the entire sum of $125,000 distributed by Bersel Realty Company to the taxpayer in 1938, 1939, 1940 and 1941 in redemption of preferred stock was taxable as dividends. From what has been said it will be seen that this conclusion required for its support a finding either (a) that the redemptions of 1931, 1934 and 1935 were not essentially equivalent to the distribution of taxable dividends and therefore did not for tax purposes operate to distribute the earnings of that period, or (b) that the earnings accumulated after the last of those earlier redemptions together with the earnings of the years 1938, 1939, 1940 and 1941 were at least equal to the amounts distributed in redemption of preferred stock in the latter years. Since the Tax Court made neither finding its decision must be vacated and the case remanded for appropriate findings and decision. The decision of the Tax Court is vacated and the case is remanded for further proceedings in accord with this opinion. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number. Answer:
songer_treat	E	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Albert Soto MEDINA, Appellant, v. J. J. ENOMOTO, Superintendent, California Correctional Inst., Appellee. No. 74-2682. United States Court of Appeals, Ninth Circuit. Sept. 8, 1975. Albert Soto Medina in pro per. Evelle J. Younger, Atty. Gen., State of California, Los Angeles, Cal., for appel-lee. Before CARTER, HUFSTEDLER and GOODWIN, Circuit Judges. OPINION PER CURIAM: The order denying Medina’s petition for a writ of habeas corpus is vacated, and the cause is remanded for further proceedings. The opinion of this court in Mann v. Smith, 488 F.2d 245 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974), upon which the district court based its decision, was subsequently overruled by Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). Vacated and remanded. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_timely	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". MILWAUKEE AREA VOCATIONAL TECHNICAL AND ADULT EDUCATION DISTRICT, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee. No. 87-1553. United States Court of Appeals, Seventh Circuit. Argued Dec. 15, 1987. Decided June 1, 1988. John A. Casey, Quarles & Brady, Milwaukee, Wis., for plaintiff-appellant. David A. Luptak, Law Dept., USX Corp., Pittsburgh, Pa., for defendant-appellee. Before WOOD, Jr., MANION and KANNE, Circuit Judges. MANION, Circuit Judge. Plaintiff, Milwaukee Area Vocational Technical and Adult Education District (MATC), brought this action against United States Steel Corporation (USS) for the cost of replacement and repair of steel used in the construction of MATC’s campus buildings. USS moved for summary judgment on the ground that MATC’s claim was time-barred. The district court granted the motion and MATC appeals. We affirm. I. In the mid-1970’s, MATC commenced extensive construction projects involving the construction of its North Campus Center, its South Campus Center, and an addition to its West Campus Center. The specifications for all three buildings called for the use of “weathering steel” in the construction of the buildings’ roofs and portions of the exterior walls. The specifications for the “weathering steel” were nearly identical for all three buildings. The brand of “weathering steel” actually used in the construction was Cor-Ten steel manufactured by USS. The construction at the North Campus Center and South Campus Center was substantially completed in July, 1976. The construction at the West Campus Center was substantially completed by November, 1977. In December, 1978, MATC discovered unusual rusting and staining of the Cor-Ten steel at its North Campus Center. Two architects employed by MATC, James Pauers (MATC’s Manager of Construction Services) and Lawrence Earll (a consulting architect) investigated the problem. A memorandum by MATC’s consulting architect dated February 8, 1979, stated that “[investigation has revealed that [Cor-Ten] steel of this g[au]ge can rust thru unless back painted.” The memo concluded: Review of the shop drawing draws the conclusion that it is a “poor design” of the gutter installation that is contributing to the rusting of the soffit panels. The estimated cost to correct the problems is $60,000.00. This would include the removal of all the gutters; replacing those soffit panels indicating rusting action; caulking at the joining of the soffit panel to the fascia panel; and reinstalling the gutter. Another document prepared for MATC in February, 1979, stated that the solution to the problem “is to remove all of the drip/gutters; replace defective panels, caulk at the intersection of the soffit and fascia [panels], and reinstall the drip/gutter,” and that “MATC concluded that this was a poorly designed detail.” The memo also noted that the problem with the rusting of the Cor-Ten steel was not observed at the South Campus Center. The project architects, whom MATC thought shouldered the “probable responsibility” for the problem, conducted their own investigation. In a letter dated July 3, 1979, the project architects noted, among other things, that the Cor-Ten steel needed additional weathering. Despite having notice of the unusual rusting and staining in December, 1978, MATC waited until March, 1985, to bring this action. MATC’s complaint, naming USS as the sole defendant, alleged that the Cor-Ten supplied by USS was defective, that USS knew or should have known that the Cor-Ten was subject to excessive corrosion and deterioration, that USS negligently failed to disclose that the Cor-Ten was defective, and that the defective Cor-Ten was unreasonably dangerous to MATC’s property, employees, and students. USS moved for summary judgment on the ground that MATC’s action was barred by the six-year limitation period contained in WIS.STAT.ANN. § 893.52 (West 1983). The district court granted USS's motion. II. ANALYSIS WIS.STAT.ANN. § 893.52 (West 1983) places a six-year limitations period on actions “not arising on contract, to recover damages for an injury to real or personal property_” Under § 893.52, the statute of limitations begins to run “after [a] cause of action accrues.” Thus, we must affirm the district court’s grant of summary judgment if the undisputed facts establish that MATC’s action accrued more than six years before it filed its complaint in March, 1985. In Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp., 96 Wis.2d 314, 291 N.W.2d 825 (Wis.1980), the Wisconsin Supreme Court held that under § 893.52 (then codified as WIS.STAT. § 893.19(5)): [A] cause of action accrues and the statute of limitations ... begins to run when the evidence of injury to property, resulting from the negligent act upon which the action is based, is sufficiently significant to alert the injured party to the possibility of a defect. The injury need not, however, be of such magnitude as to identify the causal factor. 96 Wis.2d at 324, 291 N.W.2d at 830 (emphasis in original) (quoting Tallmadge v. Skyline Construction, Inc., 86 Wis.2d 356, 359, 272 N.W.2d 404, 405 (Wis.Ct.App.1978)). In Wisconsin Natural Gas, the plaintiff had retained the defendant, a pipeline engineering and consulting firm, to design and supervise the installation of a 14-mile natural gas transmission pipeline. The plaintiff sued the defendant after there were a number of “casing shorts” in the pipeline. The defendant argued that the plaintiff’s cause of action was time-barred on the ground that the limitations period began to run as soon as the pipeline suffered its first “casing short.” There was evidence, however, that “casing shorts” are a regular occurrence in a pipeline and often caused by factors other than the improper installation of a pipeline. In view of this evidence, the court held that “the discovery of a single casing short, in a relatively new pipeline, is not ‘sufficiently significant’ to alert the [plaintiff] to the possibility of major defects throughout the entire 14 mile pipeline.” 96 Wis.2d at 325, 291 N.W.2d at 830-31. Instead, the court held that the plaintiff’s cause of action did not accrue “until a number of ‘casing shorts’ rendered the cathodic protection process ineffective and necessitated an extensive excavation and repair program to clear the pipeline of the shorts.” Id. Relying heavily on Wisconsin Natural Gas, the Wisconsin Supreme Court subsequently adopted the “discovery rule” for purposes of determining the accrual of all tort causes of action. See Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W. 2d 578, 583 (Wis.1983). In Hansen, the plaintiff brought suit against the manufacturer of an intrauterine device alleging that the device caused her to contract pelvic inflammatory disease. Plaintiff filed her suit within three years of the time she had been diagnosed as suffering from pelvic inflammatory disease but more than three years after she first suffered the effects of the disease. Her problem had been previously diagnosed by a doctor as gastroenteritis. The manufacturer sought to have the plaintiff’s claim dismissed as time-barred on the ground that the three-year limitations period governing plaintiff’s cause of action accrued when plaintiff first suffered injury as a result of the intrauterine device, even though plaintiff was not aware the device caused her injury until she was diagnosed as suffering from pelvic inflammatory disease. The manufacturer relied upon several Wisconsin cases holding that a negligence action accrues at the time an injury is suffered even if the plaintiff was not aware of the injury. See Rod v. Farrell, 96 Wis.2d 349, 291 N.W.2d 568 (Wis.1980) (three-year limitations period barred claim for surgery that was negligently performed in 1955 even though plaintiff did not discover injury until 1975); Peterson v. Roloff, 57 Wis.2d 1, 203 N.W.2d 699 (Wis.1973) (three-year limitations period barred action for surgery that was negligently performed in 1954 even though plaintiff did not suffer effects of negligence until 1971). The Hansen court rejected the rule enunciated in Rod and Peterson, holding instead that tort claims are not deemed to accrue until “the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” 113 Wis.2d at 560, 335 N.W.2d at 583. The court then held that plaintiffs cause of action was not time-barred because it did not accrue until plaintiff was diagnosed as suffering from pelvic inflammatory disease. The discovery rule was further explained by the Wisconsin Supreme Court in Borello v. U.S. Oil Co., 130 Wis.2d 397, 388 N.W.2d 140 (Wis.1986). In Borello, the court was asked to determine whether a personal injury action based upon the plaintiffs’ contraction of “metal fume fever” from a defective furnace was timely filed. The plaintiff in Borello had suffered from several ailments which she attributed to a newly-installed furnace. Various physicians, however, diagnosed her as suffering from conditions that had nothing to do with the furnace, such as viral infections, allergies, and psychoneurosis. Finally, a doctor diagnosed her as suffering from “metal fume fever” as a result of the defective furnace. The court in Borello held that the plaintiffs cause of action did not accrue until that diagnosis. According to the Borello court, it was “apparent from the general tenor of Hansen that this court did not, by the language ‘claims shall accrue on the date the injury is discovered,’ mean the date on which the manifestations of the injury shall first appear.” 130 Wis.2d at 408, 388 N.W.2d at 144-45. Rather, the court determined that the limitations period did not begin until the plaintiff knew the nature of her illness as diagnosed by her doctor. 130 Wis.2d at 409, 388 N.W.2d at 145. The court stated that the statute of limitations “should not commence to run until the plaintiff with due diligence knows to a reasonable probability of injury, its nature, its cause, and the identity of the allegedly responsible defendant.” 130 Wis. 2d at 420, 388 N.W.2d at 149. Here, MATC concedes that the undisputed facts established that it was aware that it suffered an “injury” related to the Cor-Ten steel more than six years before it filed suit. Nonetheless, MATC contends under Hansen and Borello it had no obligation to file its action against USS within six years of the date of the discovery of its injury because it perceived that the problem was related to “ ‘poor design’ of the gutter installation that is contributing to the rusting of the soffit panels.” It also relies upon the fact that the problem observed at the North Campus in December, 1978, was not observed at the South Campus and that, as late as July, 1979, the project architect (the same architect MATC believed to be responsible for the problem) advised MATC that the steel needed additional weathering. According to MATC, these facts establish that it did not know until after March, 1979, the nature of the injury, the cause of the injury, or the identity of the responsible party as required by Borello. We disagree. Although Borello makes clear that under the discovery rule a plaintiff must be aware of some causal connection between the injury and the defendant’s product, Bo-rello does not help MATC in the present case. Borello, like Hansen, was a personal injury case in which the plaintiff could not be deemed to be objectively aware that she had a cause of action against any party until her illness was correctly diagnosed by a physician. Moreover, Borello makes clear that the nature of the injury must be taken into account in determining whether a cause of action has accrued under the discovery rule: The rule in its full meaning, meaning consistent with Hansen, was explicated by Chief Justice Kenison of the New Hampshire Supreme Court in Arthur Raymond v. Eli Lilly and Company, 117 N.H. 164, 170-171, 371 A.2d 170 (1977): ‘One might read several discovery rule cases and conclude that the courts are applying two substantially distinct rules. In most cases, the courts frame the rule in terms of the plaintiff’s discovery of the causal relationship between his injuries and the defendant’s conduct. In some cases ... a court will simply state that, under the discovery rule, a cause of action accrues when the plaintiff discovers or should have discovered his injury. Some other courts use both statements of the rule within the same case. The reason for these apparent differences is that most cases in which the court states the rule in terms of the discovery of the injury, the injury is the kind that puts the plaintiff on notice that his rights have been violated. Thus, there is no reason for the court to express the rule in terms of the discovery of the causal connection between the harm and the defendant’s conduct. In a case such as the one before us, in which the injury and the discovery of the causal relationship do not occur simultaneously, it is important to articulate exactly what the discovery rule means. We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of the courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.’ 130 Wis.2d at 409-410, 388 N.W.2d at 145. In the present case, MATC was put on notice of a problem related to the Cor-Ten steel and its possible connection with USS more than six years before it filed its complaint. The facts in the record establish that MATC knew in December, 1978, that there was unusual rusting and staining of the Cor-Ten steel. These facts alone were certainly sufficient to put MATC on notice that its rights had been violated and that the problem was probably caused by either defective design, defective Cor-Ten steel supplied by USS, or some combination of defective design and defective steel. It does not take a specialist to conclude that, once the problem with the rusting of the Cor-Ten steel was discovered, a significant possibility exists that the problem may be with the steel itself. Cf. Holy Family Catholic Congregation v. Stubenrauch Associates, Inc., 136 Wis.2d 515, 402 N.W. 2d 382 (Wis.Ct.App.1987) (stating that plaintiff’s cause of action against defendants for a defectively constructed roof accrued under discovery rule when plaintiff became aware of leaks in roof). In any event, MATC clearly had such notice by February, 1979. In February, 1979, its consulting architects noted that: “[Cor-Ten] steel of this [gauge] can rust thru unless back painted”; that “ ‘poor design’ of the gutter installation ... is contributing to the rusting ...”; and, that “[t]he solution is to remove all the drip/gutters; caulk at the intersection of the soffit and fascia, and reinstall the drip/gutter.” (Emphasis added.) From that point in time, at the latest, MATC had six years to investigate fully and to determine to its own satisfaction which particular entity or entities it sought to hold accountable. Furthermore, the fact that the unusual rusting and staining were not observed at the south or west building sites before March, 1979, does not alter the fact that plaintiff was put on notice of the possibility of a defect with all the Cor-Ten supplied by USS. The specifications for Cor-Ten used in all three buildings were nearly identical and the buildings were all constructed during the same general time period. In fact, the South Campus Center was “substantially completed” within two weeks of the “substantial completion” of the North Campus Center. Once MATC had notice of the possibility of a significant defect in the Cor-Ten steel itself, it follows that a reasonable person should have been aware of the fact that all the Cor-Ten supplied for all the projects might be defective. In short, the limitations period does not begin to run until there is some notice of the injury and of a causal connection between the injury and the defendant, but once there is such notice, Borello does not allow a party to extend the limitations period by its own protracted elimination of potential defendants. As the district court pointed out, MATC essentially argues that it should be able to delay the accrual of its cause of action at its own whim. Even now, USS vigorously denies that the Cor-Ten is defective. Under plaintiffs subjective theory, until the exact defect (if any) or the allegedly responsible defendant is determined to its own subjective satisfaction, the statute does not begin to run. As Hansen makes clear, however, the discovery rule is an objective standard that does not protect those plaintiffs who sleep on their rights. See Hansen, 113 Wis.2d at 559, 335 N.W.2d at 582. The decision of the district court is Affirmed. . The United States Steel Corporation is now named USS, a Division of USX. . WIS.STAT.ANN. § 893.52 (West 1983) provides: Action for damages for injury to property An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed. . Before moving for summary judgment on limitations grounds, USS moved for summary judgment on the ground that the six-year statute of repose contained in WIS.STAT.ANN. § 893.89 (West 1983) barred MATC’s action. The district court denied this motion. USS contends on appeal that even if the district court incorrectly granted summary judgment under § 893.52, we should nonetheless affirm the district court because the undisputed material facts show that it is entitled to judgment as a matter of law under § 893.89. Because we affirm the district court’s grant of summary judgment on the limitations issue, we need not reach this possible alternative ground of affirmance. . MATC argues that the Wisconsin Court of Appeals’ decision in Holy Family should be disregarded because it is inconsistent with the Wisconsin Supreme Court’s decision in Borello. MATC claims that the standard applied in Holy Family is inconsistent with Borello because it stated that plaintiffs need not be aware of the "specific causal factor of the injury.” Assuming arguendo that the standard applied in Holy Family is inconsistent with Borello, its strict holding is not. As discussed earlier, Borello makes clear that the nature of the injury must be taken into account. Unlike an internal physical injury, a leaking roof or unusual rusting in steel will certainly put a plaintiff on notice that it has suffered an injury and of the identity of the allegedly responsible defendant. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_prejud	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid defendant)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". John W. RUSSO, Plaintiff-Appellee, v. MATSON NAVIGATION COMPANY, a corporation, Defendant-Appellant. No. 71-3057. United States Court of Appeals, Ninth Circuit. Oct. 29, 1973. Leon A. Pinney (argued), John S. Matthew, of Sikes, Pinney & Matthew, North Hollywood, Cal., for defendant-appellant. Joel N. Elevens (argued), George E. Bodle, Daniel Fogel, Eric Julber, of Bo-dle, Fogel, Julber, Reinhardt & Rothschild, Los Angeles, Cal., for plaintiff-appellee. Before HUFSTEDLER and WRIGHT, Circuit Judges, and RENFREW, District Judge. Of the Northern District of California. OPINION PER CURIAM: Defendant Matson Navigation Company appeals from a judgment on a jury verdict in favor of plaintiff seaman in the amount of $40,000. The sole issue on appeal is whether the district court correctly refused to set off against the award disability pension benefits being paid to plaintiff. We affirm the judgment. Russo, a seaman employed by Matson, was injured aboard Matson’s vessel “Pacific Trader.” He brought suit under the Jones Act [46 U.S.C. § 688 (1970)] and general maritime law, and received a verdict for $40,000. Russo receives $300 a month as a disability retirement pension pursuant to an agreement between the Pacific Maritime Association, to which Matson belongs, and plaintiff’s union, the Seafarer’s International Union of North America, Pacific District. Matson sought to introduce evidence of the pension benefits, but the court refused to allow it, ruling that whether a setoff is allowable is a matter of law for the court’s determination, and not a question for the jury. After verdict, the court entered judgment thereon without the requested setoff. Matson contends that setoff of the pension benefits is proper under Section 5 of the Federal Employers’ Liability Act [45 U.S.C. § 55], and in light of a general rule of law that a tortfeasor need not pay twice for the same damages. Section 5 of the FELA is incorporated in the Jones Act by 46 U.S.C. § 688. Section 5 provides: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” [Emphasis added.] Matson contends that, because it contributes to the fund from which plaintiff’s benefits are paid, and because they are paid “on account of the injury,” set-off of these benefits against the award is proper under Section 5. A denial of setoff, Matson contends, forces it to pay twice for the same injury. Clearly, the statute does not provide for a setoff of “benefits received,” but rather for a setoff of “any sum . contributed.” Therefore, any setoff to which Matson might be entitled must be limited to the amount it has contributed to the pension plan. Matson claims, however, that this amount is far in excess of the benefits being received by Russo. Generally, a tortfeasor need not pay twice for the damage caused, but he should not be allowed to set off compensation from a “collateral source” against the amount he owes on account of his tort. “[T]he broad rule seems to be that where the plaintiff receives from the tortfeasor payments specifically to compensate him for his injury, the tortfeasor need not pay twice for the same damage, and therefore such compensation payments should be taken into account in fixing tort damages. [Citations] On the other hand, where the injured plaintiff’s compensation comes from a ‘collateral source,’ it should not be offset against the sum awarded for the tort nor considered in determining that award.” United States v. Price, 288 F.2d 448, 449 (4th Cir. 1961); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). The issue, then, is whether the pension benefits come from a “collateral source,” or directly from Matson as compensation for Russo’s injury. In analyzing this issue, it is well established that courts should look at “the purpose and nature of the fund and of the payments,” and not merely at their source. Gypsum Carrier, Inc. v. Handelsman, supra at 534 n.31, and cases cited therein. Two courts in other jurisdictions have recently considered almost the precise issue with which we are confronted. Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972), virtually indistinguishable from this case, held that, in computing damages payable to a seaman who was injured aboard ship, it was improper to consider the seaman’s maritime pension in mitigation of damages. The court found that, although all money in the retirement fund was contributed by the employer, the fund was established as the result of a contract between the employer and the union and was in the nature of a fringe benefit or deferred compensation. In other words, the pension was a term of employment rather than an attempt by the employer to indemnify itself against liability. The court in Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92 (D. Minn.1971), reached a similar conclusion. The court considered a railroad’s claim that certain insurance benefits should be set off in light of Section 5 of the FELA, since the carrier paid the insurance premiums. The court concluded that Section 5 does not permit setoff of amounts that are in effect part of an employee’s income and are paid without regard to liability on the part of the employer. “On the basis of the foregoing, the court concludes that where the insurance policy is one of general hospital and medical coverage upon which the insured may make claim without regard to liability on the part of the employer, such ' a policy is a fringe benefit maintained by the employer and is in effect part of the employee’s income for services rendered, and the collateral source rule prohibits set-off of premiums paid or benefits received thereunder by the employee. In this court’s opinion Section 5’s express set-off proviso was not intended and does not permit set-off of amounts ‘paid’ or ‘contributed’ by the employer to a policy of such general coverage pursuant to a collective bargaining contract.” Id. at 97. In light of Haughton and Hall, plaintiff’s pension benefits are not, for purposes of Section 5, received “on account of his injury,” but rather as a fringe benefit of his employment. This benefit is the result of a contractual agreement between plaintiff’s union and the association to which Matson belongs. Under the pension agreement, the employee’s retirement, the length of his service, and the extent of his disability are all crucial to his eligibility for benefits. Eligibility is not dependent, however, on disability occurring in the course of employment or as the result of an employer’s negligence. A disabled employee receives no pension unless he has worked a minimum of 10 years, has been permanently and totally disabled, and has retired from sea duty. It is unnecessary that an injury cause the disability; an illness suffices. Once the employee is eligible for a pension, the amount increases with the length of employment. Thus, looking at the nature and purpose of the pension plan agreement, it is clear that benefits paid from it are “collateral” to Matson’s obligation to pay for its wrongdoing. In summary, Matson does not bear a double burden in this case if no setoff is allowed. Pension benefits paid from the fund to which Matson contributes are one form of compensation for plaintiff’s employment. The $40,000 judgment against Matson is the sole burden that it must bear directly as a result of its negligence. “This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). Affirmed. . This is to be distinguished from benefits received under a limited employer indemnity insurance policy, which might be appropriately set off. “Where the insurance is written to cover only those injuries incurred on the job for which the employer might be liable by statute or common law, it is solely for the benefit of the employer and cannot be characterized as a fringe benefit given employees in partial consideration for their labors. See, e. g., Thomas v. Humble Oil & Refining Co., 420 F.2d 793 (4th Cir. 1970) . . . " Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92, 96-97 (D.Minn.1971) ; Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972). Question: Was there prejudicial conduct by prosecution? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_usc1	18	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. UNITED STATES of America v. Maurice S. OSSER, Appellant. No. 87-1635. United States Court of Appeals, Third Circuit. Argued Oct. 31, 1988. Decided Dec. 29, 1988. Rehearing and Rehearing In Banc Denied Jan. 24, 1989. Jeremy T. Ross (argued), Neil E. Jokel-son, Philadelphia, Pa., for appellant. Frederick G. Herold (argued), Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Philadelphia, Pa., for appellee. Before GIBBONS, Chief Judge, BECKER and WEIS, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. Fifteen years after this petitioner was convicted of mail fraud, the Supreme Court held that the governing statute does not permit prosecution solely on the theory that a governmental official’s wrongful conduct deprived the citizenry of his honest services. Petitioner then asked the district court to vacate his conviction in light of the Court’s holding but was denied relief because he had failed to raise the issue on direct appeal. In addition, the district judge noted that the jury had been charged that it also could convict if it found that the kickbacks petitioner received had caused economic loss to the municipality that had employed him. We will affirm. In 1972, petitioner Maurice Osser, a City Commissioner of Philadelphia, was convicted on seven counts of mail fraud, 18 U.S.C. §§ 1341, 2, one count of conspiracy to commit mail fraud, 18 U.S.C. § 371, and one count of obstruction of justice, 18 U.S.C. § 1510. The court imposed sentences of imprisonment and fines on the mail fraud counts, a concurrent sentence of imprisonment on the conspiracy count, along with a fine, and a consecutive prison sentence and fine on the obstruction of justice charge. The judgments were affirmed by this Court on direct appeal. United States v. Osser, 483 F.2d 727 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973). Osser served his periods of incarceration and probation and has paid the fines. In 1987, the Supreme Court decided in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), that the federal mail fraud statute did not reach schemes to deny the public its right to have governmental officials perform their duties honestly and impartially. “The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government.” Id. at -, 107 S.Ct. at 2879. In so deciding, the Court itself acknowledged that the Courts of Appeals had consistently interpreted the statute as proscribing schemes to defraud persons of their intangible rights. Id. at -, 107 S.Ct. at 2880. Armed with the McNally decision, Osser sought to vacate his conviction by petitioning for a writ of coram nobis from the same district judge who presided at his 1972 trial. Osser asserted that the jury had been erroneously charged that it could convict if the government proved that “the citizens of Philadelphia were defrauded out of the loyal and faithful services of an employee” and that it need not “show an actual monetary loss to the City.” Arguing that the jury instructions invalidated his conviction, Osser contended that relief was due because he suffers collateral adverse consequences flowing from his conviction — possible impeachment as a witness, enhanced penalties for future convictions, and the denial of his city pension. In reviewing the underlying conviction, the district court characterized the scheme as “a classic ‘bid rigging’ and ‘kick-back’ ” arrangement in which two printing companies submitted collusive bids on the city’s requests, ensuring that each firm would get certain contracts. In operation for fifteen years, the printers’ secret agreement prevented actual competitive bidding. Os-ser, by virtue of his position as City Commissioner, was able to influence the selection of printing firms and, for his part in the annual scheme, received “commissions.” The trial record revealed that the jurors had been instructed on four separate postulates that could lead to a conviction for mail fraud. One possibility was that the city had been defrauded of money in the form of “commissions” or kickbacks that Osser received; another was that the citizens of Philadelphia had been deprived of Osser's honest and impartial services. In denying Osser’s petition, the district court observed that McNally proscribed only one of the two separate theories on which the mail fraud counts had been submitted to the jury; a conviction based on a monetary loss approach would still be valid. The court also noted that portions of the record were no longer available, that Osser had not raised the intangible rights issue either at trial or on direct appeal, and that he was not seeking to vacate the obstruction of justice conviction. Although the prosecution had presented “overwhelming evidence” to establish Osser’s guilt in the 1972 trial, it was doubtful that, fifteen years later, the government would be able to present sufficient proof to allow the case to go to a jury. The district court observed that, in these circumstances, granting a new trial would create a “manifest injustice to the City of Philadelphia and its citizens.” On appeal, Osser argues that McNally is to be given retroactive effect and that because the issue of guilt was submitted to the jury on two theories, one of which was invalid, the conviction must be vacated. The government contends that the scheme established at trial had the inevitable result of causing property loss to the city, and hence, McNally does not affect the validity of the conviction. In addition, the government asserts that, because Osser had not previously contested the intangible rights theory, he is not now entitled to coram nobis relief. I. The retroactivity of Supreme Court holdings in criminal cases has proved to be a troubling concept, particularly as applied to procedural rulings and prophylactic measures. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). McNally is of a different nature because it holds that certain misconduct does not fall within the proscription of the mail fraud statute and thus the decision goes to substance rather than procedure. A ruling that a trial court lacked power to convict a defendant for proven activity must necessarily be retroactive. The Supreme Court stated in United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 1046, 28 L.Ed.2d 434 (1971), that “even the use of impeccable factfinding procedures could not legitimate a verdict” where “we have held that the conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complete retroactivity.” It follows that retroactivity must be given to McNally’s holding that a scheme depriving the citizenry of honest services of its local officials was, without more, not prohibited by the mail fraud act. United States v. Shelton, 848 F.2d 1485, 1490 (10th Cir.1988) (en banc) (habeas corpus proceeding). See Davis v. U.S., 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974) (collateral attack allowed on basis of intervening change in substantive law). The Court has also determined that a verdict of guilty based arguably on alternative premises, one of which is erroneous, cannot stand on direct appeal where it is impossible to ascertain on which ground the defendant was convicted. Chiarella v. United States, 445 U.S. 222, 237 n. 21, 100 S.Ct. 1108, 1119 n. 21, 63 L.Ed.2d 348 (1980); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). See United States v. Dansker, 537 F.2d 40, 51 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). These general principles, however, are not dispositive of the issues present in the case at hand. Even though McNally is retroactive, it does not always require the vacation of a mail fraud conviction tinged with intangible rights aspects. II. Osser seeks relief through the cor-am nobis route, a remedy reserved for exceptional circumstances. Coram nobis was available at common law in both the civil and criminal fields to correct errors of fact unknown to the court at time of the original judgment. Later, the writ was used to correct errors of law in criminal cases. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). See generally Note, The Writ of Error Coram No-bis in Civil Practice, 20 Va.L.Rev. 423 (1933). The All Writs Act, 28 U.S.C. § 1651(a), incorporated coram nobis into federal practice. Citing its earlier opinion in United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129 (1914), the Supreme Court in Morgan cautioned that coram nobis relief is limited to correct errors “of the most fundamental character.” Morgan, 346 U.S. at 512, 74 S.Ct. at 253. “Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. at 252. We reiterated this point in United States v. Cariola, 323 F.2d 180, 184 (3d Cir.1963), stating, “[a]ny proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise_ Relief will be granted only when circumstances compel such action ‘to achieve justice.’ ” Consequently, the right to issuance of the writ is more restricted than that provided by direct appeal. United States v. Gross, 614 F.2d 365, 368 (3d Cir.) (per curiam), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980). Nevertheless, it appears to us that an assertion that a conviction was based on conduct not covered by a criminal statute class is of a “fundamental character.” See Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). Even so, other factors must be taken into account. The interest in finality of judgments is a weighty one that may not be casually disregarded. Where sentences have been served, the finality concept is of an overriding nature, more so than in other forms of collateral review such as habeas corpus, where a continuance of confinement could be manifestly unjust. Morgan indicated that coram nobis relief is not available if a sentence has been executed unless the conviction carries continuing penalties. Morgan, 346 U.S. at 512-13, 74 S.Ct. at 253. The collateral consequences that must exist to justify coram nobis have been the subject of some discussion among the Courts of Appeals. For example, we noted in Carióla that the denial of the right to vote or the subsequent imposition of a sentence heavier than would otherwise have been appropriate represents a collateral legal disadvantage that survives the satisfaction of a sentence. Cariola, 323 F.2d at 182. In United States v. Keane, 852 F.2d 199, 203 (7th Cir.1988), the Court of Appeals stated that the collateral consequences must be unique to criminal convictions, for example, the loss of a license to practice law, or of the right to bear arms. However, the Court viewed a fine that had been paid as equivalent in reality to a money judgment in a civil case and, hence, not sufficient to sustain a coram nobis action. Damage to reputation is not enough. However, in Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir.1987), the Court seemed to adopt a presumption that “collateral consequences flow from any criminal conviction.” In that case, the Court found the requirement was satisfied even on a misdemeanor. Osser alleges that his mail fraud conviction has resulted in the denial of a pension from the City of Philadelphia but that the conviction for obstruction of justice has no such effect. We admit to some uncertainty that Osser has established the requisite showing of collateral consequences but the record on this issue is almost nonexistent and the government has conceded the point for purposes of the appeal. We are not completely satisfied that the prerequisites for coram nobis may be established by prosecutorial concession in this fashion. See Mayer, 235 U.S. at 70, 35 S.Ct. at 20. However, in view of the result we reach here, we will assume, without deciding, that Osser has established the loss of a pension and that it is a cognizable collateral consequence. There is, moreover, another factor that poses serious problems here. The gravamen of Osser’s complaint is that the trial judge’s instructions to the jury were incorrect in offering as an alternative ground for conviction a theory that was later invalidated by McNally. Yet as the government argues, Osser did not raise that point at trial nor on direct appeal. Relief is no more readily granted in a collateral attack by habeas corpus than one using coram nobis. Indeed, the jurisdictional basis of habeas corpus is that the petitioner be “in custody,” 28 U.S.C. § 2255, and the natural solicitude of the law to end expeditiously an unjust incarceration exerts a perhaps unacknowledged pressure for expansive review. In a coram nobis case, by contrast, where sentence has been served and nothing remains but some financial detriment, judicial incentive to excuse compliance with procedural prerequisites is of a lower order. That is not to say, however, that substantial judicial constraints have not been observed in habeas corpus cases. In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the habeas corpus petitioner had failed to object to an allegedly faulty jury charge at trial and did not raise the issue on direct appeal. The Supreme Court refused to apply the “plain error” standard of Federal Rule of Criminal Procedure 52(b), stating that it was “out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” Id. at 164, 102 S.Ct. at 1592. Reaffirming the consistently held rule that “[a] collateral challenge may not do service for an appeal,” the Court continued, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. at 165, 102 S.Ct. at 1593 (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979)). Similarly, in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Court denied habeas corpus relief where the petitioners had failed to take direct appeals from their convictions. The Court rejected the petitioners’ contention that appeals would have been futile, commenting that the situation was one “where at the time of the convictions the definitive ruling on the question of law had not crystallized.” Id. at 181, 67 S.Ct. at 1592. Allowing collateral attacks in these situations would be inappropriate; the Court noted: “If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.” Id. at 182, 67 S.Ct. at 1593. Osser cites United States v. Travers, 514 F.2d 1171 (2d Cir.1974), where the Court of Appeals directed coram nobis relief for a petitioner whose direct appeal was based on an issue that the Supreme Court resolved in a contrary manner in a later case. Because the petitioner had properly exhausted the appellate process, he was entitled to the writ, and the Court “le[ft] to another day the determination of the proper result when less has been done.” Id. at 1177. Osser also cites Ingber v. Enzor, 841 F.2d 450 (2d Cir.1988), where habeas corpus relief was granted on a pre-McNally mail fraud conviction. That case, however, is substantially different from the one at hand. In Ingber, the trial took place in 1986. The Court of Appeals pointed out that by that time virtually every appellate decision for a decade had concluded that a scheme aimed at the deprivation of honest government came within the scope of the mail fraud statute, thus representing “entrenched precedent.” In those circumstances, the Court held that to fault petitioner for failure to appeal on that ground would encourage appeals on even well settled law. See also Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984) (habeas petitioner has cause for not raising an issue if there was no “reasonable basis upon which to develop [the] legal theory” and where subsequent Supreme Court decision overturned “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”). Osser’s case is quite different. In 1972 when his trial took place and in 1973 when he appealed, deprivation of honest services as a basis for mail fraud was an open question in this circuit and nationally as well. It was not until 1982 in United States v. Boffa, 688 F.2d 919, 926 (3d Cir. 1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), that this Court adopted that interpretation of the statute. At the time of the Osser trial there was no “entrenched precedent” in this circuit or elsewhere in the United States. Whether the statute covered such conduct presented a live question, and was hotly contested by the defense in United States v. States, 488 F.2d 761 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). Indeed, in that case the concurring judge was “reluctant” and voiced some doubt that Congress had intended such a sweeping view of the statute. By no means can it be said that an appeal on this point in 1973 would have been futile. Just as the Ingber case points up the weakness in Osser’s argument, so does United States v. Sams, 521 F.2d 421 (3d Cir.1975), on which he also relies. There, we reversed the district court’s denial of coram nobis relief eleven years after the defendant had pleaded guilty to charges of failing to pay a federal wagering tax. In the interim, the Supreme Court had held that prosecution for violation of that statute encroached on the Fifth Amendment privilege against self incrimination. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Deciding that the guilty plea did not act as a waiver, we determined there was no longer a governmental interest in punishing the offender. Moreover, “[v]acating the plea ... does not present the United States with the arduous task of attempting, years after the trial would originally have taken place, to piece together a case for the prosecution.” Sams, 521 F.2d at 426. In the case presently before us, the district judge noted the difficulty the government would face were it required to go forward with a new trial. Parts of the record are missing, witnesses may well be unavailable, and the lapse of fifteen years cannot but provide great difficulty. And in contrast to the Sams case, the remedy here would not be a vacation of the conviction but a new trial to correct an erroneous instruction so that the jury might pass on charges of criminal conduct not affected by McNally. The argument for denying relief because the disputed question was waived by failing to appeal is much stronger here than in Travers, Ingber, and Sams. In our view, this case falls within the teachings of Frady and Sunal, and on that basis, the district court properly denied the writ. The issue that Osser brings at this late date should have been included in his direct appeal; to now excuse his failure to exhaust direct appellate procedures would disproportionately harm the prosecution. III. Affirmance is also compelled by United States v. Asher, 854 F.2d 1483 (3d Cir.1988), in which McNally was urged on direct appeal as a ground for reversal of a mail fraud conviction. That case, like this one, also involved wrongdoing in the awarding of governmental contracts. After a review of the facts and gost-McNally authority in other Courts of Appeals, we were “satisfied that the government in the instant case could not have proved a violation of intangible rights without simultaneously proving that the Commonwealth of Pennsylvania was deprived of money as the result of the no-bid contract awarded to CTA.” Id. at 1496. In Asher, the jury had been charged, as in Osser’s trial, that either monetary loss or the deprivation of the right to honest government would support a conviction. We determined that the Asher jury “could not have found a fraudulent scheme that consisted solely of depriving the citizens of their right to honest government that did not also involve tangible losses by Pennsylvania.” Id. The instructions in Asher and the present case differ from those in United States v. Piccolo, 835 F.2d 517 (3d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). There, the trial judge charged that the jury could find the defendant’s scheme had deprived his employer of money “and” of honest and faithful services. Because the instruction was in the conjunctive rather than the disjunctive, the conviction was affirmed; the jurors could not have found guilt unless they had found that an object of the scheme was to obtain property from the victim. This Court adopted reasoning similar to Asher in an earlier case, United States v. Catena, 500 F.2d 1319 (3d Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 641 (1974). There, on appeal the defendant argued for the first time that the charge permitted the jury to convict on findings which, in themselves, would not constitute a violation of the statute. In rejecting that contention, we found “it ‘inconceivable’ that the error in the charge affected the outcome of the jury deliberations.” Id. at 1325. The Catena opinion cited Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The defendants in that case were convicted of conspiring to cast fictitious votes for federal, state, and local candidates in a primary election. On appeal, the defendants argued for the first time that the statute was limited to conspiracies to cast false votes in federal, not local elections. The Supreme Court held that jury instructions not limited to federal candidates did not require reversal. The Court stated, “Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.” Id. at 228, 94 S.Ct. at 2264. We have carefully reviewed the factual basis for Osser’s conviction. The net result of the bid rigging was to deprive the City of Philadelphia of substantial sums of money over a period of years. That this is so is demonstrated conclusively in 1968 when the bid rigging scheme was suspended. During that year, one of the printing companies submitted a competitive bid 17% lower than that of the other firm the year before. The other printer then placed a bid 45% lower than its preceding one. The next year, the scheme was reinstated and the contract price came in 40% higher. Unquestionably, the arrangement worked out by Osser resulted in a substantial monetary detriment to the City, and no rational juror could conclude otherwise. See United States v. Perholtz, 836 F.2d 554, 560 (D.C.Cir.) (per curiam), cert. denied, — U.S. —, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). Once having found that Os-ser had participated in the bid rigging, the jury could not escape finding financial loss as part of the scheme. On that basis, therefore, McNally does not apply here. Here, the trial judge specifically instructed the jury that Osser’s receipt of secret payments could constitute an offense under the indictment. The court charged that if Osser had participated in a scheme to receive commissions as a result of his position with the City, “such commissions would have been due and owing to the City of Philadelphia” and he could be found guilty of “a scheme devised to defraud the City of Philadelphia out of secret commissions and moneys.” This charge was consistent with Pennsylvania law as set out in Kribbs v. Jackson, 387 Pa. 611, 619, 129 A.2d 490, 494 (1957), where the State Supreme Court determined: “All profits made and advantage gained by the agent in the execution of the agency belong to the principal. And it matters not whether such profit or advantage be the result of the performance or of the violation of the duty of the agent.... [I]f profit accrues from his violation of duty, that likewise belongs to the principal ... because the agent cannot be permitted to derive advantage from his own default.” We do not overlook Osser’s argument that in United States v. Zauber, 857 F.2d 137 (3d Cir.1988), this Court—on a direct appeal—explicitly disavowed the “constructive trust” theory as a basis for conviction under the mail fraud statute. However, Zauber must be read carefully. In that case, the indictment and the charge to the jury were focused solely on the deprivation of the employee’s honest services by the receipt of kickbacks. There was no evidence of property loss nor was the jury asked to consider whether the taking of kickbacks constituted a monetary loss to the victimized pension fund. Indeed, the trial court instructed the jury that “it is absolutely irrelevant whether or not there was any loss in pension benefits, as well as whether or not the pension fund is presently financially strong.” Id. at 145. The Court of Appeals for the Seventh Circuit in United States v. Holzer, 840 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988), also found the constructive trust theory inapplicable where a county judge accepted bribes from attorneys. Zauber and Holzer are thus similar to McNally in that no effort was made by the prosecution to show property loss growing out of illegal activity. Unlike the Zauber, Holzer, and McNally trials, the jury in this case was charged explicitly that it could find financial detriment to the City as a result of the kickbacks and commissions received by Osser. Thus, the trial court did not rely on a constructive trust doctrine as explicated in Zauber and Holzer. Osser’s conviction can be properly aligned with those post-McNally decisions where Courts of Appeals have held that a charge and evidence of monetary or property loss will sustain a conviction for mail fraud, even if the intangible rights theory was presented as an alternative basis for conviction. E.g., United States v. Bonansinga, 855 F.2d 476 (7th Cir.1988); Perholtz, 836 F.2d 554; United States v. Richerson, 833 F.2d 1147 (5th Cir.1987) (conspiracy to commit mail fraud); United States v. Wellman, 830 F.2d 1453 (7th Cir.1987). We are aware that some courts have vacated convictions on the authority of McNally in cases where the jury was charged on the intangible rights theory as the basis for conviction. E.g., United States v. Shelton, 848 F.2d 1485 (10th Cir.1988) (en banc); United States v. Ochs, 842 F.2d 515 (1st Cir.1988); Holzer, 840 F.2d 1343. Such decisions are not controlling here. Ochs was decided on direct appeal and the court did not charge on the municipality’s entitlement to the kickback moneys. Similarly, in Shelton, a habeas corpus case, “[t]he Government did not charge that the counties lost money because of the kickbacks.” Shelton, 848 F.2d at 1491. In Holzer, the court pointed out that “the state’s financial situation is the same whether [the defendant] takes bribes or doesn’t take bribes_ This is an intangible-rights case and only an intangible-rights case.” Holzer, 840 F.2d at 1348. In contrast, Osser pocketed moneys growing out of the city’s legitimate activity in contracting for services, and in these circumstances — unlike McNally — the scheme increased the cost of the services to the municipality. Osser is not entitled to coram nobis relief. The judgment of the district court will be affirmed. . The judge read to the jury the relevant portion of the indictment, which charged that Osser “devised and intended to devise a scheme and artifice to defraud: "a. The City of Philadelphia and its citizens of their right to the conscientious, loyal, faithful, disinterested and unbiased services, decisions, actions, and performance of official ’ duties of Maurice S. Osser in his capacity as City Commissioner of Philadelphia: "b. The City of Philadelphia and its citizens of their right to have the City’s business and its affairs conducted honestly, impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, and conflict of interests; "c. The City of Philadelphia out of secret monies obtained by Maurice S. Osser in the performance of his official duties as City Commissioner of the City of Philadelphia: "d. The City of Philadelphia and its citizens of their right to have contracts for the printing of election ballots and material for the City Commissioners and the contacts for printing the official documents of City Council bid upon and awarded by free and competitive bids, without fraud and collusion.” . Congress has since amended the mail fraud statute by adding, "the term ‘scheme or artifice to defraud’ includes the scheme or artifice to deprive another of the intangible right of honest services.” Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7603, 102 Stat. 4181, 4508 (1988) (to be codified at 18 U.S.C. § 1346). . We need not, and do not, decide here that the possibility of heavier punishment in the event of a conviction in the future may be a cognizable collateral consequence. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_appel2_7_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). ASHER v. RUPPA. No. 9747. United States Court of Appeals Seventh Circuit. Feb. 8, 1949. Rebearing Denied March 25, 1949. Meyer Abrams, of Chicago, 111. (Shul-man, Shulman & Abrams, of Chicago, 111., of counsel), for appellant. William B. Rubin, Myron L. Gordon and Joseph P. Brazy, all of Milwaukee, Wis., for appellee. Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge. KERNER, Circuit Judge. Plaintiffs have appealed from an order dismissing their complaint upon the ground that it did not state a claim upon which relief could be granted. Before proceeding to discuss the merits of this appeal, we pause to consider the claim of Derzon, that the order dismissing the complaint for failure to state a claim upon which relief could be granted is not a final order; in other words, the jurisdiction of this court is questioned on the ground that the order is not one from which an appeal will lie. With this view we are unable to agree. A judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Milton v. United States, 5 Cir., 120 F.2d 794, and Karl Kiefer Mach. Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469. True it is, that where a motion to dismiss a complaint is sustained and the complaint is dismissed, and the plaintiff does not desire to amend, he should announce his election to stand on his complaint, let a final judgment be entered dismissing the action, and then appeal from that judgment. But in our case, as in Crutcher v. Joyce, 10 Cir., 134 F.2d 809, it is clear that the court completely determined plaintiffs had no right of action against defendants, and that by the order dismissing the complaint the court intended to and did terminate the litigation, and that plaintiffs, by appealing, elected to stand on their complaint; hence we think the order is appealable. See also Johnson v. Horton, 9 Cir., 63 F.2d 950. In support of the order defendants contend that (1) there is no consideration to support the agreement; (2) the contract upon which the action is based is indefinite; and (3) the contract is against public policy. The complaint shows affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It appears that plaintiffs and defendants were stockholders of Bismarck Hotel Company, an Illinois corporation, and that while defendants were engaged in a controversy with the management of the hotel company they solicited plaintiffs for their proxies — to be voted in favor of the person nominated by defendants as a director, and that in consideration for the execution and delivery of plaintiffs’ proxies defendants promised and agreed that plaintiffs would share in all of the benefits which defendants might derive as a result of the election. Pursuant to this agreement, plaintiffs gave their proxies to their 760 shares to defendants, and defendants informed plaintiffs that defendant Der-zon had been elected as a director of the corporation. Thereafter, without the knowledge or consent of plaintiffs, defendants entered into a secret deal with Bismarck and its officers to settle all controversies in consideration of the sale to them by defendants of all the stock defendants had voted at the meeting at which Derzon was elected director, for which defendants received a sum greatly above the market price but which did not include plaintiffs’ 760 shares, and instead of including in the sale the stock of plaintiffs, defendants purchased stock in the market greatly below the amount of the sale price to Bismarck. Plaintiffs are not required to plead all their evidence, and under the rules of civil procedure there is no pleading requirement of stating facts sufficient to constitute a cause of action; indeed, the only requirement is that there be “a short and plain statement of the claim showing that the pleader is entitled to relief”. Federal Rules of.Civil Procedure, rule 8(a), 28 U.S. C.A. The law is now settled that upon mo- tions to dismiss a complaint on the ground that it does not state a claim upon which relief can be granted, the complaint should be construed in the light most favorable to the plaintiff, with all doubts resolved in his favor and the allegations accepted as true. Cool v. International Shoe Co., 8 Cir., 142 F.2d 318. And if, in view of what is alleged, it reasonably can be conceived that plaintiff can upon the trial make a case which would entitle him to some relief, the complaint should not be dismissed. Montgomery Ward & Co. v. Langer, 8 Cir., 168 F.2d 182, 185; Cool v. International Shoe Co., supra, 142 F.2d at page 320; and Carroll v. Morrison Hotel Corp., 7 Cir., 149 F. 2d 404. As to the first contention, there can' be no doubt that the execution and delivery of the proxies was consideration for defendants’ promise that plaintiffs would share in all of the benefits which defendants would derive as a result of the election of Derzon as a director of Bismarck. As to defendants’ second contention, that the contract is indefinite, it will be enough to say that a contract need not contain the details of every fact to which the parties are agreeing. A contract is not indefinite merely because it may be difficult to construe. If the phrases can be made .certain by proof, that is sufficient. Southwest Pipe Line v. Empire National Gas Co., 8 Cir., 33 F.2d 248, 64 A.L.R. 1229, and British-American Oil Producing Co. v. Buffington, 5 Cir., 116 F.2d 363. Finally, defendants contend that if the contract be construed as one by which Bismarck was to be forced to purchase all of the shares to be voted by defendants at an over price, the agreement must be deemed illegal and against public policy. A quick answer is that such an agreement is not involved or alleged in this case. In entering into the contract here involved, plaintiffs did nothing unlawful, and the contract did not become illegal by any agreement that defendants might have made thereafter without plaintiffs’ knowledge and consent. 12 Am.Jur. pp. 718, 728. Here, plaintiffs agreed that they would give defendants the proxies in consideration of sharing whatever benefits defendants might receive. Such a contract is not inherently illegal. What might be shown upon the trial of the merits, we have no way of telling. It is clear that defendants agreed that plaintiffs would share in all of the benefits which might be available as a result of Derzon’s election as a director; that defendants entered into a contract by which Bismarck agreed to purchase all of the shares which had been voted by defendants at the meeting of the Bismarck stockholders, including plaintiffs’ 760 shares; and that defendants, in violation of the purchase agreement, excluded plaintiffs’ shares from the sale. In this situation, keeping in mind the legal principles already mentioned, we think the motion to dismiss should have been overruled. One other matter requires brief mention. It appears that the court, in view of the order dismissing the complaint, sustained objections to interrogatories propounded to defendants. Plaintiffs on this appeal ask that the defendants be ordered to answer the interrogatories. Since we have concluded that the order of the court dismissing the complaint must be reversed, we think the question whether or not defendants shall be ordered to answer the interrogatories ought to be left to the District Court. The order of the District Court is reversed, and the case is remanded to proceed in accordance with this opinion. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". McDONNEL v. UNITED STATES. No. 9070. United States Court of Appeals District of Columbia. Argued April 4, 1946. Decided May 8, 1946. Mr. Woodrow E. Faulkner, of Washington, D. C., with whom Mr. Joseph A. Pieper, of Washington, D. C., was on the brief, for appellant. Mr. John P. Burke, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. G, was on the brief, for appellee. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. G, also entered an appearance for appellee. Before EDGERTON, WILBUR K. MILLER and PRETTYMAN, Associate Justices. PER CURIAM. Upon his trial before a jury in the District Court of the United States for the District of Columbia, Daniel A. McDonnel was convicted of violating the Mann Act, § 398, Title 18, U.S.C.A. He appeals from an order which denied his motion for a new trial on the ground of newly discovered evidence. The appellant said he had learned after his trial that oppressive police methods had extorted false testimony from the prosecuting witness which she would repudiate at another hearing. In support of this ground McDonnel filed the affidavit of one Dough-erty which set forth that the girl had informed him of the perjury which she had committed under duress from police officers. The appellee countered by filing an affidavit of the prosecuting witness in which she denied that she had ever repudiated her testimony, and stated that she had testified freely, without coercion. The trial court set the motion for a new trial down for hearing. In addition to the affidavits, oral evidence was heard and the young woman who had been the principal witness against the appellant insisted that she had testified truthfully at the trial, that she had not been forced by threats or otherwise to give her evidence, and that she had not at any time retracted it. Moreover, the attorney for the appellant, when questioned at the oral hearing, did not say unequivocally that the prosecuting witness had repudiated her evidence in conversation with Dougherty, although he was present when the conversation took place. As a further ground the appellant alleged that, on the occasion of the crime, his physical presence elsewhere made it impossible for him to have been guilty. The alleged evidence concerning an alibi was not shown at the hearing to have been newly discovered. The trial court has a broad discretion as to whether a new trial should be granted because of newly discovered evidence, and its action will not be disturbed on appeal unless an abuse of that discretion appears. Here the District Court was most patient in affording the appellant the fullest opportunity to support his motion. It appears not only that there was no abuse of discretion in refusing a new trial but also that, in the circumstances, such action would have been quite unjustified. Affirmed. Hamilton v. United States, 78 U.S.App.D.C. 316, 140 F.2d 679. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". C. George SWALLOW and Betty D. Swallow, Appellants, v. UNITED STATES of America, Appellee. No. 9941. United States Court of Appeals Tenth Circuit. July 22, 1968. C. George Swallow, per se. Howard M. Koff, Washington, D. C., (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Elmer J. Kelsey, attys., Dept. of Justice, Washington, D. C., and Lawrence M. Henry, U. S. Atty., and Thomas C. Seawell, Asst. U. S. Atty., of counsel, were with him on the brief), for appellee. Before LEWIS, SETH and HICKEY, Circuit Judges. PER CURIAM. This is an appeal from the District of Colorado taken by appellants pro se after entry of judgment against them for income tax deficiencies. They assert three grounds in support of reversal of the judgment: That they were forced to trial without sufficient time to prepare; that the trial court unlawfully limited the trial by pre-trial order to one day; and that the trial judge unlawfully refused to disqualify himself. Each contention is totally without merit. The record reveals that the case was regularly set, appellants receiving more than ample notice of such setting, and that they offered no legal excuse justifying a continuance or resetting. In fact the record reflects but a continuation of the long extended efforts of appellants to protract their litigation as set forth in some detail in our earlier consideration of this litigation. Swallow v. United States, 10 Cir., 380 F.2d 710. Appellants are in error in their assertion that the court ordered that the trial would be limited to but one day. The case was set for a day certain and the calendar estimation was that the case could be completed in one day. Finally, appellants assert that the trial judge should have disqualified himself because he had been reversed by our cited earlier decision, intimating that the trial judge either had committed deliberate error or was unlearned. Such a contention is, of course, completely frivolous, and the extent to which the court went to protect appellants’ interest is reflected in the fact that, notwithstanding appellants’ failure to appear for trial, the court submitted the case to a jury. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. KSLA-TV, INC., Plaintiff-Appellant Cross-Appellee, v. RADIO CORPORATION OF AMERICA, Defendant-Appellee Cross-Appellant, v. STAINLESS, INC., et al., Defendants-Appellees. No. 81-3528. United States Court of Appeals, Fifth Circuit. Dec. 14, 1982. McGlinchey, Stafford & Mintz, C.G. Nor-wood, Jr., B. Franklin Martin, New Orleans, La., for plaintiff-appellant cross-appellee. Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA. Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., New Orleans, La., for Stainless. Alex F. Smith, Jr., Shreveport, La., for Bethlehem Steel Corp. Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington Ins. Co. Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., Shreveport, La., for Home Ins. Co. Before BROWN, WISDOM and RANDALL, Circuit Judges. PER CURIAM: The appeal in this diversity action controlled by Louisiana law is from an order granting the defendant’s motion for summary judgment. The case involves the Louisiana preemptive statute, La.Rev.Stat. Ann. § 9:2772 (West Supp. 1981), as applied to a complaint seeking damages for the collapse of a broadcasting tower. On May 15, 1964, KSLA of Shreveport, Louisiana, and Radio No. Corporation of America (RCA) entered into a contract for the purchase and installation of a television tower, designed to hold an RCA television antenna. The contract provided for a tower 1,709 feet in height. RCA entered into a subcontract with Stainless, Inc. to design and fabricate the tower. Stainless informed KSLA on November 17, 1964, that “installation is in accordance with Stainless, Inc. drawings and ... no outstanding deficiencies on the tower exists [sic] at this time”. On October 8, 1977, the tower collapsed due to undetermined causes. KSLA filed this action on October 4, 1978, seeking damages from RCA and Stainless in the amount of $1,269,986 for out-of-pocket expenses, and $575,000 for loss of income. RCA filed a third party complaint against Stainless and Stainless filed a third party complaint against Bethlehem Steel, which had supplied Stainless with the steel components of the tower. Early in the litigation and before any discovery, RCA and, later, Stainless moved for summary judgment, alleging that KSLA’s claim was preempted under the ten-year liberative period that Louisiana Rev.Stat.Ann. § 9:2772 establishes for claims arising from “the construction of an improvement to immovable [real] property”. The statute is inapplicable to a contract of sale. The trial court denied these motions on the ground that resolution of the issue depended “upon the characterization of the transactions between KSLA and RCA as a construction contract or as a contract of sale”, an issue of fact inappropriate for summary disposition. The parties then engaged in extensive discovery. When discovery had been virtually completed Stainless renewed its motion for summary judgment relying on an affidavit and numerous exhibits to establish that the transaction was a construction contract, not a contract of sale to which § 2772 would be inapplicable. KSLA filed a cross-motion for summary judgment against RCA and Stainless, asserting that the preemptive statute was inapplicable, that KSLA was entitled to a judgment in its favor for breach of warranty, and that issues of material, fact precluded summary judgment in favor of Stainless. The district court granted the motion of Stainless for summary judgment and denied KSLA’s motion for summary judgment against RCA and Stainless. Later, the court granted motions by RCA and its insurers for summary judgment against KSLA, and Stainless was awarded summary judgment on a contractual indemnity claim RCA had asserted. KSLA moved for reconsideration and on denial of this motion appealed. RCA appealed the dismissal of its claim against Stainless. In his ruling the trial judge stated: KSLA opposes the motion on three distinct grounds. First, KSLA continues in its belief that the transaction was a contract of sale, so that § 2772 is inapplicable. KSLA argues alternatively that, even if the transaction was a construction contract, § 2772 cannot constitutionally be applied to this particular contract. Finally, KSLA contends that § 2772 does not apply to Stainless in its capacities as materialmen and manufacturer of component parts, and that a negligence action brought against Stainless in that capacity is not barred by § 2772. The trial judge’s opinion is well-researched, carefully reasoned, and correctly sets forth the applicable law. We adopt the opinion as our own and affirm the judgment as to the three issues the trial judge considered in his opinion. But on appeal, and in the memoranda KSLA filed in the district court on the motion for a summary judgment and also in support of the motion for reconsideration, KSLA raised two issues the trial judge did not specifically address. These are: 1) La.R.S. 9:2772 does not apply to negligence for failure to warn when the duty to warn arises from subsequently obtained knowledge; that is, knowledge of a defect obtained after the construction of the tower, here presumably the vulnerability of a tall tower to “galloping” guy wires. (The vibration of guy wires resulting from a relative low wind). 2) Preemption cannot be invoked to bar a claim against one who fraudulently conceals defects in his product. It is evident from the record and the briefs that the plaintiff gave a low priority to these contentions. Nevertheless, they were raised and should be disposed of in the first instance by the district court. We express no opinion as to the validity of these contentions or the effect that § 9:2772 has on these claims. The judgments of the district court on the various motions and cross-motions are AFFIRMED insofar as they are affected by the decision of the district court on the three issues discussed in its memorandum rulings. The case is REMANDED for further proceedings on the two issues not specifically addressed by the district court in its memorandum rulings. .As amended in 1978 and 1981, § 9:2772 provides: A. No action, whether ex contractu, ex de-licto, or otherwise, to recover on a contract or to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property: (1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or (2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; .. . B. The causes which are preempted within the time described above include any action: (1) For any deficiency in the . . . design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property; (2) For damage to property, movable or immovable, arising out of any such deficiency; . The completed structure, including the antenna, was 1800 feet high, had solid steel legs, and was held in position by 26 steel cables. The tower weighed 1,040,153 pounds and rested on a concrete slab weighing 104,000 pounds. Six concrete guy wire anchors, weighing 450,000 pounds and embedded 15 feet in the ground, provided additional support. . By subsequent amendments to the complaint KSLA added as defendants Paxton National Insurance Company, Lexington Insurance Company, Zurich Insurance Company, and Home Insurance Company, alleging that they insured RCA or Stainless against the claims asserted by KSLA. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Leonard J. McMULLEN, Appellant, v. Anthony J. CELEBREZZE, Secretary, Health, Education and Welfare, Appellee. No. 19139. United States Court of Appeals Ninth Circuit. Aug. 18, 1964. Rehearing Denied Nov. 20, 1964. Leonard J. McMullen, in pro. per. Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section; James E. Biava, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS and KOELSCH, Circuit Judges, and JAMESON, District Judge. JAMESON, District Judge: This is an appeal from a judgment affirming the final decision of the appellee disallowing appellant’s claim for disability and for disability insurance benefits. Appellant represented himself in this court, as he did in the district court and in all proceedings before the Department of Health, Education and Welfare. This court has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. Appellant filed an application on December 13, 1961, 2for insurance benefits, alleging that he had been continuously disabled under the provisions of the Social Security Act since April 12, 1949. Appellant claims to be entitled to disability benefits to February 5,1962, when he became 65 years of age, and to old-age pension benefits thereafter. Following a denial of his claim, a hearing was held on December 6, 1962. The hearing examiner found that the claimant had not sustained his burden of showing that he was “disabled” within the meaning of the Social Security Act and that he was not accordingly entitled to a period of disability or to disability insurance benefits. This decision became the final decision of the Secretary when the Appeals Council denied review on May 2, 1963. In a memorandum opinion the district court denied appellant’s motion for judgment on the pleadings and granted appel-lee’s motion for summary judgment. Thereafter the court adopted findings of fact and concluded as a matter of law that the final decision of the Secretary and the findings of fact upon which it was predicated were supported by substantial evidence, were conclusive and thus were approved and affirmed. A formal judgment was entered affirming the final decision of the Secretary. Appellant questions the propriety of the summary judgment motion and proceedings. Section 405(g) gives the district court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, * * * ”, and provides that, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * * ”. The action accordingly is a “review” of the decision of the Secretary. A motion for summary judgment is unnecessary, and it is questionable whether such a motion is contemplated by the statute. This procedure, however, is commonly followed by the Secretary in eases of this nature. In any event, there was a full compliance with the statute in the findings of fact, conclusions of law, and judgment entered by the district court. As this court said in United States v. Lalone, 9 Cir., 1945, 152 F.2d 43, “Under this section of the Social Security Act (42 U.S.C. § 405(g)) providing for appeals from an administrative board, as under other similar acts, the board’s findings of fact must be sustained if the court finds they are supported by substantial evidence. This same finality extends to the Board’s inferences and conclusions from the evidence if a substantial basis is found for them. * * * The board’s decisions interpreting the Act and regulations are entitled to weight; the board’s findings of fact, if supported by substantial evidence, are conclusive.” The primary question for determination is whether there is substantial evidence to support the findings of the Secretary and the district court that appellant failed to sustain his burden of showing that he was “disabled” within the meaning of the Social Security Act on or before December 31, 1951, the last date of his insured status under the Act, and continuously thereafter to December 13, 1961, when his present application was filed. The test of “disability” is whether appellant was unable during that period “to engage in any substantial gainful activity by reason of any medi-eally determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”, or “blindness”, (See note 2.) Appellant graduated from high school and in 1919 completed a ten month course jn general accounting at a business col-iege. He was steadily employed in accounting work by one company between 1919 and January 1946 — at Fort Wayne, Indiana, from 1919 to 1928, at Vernon, California, from 1928 to 1945, and at Fort Wayne for four or five months in 1945 and January, 1946. He resigned because he couldn’t “stand the cold weather” in Fort Wayne and returned to California. He held a series of jobs be-tween 1946 and 1948, when he engaged in a primary campaign as a candidate for Congress. Subsequent to the onset of the alleged disability in April, 1949, appellant worked in December, 1949, as a post office clerk; from May through July, 1951, as a COst accountant and timekeeper; in October, 1951, as a timekeeper; and in January and February, 1952, as a senior deputy assessor. Appellant testified that for “a while” after December, 1951, he went to the library “quite a lot” to read fiancial reports and magazines in conneetion with making investments; that he attempted to collect benefits from two insurance companies, acting as his own attorney in these cases, which were filed in 1956. In 1952 he engaged in a primary campaign as a candidate for Los Angeles County Supervisor, and in 1954 he again campaigned for Congress in the primary election. Appellant asserts that although he engaged in the foregoing activities, he did so while disabled. In his application for a period of disability and disability benefits appellant described his impairment as “injury of prostate gland, causing feet and leg swelling and severe pain.” At his hearing he testified that he had been unable to do auditing or accounting work because of his eyes, his right eye being “practically blind”. In appellant’s brief he refers specifically to a deposition of Dr. Aubrey H. Williams, given on February 18, 1957, in an action by appellant against an insurance company. Dr. Williams, a specialist in internal medicine, also made an affidavit dated November 23, 1956, and a report dated April 23,1957. All relate to an examination of appellant on May 20 to 22, 1949. Dr. Williams testified in his deposition that a proctoscopic examination revealed no abnormalities except a slight spasm in the rectum which he attributed to nervous tension. He found a slight enlargement of the prostate which was a normal development with age. He found no evidence of physical disease “which would interfere with him carrying on his usual occupation; emotionally he was so upset that for the time being he may not have been able to perform”. It was Dr. Williams’ opinion that appellant’s emotional state was probably of long standing, perhaps throughout his lifetime. His final diagnosis was obesity and “psychoneurosis mixed with superimposed acute anxiety with hypochondri-acal and paranoid features”. He did not believe this condition was in any way connected with any physical disability. In the report, in response to the question, “Have you advised applicant not to work?”, Dr. Williams answered, “No’. Dr. John V. Pollock examined appellant on July 31, 1950. Appellant complained of urinary frequency, nocturia, impotence, and grittiness in his eyes. The physieal examination revealed that the left prostatic lobe was enlarged and mildly tender, and that the left vesicle was enlarged. Urological consultation and blood chemistry were advised, Appellant was next seen by Dr. Pollock on July 24, 1953, when appellant called for an eye check. The eye examination showed corrected vision of 20/40 in the right eye and 20/30 in the left eye. Appellant was “approved for light duties”, Dr. Warren A. Wilson, an ophthalmologist, examined appellant’s eyes on July io, 1956. Appellant complained that “both eyes were tearing but it was more marked on the right”. Dr. Wilson’s diagnosis was chronic blepharoconjunc-tivitis (inflammation of the eyelids and conjunctiva). He prescribed treatment and felt that appellant would have remissions and exacerbations of this condition. Dr. Wilson did not advise appellant not to work. The only other medical report is that of a physician who examined appellant for the Veterans Administration on April 19, 1949. The examination revealed “a very boggy prostate”, and a smear showed “many pus cells”. The diagnosis was “prostatitis chronic”, and hospitalization was not recommended, There is no substantial medical testimony to support appellant’s contention that he was disabled within the meaning 0f Social Security Act as a result of either the prostate or eye conditions, Under the Act disability may re-suit from mental as well as physical impairment. In his examination in May, 1949, Dr. Williams found a “psychoneurosis mixed with superimposed acute anxiety with hypochondriacal and paranoid features.” He recommended psychiatric consultation. The regulations relating to disability caused by mental impairment provide: “In determining the effect of psychoneuroses, consideration is given whether the psychoneurosis has re-suited in severe social, personal and occupational regression or confinement to a mental hospital and whether it persists despite appropriate treatment. The manifestations of tension, anxiety, depression or psy-chophysiological disturbances, behavioral disturbances, hysterical reactions or obsessive compulsive patterns should be carefully described. An adequate psychiatric examination is generally necessary.” (20 C.F.R. § 404.1519(c) (ii)). With reference to possible mental impairment, the Hearing Examiner’s Decision reads in part: “In respect to his mental state, the claimant has on many occasions been requested to submit to psychiatric examination, but has consistently refused to do so, wishing to rely upon his physical impairments to obtain the various benefits he has sought. The opinion expressed by Dr. Williams in his deposition was that the claimant’s emotional state might keep him temporarily from working, but it is obvious in his answers to the questions in such deposition that he did not feel that it was of such continuing severity as to be of long-continued duration, particularly if appropriate therapy were employed. “ * * * There is not in the record a definitive description of the various manifestations of the psychoneurosis, from which Dr. Williams diagnosed the claimant as suffering. In fact through the years, the claimant has resisted all attempts to have him examined psy-chiatrically, and has left the record void of the type of evidence contemplated by this regulation.” We agree with the agency decision and the district court that the record would not support a finding of disability on the ground of mental impairment. It is true, as appellant contends, that complete helplessness is not necessary to a finding of an allowable disability, that a claimant’s age, training and experience must be considered in determining what opportunities are open to him, and that sporadic and infrequent activities do not necessarily establish ability to engage in substantial gainful employment. Here, however, the Board could properly find that the prostate condition upon which appellant initially relied as the basis of his disability was “not shown to be so severe as to limit him in performing his usual sedentary occupation.” Under both the testimony regarding appellant’s activities and the medical testimony, the Secretary could also properly find that appellant had failed to establish a continuing disability within the meaning of the Act as a result of either his eye condition or psychoneurosis. Relying upon King v. Flemming, 6 Cir. 1961, 289 F.2d 808 and cases there cited, appellant contends that there should have been an express finding with respect to what he could do and what employment opportunities were open to him. It is implicit in the Board’s decision that it found that appellant had failed to show that he was disabled from following his usual occupation as an accountant. No useful purpose would be served by a discussion of the many cases cited by appellant. We have examined all of those cases where an agency finding was reversed. All of them are factually distinguishable. The judgment is affirmed. . In a previous claim filed on February 15, 1957, appellant sought to establish disability as of April 12, 1949. This claim was denied, and the denial was affirmed by final decision of a hearing examiner dated April 8, 1958. Appellant’s action for a review of that decision was dismissed on the ground that it was not timely filed. . The term “disability” is defined as “ * * * (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, or (B) blindness; and the term ‘blindness’ means central visual acuity of 5/200 or less in the better eye with the use of a correcting lens. * * * ” (42 U.S.C. § 416(i) (1)). . The Hearing Examiner’s Decision recites that appellant appeared to be entitled to the regular old-age pension starting February 5, 1962, except for the fact that he had not filed formal application as required by the Act and regulations. The right to old-age pension benefits was not determined by the district court and is not before this court. . This does not mean that it was intended that the courts should abdicate their conventional juricial function to review (Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456); and where the “administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented” (Jacobson v. Folsom, S.D.N.Y. 1957, 158 F.Supp. 281, 285), or applies an arbitrary standard (Flemming v. Lindgren, 9 Cir.1960, 275 F.2d 596, 597), the court may properly reject the agency’s decision, . Under the express terms of the Act a reasonable showing of permanence of the disability is required. Bradey v. Ribicoff, 4 Cir. 1962, 298 F.2d 855. . These findings are required when it is found that the claimant is unable to engage in bis usual occupation, but the Secretary concludes that lie can perform services and duties other than those of his accustomed occupation. See Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916, and Hall v. Flemming, 6 Cir., 1961, 289 F.2d 290. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_state	07	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Robert K. KELLEY, Defendant, Danbury, USA, Inc., Applicant in Intervention-Appellant. No. 92-1130. United States Court of Appeals, Tenth Circuit. July 1, 1993. William R. Lucero, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee. Denis H. Mark (William C. Waller and C. Bradley Rupert of Vinton, Waller, Slivka & Panasci, with him on the brief), Denver, CO, for Danbury, USA, Inc., applicant in intervention-appellant. Before TACHA, Circuit Judge, and McWILLIAMS and BARRETT, Senior Circuit Judges. McWILLIAMS, Senior Circuit Judge. Danbury, USA, Inc. (Danbury), the appellant, seeks review and reversal of an order of the district court wherein Danbury’s request for restitution in a criminal proceeding was denied.. The United States, the appellee, has filed a motion to dismiss the appeal on the grounds that Danbury has no standing to appeal the district court’s restitution order, and then argues, alternatively, that the district court did not err in declining to enter a restitution order in favor of Danbury. Though the facts are not disputed, recital thereof is necessary to focus the precise issue. In March, 1988, Robert K. Kelley (Kelley) obtained a personal loan in the amount of $150,000 from Great West Savings Bank (Great West) in Craig, Colorado. In his loan application, Kelley pledged as collateral for the loan his family residence, which he represented as being free of encumbrances, when in fact the property was already encumbered to the Citizens Bank of Glendale (Colorado) for $164,000. In June, 1989, Kelley, as president of Dan-bury, obtained a second loan in the amount of $150,000 from Great West. Again, Kelley pledged his family home as collateral for the loan. In addition, Kelley pledged a promissory note in the amount of $745,000, which was owned and held by Danbury. Somato-gen, Inc., a business concern located in Boulder, Colorado, was the maker of the note (hereinafter the Somatogen Note). By January, 1990, Kelley had defaulted in his payments to Great West on both loans. Great West, then under the supervision of Resolution Trust Company (RTC), sent a letter to Somatogen, Inc., requesting that payments on the Somatogen Note be made directly to Great West. As a result of this letter, Somatogen, Inc. made subsequent payments on its note to Great West, and ultimately Great West’s successor, RTC, rather than to Danbury. Such payments were divided to pay on the second loan, i.e. the loan which Kelley negotiated on behalf of Danbury, and to bring the first loan up to date. We are advised that payments on the Somatogen Note applied to the first loan approximated $100,000. On January 16, 1992, the United States filed a one-count information charging Kelley with making a false statement to Great West in his application for the first loan from Great West, in violation of 18 U.S.C. § 1014. The government filed no criminal charge against Kelley based on the second loan made by Great West, concluding that Kelley had the apparent authority to negotiate the second loan and pledge the Somatogen Note. On March 6,1992, Kelley, after negotiating with the government, pleaded guilty to the one count information based on the first loan with Great West. Prior to sentencing, counsel for Danbury, by letter, requested that the United States Attorney seek restitution for it from Kelley in the amount of the monies from the Somatogen Note which were applied on the first loan. This the government declined to do, asserting that under Hughey v. United States, 496 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), any restitution order would be limited to losses caused by the specific conduct underlying the offense of conviction, i.e. the first loan. The presentenee report, in line with the plea bargain, recommended that by way of restitution Kelley be ordered to pay RTC $147,980. This sum apparently represented the amount still due on the first note, after crediting payments from the Somatogen Note to the first loan. The report did not recommend that Kelley pay any amount to Danbury, and such is the core of the present controversy. At the sentencing hearing, counsel for Danbury was allowed to address the court and he urged the district court to enter an order commanding Kelley to make restitution to Danbury for approximately $100,000. This the district court declined to do. Instead, the district court placed Kelley on probation, with home confinement for a period of six months, and ordered him to pay $147,980 in restitution to RTC. Nine days after sentencing, Danbury filed a Motion to Intervene in Regard to Restitution, nunc pro tunc to the date of sentencing. That motion was denied by the district court by minute order. The present appeal followed. As indicated, the government’s initial response to the present appeal was a motion to dismiss for lack of jurisdiction, to which Dan-bury filed a response. By order, this court reserved its judgment “on the question of jurisdiction” and referred that matter “to the panel selected to determine the appeal on the merits.” Thereafter, in their briefs, both parties again addressed the question of whether Danbury has standing to appeal the district court’s restitution order, as well as the merits of the order itself. Danbury’s basic position is that it is a “victim” of a federal crime for which restitution is warranted under the Victim and Witness Protection Act, 18 U.S.C. § 3663 (VWPA), and that it has “implicit standing” to appeal the district court’s order that Kelley make restitution only to RTC. We disagree and hold that Danbury has no standing to prosecute this appeal. In support of our holding, see United States v. Johnson, 983 F.2d 216 (11th Cir.1993) and United States v. Grundhoefer, 916 F.2d 788 (2d Cir.1990). In Johnson, the defendant in a criminal proceeding pleaded guilty to several counts based on her forging endorsements and cashing Social Security checks made payable to a deceased relative, in violation of 18 U.S.C. § 495. The defendant was ordered, inter alia, to make restitution to the victim bank in the amount of $18,273, in monthly installments. When the defendant became delinquent in her restitution payments, the district court held a revocation hearing, at which time the victim bank was present. At the conclusion of the revocation hearing, the district court revoked probation, sentenced her to six months imprisonment, and rescinded the restitution. The victim bank then filed an appeal. The Eleventh Circuit framed the sole issue as follows: “The sole issue we address is whether Bank, an intervenor, has standing to appeal the district court’s rescission of the restitution order.” Johnson, 983 F.2d at 218. After a thorough discussion of the various issues involved, the Eleventh Circuit concluded as follows: We find that the legislative history and the Act’s plain language do not indicate that Congress, either explicitly or implicitly, intended to provide a private cause of action to victims. Consequently, Bank has no standing under either Article III of the United States Constitution or the Victim and Witness Protection Act to challenge the district court’s revocation of its restitution order. Because Bank has no standing to contest the district court’s revocation of the restitution order, this appeal is dismissed. Id. at 221. In Grundhoefer, the defendants operated a computer training school which received federal monies. After pleading guilty to charges of conspiracy and fraud, the defendants were, inter alia, ordered to make restitution by payment of an amount agreed upon by the government and the defendants into a fund for the benefit of the school’s former students. The trustee in bankruptcy for the school objected to the restitution order, believing that restitution should be in his favor for the benefit of the school’s unsecured creditors. The trustee’s objections were overruled, and the trustee appealed the district court’s restitution order in favor of the school’s former students. On appeal, the Second Circuit concluded that the VWPA did not provide a private remedy for victims denied restitution in a criminal proceeding, and in dismissing the appeal held that the trustee did not have standing under Article III to appeal the restitution order. Grundhoefer, 916 F.2d at 791-93. We are in accord with the result and reasoning of both Johnson and Grundhoefer. Therefore, the present appeal is dismissed. . Apparently, as a result of the application of payments on the Somatogen Note to the first loan, Danbury brought a civil suit against Great West in the United States District Court for the District of Colorado, which was settled in an agreement with RTC. Danbury also sued Kelley in an action brought in a Colorado state court. This action was also apparently settled, although the settlement agreement was sealed by order of court. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_casetyp1_7-3-5	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". Marion B. FOLSOM, Secretary of Health, Education and Welfare, Appellant, v. Pauline FURBER, on behalf of Roberta Miller and Allen L. Miller, Minor-claimants, Appellee. No. 13398. United States Court of Appeals Sixth Circuit. May 22, 1958. Seymour Farber, Dept, of Justice, Washington, D. C., George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, and Seymour Farber, Washington, D. C., Sumner Canary, U. S. Atty., Cleveland, Ohio, on the brief, for appellant. Isadore R. Rosenblatt, University Heights, Ohio, on the brief, for appellee. Before SIMONS, Chief Judge, and MARTIN and BAZELON, Circuit Judges. PER CURIAM. In this case, the district court held that a now deceased former wage-earner, Andrew A. Miller, entered into an agreement with Pauline Furber, appellee [then the divorced wife of John Marti], in September of 1939, to live together as common-law husband and wife; that, thereupon, they entered into that status and lived together continuously until his death on April 21, 1944, during which time they held themselves out to their relatives and friends, as well as to strangers, as husband and wife; that two children were born of their relationship, namely, Roberta Miller (born August 30, 1940) and Allen Miller (born July 12, 1943) ; and that their common-law father, Andrew A. Miller, “acknowledged them to be his children by every conceivable means thereby legitimatizing said children under the laws of the State of Ohio.” The district court denied the motion of appellant for summary judgment and granted the motion of the appellee, mother of the minor children, for summary judgment, recognizing Roberta and Allen Miller to be entitled to social security benefits under the Social Security Act as the legitimate children of the wage-earner, Andrew A. Miller. It was held that child’s insurance benefits were awarded to Roberta and Allen Miller [minor-claimants] as the children of the fully or currently insured wage-earner, Andrew Miller, [as defined under the Social Security Act] from and after April 29, 1944, which was the date on which Pauline Miller [later Furber], claimant, applied for widow’s insurance benefits for herself and for child’s insurance benefits for each of the two children, Roberta and Allen Miller. United States District Judge Connell, highly experienced in the interpretation of Ohio law, in a logically reasoned opinion discussed the applicability and meaning of such law and decided that the children fell within the provisions of the Ohio Revised Code, section 2105.18, and were therefore entitled to Social Security benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. The Ohio statute provides: “When by a woman a man has one or more children, and afterwards intermar-ríes with her, such issue, if acknowledged by him as his child or children, will be legitimate. The issue of parents whose marriage is null in law, shall nevertheless be legitimate.” Gen.Code, § 10503-15. The district judge well stated that the reason and spirit of that section of the Ohio Code “is to legitimatize children; to permit legitimatized children to inherit from the father as well as the mother; and to protect innocent offspring from punishment for the sins committed by their parents.” The following Ohio authorities were cited: Wright v. Lore, 12 Ohio St. 619; Carmichael v. State, 12 Ohio St. 553; Clinton County Nat. Bank & Trust v. Todhunter, 43 Ohio App. 289, 183 N.E. 88; Bates v. State, 9 Ohio Cir.Ct.R.N.S., 273. The district court also quoted 26 O.Jur. 93, to the effect that in a civil action a marriage may be established by showing that the parties lived together, and cohabited as husband and wife for a series of years; and that they were so treated and reputed to be in the community and circle wherein they moved, although no witnesses testified that they saw the couple marry. Pauline Miller Furber testified that on the day he returned from a three or four months’ trip West, Miller told her that he had been divorced from his wife so that they could be married. Asked why they had not had a “ceremonial marriage,” she replied that Miller told her they would live together as man and wife for a while, which would be legal, until he arranged his financial affairs, whereupon they would be married in church. She said that she loved the man and took him at his word. She stated further that Miller put his hand on a Bible and asked, “Pauline, will you take this man for your wedded husband?” She testified that she had replied : “I take Andrew for my husband”; that he then “reversed the words” and said, “I take Pauline as my wife.” Upon consideration of the entire record in the case and of the opinion of the district judge, we affirm his judgment. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Robert M. MONTGOMERY, Plaintiff-Appellee, v. The AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant. No. 89-3052. United States Court of Appeals, Eleventh Circuit. April 25, 1990. James A. Young, Stephen C. Davis, Haas, Boehm, Brown, Rigdon, Seacrest & Fishcher, Tampa, Fla., for defendant-appellant. Ronnie H. Walker, P.A., Orlando, Fla., for plaintiff-appellee. Before TJOFLAT, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge: This case arises on appeal from the district court’s order denying the motion of the defendant, Aetna Casualty and Surety Company (“Aetna”), for judgment notwithstanding the verdict. I. FACTS A. Background This is an action for breach of a fiduciary responsibility insurance contract (“the policy”). Robert Montgomery (“plaintiff”) was trustee of a profit sharing trust fund (“the plan”) for employees of the law firm of Howell, Kirby, Montgomery, D’Auito & Dean. Aetna issued plaintiff the policy, which provided that Aetna would [p]ay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages on account of any claim made against the Insured for any Wrongful Act and [that Aetna would] have the right and duty to defend such claim against the Insured seeking such damages, even if the allegations of the claim are groundless, false or fraudulent The profit sharing plan was originally created in 1969. During the 1970s, the firm began to grow, which led to conflicts of interest for the firm. The firm’s satellite office in Jacksonville, Florida (“the Braddock group”) left the firm effective June 1, 1976. Approximately one year later the firm went through dissolution. These events caused problems with the vesting of benefits under the plan. First, for vesting purposes, the plan’s fiscal year was from July 1 to June 30. The Braddock group’s benefits under the plan for the year 1976 did not vest because the Braddock group left the firm before June 30, 1976. Second, the plan provided that plan participants employed at the firm at the time of dissolution would have 100% vested benefits, but that those not employed at the time of dissolution would receive a lesser percentage of vested benefits as provided in a vesting schedule. Because the trustees considered the Braddock group to have been terminated prior to the firm’s dissolution, the trustees found that the Braddock group’s benefits were less than 100% vested. When the IRS reviewed the trustees’ actions concerning the Braddock group, the IRS revoked the plan’s tax exempt status for failure to comply with ERISA and for failure to comply with the terms of the plan. The Braddock group also objected to the trustees’ determination of the Braddock group’s rights under the plan and filed suit against the trustees. The Braddock group’s complaint alleged that the trustees violated the terms of the plan in determining the Braddock group’s vesting schedule, which caused the IRS to revoke the plan’s tax-exempt status. The complaint also alleged that the trustees violated their fiduciary duties under ERISA. Plaintiff notified Aetna of the Braddock suit and demanded that Aetna provide a defense in the suit. Aetna retained the law firm of Wells, Gattis, Hallowes & Carpenter to represent the trustees in the Braddock suit, and Jacqueline Griffin of that firm assumed primary responsibility for the case. Plaintiff’s co-trustee, John Cunningham, told Griffin that the IRS ruling revoking the plan’s tax exempt status was crucial to the defense in the Braddock suit. In March 1979, plaintiff advised Griffin that he was hiring independent counsel to pursue the tax issue in the Braddock suit and that he would look to Aetna to cover the costs of litigating the tax issue. Aetna responded that it would supply a defense to the Braddock suit through Griffin under a reservation of rights. Aetna noted that plaintiff was welcome to hire his own counsel but that Aetna was not responsible for paying that counsel. Plaintiff then hired David Meisel, a tax attorney, to represent the plaintiff. Meisel and his successor, Peter Mettler, initiated a separate action in the United States Tax Court on behalf of the plaintiff and against the IRS, challenging the IRS’s determination that the plan no longer qualified for the tax exempt status. The tax litigation was successful, and the Tax Court requali-fied the plan for tax exempt status in July 1986. This resulted in a substantial tax savings for the plan. The Braddock suit settled shortly after requalification of the plan for tax exempt status. Under the settlement, the Braddock group agreed that some members of the Braddock group would not be entitled to benefits under the plan at all and that the others would not be entitled to benefits for 1976. B. Proceedings Below Plaintiff filed the present suit in Florida state court. On March 20, 1987, Aetna removed the case to federal court. Count one of the complaint alleged that Aetna breached the insurance contract by providing Griffin as counsel because she was not an expert in tax matters and that plaintiff consequently had to hire independent tax counsel. Count one asked for damages in the amount of the tax counsel’s fees. Count two alleged that Aetna acquiesced in plaintiff’s hiring of the tax counsel and that Aetna was therefore estopped from denying liability for the tax counsel’s fees. The district court held a jury trial on November 30 and December 1, 1988. At trial, plaintiff offered testimony about the actions surrounding the Braddock suit and the IRS’s revocation and recertification of the plan’s tax exempt status. Plaintiff testified that requalification of the plan for tax exempt status caused the resolution of the Braddock group suit. He also testified that the tax action was important because it preserved the corpus of the plan by avoiding back taxes, interest and penalties. Plaintiff’s tax counsel, however, testified that the settlement of the Braddock group suit involved concessions by the trustees. Griffin also testified that resolution of the tax matter was not dispositive of the Braddock suit. Plaintiff offered expert testimony from Laverne Donaldson about the interpretation of the policy and the scope of Aetna’s duty to defend under the policy. Donaldson testified that Aetna had a duty under the policy to provide counsel for the tax matter. Aetna objected to this testimony. The district court submitted the issue of the scope of Aetna’s duty under the policy to the jury. The jury returned a verdict in favor of the plaintiff for $122,059 plus interest. On December 12, 1988, Aetna moved for judgment notwithstanding the verdict or for a new trial. The district court denied this motion on December 22, 1988. In this appeal we first consider whether the district court erred in denying Aetna’s motion for judgment notwithstanding the verdict because the tax matter is outside the scope of Aetna’s duty to defend under the policy. We then consider whether the district court erred in admitting the plaintiff’s expert testimony on the scope of Aet-na’s duty to defend under the policy. II. ANALYSIS A. Scope of Aetna’s Duty Under the Policy Under Florida law, the construction of an insurance policy is a question of law for the court. Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392, 394 (Fla.App.1979) (if the facts are undisputed and there is an ambiguity in the policy, the case should be decided by the judge). It is for the jury, however, to determine whether the facts of the case fall within the scope of the coverage as defined by the court. Jones, 463 So.2d at 1157. Aetna argues that the material facts of this case were undisputed and that the district court therefore erred in refusing Aetna’s motion for a directed verdict. We agree. It is undisputed that Aetna refused to pay for counsel in the tax matter. Thus, the central question in the trial was whether the scope of Aetna's duty to defend was broad enough to encompass the suit against the IRS. This was a question of contractual interpretation, which the judge should have decided. Under Florida law, an insurer’s duty to defend is determined by asking whether the allegations in the complaint fall within the coverage provided by the policy. Trizec Properties, Inc. v. Biltmore Constr. Co., 767 F.2d 810, 811 (11th Cir.1985); Reliance Ins. Co. v. Royal Motorcar Corp., 534 So.2d 922, 923 (Fla.App.1988); Logozzo v. Kent Ins. Co., 464 So.2d 605, 606-07 (Fla.App.1985). If the complaint alleges facts partially within and partially outside the scope of coverage, the insurer is obligated to defend the entire suit. Trizec, 767 F.2d at 811-12. All doubts as to whether a duty to defend exists are resolved in favor of the insured. Id. at 812. Aetna argues that under the contract it had no duty to bring suit against the IRS. The language of the contract defines Aetna’s duty to defend as follows: [Aetna] will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages on account of any claim made against the Insured for any Wrongful Act, and [Aetna] shall have the right and duty to defend such claim against the Insured seeking such damages.... This language refers only to claims brought against the insured and does not refer to claims brought by the insured. The policy does not provide that Aetna will bring actions on behalf of the plan or the trustees; it merely provides that Aetna will defend actions brought by third parties against the plan and the trustees. The “damages,” moreover, that Aetna must cover under the policy do not include taxes, fines, or penalties. Aetna, therefore, had no duty to prosecute an action in the tax court defending the plan’s tax exempt status and is not liable under the policy for the fees of plaintiff’s tax attorneys. B. Expert Testimony Determinations of the admissibility of evidence are left to the broad discretion of the district court, and this Court will not disturb a district court’s evidentiary rulings absent a clear showing of abuse of discretion. United States v. Roper, 874 F.2d 782, 790 (11th Cir.1989). An expert may testify as to his opinion on an ultimate issue of fact. Fed.R.Evid. 704. An expert may not, however, merely tell the jury what result to reach. Id. at committee notes (merely telling jury what result to reach is not helpful to the jury and therefore is not admissible testimony). A witness also may not testify to the legal implications of conduct; the court must be the jury’s only source of law. United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir.1987); United States v. Baskes, 649 F.2d 471, 479 (7th Cir.1980). Donaldson testified that in his opinion Aetna had a duty to hire tax counsel in this case. See supra, note 4. This was a legal conclusion, and therefore should not have been admitted. The district court abused its discretion by allowing Donaldson to testify about the scope of Aetna’s duty under the policy. III. CONCLUSION We REVERSE the judgment in favor of plaintiff and REMAND to the district court for entry of judgment notwithstanding the verdict in favor of Aetna. . The policy provides that "damages” shall not include "[fjines, penalties, taxes or punitive or exemplary damage.” . The policy defines "wrongful act” as "[a]ny breach of fiduciary duty by the Insureds in the discharge of their duties on behalf of the Trust or Employee Benefit Plan designated in the Declarations, including any negligent act, error or omission of the Insured in the ‘administration’ of the Trust or Plan designated in the Declarations.” . The IRS letter stated that the trustees had violated 26 U.S.C.A. § 411(d)(3) of the Internal Revenue Code ("the Code”) by failing to make benefits non-forfeitable for employees terminated in 1976 and 1977. Accordingly, the IRS found that the plan was not exempt from tax under section 501(a) of the Code. .Donaldson testified as follows: Q. We talked about the insurance company having a duty to defend here based upon the allegations in the complaint. A. Yes. Q. Does that duty extend in this case to [plaintiff's] request that the insurance company retain, and specifically Aetna in this case, retain expert lawyers with expertise in tax areas so as to prosecute this matter with a declaratory] action? If it was necessary in order to completely defend him in this case? A. Yes. In my opinion it did. . The court instructed the jury, "[i]n determining whether Aetna adequately and reasonably defended the lawsuit, you must consider whether reasonable defense of the Braddock lawsuit necessarily required litigation of the tax consequences of the trust plan against the Internal Revenue Service.” . Aetna preserved its right to move for a judgment notwithstanding the verdict by moving for a directed verdict at the close of all evidence. See Fed.R.Civ.P. 50(b). . In Sokolowski v. Aetna Life & Cas. Co., 670 F.Supp. 1199 (S.D.N.Y.1987), the court held that Aetna had a duty to defend cases brought by plan participants against the plan for breach of fiduciary duties. The case involved the same form Fiduciary Responsibility Insurance Policy involved in the present case, but Sokolowski did not involve a claim for the expenses connected to a case brought by the insured. . Donaldson’s testimony also was improper because it was relevant only to the issue of the scope of Aetna’s duty under the policy. This issue should not have been presented to the jury. See Part H.A., supra. . Some lower Florida courts have stated that courts may admit expert testimony on the meaning of an insurance contract. Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So.2d 1160, 1161 (Fla.App.1981); Aetna Ins. Co. v. Loxahatchee Marina, Inc., 236 So.2d 12, 14 (Fla.App.1970). These cases, however, appear inconsistent with the Florida Supreme Court cases holding that interpretation of an insurance contract is a question of law to be decided by the judge. See Iones, 463 So.2d at 1157; Smith v. State Farm Mut. Automobile Ins. Co., 231 So.2d 193, 194 (Fla.1970); see also Ellenwood, 373 So.2d at 394. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". FEDERAL GLASS COMPANY, Appellant, v. Samuel LOSHIN, et al., Appellees. No. 23226. United States Court of Appeals, Second Circuit. Motion Submitted Oct. 4, 1954. Decided Dec. 3, 1954. Clark, Chief Judge, dissented. Irving Levine, Danbury, Conn., for the motion. Wiggin and Dana, New Haven, Conn., and Corbett, Mahoney & Miller, Columbus, Ohio (Thew Wright, Jr., New Haven, Conn., of counsel), for appellant. Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit J udges. L. HAND, Circuit Judge. The defendants move to dismiss an appeal, taken by the plaintiff from an order that denied its motion for a summary judgment in an action to enjoin the defendants (a) from copying the plaintiff’s trade name and corporate title, (b) to compel them to account for any profits, and (c) to pay damages. (The complaint included a prayer both for a permanent injunction and for an injunction pen-dente lite). The plaintiff’s motion came on to be heard after answer upon numerous affidavits filed by both parties, and upon the plaintiff’s answers to interrogatories ' put by the defendants. Judge Smith denied it in a written opinion, 126 F.Supp. 737, substantially for the reason that the plaintiff had not proved that its trade name had become widely enough known in the defendants’ market before the defendants had themselves begun business. Both parties agree that the order was interlocutory; their difference is whether it is nevertheless within the meaning of § 1292(1) of Title 28 U.S.C.A., as an order “refusing” an injunction. The decisions are not uniform. We held in Raylite Electric Corp. v. Noma Electric Corporation, 2 Cir., 170 F.2d 914, that an appeal lay from such an order, and the Fifth Circuit did the same in International Forwarding Co. v. Brewer, 181 F.2d 49. On the other hand the Third Circuit in Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160, examined the question with much learning and dismissed the appeal, and it has followed that decision in a later case, Hook v. Hook & Ackerman, Inc., 213 F.2d 122; and Mr. Moore accepts their view. We agree that, as Judge Hastie said in Mor-genstern Chemical Co. v. Schering Corp., supra [181 F.2d 161], our decision was made “without analysis of the problem”; owing to the fact that we mistakenly thought that the question did not demand analysis. Section 1291 provides for appeals from final judgments of all sorts, necessarily including an appeal from a final judgment denying a permanent injunction. Section 1292 allows appeals from four different kinds of interlocutory orders, of which the first is those “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” If these words be read literally, they appear to us indubitably to cover the denial of a motion for a permanent injunction, regardless of what may be the procedure or grounds of the moving party. Indeed, we do not understand that those, who deny any appeal, think otherwise; they base their interpretation upon the theory that the decision does not settle, and indeed does not even tentatively decide, anything about the merits of the claim; all it does is to hold that, upon the facts as shown, the cause must await a trial. Even were that so, it scarcely seems an adequate reason for disregarding language so unconditional as that of the section; but we do not wish to rely upon that. Under Rule 56(c), 28 U.S.C.A., to be granted a summary judgment, the moving party must show, not only that there is no “genuine issue as to any material fact,” but also that he “is entitled to a judgment as a matter of law.” If the decision is based upon these later words, it is obvious that a denial may finally settle a great deal, for usually a later judge will accept the law already laid down in the same action by an earlier judge. Moreover, to reach such a decision the “discretion of the chancellor” may be “invoked”; “equitable considerations” may be “weighed” ; or the “conclusion” may be “reached with respect to the equity of the claim that a restraint should be imposed.” But, even when the denial is because there is a “genuine issue as to any material fact,” the decision is not confined to deciding that the claim must await a trial, although that of course is one of its results. Subdivision (c) requires the judge to pass upon “the pleadings, depositions, and admissions on file, together with the affidavits” ; and subdivisions (d) and (e) not only provide that the affidavits on both sides “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”; but also that so far as may be possible all facts shall be decided even though the motion be denied. We cannot escape the belief that the decision involves much more than that it will be better to await' a trial; and this is borne out by a substantial body of decision that the question is the same as that raised by a motion to direct a verdict in an action tried to a jury. For example, in Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967, the Supreme Court said: “But at least a summary disposition of issues of damage should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” It is of course true that the motion is not a substitute for a trial, against the possibility of which courts — ourselves especially — have been solicitous to protest. There always remains the high hurdle over which the plaintiff must leap, who would secure such a judgment: i. e. the record, as it comes before the court, is of necessity limited to evidence that can be put into writing or contained in exhibits; and, as we have never tired of saying, what is left out may be, and frequently is, the most important part. Besides, at least in actions triable to a jury, the handicap is greater even than this; for the court must refuse to decide any issues whose answer admits of reasonable doubt. Therefore, to say, even though the denial has been because there was a “genuine issue of fact,” that nothing is decided, and that nothing can be settled, appears to us an untenable generalization. That everything is not decided is certainly no objection, else denials of preliminary injunctions would also be ex-eluded, and § 1292(1) would be altogether nullified. Finally, although a preliminary injunction gives the plaintiff relief until the trial, it insures him of nothing more, and he cannot arrange his affairs upon the basis of any protection after the trial. That uncertainty, which may last over a year, may be nearly as serious as the absence of any protection at all. It appears to us therefore that the considerations that presumably moved Congress in 1895 to grant appeals from interlocutory denials of preliminary injunctions— i. e. because it was unfair to leave suitors unprotected pending trial — should be deemed to apply to denials of permanent injunctions. The original omission of any mention of these is readily accounted for by the fact that it was not until 1938, when the New Rules went into effect, that it was possible to move for summary judgment in a Federal Court. Although we are impressed by the high authority of those who take the opposite view, we are not persuaded that we should change our original ruling; and the motion will be denied. Motion denied. . Moore, Federal Practice, Vol. 6, pp. 2321, 2322. . Fishman v. Teter, 7 Cir., 133 F.2d 222, 223; Madeirense Do Brasil S/A v. Stul-man-Emrick Lumber Co., 2 Cir., 147 F.2d 399, 405; Dewey v. Clark, 86 U.S. App.D.C. 137, 180 F.2d 766, 772; Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269, 271. . 28 St. at L. 666. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_civproc1	50	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Charles WARKENTIEN and Patricia Ann Warkentien, Plaintiffs-Appellants, v. James J. VONDRACEK and Donna L. Vondracek, Defendants-Appellees. No. 77-1766. United States Court of Appeals, Sixth Circuit. Cause Argued January 31, 1980. Decided and Filed October 23, 1980. Robert A. Benson, Cholette, Perkins & Buchanan, Grand Rapids, Mich., Peter J. Johnson, St. Joseph, Mich., for plaintiffs-appellants. John W. Verdonk, Verdonk & Verdonk, Bangor, Mich., Calvin K. Hubbell, Valparaiso, Ind., for defendants-appellees. Before CELEBREZZE and KEITH, Circuit Judges, and WISEMAN, District Judge. Honorable Thomas A. Wiseman, Jr., District Judge, United States District Court for the Mid-die District of Tennessee, sitting by designation. WISEMAN, District Judge. The issue to be decided on this appeal is whether the trial court properly granted a judgment n. o. v. for the defendants after a jury verdict finding the defendant-vendors liable to the plaintiff-vendees for the innocent misrepresentations of the defendants’ agent. The Court has thoroughly reviewed the record under the standards required in an appeal from a judgment notwithstanding the verdict, and we conclude that the lower court’s decision should be affirmed. As stated by District Judge Miles in an excellent opinion that accompanied his order of a judgment n. o. v., this litigation arose from the parties’ perceptions of the use that could be made of a twenty-two acre parcel of land in Van Burén County, Michigan, known as the Rush Lake Campgrounds. The defendants, James and Donna Vondracek, conveyed this real estate to the plaintiffs, Charles and Patricia Warkentien, by means of a land contract executed on May 15, 1971. To understand the misfortunes that befell the plaintiffs after that conveyance, one must understand Act 171 of the Michigan Public Acts of 1970, Mich. Comp.Laws Ann. §§ 325.651-.665 (1975) (current version in Michigan Public Health Code, Mich.Comp.Laws Ann. §§ 333.-12501, 12505-.12516) (1979) [hereinafter cited as the Act]. This Act established a statutory definition of “campground” as a parcel of land where sites are offered for the use of the public “for the establishment of temporary living quarters for 5 or more recreational units.” The range of “recreational units” extends from the traditional tent to the modern recreational “motor home.” The Act does not apply to mobile home parks of the type used for relatively permanent residences; those were covered by an earlier statute, and Rush Lake was licensed for twenty mobile homes under that law. Prior to January 1, 1971, the effective date of the Act, there had been no licensing requirements for campgrounds, and thus the Vondraceks had operated Rush Lake as a campground without significant legal impediment, in addition to maintaining a limited number of mobile home sites pursuant to their mobile home park license. The defendants were aware of the Act’s requirements, and they knew that Rush Lake would require extensive engineering work in order to comply with the new law and the regulations promulgated under it. During the negotiations that led to the sale, the plaintiffs also familiarized themselves with the Act, and Mr. Warkentien definitely knew about the necessity of upgrading Rush Lake in order to operate it as a campground. The source of his complaint against the defendants is his belief that he would be allowed to operate Rush Lake until January 1974 without fully complying with the Act, in accordance with Regulation 325.1587 of the Michigan Public Health Department’s campground regulations, which provided for the possibility of nonconforming uses until that date. Mr. Warkentien’s expectations were disappointed when the local unit of the health department closed down Rush Lake’s campground operations on July 10, 1971. Mr. Warkentien now claims that the defendants falsely assured him that Rush Lake could continue to operate under the nonconforming use regulation, and that he justifiably relied on this misrepresentation. Upon a close examination of the record, however, the only reasonable conclusion that can be drawn is that if there were any misrepresentations in this case, they were made by Mr. Les Brown of the local health department unit, and if there was any justifiable reliance, it was based solely upon the misrepresentations of Les Brown. Because Mr. Brown was in no sense an agent of the defendants, they are not liable for the plaintiffs’ injuries, if any, resulting from Brown’s misrepresentations. THE FACTS After the Act had been passed in 1970, Mr. Vondracek and his father undertook a number of physical improvements in an effort to bring Rush Lake into compliance with the Act. However, upon the subsequent illness of the elder Vondracek, the defendants decided that it was inadvisable for them to continue the operation of the Rush Lake Campgrounds. They listed the property with LaVern R. Rice, Inc., Realtor. The plaintiffs noticed a newspaper ad placed by the realtor, and the agency referred the plaintiffs to the appropriate salesperson, Mrs. Bernice Rudell, who showed them the property. In the following month, Mr. Warkentien viewed the property five to ten times, at least once in the company of Mrs. Warken-tien. The Vondraceks and the Warkentiens met several times to discuss the property. Before consummating the transaction, the plaintiffs were advised that the Act was in effect, that it required the licensing of campgrounds, and that Rush Lake Campgrounds was not so licensed. Prior to committing himself, Mr. Warken-tien, on his own initiative, contacted the Van Burén County Health Department to inquire about the steps he would have to follow in order to obtain a license to operate the property as a campground. He spoke with Les Brown, then director of the Van Burén County Health Department, and they discussed certain problems with the sewer system and the necessity of complying with the requirements of the Act. Accompanied by Mrs. Rudell, the real estate agent, Mr. Warkentien called upon James Brunet, chief sanitary engineer of Van Bu-rén County, at which time Mr. Brunet gave him a copy of the Act. According to the plaintiffs’ testimony, he and Brunet discussed the requirements of the Act that applied to Rush Lake. As part of his pre-contract investigation, Mr. Warkentien also discussed the matter with his attorney, Warren B. Grosvenor, and, in the presence of Mrs. Rudell, they telephoned Les Brown to discuss the matter of bringing the property into compliance. Mr. Warkentien testified emphatically, at a number of points in the transcript, that in the course of this conversation Les Brown informed him that he could continue to operate the campground in the manner in which it had been operated in the past. In light of the information received in the course of his investigation, Mr. Warkentien entered into renewed negotiations with the Vondraceks. In recognition of the investment that would have to be made in the land because of the requirements of the Act, the Vondraceks agreed to reduce their asking price from $125,000 to $108,000. After consulting with Mr. Grosvenor, the plaintiffs signed a buy and sale agreement for $108,000 on May 8, 1971. Mr. Warken-tien made it very clear in his testimony that his decision to sign the buy and sale agreement was based on the representations Les Brown had made to him during their phone call. On May 15, 1971, the parties executed a land contract, bill of sale, and seller’s closing statement. These documents are silent on the subject of the use to which the realty could or might be put, and they contain no assurances or covenants that the present use would be permitted to continue or that any statutory requirements had been satisfied or waived. After the execution of the land contracts, the plaintiffs immediately assumed the management of Rush Lake and began successful operations, enjoying a particularly fruitful July 4 weekend. In a telephone conversation that occurred on July 8, 1971, however, Les Brown informed the plaintiffs that they were in violation of the Act and gave them forty-eight hours to have all recreational units removed from the park, with the exception of twenty units located on the twenty mobile home sites and four recreational units on the remaining property. This directive was confirmed in a letter to the plaintiffs from James Brunet, the sanitary engineer. As a result of this forced reduction in the allowable use of the facilities, the plaintiffs were disappointed in their financial expectations. When other attempts to obtain satisfaction proved unsuccessful, plaintiffs initiated this diversity action on July 9, 1973. The case was tried before a jury on November 10-12 and 15-16, 1976, on the issues of fraud or misrepresentation. In response to the special interrogatories directed to it, the jury advised the court that it found actionable misrepresentation, but not fraud, by the defendants and their agent in the land contract transaction. The jury further advised that the land contract not be rescinded and that plaintiffs be awarded $162,000 in damages. Prior to the submission of the case to the jury, the defendants had moved for a directed verdict both at the close of the plaintiffs’ evidence and at the close of all of the evidence. The trial court took these motions under advisement and, after the jury’s verdict, informed counsel that judgment would be entered only after a hearing on the motions. The motions were heard, memoranda were filed, and on July 11, 1977, Judge Miles entered judgment for the defendants. MISREPRESENTATION The case was tried to the jury on the issues of fraud or misrepresentation by the defendants in the sale of Rush Lake Campgrounds. The judge submitted special interrogatories to the jury, and the jury found misrepresentation by the defendants’ agent in paragraphs 2 and 16 of the May 8 mutual agreement. The mutual agreement is a three-page document handwritten by La Ver n R. Rice with approval signatures on the last page by Mr. and Mrs. Vondracek, Mr. and Mrs. Warkentien, LaVern R. Rice, and Bernice Rudell, the real'estate agents. Paragraph 2 states: In reference to contact with Les Brown of Health Dept. & LaVern R. Rice, Realtor, buyer may provide temporary sanitary facilities for travel trailers and shall do so until new facilities are completed. Paragraph 16 states: It is agreed that twenty sites are now wired for electric for campers and twenty-two sites more are available with use of extension cords. According to the plaintiffs, the effect of these two provisions was to mislead them into believing that Rush Lake could be operated as a campground until January 1974 despite its acknowledged deficiencies under the Act, in accordance with the health department’s noncomplying use regulations. The jury was correctly instructed that under Michigan law, in order to recover for actionable misrepresentation, the plaintiffs have the burden of proving the following elements: (1) That the defendants or their agents made representations as to material facts which were false in fact; (2) that the representations actually deceived the plaintiffs; (3) that the plaintiffs relied on the representations; and (4) that as a result, the plaintiffs suffered damage. Essenburg v. Russell, 346 Mich. 319, 78 N.W.2d 136 (1956). A. False Representation Assuming that paragraph 2 can even be characterized as a representation by the defendants’ agents to the plaintiffs, the record leaves no doubt that paragraph 2 is simply a memorandum of what all of the parties understood to be the position of the Van Burén County Health Department, as represented by Les Brown. Viewing paragraph 2 in the light most favorable to the plaintiffs, paragraph 2 was, at most, the defendants’ “promise” of what Les Brown would allow in the future. The defendants could not be held liable in tort for their own broken promises of what they would do in the future, and thus there is no basis for finding them liable in tort because Les Brown failed to do what the defendants promised he would do. See Hi-Way Motor Co. v. International Harvester Co., 59 Mich. App. 366, 229 N.W.2d 456 (1975), aff’d, 398 Mich. 330, 247 N.W.2d 813 (1976). For the same reason, there was no misrepresentation by the defendants in paragraph 16, which refers to the number of sites with electrical hookup capacity. In the first place, there is absolutely no evidence to suggest that this paragraph misrepresented anything, because there was no testimony suggesting that there were not in fact twenty sites wired for electricity and twenty-two sites available with the use of extension cords. However, this paragraph was interpreted by the plaintiffs as another promise that Rush Lake could continue to be operated as it had been before the Act, because the representation that there were forty-two campsites implied that the plaintiffs could continue to operate the camp under the nonconforming use regulation. (I. e., unless they conformed with the Act, or were allowed to continue operations under the nonconforming use regulation, the plaintiffs could use only twenty-four sites: the twenty sites licensed under the mobile home laws, plus the four campsites that any citizen was entitled to, since the Act only comes into play when there are five or more campsites). For the same reasons discussed above, however, promises that Les Brown would allow continued operation in an unlawful manner could not give rise to tort liability on the part of the defendants, as a matter of law. At this point we have determined that neither of the two items relied upon by the jury in the special interrogatories as the bases of misrepresentation could give rise to tort liability. A reviewing court must look beyond the special interrogatories, however, to determine whether there was some other basis for a finding of tortious misrepresentation to justify the jury’s ultimate verdict. We have scrupulously examined the record in this case, and there is simply no other evidence from which a reasonable person could infer that the defendants or their agents misrepresented anything. The trial judge allowed the plaintiffs every possible opportunity to prove some sort of misrepresentation or fraud, and they were unable to do so at any point in the five days of testimony. Consequently, we do not hesitate to conclude that the plaintiffs failed to produce a prima facie case that an actionable misrepresentation was made by the defendants. B. Reliance Assuming arguendo that the plaintiffs had established misrepresentation, they would still be required to show that they relied on the misrepresentations of the defendants. They failed to carry this burden as well, because no reasonable person could conclude that the plaintiffs relied on anyone other than themselves and Les Brown. After Charles Warkentien became interested in the campgrounds, he personally conducted an investigation of the effect that the Act would have upon the continued operation. Before signing the mutual agreement of May 8, Mr. Warkentien, on his own initiative, contacted the Van Burén County Health Department to inquire about the licensing of Rush Lake Campgrounds, talked with Les Brown, revisited the health department, talked with James Brunet, received and studied the Act, and discussed the matter of licensing with his attorney. No evidence was adduced to support a contention that the Warkentiens relied on any representations of the Vondraceks or their agents which they did not investigate for themselves. Plaintiffs made the decision to purchase Rush Lake Campgrounds on the basis of their own independent investigation and the alleged assurances of Mr. Brown. Indeed, Mr. Warkentien’s own testimony emphasizes again and again the central importance of Les Brown’s alleged assurances. To the extent that the defendants might have reiterated Mr. Brown’s representations, any conceivable reliance by the plaintiffs on those reiterations is insignificant in comparison with their reliance on Les Brown. The plaintiffs did not carry their burden of demonstrating the presence of reliance on representations of the defendants, which is necessary to recover on a theory of misrepresentation. A & M Land Development Co. v. Miller, 354 Mich. 681, 94 N.W.2d 197 (1959). THE JUDGMENT N.O.V. In ruling on the defendants’ motions for a directed verdict, the trial court properly recognized that granting them would be tantamount to entering a judgment notwithstanding the verdict under Rule 50(b), F.R.Civ.P. Judgments n. o. v. are legally equivalent to directed verdicts, and the same standards govern the consideration of either. See Garrison v. Jervis B. Webb Co., 583 F.2d 258, 261 n.3 (6th Cir. 1978). Although it was an error without consequence, the trial court incorrectly applied the federal standard for determining the propriety of a directed verdict. In this circuit, motions for a directed verdict must be considered under the applicable state standards for directed verdicts. Garrison v. Jervis B. Webb Co., supra, 583 F.2d at 261 n.4. However, the Michigan standard for directed verdicts appears to be identical to the federal standard, which is referred to as the “reasonable minds” test. Under this standard, a trial court should grant a motion for a directed verdict when, after viewing the evidence in the light most favorable to the non-moving party, the evidence points so strongly in favor of the movant that reasonable minds could not come to a different conclusion as to the appropriate verdict. The issue raised by a motion for a judgment n. o. v. is whether there is sufficient evidence to raise a question of fact for the jury. A reviewing court must apply the same standards. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir. 1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979). A recent statement of the Michigan standard for judgments n. o. v. is found in Cormack v. American Underwriters Corp., 94 Mich.App. 379, 288 N.W.2d 634 (1979). The Michigan court wrote that: A judgment n. o. v. on defendant’s motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. In reviewing a motion for judgment n. o. v., the Court must give the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If reasonable minds could honestly disagree as to whether the plaintiff has satisfied his burden of proof or the necessary elements of his cause of action, judgment n. o. v. for the defendant is improper. Id. at 636 (emphasis added). This language is virtually identical to the Sixth Circuit’s language in Morelock, and thus we conclude that the Michigan standard for judgments n. o. v. is legally equivalent to the federal standard. See also Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975); Dowell v. General Telephone Co., 85 Mich.App. 84, 270 N.W.2d 711 (1978); Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976). This means that although the trial court erred in not looking to Michigan law, it nonetheless effectively applied the appropriate Michigan standard for directed verdicts. Looking at the evidence in the light most favorable to the plaintiffs, and without passing on the credibility of the witnesses, we can only conclude that, at most, the plaintiffs established a misrepresentation by Les Brown and their reliance on it. So far as the record discloses, Les Brown was the only person who might have led the plaintiffs to believe that they could operate under the nonconforming use provisions until 1974. Indeed, the lack of any proof in regard to the defendants and their agents is so striking that the plaintiffs’ case would fail to pass muster under the abandoned “scintilla” standard. Although speculation about the reasons for the jury’s verdict would ordinarily be inappropriate, we cannot resist the observation that the jury might have concluded that' Les Brown was somehow the defendants’ agent, despite the total absence of any suggestion to that effect. Absent that explanation, the jury’s verdict is completely inexplicable, unless perhaps it was the result of passion or prejudice, as Judge Miles suggested. Accordingly, the decision of the lower court is affirmed. . The lower court’s judgment of July 11, 1977, purported to grant defendants’ motion for a directed verdict, a decision which it had expressly reserved at the end of all of the evidence. Surprising though it may seem, the express reservation of a directed verdict motion does not authorize a district court to direct a verdict contrary to the jury’s decision in the absence of a motion for a judgment n. o. v., Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952); see Philhall Corp. v. United States, 546 F.2d 210, 213 (6th Cir. 1976); 5A J. Moore, Federal Practice 50.09 (1980). These authorities emphasize that the requirements of Rule 50(b), F.R. Civ.P., must be strictly followed in order for a party to obtain relief under its provisions. The defendants in this case failed to make an express motion for a judgment n. o. v., but simply renewed orally their previous motion for a directed verdict after the jury had been dismissed. Because a directed verdict is legally equivalent to a judgment n. o. v., see Garrison v. Jervis B. Webb Co., 583 F.2d 258, 261 n.3 (6th Cir. 1978), it would elevate form over substance to find that the defendants’ oral renewal of their previous directed verdict motion failed to operate as a judgment n. o. v. motion. Thus, although it would have been the better practice to file a written motion for judgment n. o. v., we are satisfied that the defendants’ oral renewal of their directed verdict motion was, in effect, a motion for judgment n. o. v. under Rule 50(b). For this reason, we will consistently refer to the lower court’s judgment as a judgment n. o. v. Cf. First Safe Deposit National Bank v. Western Union Telegraph Co., 337 F.2d 743 (1st Cir. 1964) (holding that a court may grant a reserved motion for a directed verdict if it acts within the time limit for submitting a judgment n. o. v. motion). . Although a district court is not required to file an opinion with a judgment n. o. v., the Sixth Circuit has heartily commended the practice. See Garrison v. Jervis B. Webb Co., supra, 583 F.2d at 261 n.3. Judge Miles’ effort is a superlative example of such an opinion, and we have borrowed heavily from it in portions of this opinion. . The district court concluded that there were no damages, but our disposition of the case does not require this Court to reach that question. . Les Brown denied that he made these statements, but because the Court is required to view the evidence in the light most favorable to the plaintiffs without passing on the credibility of the witnesses, we will accept the plaintiff’s version of events. See Dowell v. General Telephone Co., 85 Mich.App. 84, 270 N.W.2d 711 (1978). . Twenty units were permissible because the mobile home license authorized that many mobile home sites, regardless of the type of unit. The plaintiffs were allowed four additional units because anybody could operate four campsites without having to comply with the Act. . Unknown to plaintiffs’ counsel, Michigan law provides a cause of action for innocent misrepresentation. Although the plaintiffs failed to plead misrepresentation as a cause of action, the trial judge, citing Rule 15(b), F.R.Civ.P., nonetheless instructed the jury on the elements of actionable misrepresentation (as it is called in Michigan), because during the trial, plaintiffs’ counsel had referred to misrepresentation without objection. . The jury did not identify the agent, but presumably it was either Bernice Rudell or LaVern Rice, the real estate agents. . The concept of making a promise for a third party poses certain conceptual difficulties, but it is the essence of the plaintiffs’ claim. The plaintiffs were fully aware that the defendants had no authority, legal or otherwise, to authorize Rush Lake’s operation under the noncomplying use regulation, and the alleged misrepresentation can only be described as a promise of what Les Brown, the director of the health department, would do. . See note 1 supra. . Judge Miles cited inconsistencies in the jury’s response to the special interrogatories in further support of his conclusion that the jury exhibited “total miscomprehension of the issues in this case." Although the jury stated that both the defendants and their agents committed actionable misrepresentation, it failed to specify the particular misrepresentation of the defendants, as required by one of the interroga-iones. Furthermore, the jury’s $162,000 damage award apparently presumed rescission of the land contract, despite the jury’s recommendation that rescission not be ordered. Although these internal inconsistencies are not necessarily inconsistent with the general verdict, they do support in some measure the trial judge’s conclusion that the jury’s verdict was unreasonable. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_trialpro	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". MARTIN et al. v. LUSTER. No. 5584. Circuit Court of Appeals, Seventh Circuit. July 17, 1936. As Amended on Rehearing Nov. 4, 1936. Charles S. Babcock, of Chicago, Ill., Roy P. Wilcox, of Eau Claire, Wis., and Alfred Beck, of Chicago, Ill., for appellants. John C. Slade and Charles J. Calderini, both of Chicago, Ill., A. W. MacLeod, of Eau Claire, Wis., and Wm. D. Tatlow, of Springfield, Mo., for appellees. Before EVANS, SPARKS, and ALSCHULER, Circuit Judges. EVANS, Circuit Judge. This appeal is from an order terminating a receivership of a $266,345 fund which it is alleged appellees’ decedent (Frank Llermann) held in trust for appellants. Heretofore appellees, as Hermann’s executors, were ordered to pay this sum to the receiver. The District Court, in the decree appealed from, ordered the return of the money, less expenses, to appellees. The determinative issue turns upon the nature of the relationship of Hermann, the underwriter of the reorganization, to the new corporation and to the stockholders of the old corporation. The plan of reorganization approved by the court and an underwriting agreement, which was indispensable to the plan, to a large degree establish Hermann’s status which in turn determines his liability and that of the executors of his will. Hermann undertook to deposit $315,000, which was the sum which it was estimated would be necessary to effectuate the plan. Either as consideration for this sum or as a means to procure it, he was issued 100,-000 shares (all) of the common stock and preferred stock of the par value of $50,000 of the new company. The plan and the underwriting agreement were both consummated and the deposit made. Creditors of the old company were given preferred stock in payment of their claims. They also had the right to sell such stock to Hermann for a certain percentage of cash, which cash came from the above-described fund. Nearly one hundred thousand dollars of this deposit was unused and returned to Hermann after the reorganization. He purchased a great,, many shares of preferred stock from creditors, as the agreement provided, and sold the preferred stock to the company at the same price at which he purchased it. The company later called in all the preferred stock. During the course of this litigation it has been the contention of appellants that Hermann occupied a trust relation to the old stockholders and to the corporation. As a necessary corollary it is argued (a) that he wrongfully resold the preferred stock to the company whereas he should have retired it gratis, or (b) that he was given the 100,000 shares of common stock, not outright, but as a means to raise the necessary money for reorganization, and the balance of the stock riot sold belonged to the company. The District Court made findings and conclusions, and also filed a carefully considered memorandum opinion holding no trust relation whatsoever existed. He reviewed the conflicting oral testimony and depositions and the varying pleadings and amendments, and concluded in favor of Hermann’s executors for the following reasons: (1) The amended complaint [which differs from the one on which the former appeal (C.C.A.) 58 F.(2d) 537, arose] makes the alleged trust agreement an incident of the plan of reorganisation (a former complaint made it incident to the underwriting agreement) from which it follows: (a) that such an important item would have been disclosed to the court, 'in the course of effecting the reorganization and certainly should have been so disclosed; (b) such an agreement would have been a material modification of the plan and if undisclosed to it would be in defiance of it; (c) it was four years.before any stockholder suggested that such an agreement existed. (2) Evidence of conversations necessary to establish an agreement with the decedent was not admissible. (3) Since all other agreements were in writing, it is significant that the alleged agreement was not. (4) It was Hermann who deposited the money, and it was he who was issued the stock, just as the written plan provided. (5) Execution of the plan by a special master and a commissioner, under directions of the court, shows the plan was a complete one. (6) Oral testimony given many (eight or nine) years after the event is not reliable. (7) Variance in the material allegations in the original, first and second amended bills; also if the trust in conjunction with the plan existed, it would probably have been alleged in the original bill. In more detail, the facts are as follows: The Gillette Rubber Company was in receivership and Hermann appointed one of two receivers in April, 1922. He subsequently became sole receiver. He was a director of the old company and was president (until September, 1929) of the new company, serving also as a director and manager. Mr. Kent, who was chairman of the reorganization committee, submitted an underwriting agreement to Hermann, April 20, 1924, which Hermann accepted the next day. Because of the importance of the terms of this agreement in determining the true facts, we set forth, in the margin, portions of the agreement verbatim. Pursuant to the terms of this agreement Hermann was to deposit $315,000 to effectuate the plan of reorganization, and he was to be issued all (100,000) shares of common stock of the new company and preferred stock of the par value of $50,000 (to cover $35,000, of the $315,000, for reorganization expenses). The plan of re^ organization was approved by the court. May 8, 1925. The plan contained no provision as to stockholders in the old company, but the underwriting agreement did. The plan provided that creditors holding preferred claims in the old company be paid 40% in cash and that general creditors be paid in preferred stock of the new company at the ratio of 300 par value to dollar of claim, and the preferred stock so received could be sold to Hermann at 500 on the dollar of par value (giving them in actuality 150 on the dollar for their claims). The new company issued a certificate for 100,000 shares of common stock, to Hermann. He immediately broke this lump holding into 49,000 shares to be sold to raise the sum underwritten and 51,000 shares to he placed in a voting trust (of which he evidently held 26,000 shares). Of the 49,000 shares he sold 34,775 shares to old stockholders for $178,927.80; 2,568 shares to others for $12,840, or a total of $191,767.80. The remaining 11,657 shares of the 49,000 block, he held himself and in February, 1929, sold, along with the shares he held in the voting trust block, to Gillette and Hutchens for $21 a share. The common stock (originally planned without par value) was of the par value of $5.40. Hermann made the deposit of $315,000, and this fund was used as follows: $71,-500.58 was used to pay preferred creditors 40% of their claims against the old corporation; $104,207.60 was paid to general creditors who turned in their preferred stock to Hermann; $35,000 went to the reorganization committee; $6,186.80 was given to non-depositing bondholders for preferred stock given them in payment of their claims. The total disbursements from the $315,000 fund were therefore $216,-894.98, which left an unexpended balance of $98,105.02. This sum was returned to Hermann upon order of court entered upon petition of the reorganization committee and signed by counsel for appellants. Hermann became very ill in 1929 and severed connections with the company. He disposed of his stock holdings, both common and preferred. The 26,459 shares of common stock (the 11,657 of the 49,000 block and 14,500 of the voting trust, and 302 shares from some other source) he sold to Gillette and Hutchens for $21 per share, a total of $555,639. The preferred stock he sold to the company at half of the $15 par value, or $7.50. Of the preferred stock, he held 17,377% shares, which at $7.50 (50% of par value) amounted to $130,331.25. The, total sales price of all stock interest was $685,970.25. If the transaction of Hermann be viewed as an entirety and the above figures be used in the calculation, it will be found that Hermann profited by approximately $660,843.-07 out of the reorganization of the company for which he was the receiver. In addition he received a salary of $25,000 per year and dividends were paid regularly (5 to 10%) on the common stock. In order to get a true picture of circumstances of this reorganization, we quote in the margin excerpts from various documents presented in evidence, including the circular letter of July 5, 1924, to stockholders and Hermann’s letter of April 28th. A case growing out of the same transaction which is illuminating arose in the eighth circuit wherein Gillette, Hutchens, and Gilruth sued Hermann and alleged that he agreed each should have one-fourth of the 51,000 shares in the voting trust and that he had given them only a total of 25,000 (leaving him in control). They, however, purchased the stock from him later, and the Court of Appeals held [Luster v. Gilruth, 60 F.(2d) 751] that the subsequent purchase negatived the charge that they were to share in all the stock he acquired. A previous appeal was taken to this court [58 F.(2d) 537] from the order appointing the receiver of the trust fund. On that appeal this court held the cause of action against Hermann survived his death and that the District Court in Wisconsin had jurisdiction of the alleged trust; that the stockholders’ cause of action was a class action; and that the allegations of the bill supported the appointment of a receiver. Pertinent portions of that opinion are set forth in the margin. Chronologically, the facts are: April, 1922 Hermann appointed one o£ two re- • ceivers for old company. Jan., 1924 Kent selected as chairman of committee on reorganization. April 20, 1924 Underwriting agreement submitted by Kent to Hermann and accepted by him, April 21. June 19, 1924 New company organized. June 20, 1924 Plan signed by new company. July 5, 1924 Circular letter to stockholders. March 25, 1925 Kent and committee petitioned court to approve plan. May 8, 1925 Plan of reorganization approved by court. August 1925 Certificate of 100,000 shares of common stock issued to Hermann. August, 1925 Voting trust of 51,000 shares created, Hermann having 26,000. Dec. 24, 1925 Before this time Hermann sold 14,-718 shares of preferred stock to company (findings say 15,778 in December and 1,599% afterwards). Dec. 29, 3925 Resolution of directorate of new company to purchase outstanding preferred stock as it was able. Dee. 30, 1925 Hermann discharged as receiver. Feb., 1929 New company had purchased 26,-836 preferred stock, leaving 19,241% outstanding. All shares of preferred stock called for redemption. Feb. 24, 1929 Hermann sold all common stock (26,-459 shares — 14,500 from voting trust) to Gillette and Hutchens at $21. March 18, 1929 Charter changed so only 200,000 shares of common stock. Sept., 1929 Hermann ceased being president of new corporation. Dec. 2, 1929 First complaint in equity filed on removal to District Court (Started in State court, Nov. 22, 1929). Jan. 14, 1930 Hermann died. July 17, 1931 Trust fund receivership set up. April 7, 1932 Opinion of this court on previous appeal, 58 F. (2d) 537. Nov. 30, 1932 Second amended bill filed. March 16, 1935 Order of District Court terminating receivership of trust fund. Hermann’s profits in the whole transaction from hindsight are: He deposited pursuant to underwriting agreement $315,000. for v,-Ilion lie received the following items: (a) 100,000 shares of common stock of par value $5.40 280,000 (b) Preferred stock of par value of $50,-000 • 35,000 Total $315,000 He was returned between Aug. 29, 1925 and Jan. 9, 192G, from this deposit by order of court after reorganization 98,105.02 $216,894.98 He sold out of the 100,000 shares of common stock 34,775 shares to old stockholders for $178,927.80 2,568 shares to others for 12,840 $191,767.80 191,767.80 The remainder which he did not receive by sale of common stock $ 25,127.18 * * * He later sold to Gillette and Hutchens 11,657 shares of common stock 244,797 (of the 49,000 portion) 14,802 shares of common stock 210,842 $555,639 He also later sold 17,377% shares preferred stock to company at $7.50 130,331.25 Total he received for stock held (not counting 400 shares turned in for son-in-law’s note) $685,970.25 25,127.18 Net profit, subtracting the balance above $660,843.07 These figures are approximately correct.. There seems to be some slight conflict in the record of the various stock holdings, and therefore the approximation. Much difficulty, as well as this prolonged litigation, might have been avoided had Hermann been denied the right to participate actively in the reorganization of the company for which he was acting as receiver. There may be instances when the condition of an embarrassed company and the unusual qualifications of the receiver justify an order by the court which permits the receiver to deal, as an adverse party, with the property for which he is a receiver. (See volume 23, Ruling Case Law, “Receivers,” Secs. 83 and 84.) We doubt it. The dual position in which a receiver finds himself, under such conditions, is intolerable. His interests conflict. Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418. As receiver he is the arm of the court. (Bogert on Trusts, vol. 1, § 14.) He has obtained inside information concerning the future possibilities of the company. As a receiver he represents all the stockholders and all the creditors. The court is entitled to his advice and should be free to rely upon it. Notwithstanding Hermann occupied such a position he was permitted to become a purchaser of the assets of the corporation and in no small way to direct the amount the creditors should be paid as well as the manner of payment. He held the fate of the stockholders in his hands. It was a case of Hermann, receiver, to protect stockholder, versus Hermann, who was making a purchase the profits from which depended upon the extent to which he could reduce the amount that he paid the stockholders. The query naturally arises, In what capacity did Hermann act? Was he the receiver when he arranged to organize a new company and acquire the stock thereof? Was he in a position to advise the court as a receiver respecting the fairness of the plan of reorganization wherein he individually was purchaser? We think not. It is true that an executor or a guardian or a trustee may at times further bids, if permitted to purchase a part or all of the estate for which he is a conservator. Unfortunately, however, there may be times when he will be the only bidder and at other times he may be interested in eliminating other bidders. Hence the rule which forbids such court official from purchasing at such sales. It is a wise and safe rule. Its wisdom has been demonstrated by experience. Bogert on Trusts, volume 3, § 484, p. 1514. Undoubtedly much of the litigation which has vexed the courts for the last eight or ten years growing out of this reorganization would have been avoided had Judge Luse lived. He apparently had great confidence in Hermann’s ability to conduct this rubber tire business. He, too, was anxious to avoid liquidation and equally desirous of continuing a business which was important to the people of Eau Claire. In the conduct of a receivership, courts are required to make administrative orders and seldom do the court files completely record all of the understandings and fact representations which are known to the court only. It is for this reason that we observed that much of the trouble would have been avoided had the presiding judge not been called by death. We must, however, take the situation as we find it. No appeal was taken from the order which allowed Hermann to purchase the assets of the old company and organize a new company. In fact, the court was encouraged to so proceed by those who are now crying the loudest. Out of this prolonged and bitter legal contest, the issue is over Hermann’s liability as an alleged trustee. Two basic questions are presented. One is a question of fact and the other, one of law. In truth, the issue of fact is largely one of conclusion, (a) Did Hermann receive the common stock with the understanding that he was to sell 49,000 shares of it to old stockholders and apply the proceeds thereof to the retirement of preferred slock which had been issued to creditors of the old companyt (b) Did the evidence of the agreement or understanding conflict with or violate the provisions of the underwriting agreement or plan of reorganization? Obviously, if there were no such understanding or agreement, the second question becomes academic. However, in the consideration of the first question, it is perhaps a worthy argument to assert that parties interested in creating a trust fund would have done so in a manner which was valid and binding beyond dispute. Therefore, this second question somewhat affects the determination of the first ques-' tion. The District Court made a finding to the effect that no agreement creating a trust in 49,000 shares of stock of the new company existed. If this finding depended solely upon the oral testimony of certain witnesses spoken in open court, we would find ourselves compelled to accept it. A careful statement of the reasons why the District Court rejected the oral testimony of numerous witnesses upon which appellants largely depend as unreliable and untrue, would necessitate our applying the well-known rule that appellate courts must accept the findings of the District Court where there is evidence and reason to support them. Uihlein v. General Electric Co. (C.C.A.) 47 F.(2d) 997. We are, however, unable to explain or avoid the effect of certain documentary evidence. It seems to us that Hermann’s letter of April 28th established a case from which he cannot escape. We are satisfied that the plan of reorganization and the underwriting agreement should be construed together. Nor is there in either document anything which would preclude Hermann from accepting 49,000 shares of stock of the new company and validly binding himself to sell them to old stockholders at $5.40 per share and to devote the proceeds to the retirement of the preferred stock. Likewise, we are not much concerned about the form of the documents or the language used in creating this trust. (Bogert on Trusts, vol. 1, § 45, p. 197; In re Grigsby-Grunow (C.C.A.) 80 F.(2d) 478.) We are interested in the fact, not theories of counsel as set forth in different pleadings, briefs or letters. The underwriting agreement contemplated a more elaborate and detailed plan later on. Both plans left disposition of stock of the new company held by Hermann open to future action by Hermann. In his letter of April 28th, Hermann elaborated his understanding of the plan, particularly the disposition of the 100,000 shares of stock which were to be issued to him. He also explained his method of securing the cooperation of the old stockholders. He says he was “to use the proceeds from the sale of this stock toward retiring the preferred stock given to creditors.” When the plan was sent out for approval it was accompanied by a letter, the all-important paragraph of which reads as follows: “On April 21st, 1924, the bondholders and creditors committees submitted a plan of reorganization to Mr. Hermann which was accepted by him. Under that plan Mr. F. C. Hermann agreed to furnish all the cash requirements and in return was to be given all of the 100,000 shares of non-par common stock in the new company, and he has very generously offered to sell to the stockholders one-half or 50,000 shares at the agreed price of $5.40 per share. The money derived from this does not go to Mr. Hermann personally but is to be used in retiring as many of the unsecured debts as possible at fifteen cents on the dollar, and thus permitting the stockholders to become part owners with him.” If we ignore for the moment the oral testimony of Catlin, Wilcox, Lange or Kootz and view their sworn statements as entitled to no weight, as the District Judge did, it is still quite impossible, in view of these two letters, one from Hermann and one which the chairman of the stockholders’ committee set out, to conclude other than that Hermann offered to sell 50,000 shares of the common stock at the agreed prices of $5.40 per share and the money derived from the sale of this stock should go, not to Mr. Hermann personally, but was to be used in retiring preferred stock. (Later, the 50,000 sháres were reduced to 49,000 shares.) As corroboration, it is worthy of note that the creditors were to take part cash and some preferred stock; that the preferred stock was to be retired. There is further corroboration to be found in the action of Hermann. He did set aside a certain amount of stock to be sold the stockholders of the old company. He did offer most of it for sale to said old stockholders. He did use the proceeds thereof to buy preferred stock. He did not, however, retire the preferred stock. There is-, moreover, the further corroboration which appears in the testimony of Mr. Kootz. Assuming that prejudices influence witnesses to the extent of coloring their testimony, it is worthy of note that Kootz must be aligned on.the side of Hermann. Certainly he was not on the side of the stockholders or creditors of the old company. It was to him that Hermann went to borrow money, and Hermann agreed to pay him half of the profits of' the underwriting transaction. After the transaction was over, Kootz asked for an accounting, and Hermann stated that “the money which he got from the old stockholders in the old company was not his own.” “He accounted to me for profits which he made on the rest of the stock.” This testimony was given while Hermann was still living. We are unable to reconcile Hermann’s statement thus made to Kootz with any theory other than that the money derived from the sale of this new stock to old stockholders was to be used in retiring the preferred stock, as proposed by Hermann in his letter of April 28th and confirmed by the letter which was sent out to stockholders when the plan of reorganization was submitted to them. True, Kootz’s testimony was oral. No writing supports his statement. It is, however, undisputed. In view of the fact that it was given before Hermann died, the latter’s counsel was advised of the amounts paid to Kootz by Hermann as profits out of the underwriting deal. If the payments included the profits on this stock, the records would have shown it. Kootz’s testimony, therefore, while oral, was capable of refutation by documentary evidence. It was the statement of a third party aligned, if at all, with Hermann. It was testimony which, if untrue, could have been proved to be false.'It was not disputed. It is argued for appellees that the agreement out of which the trust arose violated or conflicted with the underwriting agreement. We think not. The underwriting agreement provided: “Out of the common stock, the management (was) to make such arrangement as it wishes with the old stockholders to provide them with participation certificates to induce them to consent to the transfer of the property without.foreclosure.”, Likewise, another paragraph provided that the common stock was passed to Hermann and by him to be used to provide participation certificates for such stockholders of the present corporation as give their consent to the plan of reorganization. Undoubtedly the idea of participation certificates was eliminated because foreclosure took place and the good will and cooperation of the old stockholders were sought in another way. It was both a practical and a happy solution of the problem. It furnished Hermann with cash he sorely desired. Even with this money he used cash of the corporation to meet his obligation. It gave the old stockholders an opportunity to retain their interest in the enterprise. They could purchase common stock in the new company at a figure below that which it was hoped the stock would be fairly worth. Money used to retire preferred stock issued to creditors eliminated those prior lien securities which in turn gave greater value to the common stock. We find nothing in a plan which used the stock for the laudable purpose of acquiring the good will and friendly cooperation of old stockholders and creditors who had it in their power to obstruct, if not defeat, the reorganization, that was inconsistent with an underwriting agreement wherein the then receiver was to have the stock of the new company first issued to him. It is not necessary to discuss all the arguments advanced by appellees. It is sufficient to say that appellees’ anxiety lest creditors whose claims Hermann purchased might have been defrauded by the plan which contemplated the early retirement of the preferred stock, is unappreciated. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 503, 33 S.Ct. 554, 57 L.Ed. 931. We are equally well satisfied that appellants were not guilty of laches. There was also corroboration of the appellants’ theory to be found in the plan itself. In other words, the utter unfairness of the plan as Hermann carried it out and in support of which appellees now argue, would have prevented the acceptance of such a plan by the stockholders had it been thus presented to them and too it would doubtless have been rejected by the court. Credibility of a witness may depend upon the reasonableness of his story. The facts speak for themselves. Hermann was and had been the receiver of the company for three and one-third years. He occupied a fiduciary position to the stockholders and creditors. He was familiar with the business of the company during the receivership. Its operation had been successful as evidenced by the average net earnings of $400,000 per year. As receiver he was under obligation to deal fairly with all and to take no advantage of stockholders or creditors. Jackson v. Smith, supra. It is also fair to assume that he desired to retain the confidence of the court that appointed him. Under the plan of reorganization the unsecured debts were to be reduced from $1,600,000 to approximately $240,000. Both the bonded indebtedness and the secured indebtedness were also reduced. In addition, according to appellees’ theory, Hermann was personally to receive without cost all the stock of the new company. In short, the receiver was to close up the receivership by becoming the sole owner of all the stock for which the existing stockholders were to receive nothing. The equity represented by 300,000 shares belonging to hundreds of stockholders for which they had paid ten dollars per share was to be wiped out, and new stock was to be issued, all of it, to Hermann. To accept this theory is to overtax one’s credulity., On the other hand, appellants’ version appeals. to us as reasonable. There were outstanding 300,000 shares of stock of the old company of $10 par value per share. They were widely distributed and the stockholders were purchasers of Gillette Rubber Company’s tires. Under the reorganization plan the stock issue was to be one-third that of the old company. Par value was changed from $10 to $5.40. The stockholders of the old company were permitted to purchase stock in the new company, up to 49,000 shares, at $5.40 per share. In view of the reduction of debt and in view of the earning showings, this was a worth while concession to the old stockholders. But if this stock was to be sold to old stockholders at $5.40 who.was to receive the proceeds,- — the company or this receiver? Appellants say the proceeds were to be used to further improve the condition of the company — to retire preferred stock issued to creditors at fifty cents on the dollar. If this plan had been carried out nearly all preferred stock would have been eliminated. • Such a plan would have appealed to the old stockholders who were asked to surrender their stock in the old company. This was the written proposal submitted to them by the chairman of their committee and doubtless resulted in their joining Hermann and others in asking the court to approve th-e plan. If this were not the understanding, why were 100,000 shares in the new company divided immediately upon their issuance, 51,000 going to Hermann’s voting trustees and hundreds of certificates issued to old stockholders who even at that earlier date h-ad subscribed for them? How did it happen that the price was $5.40 to them if there was no existing agreement on Hermann’s part to sell to old stockholders at this figure? The issuance of this stock was on the date the books of the new company were opened. Equally significant is the fact that the proceeds were used to acquire preferred stock issued to creditors under the option provision therein appearing. But the preference stock was not cancelled. It was not retired. Notwithstanding Hermann in his letter of April 28 used the word “retired” this stock thus purchased was held by Hermann as his own and he later offered it to the directors with the threat that if they did not buy it for the corporation he would sell it elsewhere for a higher price. Now, it is argued from the fact that the directors paid Hermann for this stock out of company funds there could have existed no obligation on Hermann’s part to retire the preferred stock from the proceeds of the sale of the common stock. An examination of the records of the company in respect to this transaction does not support any such deduction. Nor does the study add respect for Hermann’s methods. There were seven directors. Hermann was one. He was president of the company. At the time he offered this stock to the directors he held the stock control. Four of the directors were on salaries the continuation of which depended on Hermann. One of the four received a salary of $25,000, two received $12,000, and one, $9,000, per year. Moreover, another director had a secret agreement with Hermann to share in the profits from the transaction whereby Hermann acquired the stock of this company. Of the two remaining directors nothing is shown indicating limited or restricted capacity to act freely. One protested and stated that he understood the preferred stock purchased from funds • derived from the sale of 49,000 shares of common stock was to be retired. He was advised that the right to enforce this obligation on • Hermann’s part rested with the stockholders and not with the corporation, and that the directors should purchase the stock “for it was worth more.” This action, aside from the irregularity arising out of a president’s dealing with his own company where directors were under his influence, shows that there was an impression, to put it mildly, that these 49,000 shares were transferred to Hermann in trust. Had the claim.been asserted by the directors it would not have established the existence of a trust anymore than failure to so assert it negatived the existence of a trust. Its only significance lies in the fact that there, was an expressed belief by one of the directors that such a trust existed. He was silenced by an awesome statement that “the law” did not recognize the authority of the corporation to enforce the rights of stockholders. Transactions with the Deceased. While our conclusions are based largely if not entirely on Hermann’s letter of April 28 and the circular letter which was sent with the copy of the plan of reorganization, to all the stockholders including Hermann, there is strong support in favor of the existence of the trust to be found in the deposition of Kent and the oral testimony of one Doctor Runnels, which were excluded by the District Court on the ground that such statements violated section 325.16 of the Wisconsin Statutes. Kent was an officer of a Chicago bank which carried the old Gillette Rubber Company’s account. When that company became financially involved, Kent became chairman of a bondholders’ and also the creditors’ committee. He was not personally interested in either stocks or bonds or other claims against the Rubber Company. He actively participated on behalf of the creditors in the receivership proceedings, and also was active in the preparation of the underwriting agreement as well as in the plan of reorganization. Shortly after Hermann wrote the aforesaid letter of April 28 to Attorney Gilruth, who was attorney for this bondholders’ protective committee, Kent testified to Hermann’s seeing him in Chicago, in his bank in reference to the proposal contained in Hermann’s letter of April 28. It was this conversation which was excluded. That it was important and most persuasive can not be doubted. Kent said that in this conversation he suggested two or three modifications to Hermann’s proposal, appearing in the letter of April 28. He suggested that the per cent of stock of the new company to be sold to the old stockholders should be reduced from fifty to forty-nine per cent thereby giving absolute control to Hermann. He also stated that the dollar mentioned in said letter be eliminated; that the price fixed for the stock be $5.40 instead of $5, forty cents to be used to cover expenses, etc. And most important of all, he said Hermann confirmed his offer to sell forty-nine per cent of the stock to old stockholders and use the proceeds to retire preferred stock. The exclusion of this testimony was on the ground that the witness was not competent because (section 325.16, Wis. Statutes) he related a transaction with a deceased person. As we construe the decisions, the Wisconsin Supreme Court has ruled otherwise in Dilger v. Estate of McQuade, 158 Wis. 328, 148 N.W. 1085; Lowry v. Lowry, 211 Wis. 385, 247 N.W. 323, 248 N.W. 472. In other words, according to these decisions, Kent was not a party through whom appellants traced their cause of action. The ruling on Doctor Runnel’s testimony turns on a different fact situation. The testimony by him given and which was stricken would have been objectionable on the ground that he was an incompetent witness due to said section 325.16, had it not been for the fact that he was placed upon the witness stand by the appellees as their witness, and the door was thus by them opened to permit the introduction of his testimony on cross-examination. He was asked on direct examination, respecting a letter which he wrote to Hermann. On cross-examination he was asked about a statement appearing in said letter. There was oral evidence of five or six other witnesses, all to the same effect, which corroborates appellants’ theory of the existence of a trust. They testified to conversations with Hermann or to having heard Hermann state that as part of the plan of reorganization he was to sell 49,-000 shares of the stock to old stockholders at $5.40 per share and to use the proceeds to retire the preferred stock. We would have felt inclined, Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_numappel	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. W. E. HEDGER TRANSP. CORPORATION et al. v. IRA S. BUSHEY & SONS, Inc. No. 252. Circuit Court of Appeals, Second Circuit. April 30, 1946. Rehearing Denied May 23,1946. Horace M. Gray, of New York City, for appellants. Christopher E. Heckman and Foley & Martin, all of New York City, for ap-pellee. Before L. HAND, SWAN, and FRANK, Circuit Judges. L. HAND, Circuit Judge. The plaintiffs appeal from a. judgment, dismissing their complaint for lack of jurisdiction over the subject matter appearing upon its face. The Hedger Company is a New York corporation, and so is the Bushey Company; the plaintiff, Hedger, is a citizen of New Jersey, and owns all the shares of the Hedger Company. The complaint alleged that in July, 1932, Hedger and the Bushey Company agreed upon the joint operation of barges and tugs in New York Harbor; and that in December, 1938, the Bushey Company asserted that the Hedger Company owed it about $400,000, as a result of the venture up to that time. The Bushey Company thereupon transferred the barges and tugs to the Hedger Company for $200,000,, taking in payment a mortgage for $600,000, made up of the debt and the purchase price. In July, 1942, the Hedger Company executed a second mortgage for about $100,000; and on February 10, 1945, the Bushey Company brought a suit in the admiralty in the Eastern District of New York to foreclose these mortgages for a deficiency of about $74,-000; in which a decree of foreclosure was entered on March 8, 1945, upon consent of the Hedger Company. The gravamen of the complaint, which was filed on April 4, 1945, is that the plaintiffs were forced to consent to the foreclosure because the Bushey Company threatened to seize the vessels and ruin their business, since such a seizure would have resulted in the vessels’ remaining idle while the suit was being tried. The complaint alleged that in fact nothing was due upon the mortgages, as an accounting would show; but, since the account would have taken a long time to state, the plaintiffs' could not afford to wait, and were forced to pay the demand under duréss. This constituted a ground for vacating the decree and demanding an accounting. The complaint also alleged incidental damages of $30,000 arising from the seizure, and a return of two payments of $4,900 each, paid by the Hedger Company upon the mortgages under a mutual mistake of fact. The judge dismissed the complaint on the ground that the only relief open to the plaintiffs was by a “libel of review” in the foreclosure suit; and that for that reason the district court had no jurisdiction in an ancillary action in the nature of a suit in equity. We have jurisdiction over the appeal, because the judgment finally disposed of the action, although it left it open to the plaintiffs to bring a “libel of review,” or any other proceeding in the foreclosure suit which they might think best. This the plaintiffs refuse to do, because they believe that they cannot secure the necessary relief in the foreclosure suit, even if the decree were vacated. Hence they insist that an ancillary suit lies in equity without the necessary diversity of citizenship. We think that all the relief which the district court had jurisdiction to grant in any form will be open in the foreclosure suit, if the decree is vacated; and that the complaint should have been treated as a petition in that suit to that end, and should not have been dismissed for what was at worst only a defect of form. We do not understand why anything more was necessary than such a petition: that is, why it was necessary, or indeed proper, to resort to a “libel of review.” Rule 5 of the Rules of the District Court for the Eastern District of New York extends each term for ninety days from the entry of the judgment, so that on April 4, 1945, when the complaint was filed, the plaintiffs might have moved directly in the foreclosure suit itself. A “libel of review,” like its analogue a “bill of review” in equity, will lie only when other relief is not open to the party aggrieved. However, since this, as we have said, is only matter of form, it should be disregarded, unless there are matters of substance, which demand an ancillary suit. The plaintiffs insist that there were two such matters: first, a court of admiralty has no power to grant all the relief to which they will be entitled; and second, the grant of a petition to vacate the decree rests in the discretion of the district court. We shall consider these objections in that order. Before the decree of foreclosure can be vacated, the question must be answered whether the Hedger Company owed the Bushey Company the amount which it actually paid. We assume that this will require an accounting, and the first question is whether it may be had in the foreclosure suit. It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent, and so on. The Steamboat Orleans, 11 Pet. 175, 182, 9 L.Ed. 677; Minturn v. Maynard, 17 How. 477, 15 L.Ed. 235; Vandewater v. Mills, 19 How. 85, 92, 15 L.Ed. 554; Grant v. Poillon, 20 How. 162, 15 L.Ed. 871; Ward v. Thompson, 22 How. 330, 16 L.Ed. 249; The Larch, Fed. Cas.No.8,085; The Zillah May, D.C., 221 Fed. 1016; The Red Wing, D.C., 10 F.2d 389. (It may be doubted whether Metropolitan S. S. Co. v. Pacific-Alaska Nav. Co., D.C., 260 Fed. 973, is in accord with these decisions.) Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court. Thus, when an accounting was necessary to determine a fisherman’s “lay,” or share of the catch, Lowell, J., entertained the suit, although the statute passed for that purpose — R. S. § 4391, 46 U.S.C.A. § 531 — did not apply. The Carrier Dove, D.C., 93 F. 978. In The I. S. E. No. 2, 15 F.2d 749, the Ninth Circuit took jurisdiction in a similar case without noticing the statute. On the other hand in 1830 in The Fair Play, Fed.Cas.No.4,615, Betts, J., refused to entertain the libel of a seaman for wages which involved an accounting, and Mr. Justice Thompson affirmed the decree; but the libel was in rem and the actual decision was merely that a seaman’s lien for wages is only for an “adjusted balance.” It is only fair to add, however, that Judge Betts thought even a libel in personam “exceedingly doubtful.” In The John E. Mulford, D.C., 18 F. 455, one part owner filed a libel for the sale of the vessel and partition of the proceeds, as an incident to which Judge Brown entertained an accounting against the parties who had operated the vessel before the sale. He put his decision upon the ground that, although a suit for an accounting alone would not have lain between the parties, when an accounting became necessary to the winding up of a suit over which the admiralty had independent jurisdiction, the court would state the account. For this he relied in part upon the opinion of Judge Ware in The Larch, Fed.Cas.No.8,086. Although Mr. Justice Curtis reversed that decree in The Larch, supra, Fed.Cas.No.8,085, it was because he did not think that admiralty had jurisdiction over the principal controversy. Judge Cross followed Judge Brown in The Emma B., D.C., 140 F. 771; and Judge Cushman recognized the doctrine in The Zillah May, supra, D.C., 221 F. 1016. Clearly a court of admiralty at times must state accounts as an incident to the disposition of suits within its cognizance: general average is one instance, and salvage is another. In the case at bar the foreclosure suit was brought under § 951 of Title 46, U.S.C.A., and it would be impossible to enforce the statute, if the suit must be halted every time a question of accounting arose as to the amount due upon the mortgage. We have no doubt therefore of the power of the admiralty to state the account between the mortgagor and the mortgagee at bar, had the issue arisen in the foreclosure suit itself; and also no doubt of its power to state it upon the issue whether the decree should now be vacated. The same is true as to the restitution of any balance which, after stating the account, the court may find to have been an overpayment by the Hedger Company to the Bushey Company, extorted by duress, or abuse of process; no ancillary action is • necessary for that purpose. The same is not, however, true as to any damages which may have been caused by abuse of process, as alleged in the 67th Article of the complaint. The recovery of these would be a separate cause of action; they would result from a tort, over which the admiralty would have no jurisdiction. Restatement of Torts, § 682. Such a tort is as little “ancillary” to the foreclosure suit, when asserted by a bill in equity, as in the foreclosure suit itself. Since the district court has no independent jurisdiction over that controversy, the plaintiffs must be relegated to the state court for relief; for this cause of action is not within Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, assuming that that doctrine applies to a suit in admiralty, which we do not decide. The same is true of the payments, alleged in the 68th and 69th Articles of the complaint to have been made under a mutual mistake of fact. They will of course figure in the account of what is due under the mortgage, but as ground for an affirmative recovery they are as separate causes of action as the claim for damages caused by the putative abuse of process. In respect to these claims the complaint must be dismissed for lack of jurisdiction. There remains the plaintiffs’ second ground: that the relief possible in an ancillary suit in equity will not be discretionary, like that under a petition to vacate the decree in the foreclosure suit itself. That is indeed a strange argument. The discretionary nature of the jurisdiction to vacate a decree once entered, is designed to prevent too ready unravelling of judgments; it is to avoid putting a premium upon continued litigation, and to promote considerateness in judicial decision. The fact that the same relief is demanded by a separate action can make not the slightest difference in that hesitation which the court should feel at vacating a judgment. Precisely the same considerations are relevant; and they have precisely the same weight. Indeed, more answer to the argument seems hardly necessary than to remember that, in order to lie at all, such a bill in equity must be “ancillary” to the foreclosure suit. What we have said disposes of the appeal, so far as concerns the Hedger Company, but not as to Hedger individually. Since he is a citizen of New Jersey, the district court would have had substantive jurisdiction of the action as to him, had he sued alone; but since he joined the Hedger Company, rated as a citizen of New York, he deprived the court of jurisdiction based upon diverse citizenship. Strawbridge v. Curtis, 3 Cranch 267, 2 L.Ed. 435. Clearly he could not join in a petition to vacate the decree in the foreclosure suit. The judgment of dismissal for lack of jurisdiction over the subject matter will therefore be affirmed as to him. It will, however, be reversed in favor of the Hedger Company and the cause will be remanded with instructions to treat the complaint as a petition in the foreclosure suit to reopen the decree upon the grounds therein alleged, on whose sufficiency, however, we are not to be understood to pass. Our decision is no more than that the admiralty court had jurisdiction in the foreclosure suit to give all the relief that the district court had power to give in any capacity, and that it was possible and proper to treat the complaint as a petition in that suit for all such relief, though for no other relief. At the risk of repetition and in the interest of clarity we will recapitulate what we decide. (1) The judgment will be affirmed as against Hedger, individually. (2) The judgment will be reversed as to the Hedger Company. (3) The complaint will be treated as a petition in the foreclosure suit to vacate the decree of foreclosure upon the grounds which it alleges. (4) The admiralty court has jurisdiction to state the account between the parties, and to fix the amount due upon the mortgage, if any; also to direct restitution of any sum which the mortgagee may be found to have collected from the mortgagor in excess of that amount. (5) The complaint will be dismissed for lack of jurisdiction as to any relief which could be granted under the allegations of the 67th, 68th, and 69th Articles. (6) No costs will be awarded on this appeal. Judgment reversed; and cause remanded for further proceedings consistent with the foregoing. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Gary WILSON, Plaintiff-Appellant, v. STROH COMPANIES, INC., a Delaware corporation; Stroh’s Ice Cream Company, a division of the Stroh Brewery Company, an Arizona corporation, Defendants-Appellees. No. 91-1430. United States Court of Appeals, Sixth Circuit. Argued Nov. 8, 1991. Decided Jan. 6, 1992. Rehearing and Rehearing En Banc Denied Feb. 21, 1992. Marilyn A. Madorsky argued & briefed, Provizer, Eisenberg, Lichtenstein & Pearl-man, Southfield, Mich., for plaintiff-appellant. David B. Calzone, Virginia F. Metz argued & briefed, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendants-appellees. Before MERRITT, Chief Judge, GUY, Circuit Judge, and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. Plaintiff, Gary Wilson, appeals the district court’s grant of summary judgment in favor of Defendants, Stroh Companies, Inc. and Stroh’s Ice Cream Company (collectively “Stroh’s”), in this Title VII employment discrimination case. For the following reasons, we affirm the district court’s grant of summary judgment in favor of Stroh’s. I Stroh’s employed Wilson, who is black, from January of 1978 until October 9,1987. During September of 1987, Stroh’s established new, staggered work schedules for employees, including Wilson, at its Detroit ice cream plant. It changed Wilson’s former 6:00 A.M. to 2:00 P.M. shift to 11:00 A.M. to 7:00 P.M. The union complained that the later starting time interfered with union steward Wilson’s ability to interact with union members. Wilson complied with the new schedule on September 29 and 30, 1987. Members of the union met with management on September 30, 1987, to discuss Wilson’s request for an earlier starting time. Phillip Roselli, general manager of Stroh’s ice cream division, Ronald Holloway, corporate industrial relations manager, and Dennis DeJaeghere, plant manager, represented management at the meeting. Wilson, Ray Richardson, and Ed Smith represented the union. The meeting ended without resolution of Wilson’s request. After the meeting, Wilson, Richardson, and Smith of the union, and Holloway of management continued the discussion. Wilson claims that Richardson told him to report for work at 6:00 A.M. on the following day, not as scheduled at 11:00 A.M. Wilson claims that he advised DeJaeghere of this arrangement. Later that evening, Wilson called James Rauen, a co-employee, to inform him that they would exchange work starting times for the next day. DeJaeghere, the plant manager, made several attempts to contact Wilson by phone that evening, but Wilson refused to accept his calls. Acting on instructions from industrial relations manager Holloway, DeJaeghere then attempted to send a Western Union telegram to Wilson, informing him that he should comply with the 11:00 A.M. starting time. Wilson refused to accept the telegram. Both Wilson and Rauen showed up for work at 6:00 A.M. the next day. The events of September 30, 1987, became the subject of an October 7, 1987, meeting of management and the union. Wilson admitted that he called Rauen at home but denied that he attempted to reschedule Rauen. Wilson claimed that he merely advised Rauen’s wife that he should expect a call from DeJaeghere, the plant manager, who would reschedule him. Ro-selli, the general manager, told Wilson that he should not attempt to reschedule employees. Holloway, the industrial relations manager, then conducted an independent investigation of the events on behalf of Stroh’s. Holloway interviewed Rauen, who stated that he had listened, on another extension, to Wilson’s phone conversation with Rauen’s wife. Rauen disputed Wilson’s version of the call, asserting that Wilson instructed him to report at 11:00 A.M. on the following morning. Holloway concluded that Wilson had lied. On October 8,1987, Stroh’s suspended Wilson pending a final determination of discipline. On the following day, Holloway learned that Wilson told fellow employees George Beecher and James Carter that, because they began their shifts early at DeJae-ghere’s request, they were entitled to work until the end of their normal shift, thereby picking up overtime. Wilson claims he wag merely doing his job as union steward. Holloway, the industrial relations manager, decided that Wilson was again attempting to reschedule employees in a manner contrary to the policies and directives of Stroh’s. He recommended Wilson’s immediate termination. Concurring in Holloway’s recommendation, Roselli, the general manager, discharged Wilson that day. Wilson then filed a grievance protesting his discharge. At the conclusion of protracted proceedings, the arbitrator concluded that Wilson engaged in eight acts of insubordination, which justified his dismissal. The issue of alleged racial discrimination in Wilson’s discharge was not, as such, before the arbitrator. Wilson then filed this suit. He claims that his termination was the product of racial animus, in violation of section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l), and Michigan’s Elliot — Larsen Civil Rights Act, M.C.L. §§ 37.-2101 et seq. Specifically, Wilson claims that his direct supervisor, DeJaeghere, displayed animosity toward him because he is black. He claims that DeJaeghere was out to get him and that this prejudice should be imputed to Holloway and Roselli. Wilson did not claim that either Holloway or Rosel-li was directly racially motivated. The district court refused to impute De-Jaeghere’s prejudice to Holloway, who is black, and Roselli. It concluded that, because DeJaeghere’s prejudice could not be attributed to Holloway and Roselli, Wilson had failed to submit evidence to support a prima facie case of discrimination. Additionally, the district court concluded that, even if Wilson were able to establish a prima facie case, the arbitrator’s decision in this matter established Stroh’s legitimate, non-discriminatory motive for terminating Wilson. Finally, it concluded that Wilson had failed to show that this non-discriminatory motive was a pretext. II We review a grant of summary judgment de novo. The evidence and all inferences to be drawn therefrom must be construed in a light most favorable to the nonmoving party. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kraus v. Sobel Corrugated Containers, 915 F.2d 227, 229 (6th Cir.1990). In a Title VII employment discrimination case, the plaintiff bears the initial burden of submitting evidence to support a prima facie case of discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The plaintiff must produce “evidence sufficiently strong to raise an inference that [the employer’s conduct was] racially motivated.” McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C.Cir.1982); see also Hatton v. Ford Motor Co., 508 F.Supp. 620, 623 (E.D.Mich.1981). “Proof of discriminatory motive is critical” when disparate treatment is claimed. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977). Once the plaintiff establishes a prima facie case, the defendant must articulate a legitimate, non-discriminatory reason for his action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the defendant is successful, the plaintiff still may prevail if he establishes that the apparently non-discriminatory rationale was merely a pretext. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. A plaintiff may show pretext by establishing that he did not violate the work rule for which he was disciplined or that other employees who engaged in similar misconduct received less severe sanctions. The district court held that Wilson failed to submit evidence supporting a prima fa-cie case of employment discrimination because he failed to show the necessary nexus between DeJaeghere’s racial animus, which we presume, and Roselli’s decision to terminate his employment. The district court also dismissed" Wilson’s claim under Michigan’s Elliot-Larsen Civil Rights Act for failure to establish a prima facie case. Wilson offers several theories to support his attempt to establish a prima facie case. He first states that DeJaeghere’s racial animus should be imputed to Holloway and Roselli. He argues that DeJaeghere’s animus somehow infected the decision made by Roselli, based on Holloway’s recommendation. He cites several cases as standing for the proposition that a supervisor’s discriminatory animus regarding an employee may be imputed to the managers who discharge the employee, even though the managers lack discriminatory intent. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990); Perez v. Curcio, 841 F.2d 255 (9th Cir.1988); Crader v. Concordia College, 724 F.Supp. 558, 564 (N.D.Ill. 1989); Montgomery v. Campbell Soup, 647 F.Supp. 1372 (N.D.Ill.1986). Wilson then conclusorily asserts that Holloway and Roselli relied on a false record, created by DeJaeghere, to fire him. Stroh’s responds by citing several cases as standing for the proposition that the discriminatory comments or desires of intermediate-level supervisors do not, of themselves, establish a prima facie case when the decision to terminate is made by an upper-level official. See McDonald v. Union Camp, 898 F.2d 1155 (6th Cir.1990); Williams v. Williams Electronics, 856 F.2d 920, 925 (7th Cir.1988); Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir.1987); La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405 (7th Cir.1984). Stroh’s also notes that Roselli relied upon Holloway’s independent investigation and recommendation. Wilson would frame this issue as a question of law: whether the discriminatory motives of a supervisor can, as a matter of law, be imputed to an upper-level manager who makes the decision to terminate the employee. This characterization is somewhat misleading. The determinative question is whether Wilson has submitted evidence that DeJaeghere’s racial animus was a cause of the termination. When the question is so framed, it becomes clear that Wilson has failed to submit evidence supporting a prima facie case. Wilson alleges that DeJaeghere, the plant manager, was out to get him and was motivated by racial animus. He also alleges, however, that he was fired by Roselli, the general manager, upon the recommendation of Holloway, the industrial relations manager. Stroh’s, in response, established that Holloway’s recommendation and Ro-selli’s decision were based on Holloway’s independent investigation. Wilson failed to submit evidence that DeJaeghere’s discriminatory motives somehow influenced Holloway or Roselli. Wilson also asserts that DeJaeghere brought to Roselli’s attention the facts that formed the basis for his discharge. He does not, however, dispute that Holloway conducted an independent investigation of the events. Furthermore, Wilson does not dispute that Roselli discharged him based on Holloway’s advice. The fact that De-Jaeghere brought Wilson’s misconduct to Roselli’s attention, without more, is insufficient to support a prima facie case. If Wilson were to offer evidence that DeJae-ghere had not reported such misconduct from white employees, then he would establish a prima facie case. Wilson next cites a recent opinion of this court as supportive of his position. See Simpson v. Diversitech General, Inc., 945 F.2d 156 (6th Cir.1991). Both Simpson and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), upon which Simpson relied, are distinguishable from Wilson’s case. Both of those cases were “mixed motives” cases. In Simpson, we explicitly noted that “Ruckman [the racially motivated supervisor] disciplined Simpson in February because of his race and that the February 1987 incident led substantially to Simpson’s dismissal.” Simpson, 945 F.2d at 160. Similarly, in Price Waterhouse, the Supreme Court noted “that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations.” Price Waterhouse, 490 U.S. at 251, 109 S.Ct. at 1791. In contrast, Wilson offers no evidence that Holloway’s recommendation or Roselli’s decision was affected by DeJaeghere’s racial animus. Price Waterhouse offers some illumination in this case. The Supreme Court stated, “[i]n saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.” Id. at 250, 109 S.Ct. at 1790. In Wilson’s case, there is no evidence that any of Rosel-li’s reasons for discharging Wilson related to race. During his deposition, Wilson was unable to offer any evidence that either Holloway or Roselli was in any way racially motivated. This is not a “mixed motives” case. Wilson was discharged by Roselli based on Holloway’s recommendation. Holloway had conducted an independent investigation of Wilson’s conduct. There is absolutely no support in the record for Wilson’s contention that Holloway and Roselli relied on a false record created by DeJaeghere to discharge him. The causal nexus necessary to support Wilson’s prima facie case is absent. Ill Wilson also failed to establish a prima facie case under Michigan’s Elliot-Larsen Civil Rights Act. See M.C.L. §§ 37.-2101 et seq. In order to establish a prima facie case under the Act, Wilson must demonstrate that 1) he is a member of a protected class, 2) he was discharged, 3) the individual that discharged him was predisposed to discriminate against members of the protected class, and 4) the individual acted on this predisposition. See Brewster v. Martin Marietta Aluminum Sales, 145 Mich.App. 641, 378 N.W.2d 558, 563 (1985). There is no evidence that Roselli either suffered from a predisposition or acted upon anyone else’s predisposition to discriminate against Wilson. His decision to discharge Wilson was based on Holloway’s independent investigation and advice. IV Because we conclude that Wilson failed to submit evidence to support a prima facie case under either Title VII of the Civil Rights Act of 1964 or Michigan’s Elliot-Larsen Civil Rights Act, we find it unnecessary to reach any of the other issues decided by the district court. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Stroh’s. . Wilson claims that he would not accept DeJae-ghere’s calls at home because of DeJaeghere's past displays of racial animosity. . When Wilson called Rauen, Rauen’s wife told him that Rauen was asleep. .Because the district court granted Stroh’s motion for summary judgment, we must assume, as did the district court, that DeJaeghere comported himself in the manner that Wilson asserts. . Additionally, Stroh’s argues that collateral es-toppel precludes the district court and this court from redetermining any facts found by the arbitrator. Because the district court did not rely upon such a theory to grant Stroh’s motion, and because we affirm the decision of the district court, we do not discuss the collateral estoppel theory. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_usc1sect	1623	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. Ronald GRZYWACZ, Edward Goclan and Richard Krieshok, Defendants-Appellants. Nos. 78-2301, 78-2302 and 78-2303. United States Court of Appeals, Seventh Circuit. Argued May 31, 1979. Decided Aug. 22, 1979. Lawrence J. Fleming, St. Louis, Mo., for defendants-appellants. Thomas W. Turner, Asst. U. S. Atty., Springfield, 111., for plaintiff-appellee. Before SWYGERT, GEWIN and SPRECHER, Circuit Judges. The Honorable Walter P. Gewin, Senior Circuit Judge of the United States Court of Appeals for the Fifth Circuit, is sitting by designation. GEWIN, Circuit Judge. On March 31, 1978 appellants Grzywacz, Krieshok and Goclan, former police officers of Madison, Illinois,.were each indicted on one count of conspiring to violate § 1962(c) of the Racketeer Influenced and Corrupt Organizations statute (RICO) in violation of 18 U.S.C. § 1962(d) and one count of making false declarations to a federal grand jury in violation of 18 U.S.C. § 1623. They were tried by a jury and found guilty on all counts. The district court sentenced Grzywacz to 12 years imprisonment on the conspiracy count and 5 years on the perjury charge, the sentences to be served concurrently. Goclan and Krieshok each received 7 year sentences on the conspiracy counts and 5 years imprisonment for perjury, to be served concurrently. In these consolidated appeals the three appellants assert various alleged errors which they claim warrant a new trial. Finding the contentions to be without merit, we affirm the convictions. Appellants were alleged to have conspired to violate the RICO statute by conducting and participating in the conduct of an enterprise, the Madison, Illinois Police Department, through a pattern of racketeering activity. The indictment under which they were charged alleged as the essence of the conspiracy that the officers used their official positions as members of the police department to solicit and accept bribes and sexual favors from business establishments in the city of Madison and Madison County in exchange for acquiescence in and protection of certain illegal activities by the establishments, including prostitution, and operating after closing hours. The indictment also charged that appellant Ronald Grzywacz used his relationship with the Madison County sheriff’s office to solicit and accept bribes from similar businesses in Madison County. Prior to trial appellants moved to strike the portions of the indictment referring to those acts occurring outside the city limits of Madison, beyond which the municipal police department had no jurisdiction. They argued that the “Madison County” evidence was irrelevant, prejudicial and without relationship to the conduct of the affairs of the police department alleged in the indictment. The government responded that these activities were part of the overall conspiracy and the court accordingly overruled appellants’ motion. At trial the government adduced substantial evidence relating exclusively to certain acts committed jointly and separately by all three appellants in the city of Madison. This proof, consisting of statements by the appellants and testimony by police officers, operators of business establishments and the Mayor of Madison, indicated that the three officers, with the assistance of tavern owner Jenny Huey, engaged in a pattern of securing monetary payments and sexual favors from city tavern and tow company operators and employees in return for “protection” of certain illegal activities by the businesses. In addition a significant amount of evidence relating to appellant Grzywacz’s activities in Madison County was offered and admitted. The evidence tended to show that at the time the three officers were collecting bribes in the city of Madison, Grzywacz in coordination with members of the Madison County sheriff’s office was engaged in similar “shakedowns” of tavern operators in the county, outside the Madison police department’s jurisdiction. The proof implicated Grzywacz only; none of it showed involvement by Goclan and Krieshok in the solicitation and acceptance of bribes in the county. At the conclusion of the trial, the government tendered an instruction stating that the Madison County evidence could not be considered against Goclan and Krieshok but was admissible as evidence of prior misconduct against Grzywacz to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Contending that the government no longer considered the Madison County activities to be part of the conspiracy, appellants moved to strike all references in the indictment to Madison County and to strike all evidence relating to those activities. They further moved for a mistrial on grounds that the trial court erroneously admitted the evidence. The court struck portions of the indictment relating to the county but denied the motion for mistrial, finding the evidence admissible for the purposes advanced by the government. In his final instructions the trial judge warned the jury that the evidence was to be considered only as to Grzywacz to show motive, intent, plan, opportunity, etc. As their initial contention on this appeal appellants maintain that they could not be charged with conspiracy under 18 U.S.C. § 1962(d), the RICO statute, because the Madison, Illinois police department is not an “enterprise” within the meaning of 18 U.S.C. § 1961(4). Appellants presented this ground in a pretrial motion to dismiss the conspiracy count but the trial court rejected it. Section 1962(c) provides that: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. “Enterprise” as used in § 1962(c) is defined in 1961(4) to include: any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; According to appellants, a public entity such as a municipal police department can not constitute an “enterprise engaged in . . . interstate or foreign commerce. .” They submit that Congress in enacting the Racketeer Influenced and Corrupt Organizations statute (18 U.S.C. §§ 1961-1968) intended primarily to combat the infusion of organized racketeering into the activities of legitimate private businesses. In contrast there was no legislative intent to apply the statute to acts of corruption by public employees or officials. In support of this view, appellants advert to the civil remedies provided by section 1963 of the statute. These include a private action for treble damages and actions by the United States Attorney General for divestiture, dissolution or reorganization of the enterprise, and restrictions on investments by persons therein. Appellants contend these statutory remedies are peculiar to violations by private organizations and therefore public entities were meant to be excluded from the statute’s range of coverage. Consideration of past precedent, legislative history, and the plain words of the statute convince us that the RICO statute admits of a broader, less constricted interpretation. We believe that public entities and individuals may constitute § 1961(4) enterprises through which racketeering is conducted. Both the Third and Fifth Circuits have so held. In United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977), cert. denied sub nom. Miilhouse v. United States, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978), the Court of Appeals for the Third Circuit determined that the act was designed to prevent organized crime from infiltrating public and private entities which have some relationship with the economy. 563 F.2d at 1090. To this end Congress authored flexible legislation offering the various civil remedies cited above as well as criminal penalties to protect from racketeering individuals and organizations in different and diverse areas of American life. Id. at 1090-91. In a case highly similar to the cause before us, the Fifth Circuit in United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978), held that the Macon, Georgia municipal police department constituted an enterprise within the meaning of the statute. The Brown court rejected the appellants’ contentions that the statute encompassed only private corporations and labor organizations as overly narrow and unsupported by legislative history. 555 F.2d at 415. The court noted that the actual language of § 1961(4) defines enterprise as any “legal entity” or “group of individuals associated in fact although not a legal entity.” Id. From this broad language it concluded that a police department may be, at the least, a group of individuals associated in fact, if not a “legal entity.” Id. Scrutinizing the pertinent legislative history, the court recognized that Congress enacted the Organized Crime Control Act of 1970, of which the RICO statute was a portion, to reduce the flow of illegal activities into organizations which corrupt “democratic processes” and “threaten domestic security.” Id. Finally the court relied on the explicit language that the provisions of the Organized Crime Act of 1970 were to be “liberally construed” to achieve “their remedial purpose.” Id. at 416. Our view is in accord with that of the Third and Fifth Circuits. As the Fifth Circuit noted in Brown, Congress articulated that the statute is to be liberally construed to effectuate its remedial purposes. Organized Crime Control Act, Pub.L.No. 91 — 452 § 904, 84 Stat. 922. Yet, even a restricted reading of the expansive definition of “enterprise” permits the application of § 1962(d) to public entities such as police departments. Section 1961(4) draws no distinctions between the public and private sector. Rather it includes as legal entities “individuals, partnerships, and associations.” We are convinced that within this broad language, a police department and individual police officers are legal entities and thus qualify as enterprises. Moreover, the legislative history manifests a serious concern by Congress not merely with a profusion of racketeering activities within private businesses and labor organizations, as appellants suggest, but with the potentially devastating effects of organized crime on the nation’s political and economic system as a whole. This alarm was expressed in the Statement of Findings and Purpose of the Organized Crime Control Act of 1970. The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud and corruption; (3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes ; (4) organized crime activities in the United States , , , threaten the domestic security, and undermine the general welfare of the Nation and its citizens', Pub.L.No. 91-452, § 1, 84 Stat. 922 (emphasis added). The logical inference from these pronouncements is that Congress intended to frame a widely encompassing enactment to protect both the public and private sectors from the pervasive influences of racketeering. We decline to adopt the myopic vision of Congressional policy advanced by appellants and instead elect to give the statute the construction required of us by explicit mandate. The Madison police department is an enterprise within the meaning of section 1961(4). The second alleged error which this court must consider is the trial court’s admission into evidence of the “Madison County” evidence. It is appellants’ contention that this proof was inadmissible even for the limited purposes requested by the government because it was overly prejudicial to codefendants Goclan and Krieshok and the trial court failed to give limiting instructions at the time- the evidence was introduced. Appellants further argue that the court should have excluded the evidence because Grzywacz had not placed his specific intent in issue. Whether Grzywacz disputed the element of specific intent at trial is irrelevant since the court properly admitted the evidence to also show preparation and plan or design, and a mode of operation. Fed. Rules of Evidence 404(b) expressly sanctions the use of similar acts of prior misconduct for these objectives. The Madison County evidence was highly probative of such matters. It showed that at approximately the same time the three officers were using their official positions to collect payoffs from taverns and tow companies within the city of Madison, Grzywacz was utilizing his status and authority as a law enforcement officer to engage with members of the sheriff’s office in a pattern of collecting bribes from businesses in the county. There was no remoteness in time between the activities. Moreover, the evidence of appellants’ conduct in the city showed Grzywacz to be an active participant and possible ringleader of the alleged conspiracy. Because the county activities had a significant “concurrence of common features” with the racketeering conducted by appellants in the city, the “Madison County” evidence, with its corroborative character, tended to show a preexisting plan and modus operandi followed by Grzywacz. It was therefore highly relevant to the basic question of whether he committed the alleged offense. This court has approved the admission of evidence of similar acts for these purposes when the trial judge determines its probative value outweighs its prejudicial impact. United States v. Weidman, 572 F.2d 1199, 1202-03 (7th Cir. 1978); United States v. Grabiec, 563 F.2d 313, 318 (7th Cir. 1977); United States v. Krohn, 560 F.2d 293, 296-97 (7th Cir. 1977); United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955). Broad discretion is accorded a trial judge in this determination, United States v. Serlin, 538 F.2d 737, 747 (7th Cir. 1976). The district court in the instant case decided at the conclusion of the trial that the possible spillover effect on Goclan and Krieshok was overborne by the crucial importance of shedding light on the racketeering scheme by showing a similar plan carried out in the county by Grzywacz and members of the sheriff’s office. We believe this determination was proper, given the careful limiting instructions read to the jury by the court at the trial’s conclusion. This admonition was stated in the following language: There has been no evidence introduced in this case to connect defendants Edward Goclan and Richard Krieshok with the alleged activities of defendant Ronald Grzywacz with respect to the Sheriff’s office and the taverns and towing companies located outside the City of Madison, Illinois, that is, in Madison County. Therefore, those activities may not be considered in any way as evidence against defendants Goclan and Krieshok. Rather it was introduced against defendant Grzywacz only to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Vol. VII, p. 1024 — 1025). The instruction adequately restricted the jury’s attention to Grzywacz. Appellants’ argument that a contemporaneous limiting instruction was required is meritless since the record reveals that at no time did the defense request such an instruction of the court. In sum the trial judge properly admitted the evidence of similar acts as going to the planned design and modus operandi of appellant Grzywacz. The procedures employed by the court were sufficient to prevent undue prejudice to Goclan and Krieshok. A final major contention is that the trial court erred in permitting the government to place in evidence certain out-of-court statements made by appellants and their alleged co-conspirator Jenny Huey. Among the challenged statements were a recorded conversation of Grzywacz wherein he admitted collecting bribes, Grzywacz’s grand jury testimony in which he admitted obtaining bribes and stated that he saw Goclan receive money from Jenny Huey. Also admitted into evidence was grand jury testimony by Goclan and Krieshok in which they related the events surrounding a raid on Jenny Huey’s tavern, alleged statements by Goclan and Krieshok to various persons soliciting bribes, and alleged remarks by Jenny Huey to certain witnesses that payoffs were being made to appellants in exchange for protection. Appellants claim that under the recent decision of United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the trial judge, prior to admitting the statements, was required to determine out of the jury’s presence whether the statements were made in furtherance of a conspiracy of which each defendant was a member. As a corollary to this argument, they assert that admission of the statements by the appellants necessitated a severance of their trials under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), since each appellant had no opportunity to cross-examine his codefendants on the statements. During the trial each appellant asserted his Fifth Amendment right and refused to take the stand. The appellants did offer to testify if separate trials were granted. The court, however, refused to grant a severance. The decision in Santiago was issued after the completion of the trial below. At trial during the testimony of the government’s first witness, Robin Young, the trial judge admonished the jury that whenever it appeared beyond a reasonable doubt that a conspiracy existed and a defendant was a member, statements knowingly made and acts committed by any person likewise found to be a co-conspirator could be considered against the defendant, but only if the statements were made in furtherance of the conspiracy and during its continuance. If not, the acts and statements could be considered only as evidence against the person making them. (Vol. 1, p. 26). The trial judge repeated these instructions to the jury at the close of trial. The court’s articulation of the rule on co-conspirator statements adhered to the law then in effect in this circuit. United States v. Santiago, 582 F.2d 1128, 1131-32 (7th Cir. 1978); see United States v. Santos, 385 F.2d 43 (7th Cir. 1967). Furthermore appellants did not object to the instructions nor did they request other limiting instructions at any time during the course of trial. Thus they have no cause to challenge those instructions on appeal. See Santiago, supra at 1136. This is true particularly in light of the fact that evidence adduced independently of the statements clearly established an active conspiracy among the three appellants and Jenny Huey. As to the Bruton issue, we do not believe that constitutional error was committed by the trial court’s refusal to grant a severance. Though damaging to appellants, the statements, when considered within the context of the other evidence, were not of a “devastating”, “crucial” or “powerfully incriminating” nature, to which Bruton largely has been limited. See Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Neither were they inherently unreliable statements as those of a coerced confession, see Bruton, supra; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), or those produced by prosecutorial or judicial misconduct, United States v. Cogwell, 486 F.2d 823, 834 (7th Cir. 1973). The decision to grant a severance lies within the sound discretion of the trial court, reversible only for an abuse of discretion. United States v. All State Mortgage Corp., 507 F.2d 492, 495 (7th Cir. 1974). In order to secure a severance the moving party must establish that she or he will be unable to obtain a fair trial. United States v. Crouch, 528 F.2d 625, 631 (7th Cir. 1976). Appellants have not made this showing with respect to the extra-judicial statements. The trial judge properly exercised his discretion. ■We have scrutinized the other contentions advanced by appellants and find them devoid of merit. It is appropriate to note that in its ultimate significance this case is immensely tragic not only because it involves the corruption of human beings but because the offenses found by the jury reflect a callous disregard by public servants of their moral and legal responsibilities and a sordid abuse of their public trust. Such misconduct by law enforcement officials undermines respect for the legal principles upon which the survival and growth of a free society depend. Grzywacz, Goclan and Krieshok have received a fair trial, the judgment is Affirmed. . The perjury counts against appellants charged that they falsely stated to the grand jury that they had received no bribes from businesses. . The indictment stated in pertinent part: 5. It was a part of the conspiracy that the defendants would utilize their official positions as members of the City of Madison Police Department to ask, seek, solicit and accept payments from business establishments while intending to be influenced in the performance of acts related to their employment and functions as public officers. 6. It was a further part of the conspiracy that the defendant, Ronald Grzywacz, would utilize his relationship with the office of the Sheriff of Madison County, Illinois, to ask, seek, solicit and accept payments from business establishments within the jurisdiction of the Madison County Sheriffs office. 7. It was a further part of the conspiracy that the defendants, as law enforcement officers, would be paid by individuals seeking to operate their business establishments in violation of the laws of Illinois, the City of Madison, and Madison County. 8. It was a further part of the conspiracy that certain business establishments in the City of Madison and in Madison County would be forced to pay money to the defendants and to provide sexual favors for “protection” and to avoid harassment by the defendants. 9. It was a further part of the conspiracy that certain business establishments in the City of Madison and in Madison County would be permitted to house prostitution operations in violation of the laws of the State of Illinois. 10. It was a further part of the conspiracy that certain taverns in the City of Madison and in Madison County would be permitted to operate after legal closing hours. 11. It was a further part of the conspiracy that the defendants, as law enforcement officers, would agree and promise to refrain from interfering with illegal activities being conducted at certain business establishments in the City of Madison and in Madison County. 12. It was a further part of the conspiracy that the defendants would attempt to recruit other law enforcement officers to participate in the criminal objectives of the enterprise. . Huey was called to testify by the government but refused asserting her privilege against self-incrimination. Upon being granted immunity, she still refused to take the stand and was found in contempt of court. . When the government completed the presentation of its case, each appellant asserted his Fifth Amendment right and refused to testify for his co-defendants. The defense then presented no direct evidence and rested its case. (Vol. VI, pp. 925-28). . 18 U.S.C. § 1963. . Recognizing that Congress “intended to prohibit any pattern of racketeering activity in or affecting commerce” and that it intended the term “enterprise” to have “a very broad meaning”, this circuit in United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975), held that an illegal activity such as a gambling operation may be a § 1962(c) enterprise through which racketeering is conducted. The court admittedly did not address the applicability of the statute to public entities. But the liberal construction given the definition of “enterprise” by it runs counter to appellants’ argument that the RICO statute was intended to govern the activities only of legitimate private businesses. Our interpretation that public entities are within the scope of the statute follows the approach employed in Cappetto. To accept appellants’ claim that a narrow construction is appropriate would be inconsistent with the underlying principles of that decision. See also United States v. Nerone, 563 F.2d 836 (7th Cir. 1977); United States v. Winstead, 421 F.Supp. 295 (N.D.Ill.1976). At least three other circuits have applied the statute to illegal enterprises, reasoning that a broad interpretation was necessary to achieve the remedial objectives of the enactment. United States v. Altese, 542 F.2d 104 (2d Cir. 1976); United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). But see United States v. Mandel, 415 F.Supp. 997 (D.Md.1976); United States v. Moeller, 402 F.Supp. 49 (D.Conn.1975). . Professor Wigmore succinctly explained the use of similar acts to prove design or pre-existing plan. Design or Plan . . ., is not part of the issue, an element of the criminal fact charged, but is the preceding mutual condition which evidentially points forward to the doing of the act designed or planned (citations omitted). Thus the peculiarity of Design is that the act is not assumed to be proved, and the design is evidentially to show its probable commission. 2 Wigmore on Evidence, § 1300 at 193 (3d ed. 1940). He then distinguished design from evidence used to show intent. In the former case (of Intent) the attempt is merely to negate the innocent state of mind at the time of the act charged, in the present case [of design] the effort is to establish a definite prior design or system which included the doing of the act charged as a part of its consummation. . . . The added element [in showing design] then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations, (emphasis in original). Id. § 304 at 202. . Of significant resemblance to the instant case is United States v. Grabiec, supra, where co-defendants were charged with conspiracy to extort money under color of official right, in violation of 18 U.S.C. § 1951. At trial the court permitted the government to adduce evidence that one defendant had accepted similar illegal payoffs on four previous occasions. On appeal this court held the acts admissible “to show a pattern of conduct corroborating a similar pattern carried out during the conspiracy and a method of operation.” Id. at 318, citing United States v. Iacullo, supra. The court reasoned that the challenged transactions “illuminated the character of the conspiracy and the extent of the involvement of the participants.” Id. . In addition, the trial judge carefully instructed the jury on the relevance of similar acts. Vol. VII, pp. 1030-31. The instructions were thorough and appellants do not challenge their sufficiency on this appeal. . A number of statements made by Grzywacz, Krieshok and Goclan were offered and admitted pursuant to Fed.Rules of Evidence 801(d)(2) as admissions of a party-opponent. Appellants have chosen to categorize these as co-conspirator statements and attack them on the basis of Santiago. Their admissibility under Rule 801(d)(2) is not challenged. We note that with one exception the statements were admitted at trial without a contemporaneous instruction that they were only to be considered against the declarant. But at no time during the course of the trial did appellants request a limiting instruction. Given this and the fact that the trial judge gave a specific and scrupulous limiting admonition in his final instructions, no prejudicial error was committed. See United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972). Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:
songer_const2	105	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. FRIARTON ESTATES CORP., Bwit Fifty-Fifth Street, Inc., and Mid-Central Properties, Ltd., Plaintiffs-Appellees, v. The CITY OF NEW YORK, Philip R. Michael, as Commissioner of Finance of the City of New York, and Tax Commission of the City of New York, Defendants-Appellants. No. 873, Docket 81-7781. United States Court of Appeals, Second Circuit. Argued April 6, 1982. Decided June 7, 1982. Richard A. Givens, New York City (Bo-tein, Hays, Sklar & Herzberg, Gina Schachter, Roger F. Bloom and Margaret Serena Oppel, New York City, of counsel), for plaintiffs-appellees. Morris Einhorn, New York City (Frederick A. 0. Schwarz, Jr., Corp. Counsel of the City of New York, Leonard Koerner, Asst. Corp. Counsel, New York City, of counsel), for defendants-appellants. Before FRIENDLY and NEWMAN, Circuit Judges, and CURTIN, District Judge. Chief Judge District Court for the Western District of New York, sitting by designation. FRIENDLY, Circuit Judge: The City of New York, its Commissioner of Finance, and the Tax Commission of the City of New York (sometimes hereafter referred to collectively as “the City”) appeal pursuant to 28 U.S.C. § 1292(a)(1) from an order in this action under 42 U.S.C. § 1983 granting a preliminary injunction against the City’s taking title to properties pursuant to a New York state court judgment based on plaintiffs’ failure to pay sewer rents, water charges and real estate taxes for the tax years 1973/74 through 1976/77. We reverse, with instructions to dismiss the complaint, primarily on the ground that plaintiffs-’ claims of violation of their constitutional rights are barred by reason of prior state court litigation of the claims here advanced. I. Plaintiff Friarton Estates Corporation (Friarton) is the owner of properties known as Block 735, Lot 30, and Block 1042, Lots 2, 3, 4, 5, 6, 7, and 64 on the tax map of the City of New York (the properties). Friar-ton acquired Block 735, Lot 30, from plaintiff BWIT Fifty-Fifth Street, Inc. (BWIT) in June 1977 for $10,000 at a time when the property was subject to over $200,000 in outstanding claims by the City for sewer rents, water charges and real estate taxes. Friarton acquired the lots in Block 1042 from plaintiff Mid-Central Properties, Ltd. (Mid-Central) in June 1977 for approximately the same sum; these properties were then subject to over $150,000 in similar claims by the City. The properties, along with many others, were included in two foreclosure proceedings brought by the City, In Rem Action Nos. 29 and SO, commenced on July 6, 1977 and August 28, 1978, respectively, in the Supreme Court of New York for New York County. The history of this litigation will be recounted in Part II below. It suffices here to say that on May 6,1981, the Supreme Court for New York County entered a judgment reinstating an earlier judgment entered May 20, 1980, which permitted the City to take title to the properties. Plaintiffs then commenced this action in the District Court for the Southern District of New York, seeking an injunction against enforcement of the state court foreclosure judgments until state court proceedings challenging the tax assessments had been determined, and damages “to redress violations of rights secured to plaintiffs by the Constitution of the United States and 42 U.S.C. § 1983” (Complaint ¶1); federal jurisdiction was claimed under 28 U.S.C. §§ 1331 and 1343(3). Plaintiffs’ basic contention was that the City would be denying them due process of law and taking their property without just compensation in violation of the Fourteenth Amendment by taking the properties for nonpayment of taxes while denying them a speedy determination of certiorari proceedings which they had brought to challenge the assessments of the properties. The district court reviewed the state court record in the proceedings mentioned above and in certain related proceedings and held three hearings at which no testimony was taken. After reference to and report by a magistrate, the district court, on October 2, 1981, rendered an elaborate opinion in which it rejected the City’s contentions with respect to the preclusive effect of the previous proceedings, the Tax Injunction Act, 28 U.S.C. § 1341, and the merits, and concluded that plaintiffs had satisfied the first branch of what it characterized as “the rule of this Circuit as expressed in Sonesta International Hotels Corp. v. Wellington Associates,” 483 F.2d 247, 250 (2 Cir. 1973), with respect to entitlement to a preliminary injunction. However, the court thought it would be inappropriate to undertake the trial of plaintiffs’ tax claims. Accordingly it entered an order preliminarily enjoining defendants from taking title to or possession of the properties or from causing a deed or deeds of such properties to be executed, delivered or recorded. This injunction might be dissolved on notice of the occurrence of events described in the margin. Plaintiffs were to deposit all rents and operating income with a receiver, who was to pay all reasonable and necessary operating costs including current sewer and water charges, but not mortgage payments or current property taxes. As will be seen, the effect of the injunction was to deny the City the benefit of the judgment in the state court foreclosure actions, won after many years of effort against the very contentions made here, and to deprive it of payments admittedly due for sewage, water and taxes until the conclusion of the certio-rari proceedings. II. Before going further it will be well to describe the New York procedures for review of real estate tax assessments. New York City Charter § 163 provides that during the six week period February 1 through March 15: the books of annual record of the assessed valuation of real estate are open for public inspection, any person or corporation claiming to be aggrieved by the assessed valuation of real estate may apply for correction of such assessment, specifying the grounds of any claimed illegality, and the extent of any claimed overvaluation or inequality. Section 164 provides that any such applicant may have a hearing before the Tax Commission, which is empowered to compel the attendance of witnesses, administer' oaths or affirmations and examine applicants and other witnesses under oath. It shall make rules of practice for proceedings before the tax commission, and such rules and regulations as may be appropriate and expedient to the end that the taxpayers may have a hearing in the borough in which they reside or in which their property is located. Under §§ 165, 166, the Tax Commission is required to render its determination by the 25th of May, and a further proceeding “to review and correct on the merits any final determination of the tax commission” may be brought by October 25th of that year. Plaintiffs had the benefit of this procedure but they assert that review by the Tax Commissioner is generally unproductive and the City does not seriously dispute this. New York City Administrative Code § 166-1.0(b) provides that the judicial review mentioned above shall be by a Special Term of the Supreme Court in the appropriate county and shall be based “on one or more of the following grounds, which must be specified in such petition:” 1. That the assessment is illegal, and stating the particulars of the alleged illegality, or 2. That the assessment is erroneous by reason of overvaluation, or 3. That the assessment is erroneous by reason of inequality, in that it has been made at a higher proportionate valuation than the assessment of other real property of like character in the same ward or section, or other real property on the assessment rolls of the city for the same year, specifying the instances in which such inequality exists and the extent thereof, and stating that the petitioner is or will be injured thereby. Plaintiffs had pending petitions for such review, commonly called petitions for cer-tiorari, raising the second and third objections, for each tax year from 1972/73 to 1977/78. While the record is replete with charges concerning responsibility for the delays in bringing these cards to trial, which we do not find it necessary to determine, it is at least clear that plaintiffs were far from diligent in seeking early trials. Although the Rules of the Appellate Division for the First Department § 660.18(c) require that there be a pretrial hearing for purposes of settlement and that, to render this productive, the taxpayer must file an “eight month notice” to the Corporation Counsel accompanied by a verified or certified statement of income and expense, plaintiff Mid-Central in its certiorari proceedings for the tax years 1973/74 through 1976/77 did not file such a statement until July 13, 1978, a year after the City had begun its foreclosure action; even then statements of income and expenses were included only for the tax year 1975/76, the excuse being that this was the only full year in which Mid-Central operated the property. Notes of issue for the tax year 1974/75 were not filed for lots 2, 3, 4, 5, 6, 7 and 64 of Block 1942 until June 26,1979, and with respect to lot 30 of Block 735 until July 3, 1979. It is also desirable to note at this point that review of assessments on real property in New York State has been in considerable turmoil since the decision of a divided Court of Appeals in Hellerstein v. Assessor of the Town of Islip, 37 N.Y.2d 1, 371 N.Y.S.2d 388, 332 N.E.2d 279 (1975), which invalidated as a matter of state statutory law a practice of nearly 200 years standing whereby assessments were made on the basis of a percentage rather than the whole of full value. Recognizing the revolutionary character of the decision, the court limited it to future assessments and gave the Township until December 31, 1976, to comply. The state legislature subsequently enacted various legislation suspending the requirement of full valuation to permit time for reassessments. The problem which New York courts had in adjusting to Hellerstein was aggravated by legislation prohibiting use in challenges alleging inequality of tax assessments of the State Board of Equalization and Assessment (SBEA) ratios of assessed value to full value for each assessing unit. See Slewett & Farber v. Board of Assessors, 54 N.Y.2d 547, 554, 446 N.Y.S.2d 241, 430 N.E.2d 1294 (1982). In Colt Industries, Inc. v. Tax Comm’n, 183 N.Y.L.J. (No. 108) June 4, 1980, p. 10, col. 2, the Special Term of the Supreme Court for New York County was obliged to consider, inter alia, a taxpayer’s challenge to the constitutionality of this evidentiary limitation. Justice Mangan held that pursuant to New York City Administrative Code § 166-1.0(b), a New York City taxpayer seeking to prove unequal treatment was required to establish inequality as compared with property of like character in the same ward or section and, if no such samples were available, elsewhere in the City. The court held that in light of the recently-amended statute, RPTL § 720(3), which precluded use of the SBEA ratio in a certiorari proceeding, that rate was irrelevant to the standard of proof required in the City and that in any event the legislature had power to alter rules of evidence in certiorari proceedings. Colt Industries was directed to make its demand upon the City for admission of ratio evidence and the parties were ordered to file a statement of the appraised values of their selected parcels by August 17,1980, for trial on the issue of inequality, which the court later scheduled to commence on October 14, 1980. Trial of a certiorari brought by Equitable Life Assurance Co. (Equitable) was scheduled for October 15, and trials for other taxpayers were scheduled for later dates. Equitable moved for an order declaring the SBEA’s ratio admissible in proof of inequality despite the Colt decision or, in the alternative, that its trial be stayed pending appeal from the expected denial of the substantive portion of the motion. Both parts of the motion were denied, Equitable appealed, and on October 7, 1980, the Appellate Division granted a stay pending determination of the appeal on the merits. Shortly thereafter the Appellate Division granted a similar motion for a stay by Colt Industries. It required both cases to be argued at its next term and later made clear, at the City’s request, that the stay was of both ratio and valuation issues. Before the latter clarification Justice Mangan had set trial dates on the issue of overvaluation for 14 petitions also claiming inequality, the first petitioner on the schedule being Freewalt Realty Corp. (Freewalt). The City moved to stay these trials, pointing out that while it had opposed any stay in the Colt and Equitable cases, a stay on ratio had been granted by the Appellate Division, “disposition of the pending appeals may well obviate the need to litigate the issue of value” because the prospects for settlement are enhanced once the applicable ratio is determined, and “the Court's approach to value in the ratio portion may be critical on the valuation phase of the case.” This position was strengthened when the Appellate Division amended its stay in Colt to include both ratio and valuation issues. Accordingly, on December 5, 1980, the Special Term entered an order staying its entire calendar in which inequality was claimed pending final appellate decision of Colt or further order of the Appellate Division. On May 14, 1981, the Appellate Division 81 A.D.2d 777, 439 N.Y.S.2d 24 affirmed the Special Term’s decision in Colt. Appeal was taken to the Court of Appeals, which affirmed on January 7, 1982, 54 N.Y.2d 533, 446 N.Y.S.2d 237, 430 N.E.2d 1290. Since that time certiorari proceedings for the properties have been promptly scheduled. Valuation trials are set for May and June 1982, and the Supreme Court has indicated that the trial date for determining ratio will be announced during the summer of 1982. III. With this background we now undertake a more detailed analysis of the proceedings in the City’s in rem action which it claims to have operated as res judicata on the contentions that plaintiffs have advanced here. In September 1977, Friarton filed identical answers (one on each block). The answers alleged in conclusory form that all lawful taxes, assessments and other charges levied against the properties more than one year in arrears had been duly paid and contained two counterclaims. One attacked the constitutionality of the New York rent control laws and sought damages of $1,000,-000. The other pointed to pending certiora-ri proceedings for the tax years 1972/73, 1973/74, 1974/75, 1975/76, 1976/77, and 1977/78 and suggested that the real estate taxes allegedly due the City would be substantially reduced. In July 1978 the City moved to strike the answers. The motion contended, inter alia, that under Code § D17-9.0, remedies for alleged abuses of rent control may not be sought in an in rem tax foreclosure proceeding; that under Code § D17-9.0(e), Friar-ton was allowed six months after submission of its answer to effect a sale and retain any surplus above arrearages but had not done this and that no note of issue had been filed with respect to the certioraris referred to in Friarton’s answers. Friarton countered in October 1978 that triable issues of fact existed with respect to the unconstitutionality of rent control and that it was preparing to file a note of issue with respect to all pending certiorari proceedings. Beyond this Friarton cross-moved for leave to file amended answers and to consolidate the certioraris with the in rem action. The amended answers contained a number of affirmative defenses. Among these were that the tax certiorari proceedings would come to trial approximately in January 1980; that the reason for the delay was the backlog of such cases and the lack of personnel in the City Corporation Counsel’s Real Estate Tax Division; that the outcome of the certioraris “would enable the Respondent to either pay the taxes in full or enter into an In Rem Agreement with the City”; and that it was “inequitable for the City to tax the respondent at an artificially high rate, to then foreclose for respondent’s failure to pay same and at the same time deny respondent its day in Court.” Friarton also realleged its counterclaim for $1,000,000 damages by reason of the rent control laws. The City countered that further delay in these certiorari proceedings could not justify further delay in tax collection, particularly in light of Code § D17-25.0, which permitted Friarton to retain the properties by paying 25% of the arrearages, with an additional three years to pay the balance, during which Friarton could presumably bring its certiorari proceedings to trial. Late in 1978 and early in 1979 Friarton made a number of further motions unnecessary to describe in detail. Opposing these, the City argued that Friarton had been offered and had rejected the opportunity under Local Law No. 34 to pay 15% of the arrearages and the balance over an extended period of up to 8 years and that the Corporation Counsel had also proposed that Friarton could eliminate the properties from the delinquent list if it would pay the water charges and sewer rents as well as the amount of taxes that would be due on the valuation which it had alleged in its own certiorari proceedings — a proposal which Friarton declined. After Friarton had filed further lengthy papers developing, with colorful rhetoric, its theses that the properties were grossly overvalued because of the depressing effect of rent control, that the City had refused to hold settlement conferences or permit trial of the certioraris, that under these circumstances it would be a denial of due process to permit the City to foreclose, and that the pending certiorari proceedings should be consolidated with the in rem foreclosure action, Justice Martin Evans at Special Term handed down a decision on August 31, 1979, granting the City’s motion for summary judgment. He allowed the amendment of the answer except for portions, not heretofore mentioned, asserting affirmative defenses that attacked the reduction of the period of time after which a foreclosure action may be brought for tax delinquencies from 3 years to 1 year and the assertion of the counterclaim based on the unconstitutionality of the rent control law, which was to be severed and continued. He specifically allowed an amendment which alleged the inequity of permitting foreclosure for failure to pay taxes while the amount due was being challenged in the certioraris which had not yet been brought to trial. He entertained, but denied, Friarton’s motion to consolidate the pending tax certiorari cases with the foreclosure action. He agreed with Friarton that It would, of course, be inequitable to allow In Rem foreclosure under Title D of the Administrative Code, which could result in a transfer of title to the City, if in fact the taxes were improperly overas-sessed and if defendant did not have a reasonable opportunity to obtain a proper assessment. Such a transfer of title would be an unconstitutional taking of property without compensation. However, he found that Although the pleadings of the defendant allege that all taxes lawfully due have been paid, it is clear from the affidavits submitted on the motion that not only is there a default in the payment of the amount of taxes assessed; there has been a default in the payments of the amount of taxes admitted by defendants to have been properly due. In October 1979 Friarton moved for rear-gument. This stated that IT IS RESPONDENT’S MAIN CONTENTION, NOT DENIED BY THE CITY OR THE COURT, THAT THE CONFISCATORY TAXES HEREIN LEVIED BY THE CITY ARE UNCONSTITUTIONAL AND UNLAWFUL, AND THE CITY MAY NOT LAWFULLY COLLECT THEM BY THIS FORECLOSURE PROCEEDING, UNTIL RESPONDENTS HAVE THEIR DAY IN COURT TO SO PROVE. (Capitalization in original.) Friarton contended that the court had been inconsistent in granting summary judgment to the City despite its acknowledgment that overassessment would constitute a defense. It stated that notes of issue had in fact been filed in the certioraris and that “the City has repeatedly delayed [certiorari] trials through its myriads and labyrinths of rules and failure to assign attorneys to try cases”. It again sought consolidation of the certioraris with the in rem action as the only equitable course. A subsequent affidavit placed before the court a portion of an affidavit, apparently prepared for some other proceeding, entitled “History of Rent Control in the City of New York.” The City submitted an affirmation in opposition to the motion for reargument. This stressed that the court had said only that it would be inequitable to allow foreclosure if the taxes had not been lawfully assessed but that the court had found that they were. It called attention to the City’s offer to drop the foreclosure action if defendants would pay the water charges and sewer rents and the amounts they contended to be due as taxes. It pointed out that the notes of issue had been filed only after all papers had been submitted and the matter had been argued. On January 3, 1980, Justice Evans entered an order denying Friarton’s motion to reargue. He considered that “Movant has failed to meet its burden of proving that the Court misunderstood, misconstrued, overlooked or incorrectly decided any question of law or fact.” The court remarked that Friarton was endeavoring to have the court pass on public policy questions which were ultimately for the legislature to decide and that insofar as defendants raised procedural due process questions, “such have already been mooted by movant’s failure to pay even the taxes which would have been due had the valuation been what movant has claimed.” Supplemental judgments directing that the City take title to the properties were entered on May 20, 1980, with a 10 day stay of enforcement to permit appeal. Friarton appealed to the Appellate Division, First Department. It reiterated the arguments it had made at Special Term— that rent control had so depressed the value of the properties as to render the assessments outrageously excessive, and that for the City to take the properties before Friar-ton had had an opportunity to demonstrate this in the pending certioraris violated due process. The statute permitting a 15% down payment of delinquencies with the balance payable over 8 years and the City’s offer to accept payment on Friarton’s own assessment were an inadequate answer because “if the assessed values were upheld or insufficiently reduced”, those payments would be lost. Indeed, the City’s offer was characterized as “an affront to our judicial system.” The Appellate Division unanimously affirmed without opinion, 79 A.D.2d 899, 435 N.Y.S.2d 871 (1980). Friarton then appealed to the Court of Appeals on constitutional grounds pursuant to CPLR 5601(b)(1). The constitutional claims were stated to include: Whether summary judgment of in rem tax foreclosure pursuant to Title D of the Administrative Code of the City of New York is an impermissible deprivation of property without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under Article 1, § 6 of the New York State Constitution, when the property owners have been denied a prior or contemporaneous hearing in any court on the validity and constitutionality of the assessed valuations on which the allegedly due taxes are based, and denied consolidation of their tax certiorari cases with the in rem foreclosure suit? Friarton also claimed that it had been deprived of its property without due process of law under the Federal and State Constitutions, by subjecting [it] to in rem foreclosure by the City without the opportunity to make constitutional, inequality and other legal challenges to assessments at “large multiples” of market value on property “rendered economically and functionally worthless by the City’s multi-dimensional ‘regulatory’ controls”, and that foreclosure for water and sewer taxes alone is likewise unconstitutional when the effect is to deprive owners of property without the opportunity of a prior or contemporaneous hearing on the validity of the primary tax in dispute. The City also indicates that, in Friarton’s brief to the New York Court of Appeals, Friarton rejected the rule that taxes must be paid first and their alleged ex-cessiveness litigated later, stating — “the rule does not apply when city officials make ‘willful abuse of the tax laws’ rendering review proceedings ‘meaningless’ ” citing Grant v. Srogi, 71 A.D.2d 457, 470-1, 423 N.Y.S.2d 324 (4th Dept., 1979), where tax collection was enjoined for such abuse of the tax laws; and that “the City had systematically circumvented in the most blatant manner any possibility that appellants’ pending tax certiorari proceedings will be reached for trial within any reasonable period. The Court of Appeals dismissed Friarton’s appeal on March 26,1981, “upon the ground that no substantial constitutional question is directly involved”, Friarton Estates Corp. v. City of N. Y., 53 N.Y.2d 795, 439 N.Y. S.2d 1031, 422 N.E.2d 597 (1981). However, this was not to be the end of the proceedings in the state courts. When the City moved at Special Term to reinstate the supplemental judgments of foreclosure, Friarton cross-moved, under CPLR § 5015(a)(2), (a)(3), for an order staying enforcement of the judgments and “directing immediate trials for dates certain... in the above-mentioned tax certiorari proceedings.” The newly discovered evidence offered pursuant to § 5015(a)(2) was the Freewalt stay, which had been entered just prior to the decision of the Appellate Division, and an article about New York City Tax Assessments published in the New York Times of April 24, 1981. The themes were familiar — an alleged five to eight years of purposeful and wrongful delays in processing the certioraris as contrasted with the two years allegedly set as a maximum in Rosewell v. La Salle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981), and the power of a New York court, now made explicit by W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 515-18, 438 N.Y.S.2d 754, 420 N.E.2d 946 (1981), decided by the Court of Appeals only a few weeks after its dismissal of Friarton’s appeal, to enjoin a city from collecting real estate taxes pending the decision of certiorari proceedings “[wjhere there has been a deliberate misuse of the taxing power”. Id. at 517, 438 N.Y.S.2d 754, 420 N.E.2d 946. On May 6, 1981, Special Term denied Friarton’s cross-motion and permitted the City to take title. Less than a fortnight later, on May 19, 1981, Friarton began this action. Also, on June 22, 1981, it petitioned the Supreme Court of the United States for certiorari to review the judgment of the Court of Appeals. The grounds for the petition were the usual ones: The assessments were based on valuations that were grossly excessive because of their failure to take into account operating losses caused by the combination of New York City rent controls and service requirements, and “By a variety of procedural delays, the City of New York had blocked trial of tax certiorari proceedings”. Reference was made to the Free-walt stay. The Supreme Court, denied cer-tiorari on 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981). IV. We have set out the history of the state court litigation at this length because, save perhaps for the argument as to the Freewalt stay, which we will consider separately below, mere statement is all that is required to support the City’s argument of res judicata, which the district court rejected. All the constitutional contentions which the district judge found so persuasive in plaintiffs’ favor — the long delays in the proceeding of certioraris, the inequity of foreclosure for failure to pay possibly erroneous taxes without an opportunity for timely challenge, the allegedly unsatisfactory character of the remedies of partial payment which plaintiffs had by virtue of statute and of the City’s ad hoc offer —were advanced not once but time and again at each of the three levels of the New York court system and on petition for cer-tiorari to the United States Supreme Court. It is of no consequence whether the district court or this court agrees or disagrees with the determinations of the New York courts on issues fully raised before and necessarily decided by them. Res judicata protects wrong decisions as fully as right ones. It is immaterial that the questions were constitutional in character, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), or that they are now asserted in an action under 42 U.S.C. § 1983, Allen v. McCurry, 449 U.S. 90, 96-105, 101 S.Ct. 411, 416, 420, 66 L.Ed.2d 308 (1980); Ellentuck v. Klein, 570 F.2d 414, 425 (2 Cir. 1978). We need not here debate whether in such an action 28 U.S.C. § 1738 applies in its full vigor or is subject to some limitations, see Judge Waterman’s discussion in Winters v. Lavine, 574 F.2d 46, 54-60 (2 Cir. 1978). On any view a taxpayer may not engage in extensive proceedings throughout the state court system, and then, after every point has been decided against him by the state courts and the Supreme Court has denied certiorari, make a fresh start in federal court. These considerations are of particular pertinence where a federal court plaintiff seeks further delay in the collection of city taxes of which, in state court proceedings, he has thwarted collection, even of water and sewage charges, for eight years. See Dows v. City of Chicago, 11 Wall. (78 U.S.) 108, 110, 20 L.Ed. 65 (1870), quoted with approval in Fair Assessment in Real Estate Association v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). The district judge, of course, was as well aware of these principles as we are. He thought them inapplicable. To the correctness of that determination we now turn. The first ground advanced was that “Since plaintiffs’ counterclaims were severed and continued as a separate action which has never reached trial or a determination on the merits, the state court judgment was not responsive to these issues, and Rooker does not bar this court from addressing those issues.” 525 F.Supp. at 1258. What this neglects is that the severed counterclaims were simply the present plaintiffs’ claims for damages arising from the effect of rent control, not their affirmative defenses to the foreclosure which the judge at Special Term allowed them to plead. Plaintiffs fully recognized this, to the tune of scores of pages of affidavits and briefs at Special Term, in the Appellate Division, in the Court of Appeals, and in the Supreme Court of the United States. The district court went on to say that plaintiffs did not have a full and fair opportunity “in the earlier litigation to address the legal and factual issues claimed to be decisive in the current action.” Id. However, as to this also the judge relied on the severance of the counterclaims and ignored the retention of the affirmative defenses. Present plaintiffs did have a full and fair opportunity to present to the state courts their contention that the procedure followed by the City — pushing ahead with the in rem proceeding while no action had been taken in the certioraris — violated their Fourteenth Amendment rights. Although the opinion of the Special Term may not constitute an altogether satisfying answer to plaintiffs’ claims, the Appellate Division wrote none, and the Court of Appeals simply branded plaintiffs’ constitutional claim as insubstantial, the record leaves no room for doubt that the claims of lack of due process and taking of property without just compensation were fully presented to the New York courts, and that those courts, entertained them but denied them on the merits. We have reserved the question of the delay resulting from the Freewalt stay for separate consideration. Arguably that too is barred by res judicata since it was raised in the cross-motion of April 1981 under CPLR § 5015(a)(2) and Friarton took no appeal from the denial of that motion. Against this it can be urged that § 5015(a) states that a court “may” grant relief from a judgment, and that, in denying the motion, the Special Term might have availed itself of a discretion seemingly thus confided and may not have reached the merits. Under 28 U.S.C. § 1738 the order denying the § 5015(a) motion would have whatever res judicata effect would be accorded to it by New York law. The parties have cited no New York authorities on this question and our research has discovered none except a decision at Special Term, Rae v. Rosenberg, 67 Misc.2d 881, 882, 324 N.Y.S.2d 898 (1971) (discussing predecessor to § 5015(d)), which is of comfort to the plaintiffs. While a New York court confronted with the problem would doubtless consult decisions with respect to the comparable F.R.Civ.P. 60(b), it would find little guidance, see 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4447 (1981), and cases there cited. Although we incline to the view that, since it raised the Free-walt stay issue in the state court and there is no indication that the state court did not decide it on the merits, Friarton should be bound by that court’s adverse ruling, we prefer not to rest decision upon that ground but rather to address this portion of Friar-ton’s argument upon the merits. It is not clear in the first place that the Freewalt stay has any relevance. The state courts upheld the judgment that the City was entitled to take the properties on May 20,1980, despite the lack of progress on the certioraris. The City would have taken possession except for the stays granted in this action pending two levels of appellate review which did not expire until March 26, 1981. Since the City’s right to take title vested on May 20, 1980, it is hard to see that a further postponement of trials in the certioraris as a result of the Freewalt stay, entered on December 5, 1980, is material. Beyond that, the Freewalt stay was reasonable under the circumstances. The justification for the original stay in Colt and the later Freewalt stay was that if the certiorari proceedings were tried before Colt was decided by the Court of Appeals and that court should then decide in favor of allowing proof of. inequality by SBEA ratios, the expense to the parties and the burden on the courts incident to proving inequality by presenting evidence of the values of similar parcels would have been wasted. Friarton in effect acquiesced in this, since it never moved as another taxpayer, 40 Sutton Associates, did with the City’s acquiescence, albeit unsuccessfully, for a trial on the basis of values of similar parcels. Moreover, the City plausibly urged that it would be more economical both for the courts and the parties if many of the certiorari proceedings were simultaneous, which would reduce the aggregate litigation burden since ratios for parcels of like character could thus be determined only once, in a joint proceeding. Once it had been decided to stay the inequality calendar for these reasons, it was reasonable to stay the overvaluation proceedings for cases where there was also an inequality challenge because, depending upon the eviden-tiary rule ultimately adopted, there might be substantial overlap in proof between the two proceedings. The New York courts handled the Colt Industries case expeditiously, so that the Freewalt stay lasted only 13 months, from December 1980 through the decision by the Court of Appeals in the Colt Industries case on January 7, 1982. We Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_circuit	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Francis E. HOLMAN and Eloise F. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. William M. HOLMAN and Emily L. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Nos. 76-3671, 76-3672. United States Court of Appeals, Ninth Circuit. Nov. 3, 1977. William M. Holman, Seattle, Wash, (argued), for appellants. Gilbert S. Rothenberg, Dept, of Justice, Washington, D.C. (argued), for appellee. Before WALLACE and SNEED, Circuit Judges, and BOLDT , District Judge. Hon. George H. Boldt, Senior United States District Judge for the Western District of Washington, sitting by designation. SNEED, Circuit Judge: Francis E. Holman and William M. Holman were partners in a law firm from which, pursuant to the terms of the partnership agreement, they were expelled. As a consequence, again pursuant to the partnership agreement, they received in the taxable years of 1969 and 1970 certain amounts for their interests in the partnership “inventory” which the partnership agreement defined to mean “accounts receivable” and “unbilled services.” The Holmans argue that these amounts in their entirety are entitled to be taxed as capital gains. The Commissioner insists that these amounts should be taxed as ordinary income. The Tax Court agreed with the Commissioner, Francis E. Holman, 66 T.C. 809 (1976), and so do we. The position of the Holmans is not lacking in ingenuity. Essentially it is that these payments, having been made pursuant to an “expulsion” rather than because of a partner’s death, retirement, or his transfer of his partnership interest, escape the reach of sections 736 and 751 of the 1954 Internal Revenue Code and perforce must be governed by the final sentence of section 731(a). That sentence reads: “Any gain or loss recognized under this subsection shall be considered a gain or loss from the sale or exchange of the partnership interest of the distributee partner.” Inasmuch as their partnership interest constituted a capital asset the Holmans contend that this sentence dictates that the amounts in question be treated as capital gain. The Commissioner’s contention is that the payments do not escape the reach of sections 736 and 751 and that as a consequence the tax characteristics of the amounts are governed by those sections and not by the final sentence of section 731(a). Insofar as section 736 is concerned, the Commissioner insists that each of the taxpayers was a “retiring partner” in receipt of a “guaranteed payment,” as described in section 736(a)(2), which constituted payment for “unrealized receivables of the partnership” as employed in section 736(b) and defined in section 751(c). Such payments, pursuant to section 736(b) are not “in exchange for the interest of such partner in the partnership” and thus not entitled to capital gains treatment. The applicable regulation supports the Commissioner. It provides that “A partner retires when he ceases to be a partner under the local law.” Income Tax Reg. § 1.736 — l(a)(l)(ii). We hold that the Commissioner’s analysis, with which the Tax Court agreed, is correct. We do this because we are convinced that Congress in this context did not intend to draw a distinction between a partner who voluntarily withdraws from a partnership because of age or other reasons and a partner who is expelled from the partnership. The above quoted regulation correctly reflects that intention. Moreover, an interpretive regulation, not unreasonable and not obviously inconsistent with the statute, should be given effect. See Kean v. Commissioner of Internal Revenue, 469 F.2d 1183 (9th Cir. 1972). An interpretation which recognized the distinction between retirement and expulsion for the purpose of permitting payments on expulsion to be taxed as capital gains, while identical payments on retirement would be taxed as ordinary income, would bear no sensible relationship to the purposes reflected by the séetions of the Code involved here. Congress intended that payments by a partnership to a partner for his share of the partnership’s receivables should be taxed as ordinary income to the recipient and not taxed at all to the remaining partners. Cf. 1 Willis, Partnership Taxation, § 46.01-46.03 (1976). This purpose is furthered by the Commissioner’s interpretation; it would be frustrated to a degree by that of the taxpayers. We have no desire to encourage the use of “expulsions” to circumvent the normal operation of sections 731, 736 and 751. AFFIRMED. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. James L. POLK and Mattie B. Polk, Plaintiffs-Appellants, v. DIXIE INSURANCE COMPANY, Defendant-Appellee. No. 88-4737 Summary Calendar. United States Court of Appeals, Fifth Circuit. Sept. 20, 1991. Jim Waide, Tupelo, Miss., for plaintiffs-appellants. Suzanne Saunders, Sheila R. Fortenber-ry, Saunders, Abel & Fortenberry, Jackson, Miss., for defendant-appellee. On Remand From the Supreme Court of the United States Before POLITZ, GARWOOD and JOLLY, Circuit Judges. GARWOOD, Circuit Judge: This is a diversity action brought by plaintiffs-appellants James L. and Mattie B. Polk (the Polks) against defendant-appellee Dixie Insurance Company (Dixie) for fire insurance proceeds and for punitive damages for bad faith denial of their insurance claim. The district court granted Dixie’s motion for summary judgment on the punitive damages claim, and the policy claim was later tried to a jury, which returned a verdict for Dixie, on which the district court rendered judgment. The Polks then appealed to this Court. They raised three claims of error. The first was that the district court erred in refusing their motion that Dixie’s counsel be required to indicate a nonracial motive for exercising two of its peremptory challenges. The record reflected that before Dixie’s counsel had an opportunity to respond to this motion, the district court denied it on the basis that the government was not involved in the case. We sustained the district court’s ruling in this respect on the authority of the ruling of the en banc Court in Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990), that the doctrine of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not apply to civil suits between private parties. See Polk v. Dixie Insurance Co., 897 F.2d 1346, 1347 (5th Cir.1990). The Polks’ second assertion of error on appeal to this Court concerned the admission of certain testimony at the jury trial phase of this case. We rejected that assertion of error also. Id. at 1347-48. We also rejected the Polks’ third and final claim of error that related to the district court’s grant of summary judgment in favor of Dixie on the punitive damages claim. Id. at 1350-51. Thereafter, the United States Supreme Court reversed the decision of our en banc Court in Edmonson and held that Batson applied to civil suits between private parties. Edmonson v. Leesville Concrete Co., Inc., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The Supreme Court then granted the Polks’ petition for writ of certiorari, and in that connection vacated the judgment of this Court and ordered that “the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Edmonson v. Leesville Concrete Co., Inc. ...” Polk v. Dixie Insurance Co., — U.S. -, 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991). We now have the case pursuant to this remand by the Supreme Court. We do not interpret the Supreme Court’s decision as in any way affecting our ruling that the district court properly granted Dixie’s motion for summary judgment on the punitive damages claim or our disposition of the asserted evidentiary error raised by the Polks in their appeal to this Court. With respect to the Batson claim, we note that the district court, being of the view that Batson was wholly inapplicable since the suit before it was a civil action between private parties, made no determination whether the Polks had presented a prima facie case of racial discrimination by Dixie in its exercise of its peremptory chai-lenges; nor was Dixie ever afforded an opportunity in the district court to make any showing of nonracial reasons for its peremptory challenges. In these circumstances, and having reconsidered the case in light of the Supreme Court’s opinion in Edmonson, we order that the case be remanded to the district court with directions to determine in the first instance whether the Polks presented a prima facie case of racial discrimination by Dixie in the exercise of its peremptory challenges. If the district court determines that such a prima facie case was presented, it shall afford Dixie the opportunity to show that its complained-of challenges were made for nonracial reasons. If Dixie fails to make such a showing, the district court shall grant the Polks a new trial on their claim to the policy proceeds (but the summary judgment on the punitive damages claim shall not be disturbed). Otherwise, the district court shall deny the Polks relief. The cause is accordingly remanded to the district court for further proceedings in accordance with this opinion and the Supreme Court’s opinion in Edmonson. REMANDED. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Sarah S. WAGNER, Appellant v. Charles A. WAGNER, Appellee. No. 16187. United States Court of Appeals District of Columbia Circuit. Argued April 12,1961. Decided June 22, 1961. Mr. W. Cameron Burton, Washington, D. C., with whom Mr. H. George Schweitzer, Washington, D. C., was on the brief, for appellant. Mr. John J. Pyne, Washington, D. C., for appellee. Before Bazelon, Washington and Burger, Circuit Judges. WASHINGTON, Circuit Judge. This case presents questions concerning the validity of substituted service, and questions as to jurisdiction, in a suit against a former husband to enforce support for a wife and a minor son and to subject a certain house, in which the wife asserts an interest, to such support payments. Appellant filed her suit in the District Court. Her complaint alleges, inter alia, that she and the appellee-husband were married in 1939 and lived together in the District of Columbia until 1953, when appellee left her and moved to Ohio, where he presently resides; that he obtained an ex parte divorce decree from an Ohio court in 1958, pursuant to which the custody of their minor son was awarded to her, and appellee was ordered to pay $15.00 per week for the child’s support; that no provision was there made for her support; that she is unable to support herself and the child and is in debt; that the parties lived while married in a house at 3929 Ames St., N. E., in the District of Columbia, which is shown by the land records to be owned by appellee; that appellant assisted in the purchase of the property by making some of the payments on the trust note; and that the appellee contemplates selling the house. She prays for a judgment requiring appellee to pay reasonable support for herself and the minor son, for an injunction against a sale of the house by appellee, for a determination of her property rights in the real estate, and for an order subjecting the realty to the support payments requested. The complaint was served personally upon appellee at his residence in Ohio. He entered a special appearance and moved to quash service of process on the ground that the action is in personam and that personal service upon him outside the District is not authorized. The District Court granted the motion to quash service, and upon its own motion, dismissed the complaint for want of jurisdiction over the subject matter. The present appeal was taken after appellant’s motion for rehearing was denied. I. We first turn to the jurisdictional questions raised. It is clear that exclusive jurisdiction over the subject matter of the complaint in this case, filed on April 7, 1960, was in the Domestic Relations Branch of the Municipal Court rather than in the District Court, under Section 11-762 of the D.C.Code (1960). That section specifically so provides with respect to civil actions to enforce support of minor children and of a wife and, in such actions, specifically gives the Branch the power to determine and adjudicate rights to real property. Cf. David v. Blumenthal, 110 U.S.App.D.C. 272, 292 F.2d 765, decided June 1, 1961. For purposes of jurisdiction in suits to enforce support, a divorced wife is to be deemed a wife. See Hopson v. Hopson, 1955, 95 U.S.App.D.C. 285, 292, 221 F.2d 839, 846, where we indicated that the right to support is one of the rights of the wife acquired through marriage which will survive an ex parte divorce decree. See also Vanderbilt v. Vanderbilt, 1957, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456. While Hopson dealt with the powers of the District Court as they existed in 1955, such powers now have been transferred to the Domestic Relations Branch of the Municipal Court. See Thomason v. Thomason, 1959, 107 U.S. App.D.C. 27, 274 F.2d 89; David v. Blumenthal, supra. We conclude, therefore, that this complaint should have been brought in the Domestic Relations Branch of the Municipal Court. But it does not follow that dismissal of the suit was the course which the District Court should have taken. In 1959, under very similar circumstances, we remanded a suit for divorce and division of real property to the District Court “with directions to vacate its order dismissing the cause for lack of jurisdiction and to transfer the case to the Municipal Court for trial in that tribunal.” • Harris v. Harris, 1959, 106 U.S.App.D.C. 282, 272 F.2d 511, 512. Implicit in our decision was the holding that service of process in the District Court in a domestic relations case within the exclusive jurisdiction of the Domestic Relations Branch of the Municipal Court was sufficient to commence the action, and that its transfer to the latter court would be the proper course for the District Court to follow. The reasons for this are clear. Jurisdiction over domestic relations was only recently transferred to the Branch, and all problems relating to the extent of the jurisdiction transferred have not yet been settled. At least in the transitional period, courts should not dismiss suits which can properly be transferred. There can be no valid objection to transfer of cases of this sort since the transfer will not affect any substantive right of either party but will merely alter the tribunal which will hear and adjudicate those rights. Cf. David v. Blumenthal, supra. If, therefore, service of process was effected in the District Court, this case should be transferred to the Municipál Court. II. We turn to the question whether service was properly effected. We note, initially, that part of the relief sought by appellant was support for herself and the minor child, an action in personam. Since the former husband was served outside the District of Columbia, an award of support would be “void except as to property within the jurisdiction of the court which has been specifically proceeded against” in the divorce or maintenance action. Gaines v. Gaines, 1946, 81 U.S.App.D.C. 260, 262, 157 F.2d 521, 523. The suit here seeks, in addition to support, to subject the former marital home in the District to the support payments awarded, and prays for a determination of appellant’s property rights in the home and an injunction against its sale. Only by resort to this property (apparently the husband’s only known property within the jurisdiction) would a support award be immediately enforceable. Thus, the immediate object of the suit was to establish and enforce rights or claims to the real property within the jurisdiction of the court. As such, Section 13-108 of the D.C.Code (1951) authorized the use of service by publication, or service outside the District. And we deem this to mean that the service upon the appellee, as so authorized, will enable the trial court to determine not only the wife’s interest in the property but also, after hearing evidence, to provide for payment out of the real property of any support payments to which it finds the appellant and the minor son are entitled. The appellee-husband contends, however, that something more than substituted service* is required to give the trial court the power to enforce real property rights in a suit for support, i. e., that the real property must be attached at the time of filing such a suit. He cites Buchanan v. National Savings & Trust Co., 1944, 79 U.S.App.D.C. 278, 146 F.2d 13, 15, as requiring this. That case involved a suit against a former husband to establish an interest, on behalf of the former wife and a minor child of the divorced parents, in a spendthrift trust fund of which the husband-father was beneficiary. We held that the testator-settlor of the fund intended the child to be provided for out of the income of the trust fund, that the child therefore had a property interest in the fund, which was within the District, that the trial court should determine the extent of the provision to be made for the child from the trust income and that under Section 13-108 service by publication on the defendant-father was sufficient to give it authority to do so. However, we found no intent on the part of the testator to make provision for the wife out of the trust fund, and held that she had no property interest in the fund. With respect to her claim arising from the general right to support, we said: “While a spendthrift trust may under some circumstances be subjected to the obligation to support a wife or child, the enforcement of such an obligation would require either personal service on John Buchanan or an attachment of his equitable interest in the fund after the execution of a bond.” We cited as authorities for this statement Section 16-301 of the D.C.Code (1940), and Pennoyer v. Neff, 1877, 95 U.S. 714, 24 L.Ed. 565. Insofar as the appellant in this case is seeking an adjudication of her property interest in the home arising from her contributions to its purchase price, her claim is not distinguishable from the claim of the child to an interest in the trust fund in Buchanan, except that it relates to real rather than personal property, and under that decision substituted service was sufficient to give the District of Columbia courts power to adjudicate her claim in this regard. For the following reasons we also think that substituted service permitted the adjudication and enforcement of the claims made against the former husband’s interest in the realty, as distinguished from appellant’s own personal interest in the realty. Pennoyer v. Neff, supra, was concerned with the effect of a money judgment rendered by default in a suit on contract in a state court against Neff, a non-resident of the state, who was served by publication and entered no appearance. Subsequent to the default judgment, real estate owned by Neff within the jurisdiction was sold under an execution. The Supreme Court held that the judgment was void because the trial court lacked jurisdiction to render a personal judgment against Neff and that the execution sale made pursuant to the void judgment passed no title. The suit itself had not been in any sense a proceeding against the realty, and the Court noted that the real property sold under the invalid judgment had not been brought under the jurisdiction of the trial court by attachment, seizure, or in any other equivalent way, and that “Its first connection with the case was caused by a levy of the execution.” See 95 U.S. at page 720. The principles stated in the Pennoyer decision have no application where the action is one proceeding directly against real estate. It has long been established that “a state has power by statute to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication.” Arndt v. Griggs, 1890, 134 U.S. 316, at page 327, 10 S.Ct. 557, at page 561, 33 L.Ed. 918. This is because an “owner of real estate, who is a non-resident of the state within which the property lies, cannot evade the duties and obligations which the law imposes upon him in regard to such property, by his absence from the State,” and service by “publication is ‘due process of law’ as applied to this class of cases.” Huling v. Kaw Valley Railway, 1889, 130 U.S. 559, 563, 564, 9 S.Ct. 603, 605, 32 L.Ed. 1045. See also Grannis v. Ordean, 1914, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363. In Lynch v. Murphy, 1896, 161 U.S. 247, 16 S.Ct. 523, 40 L.Ed. 688, a decree rendered in the District of Columbia in a suit to cancel a deed of trust on land was held not to be void even though the defendant was not personally served, since a statute enacted by Congress for the District permitted service by publication. As already indicated, Section 13-108 of the Code, the District statute now in force, authorizes service by publication where (as here) the suit seeks to enforce claims against real property located in the District. The statute does not require that the property proceeded against be seized or attached. It is thus plain that the substituted service in this case gave the courts of the District of Columbia the power to render judgment with respect to the real estate proceeded against in the complaint. The view just stated has long been applied throughout the country in domestic relations cases. At least when authorized by statute, substituted service upon a non-resident defendant, without attachment or seizure of property, will give jurisdiction to render a decree for alimony or maintenance which is binding upon realty (and indeed even personalty) belonging to the defendant and within the jurisdiction of the court, when the property has been specifically described and proceeded against in the complaint. Some of the cases so holding are set out in the margin. Public policy requires this result: it would be intolerable to allow a woman and minor child to become public charges simply because the man responsible for their support, though owning property within the jurisdiction, has departed and become a non-resident. For these reasons, we hold that service of process was validly effected in this case. We will therefore follow the course we adopted in Harris v. Harris, 1959, 106 U.S.App.D.C. 282, 272 F.2d 511, of remanding to the District Court with directions (1) to vacate its order quashing the service and dismissing the cause for lack of jurisdiction, and (2) to transfer the case to the Municipal Court for trial in the Domestic Relations Branch. So ordered. . Por purposes of the, appeal we must of course treat the factual allegations o'f the complaint as established. . Section 13-108 reads as follows: “Publication may be substituted for personal service of process upon any defendant who cannot be found and who is shown by affidavit to be a nonresident, * * * in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court. “Personal service of process may be made by any person not a party to or otherwise interested in the subject matter in controversy on a nonresident defendant out of the District of Columbia, which service shall have the same effect and no other as an order of publication duly executed.” . In Ulrich v. Ulrich, 1883, 3 Mackey 290, 14 D.C. 290, a predecessor appellate court in this District applied the Us pendens doctrine to a wife’s suit for divorce and alimony wherein the complaint asserted that the husband owned certain described real estate, and asked that it be subjected to her claim for alimony. Evidently the court regarded seizure, attachment, or the issuance of a restraining order, as being unnecessary to perfect the Ms pendens so created. No problem of service of process was there presented, as the husband was a resident of the District. . Section 13-108 also authorizes service by publication where the object of the suit is to establish and enforce claims against personalty located in the District. Buchanan involved a suit of that kind. We express no views about the decision in that ease, except to note that Pennoyer v. Neff, there relied upon as requiring an attachment in addition to service by publication, did not involve a suit seeking to proceed directly against personal property in the jurisdiction. Moreover, Section 16-301 of the Code (1951), also cited as requiring an attachment, authorizes, but does not in terms require, an attachment before judgment under certain circumstances in three types of cases: actions for the recovery of specific personal property, or for a debt, or for damages for the breach of a contract, express or implied. The language of Section 16-301 suggests strongly that the actions for debt or for damages for breach of contract referred to therein are those where the debt or damages are liquidated or ascertainable in amount: viz., the plaintiff’s affidavit must state the “amount” of the debt or the “actual damage resulting” from breach of contract, and a bond must be given in twice the amount of the claim. Cf. Hoover v. Hathaway, 1892, 9 Mackey 591, 20 D.C. 591; Goldsborough v. Orr, 1823, 8 Wheat. 217, 21 U.S. 217, 5 L.Ed. 600. Appellant’s claim is for such support “as seems just and reasonable,” no specified amount being named, and we have grave doubts that an attachment before judgment would even have been authorized by Section 16-301 in her case. Cf. King v. Fay, D.C.D.C.1958, 169 F.Supp. 934, where the attachment was issued against the husband’s vested reversion in a trust fund in a suit to recover a liquidated amount of money due under a property settlement incorporated in a foreign divorce decree. As to the use of a restraining order in lieu of an attachment, see Pennington v. Fourth National Bank, 1917, 243 U.S. 269, 37 S. Ct. 282, 61 L.Ed. 713 (injunction issued at suit of wife against payment out by bank of funds of non-resident husband). Our opinion in Buchanan does not mention the Pennington case. Cf. Western Urn Mfg. Co. v. American Pipe & Steel Corp., 1960, 109 U.S.App.D.C. 145, 284 F.2d 279. . Reed v. Reed, 1929, 121 Ohio St. 188, 167 N.E. 684, 64 A.L.R. 1384; Wilson v. Smart, 1927, 324 Ill. 276, 155 N.E. 288; Wilder v. Wilder, 1919, 93 Vt. 105, 106 A. 562; Wesner v. O’Brien, 1896, 56 Kan. 724, 44 P. 1090, 32 L.R.A. 289, and other cases collected in notes at 29 A.L.R. 1381; 64 A.L.R. 1392; and 108 A.L.R. 1302. See also, e. g., Boudwin v. Boudwin, 1936, 320 Pa. 147, 182 A. 536; Failing v. Failing, 1954, 4 Ill.2d 11, 122 N.E.2d 167; Carter v. Carter, 1960, 147 Conn. 238, 159 A.2d 173; Closson v. Closson, 1923, 30 Wyo. 1, 215 P. 485, 29 A.L.R. 1371; Dillon v. Heller, 1888, 39 Kan. 599, 18 P. 693. Some cases have treated a prayer for a'n injunction or the issuance of a preliminary injunction against sale or disposition of property as the equivalent of a seizure even though directed against a non-resident husband. See, e. g., Benner v. Benner, 1900, 63 Ohio St. 220, 58 N.E. 569. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Carlos Mateo VARGAS, a/k/a “Hector Rivera-Vargas” and Luis A. Duluc-Del Rosario, Defendants-Appellants. Nos. 303, 431, Dockets 90-1125, 90-1161. United States Court of Appeals, Second Circuit. Argued Nov. 14, 1990. Decided Dec. 3, 1990. Jorge De J. Guttlein (Aranda & Guttlein, of counsel), Kimberley Slade, Brooklyn Law School student, on brief, New York City, for appellant Carlos Mateo Vargas. Luis M. Chaves Ghigliotty, New York City, for appellant Luis A. Duluc-Del Rosario. Milton L. Williams, Asst. U.S. Atty. for the S.D.N.Y. (Otto G. Obermaier, U.S. Atty. for the S.D.N.Y., David E. Brodsky, Patrick J. Fitzgerald, Debra Ann Livingston, Asst. U.S. Attys., of counsel), New York City, for appellee. Before FEINBERG, TIMBERS and MINER, Circuit Judges. FEINBERG, Circuit Judge: Carlos Mateo Vargas and Luis A. Duluc-Del Rosario appeal from judgments of conviction in the United States District Court for the Southern District of New York, Leonard B. Sand, J., entered in February 1990. Vargas, Duluc and two others were charged in a two-count indictment with conspiring from May 1 to May 10, 1989 to distribute cocaine, and with possession of cocaine with intent to distribute it on May 10, 1989. Vargas pled guilty to the conspiracy count pursuant to agreement with the government, and the possession charge against him was dismissed. After a jury-trial, Duluc was convicted on the conspiracy count and acquitted on the possession count. Vargas received a sentence of 135 months and Duluc a sentence of 90 months, each prison term to be followed by a four-year period of supervised release. Both defendants are serving their sentences. As will be seen below, the appeals raise one issue that deserves discussion in a published opinion; otherwise, we would have affirmed in a summary order. Vargas challenges only his sentence. Prior to imposing sentence, the district court held a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), to resolve a number of disputed factual issues relevant to determining Vargas’s offense level under the United States Sentencing Guidelines. Vargas claims that the district court’s findings were not supported by a preponderance of the evidence, principally because the district court relied on the testimony of the sole witness at the Fatico hearing, cooperating co-defendant Luis Reyes. Vargas characterizes this testimony as “largely uncorroborated and blatantly incredible and contradictory.” The district judge, however, explicitly credited relevant portions of Reyes’ testimony. The evidence admitted at the Fati-co hearing also included the entire transcript of Duluc’s trial as well as the transcript of a tape recording of Vargas’s meeting with an undercover agent. Portions of Reyes’ testimony were corroborated by this other evidence. We do not accept Vargas’s characterization of Reyes’ testimony. Giving due regard to the opportunity of a district judge to evaluate the credibility of witnesses before him, we find that the district court’s findings were sufficiently supported by Reyes’ testimony at the Fatico hearing, the testimony of Reyes or others at Duluc’s trial and the transcript of the taped meeting. Duluc challenges his conviction on several grounds. He first argues that there was insufficient evidence at trial to support his conviction. This claim is primarily based, like Vargas’s appeal, on alleged deficiencies in the testimony of Reyes. Reyes testified at Duluc’s trial that Duluc worked for Vargas’s drug business; that he saw Duluc carrying drugs from one apartment used in the business to another location; that he saw Duluc packing cocaine; that after meeting with the undercover agent, Vargas discussed with Duluc and others his suspicions that the agent was a police officer; and that Vargas directed Duluc to accompany a confidential source to pick up money due for the kilogram of cocaine delivered to the source. The government also presented at trial the testimony of the undercover agent involved in the cocaine transaction on May 9 and 10, 1989, which corroborated aspects of Reyes’ testimony. Viewing the evidence in the light most favorable to the government, it was sufficient to support the jury’s verdict in this case. Duluc also argues that the district court should have reduced his offense level under the Sentencing Guidelines because he was merely a minor or minimal participant in the offense. Duluc either discounts Reyes’ trial testimony altogether or limits the government’s case to direct evidence, without even the most reasonable inferences that could be drawn therefrom. The district judge was entitled to consider Reyes’ testimony and to consider the inferences to be drawn from the evidence. Du-luc has not shown that the district court erred in failing to reduce Duluc’s offense level to that of a minor or minimal participant. Finally, Duluc argues that he was denied the effective assistance of counsel. He raises an array of alleged errors and omissions by his trial counsel, including advising Duluc not to testify, failing to call as defense witnesses co-defendant Vargas and others, failing to inquire about or apprise Duluc of certain evidence, failing to move to suppress certain evidence and making an inadequate motion to dismiss at the close of the government’s case. Du-luc’s appellate counsel has offered us no persuasive reason to believe that trial counsel’s advice to Duluc to refrain from testifying was unreasonable. Similarly, the only indication that Vargas’s testimony would have been helpful to the defense is a short, typed affidavit purportedly signed by Vargas and attested to as true and correct by Duluc. Although the Vargas page is undated, the Duluc page is dated after the trial. The purported Vargas affidavit states in conclusory fashion that Du-luc had no knowledge of Vargas’s drug-related activities. Nothing about the affidavit demonstrates that the decision not to call Vargas as a defense witness at Duluc’s trial was unreasonable. Finally, the proffered testimony of the other suggested defense witnesses relates only to collateral matters; there is no indication that the other evidence Duluc refers to would have been helpful or that a suppression motion would have been successful. In sum, Du-luc has not persuaded us that counsel’s actions as to any of these matters were unreasonable. One of the issues raised in Duluc’s claim of ineffective assistance of counsel, however, deserves further comment. As indicated above, Duluc complains that his lawyer “counseled and insisted appellant not testify in his own behalf.” In opposing Duluc’s claim, the government argues that by failing to protest to the district judge when his trial counsel rested without calling him as a witness, Duluc effectively waived his right to testify and therefore cannot raise the issue on appeal. Because Duluc argues only that counsel provided ineffective assistance by advising him not to testify on his own behalf, our finding that the advice was not unreasonable disposes of his claim. See Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.), cert. denied, _ U.S. _, 111 S.Ct. 93, 112 L.Ed.2d 65 (1990). Thus, the issue of a defendant’s waiver of his constitutional right to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-10, 97 L.Ed.2d 37 (1987), is merely tangential here. However, we decide this case by published opinion rather than by summary order to express our substantial doubt about the correctness of the position the government urges in this court. The government relies on five cases from other circuits to support its waiver argument: Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1953, 109 L.Ed.2d 315 (1990); United States v. Martinez, 883 F.2d 750, 754-55 (9th Cir.1989); United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.1987); United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985) and United States v. Janoe, 720 F.2d 1156, 1161 n. 9 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984). We are not convinced that all of these cases stand for the proposition advanced. For example, in the First Circuit case, the court noted that the appellants “do not allege that they wanted to testify” and “[t]he instant case is not a situation where the defendants wanted to testify and were prevented from doing so by the trial court or counsel.” United States v. Systems Architects, Inc., 757 F.2d at 375; see also Galowski v. Murphy, 891 F.2d at 636 n. 12; United States v. Janoe, 720 F.2d at 1161 & n. 9. We also note the existence of recent authority rejecting the government’s position. United States v. Teague, 908 F.2d 752, 759-60 (11th Cir.1990). The issue does not seem to be an easy one. See, e.g., the majority and dissenting opinions in United States v. Martinez, 883 F.2d 750. In any event, the government advances no Second Circuit authority in support of its position, and at oral argument confirmed that it could identify none. We regard as highly questionable the proposition that a defendant’s failure to object at trial to counsel’s refusal to allow him to take the stand constitutes a waiver of the defendant’s constitutional right to testify on his own behalf. However, we leave that issue for another day. We have considered all of appellants’ arguments, and we affirm the judgments of conviction. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. J. O. BINGHAM, Debtor, Appellant, v. YINGLING CHEVROLET COMPANY, Appellee. No. 6731. United States Court of Appeals Tenth Circuit. Dec. 6, 1961. Donald B. Clark, Wichita, Kan. (Charles D. Anderson and Marvin R. Appling, Wichita, Kan., on the brief), for appellant. Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, and Robert L. Howard, Wichita, Kan., on the brief), for appellee. Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. This appeal must be dismissed because it presents no controversy. Appellant Bingham petitioned in the court below for a wage earner’s plan pursuant to Chapter XIII of the Bankruptcy Act. Previously he had filed a similar petition and had received a discharge within six years prior to the filing of the petition involved herein. The Bankruptcy Act provides that an adjudication operates as an application for a discharge and that the court shall grant the discharge unless, among other things, the bankrupt within the prior six years has been granted a discharge or had a wage earner’s plan by way of composition confirmed. Appellee Yingling Chevrolet Company, asserting that in the circumstances the second petition could not be maintained, moved to dismiss. The referee dismissed the proceedings and on petition for review the district court sustained that ruling. During the pendency of the petition for review, Bingham paid the Yingling claim in full. In his notice of appeal Bingham designated only Yingling as appellee. None of his other creditors have appeared. One Porter, assuming to be a trustee in the Bingham wage earner proceedings, has filed an entry of appearance but he is an interloper as the statute provides only for the appointment of a trustee by the court after the acceptance of the plan. Here the proceedings were dismissed and no plan accepted. As Yingling has received payment in full, it has no interest in the success or failure of the wage earner’s plan and no standing to contest that plan as an adversary. In order to invoke the exercise of our adjudicatory power, there must be a controversy involving adverse litigants. Moreover, the only basis of a controversy between Bingham and Yingling was the debt owed by the former to the latter. Payment ended that controversy and makes moot every issue tendered by this appeal. Reliance on Leader Clothing Company v. Fidelity and Casualty Company of New York, 10 Cir., 227 F.2d 574, is misplaced as there the amount of the judgment had been paid to the clerk of the trial court and repayment could have been enforced in the event of reversal. Here the payment was made voluntarily and was accepted. So far as we are advised neither Bingham nor any one else is trying to get the money back. The appeal is dismissed. . 11 U.S.C.A. § 1001 et seq. . 11 U.S.C.A. § 32, sub. c(5). . 11 U.S.C.A. § 1033(4). . Poe v. Ullman, 367 U.S. 497, 502-505, 81 S.Ct. 1752, 6 L.Ed.2d 989; Public Service Commission of Utah v. Wycoff Company, Inc., 344 U.S. 237, 242, 73 S.Ct. 236, 97 L.Ed. 291; Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617; Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246. . California v. San Pablo & Tulare Railroad Company, 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747. Cf. Boggess v. Berry Corporation, 9 Cir., 233 F.2d 389, 390, 16 Alaska 256; United States v. International Union, etc., 88 U.S.App.D.C. 341, 190 F.2d 865, 872; and Cover v. Schwartz, 2 Cir., 133 F.2d 541, 546. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_treat	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. In re NINE MILE LIMITED, d/b/a Serco Administrators and American Warranty Corporation, Petitioner. No. 82-1236. United States Court of Appeals, Eighth Circuit. March 23, 1982. Timothy S. White and J. Richard Johnson, White & Warbasse, Cedar Rapids, Iowa and Kevin P. Tighe, Daniel J. Piliero, II, and Myrrel C. Hendricks, Jr., Washington, D. C., for petitioner. Richard C. Garberson, Cedar Rapids, Iowa, and William F. Halligan, Columbia, S. C., for Philip Carnes. Before HEANEY, BRIGHT and HENLEY, Circuit Judges. PER CURIAM. On February 18, 1982, the petitioner filed a petition for a writ of mandamus in this Court which requested that we order the United States District Court for the Northern District of Iowa to “temporarily stay its order” which granted a motion to change the venue of the underlying diversity lawsuit from the Northern District of Iowa to the District of South Carolina. The petitioner also requested this Court to order the United States District Court Clerk for the Northern District of Iowa to “request [the clerk for the District of South Carolina] that the physical custody of the original papers and filings” in the underlying lawsuit be returned to the Northern District of Iowa so that review could be had in that district court or in the Eighth Circuit. For the reasons discussed below, we grant the petition and order the district court to request the clerk for the District of South Carolina to return the original file and documents in this case to the clerk for the Northern District of Iowa. Upon return of the file and documents to the Northern District of Iowa, we direct the district court to promptly entertain and rule upon petitioner’s motion to reconsider his transfer order. Following a ruling on petitioner’s motion to reconsider, review may then, if so desired, be pursued in this Court. The petitioner filed a diversity action against defendant Philip Earl Carnes in the Northern District of Iowa. Defendant Carnes filed a motion for a change of venue on November 23, 1981, which was resisted by the petitioner. On February 2,1982, the district court, pursuant to 28 U.S.C. § 1404(a), granted Carnes’ motion for change of venue and ordered the case transferred to the District of South Carolina, Columbia Division. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia. Feb. 2, 1982) (order). On the same day the transfer order was entered, February 2, 1982, the clerk of the United States District Court for the Northern District of Iowa transferred the case’s records to the District of South Carolina, Columbia Division. On February 5, 1982, the petitioner filed an application to stay the transfer order and request for extension of time to file motion to reconsider. On February 18, 1982, the district court denied the motion, holding that the federal district court in the Northern District of Iowa lost all jurisdiction when the clerk for the District of South Carolina received the file of the underlying action. Nine Mile Limited v. Carnes, supra. See also n.4. The petitioner correctly argues that in order to permit adequate and orderly review of one federal district court’s decision to transfer a case to another federal district court, physical transfer of the file should be delayed for a period of time after entry of the transfer order so that review may be sought in the transferor circuit. See Starnes v. McGuire, 512 F.2d 918, 924, 935 (D.C.Cir.1974) (en banc). Indeed, this Court previously observed that “the better procedure” is to “hold up the transfer for a reasonable time pending possible petition for reconsideration or review.” Technitrol, Inc. v. McManus, 405 F.2d 84, 86 (8th Cir. 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969). See also 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 p. 229 (1976) (because appellate review, if available, “is more appropriate in the circuit in which the transferor court sits than in the circuit to which the case is transferred, the better practice, often codified in local rules, is routinely to stay grants of transfer for a sufficient period for appellate review to be sought”). The reason that physical transfer of a case file from the transferor court to the transferee court should be delayed for a reasonable time is that “physical transfer of the original papers in a case to a permissible transferee forum deprives the transfer- or circuit of jurisdiction to review the transfer.” Starnes v. McGuire, supra, 512 F.2d at 924. Accord, 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 pp. 228-229 (1976). In this case, the clerk for the Northern District of Iowa transferred the case file to the District of South Carolina on the same day that the district court ordered the case transferred there. The case file was received by the District of South Carolina clerk on February 4, 1982 — two days after the transfer order was filed in the Northern District of Iowa. Under the principles set forth above, we have no alternative but to grant the petition for a writ of mandamus. Because the case file has been physically transferred to the clerk for the District of South Carolina, we lack jurisdiction to order the transfer. Nevertheless, and pursuant to our inherent authority over the district judges in this Circuit, we order the district court to request the clerk for the District of South Carolina to return the files in Nine Mile Limited v. Carnes, supra, to the Northern District of Iowa. When the files are returned to the Northern District of Iowa, the district court is to promptly consider and rule upon petitioner’s motion for reconsideration of his transfer order. After the ruling on petitioner’s motion, review may be pursued in this Court. Finally, we direct that future transfer orders be effectuated in accordance with the teachings of Starnes and Technitrol. The petition for a writ of mandamus is granted and the cause is remanded to the district court for proceedings consistent with this opinion. So ordered. . Nine Mile Limited, d/b/a Serco Administrators and American Warranty Corporation. . Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia.). See also n.3, infra. . The petitioner’s three-count complaint made various allegations charging breach of contract, tortious interference with business opportunities and misrepresentation. . The district court stated in its February 18, 1982, order denying petitioner’s application to stay transfer and request for extension of time to file motion to reconsider that the case file was received by the clerk of the District of South Carolina on February 4, 1982. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia. Feb. 18, 1982) (order). . Although this Court and the district court lack power to compel the District of South Carolina to return the case files to the Northern District of Iowa, we direct the district court and the clerk for the Northern District of Iowa to take every reasonable action possible in asking the District of South Carolina to return the files. Of course, we cannot predict whether the files will be returned; but in the event the District of South Carolina declines the requests by the district court and the clerk for the Northern District of Iowa, the petitioner has another avenue available: it may initiate a new proceeding seeking retransfer in the transferee court — here, the District of South Carolina— which may be reviewed in the transferee circuit. E.g., Starnes v. McGuire, 512 F.2d 918, 925 (D.C.Cir.1974) (en banc); 15 Wright, Miller & Cooper, supra, § 3846 pp. 230-231. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Appellee, v. Edgar CALLE-CARDENAS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Wilson VELASQUEZ-SANTARIAGA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mario JARAMILLO-ECHEVERRI, Defendant, Appellant. Nos. 86-2093 to 86-2095. United States Court of Appeals, First Circuit. Heard Dec. 9, 1987. Decided Jan. 27, 1988. John B. Reilly, Warwick, R.I., by Appointment of the Court, for defendants, appellants Edgar Calle-Cardenas and Mario Jaramillo- Echeverri. Joan C. Stanley, by Appointment of the Court, with whom Law Offices of Colette Manoil, Boston, Mass., was on brief, for defendants, appellant Wilson Velasquez-Santariaga. James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on briefs, for appellee. Before COFFIN, BOWNES and TORRUELLA, Circuit Judges. COFFIN, Circuit Judge. The appeals of appellants Calle-Cardenas and Jaramillo-Echeverri challenge the district court’s denial of their motion to suppress evidence of cocaine and other property seized. Federal agents obtained a warrant from a federal magistrate at 2:08 p.m. on June 13, 1986. Probable cause to issue the warrant was based on information supplied to Agent Burkett, the affiant, by an informant, that appellant Calle was distributing at least one kilogram of cocaine weekly from “his residence at 46-48 Comstock Street (first floor, side door right).” The warrant authorized a search of “the right side, first floor apartment of 46-48 Com-stock Street, Pawtucket, R.I. ... occupied by Edgar Calle.” Agents surveilling the premises, however, at about the time the warrant was signed by the magistrate, 2:00 p.m., observed a person emerge from an automobile and enter the dwelling through a door on the left side. Soon thereafter, that person emerged from the building and drove off. A check of the license plate number revealed that the vehicle was registered in the name of appellant Calle. The vehicle returned at 3:15, .the driver entered the building and returned to the vehicle as before, and again drove off. He was followed and confronted. Identifying himself as one Mazo, he told the police that Calle’s residence was in fact the left side, first floor apartment, and that Calle had been in the apartment when he, Mazo, had left. At this time, around 4:00 p.m., the warrant above described had not been executed. Agent Parham, who had supplied the informant’s information for Agent Burkett’s affidavit, then supplied this new information to the magistrate and obtained a second warrant authorizing search of “the left side, first floor apartment of 46-48 Comstock Street ... occupied by Edgar Calle.” The agents then went to the premises, entered by the left door, found themselves in a common passageway, and, taking the door to their right, forced their way into appellant’s apartment. It should be noted that the building, in addition to the outside door on the left, had a front door, an entrance at the right side (which led only to a basement apartment), and a door at the rear. At this remove it is difficult to see how appellant could devote so much time at the Franks hearing, which the district court gratuitously held out of an abundance of caution, or so much space in his brief, to his challenge to the denial of his motion to suppress. We say this because we cannot imagine what the agents could have done better. When their surveillance of the premises created a doubt as to which side of the house was the location of appellant’s apartment (or the entrance thereto), they refrained from proceeding on the basis of their warrant and obtained another one with the corrected location. Appellant spins an argument that, when the agents realized that the informant’s information about the contraband being in the right side apartment was in error, they “abandoned” their “reliable informant.” Mazo’s information, appellant argues, “specifically negates” the informant’s “basis of knowledge,” leaving no basis for any suspicion that there was contraband to be found in the left side apartment. The problem with this approach is that appellant would have us read the first affidavit and warrant as permitting only the interpretation that contraband was in a “right side first floor” apartment, with no significance attached to the apartment as being Calle’s residence. But, as appellant concedes, we are to give a common sense reading to the affidavit supporting a warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In this case we list the following factors to be taken into account: (1) the informant’s main thrust was that Calle was regularly distributing large quantities of cocaine from his “residence”; (2) the warrant equates the “right side first floor” apartment with that “occupied by Edgar Calle”; (3) Mazo’s information gave accurate directions as to how Calle’s residence could be approached; (4) in fact, as the agents found out, Calle’s apartment, once the building had been entered from the outside door on the left, was on the right and on the first floor; and (5) the outside entrance on the right side of the building did not lead to any first floor apartment. Clearly there was no error. The agents acted with punctilious regard for the integrity of warrant-authorized searches, and the magistrate was amply justified in correcting, on an adequate representation, a detail of a generally adequate earlier basis for a warrant. Appellant Velaquez-Santariaga challenges the court’s refusal to direct a verdict. He argues that, when the agents forced their way into the apartment, there was nothing other than his mere presence on which to base his convictions for possession of cocaine and a firearm. He contends that there was insufficient evidence on which to base a finding of constructive possession of the guns and cocaine. A summary of the evidence favorable to the government is the following. An officer took from the left outer door casing of the apartment a tape containing the names of all three appellants. At the time of the agents’ entry, all three were in shorts and shoeless; each thereafter went to a closet for other clothes. Cash in the amount of $1,001 and a firearm were found lying on a coffee table in front of a couch. Near the cash and pistol were found an Employee’s Withholding Allowance Certificate and a Blue Cross/Blue Shield Group Subscriber Application in the name of Antonio Martinez. The significance of these documents is that they were established, by identity of birth date and social security number, to be those of appellant. The sum of $1,800 was discovered under a couch cushion and a box containing a pistol and holster was retrieved from under the couch. In the pantry was a triple beam balance. Between $208,000 and $278,000 worth of cocaine was seized from the refrigerator and cupboards. We hold that this evidence and the reasonable inferences therefrom adequately support the jury’s verdict. The jury reasonably could have inferred from this cumulative evidence that Velasquez had dominion and control over the area, or at the very least that he had dominion and control over the contraband found in close proximity to his identification documents. The final issue, raised on appeal by all appellants, is that the district court erred in not instructing the jury as to the meaning of “illegally and unlawfully in the United States.” All three defendants were convicted on charges of possession of a firearm by an illegal alien. The government had to prove that the defendants were aliens illegally or unlawfully in the United States. The district court gave the following instructions: So next we go on, illegally and unlawfully in the United States. What do we mean by that? Well, to be illegally or unlawfully in the United States means to be willfully in the United States contrary to law. And an act is done willfully if done voluntarily and intentionally with a specific intent to do something which the law forbids, that is to say, with bad purpose, either to disobey or to disregard the law. So that to be illegally and unlawfully in the United States means to be willfully in the United States, contrary to law. And I don’t know what else I can tell you on that one. No objection to this instruction was made, or request for an alternative instruction. And we are not told in what respect the instruction was inadequate. In any event, pursuing a “plain error” analysis, we see no manifest injustice on this record. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Nos. 59 & 60, Dockets 24993, 24994. United States Court of Appeals Second Circuit. Argued Jan. 7, 1959. Decided April 29, 1959. James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants. Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees. Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge. GIBSON, District Judge. Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated. The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126? The partnership agreement in effect at Max Mandel’s death provided in part as follows: “13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.” “18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * ” There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts. The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation. The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest. Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries. The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement. When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay. In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries. When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries. Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion. It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services. Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916. Reversed in part; remanded for further proceedings consistent with the views expressed herein. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_discover	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". In re SUBPOENAS DUCES TECUM. Fulbright & Jaworski, Vinson & Elkins, Tesoro Petroleum Corporation, Appellants. No. 83-2116. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 29, 1984. Decided July 10, 1984. C. Michael Buxton, Washington, D.C., with whom Robert J. Casey, Washington, D.C., for Vinson & Elkins, Keith A. Jones and David R. Johnson, Washington, D.C., for Fulbright & Jaworski, and Steven B. Rosenfeld, New York City, for Tesoro Petroleum Corp., were on the joint brief, for appellants. Daniel J. Dugan, with whom George Billock, Jr., Pittsburgh, Pa., was on the brief, for appellees. Before WALD, MIKVA and DAVIS, Circuit Judges. Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a). Opinion for the Court filed by Circuit Judge DAVIS. DAVIS, Circuit Judge: Appellants challenge orders of the District Court, 99 F.R.D. 582, granting appellees’ motion to compel compliance with four subpoenas duces tecum on the grounds that the attorney-client and work product privileges had been waived by prior disclosure. We affirm. I Appellees, movants below, are seeking copies of documents which have been furnished by appellants, respondents below, to the Securities and Exchange Commission (SEC or Commission) and to a grand jury. The demand for those documents arose out of complaints filed by appellees as plaintiffs in Pennsylvania and transferred to the U.S. District Court for the Western District of Texas which involve (1) a class action brought against Tesoro Petroleum Corporation (Tesoro) and its officers and directors on behalf of Tesoro stockholders, and (2) a derivative action brought in Tesoro’s name against its officers and directors. Plaintiffs allege in those complaints that defendants manipulated Tesoro stock in 1982 in order to remove enough stock from the public market to convert Tesoro from a public into a private corporation. The claim is that this contemplated corporate change was in part motivated by a desire to become free from public disclosure obligations, which obligations in turn might have caused disclosure of involvement by Tesoro in illegal payments to foreign officials before 1978. In the course of that Texas litigation, plaintiffs sought the papers now in question for use in connection with those suits. Because the documents are now in the possession, within the District of Columbia, of two law firms, Fulbright & Jaworski (Fulbright) and Vinson & Elkins (Vinson), subpoenas duces tecum were issued to those firms by the Clerk of the District Court, and, on their refusal to produce, a proceeding to enforce the subpoenas against them was begun in the court below. Although neither law firm is a party to the law suits in Texas, their involvement here stems from the fact that the subpoenaed documents are the product of an investigation by Fulbright into Tesoro’s alleged illegal payments to foreign officials. This came about as follows: After indications of improper corporate payments to officials, domestic and foreign, had become more frequent in the 1970’s, the SEC established a “voluntary disclosure program,” including independent investigations by the affected companies, and the agency made a general request to those companies to participate in the program. In re Sealed Case, 676 F.2d 793, 800-01 (D.C.Cir.1982). Following such a request to Tesoro, it hired Fulbright to perform a self-investigation on that subject and to help set up a special committee of independent directors to oversee it. Tesoro disclosed the results of the investigation to the SEC under the “voluntary disclosure program.” As stated by the District Court below, that program “promises wrongdoers more lenient treatment and the chance to avoid formal investigation and litigation in return for thorough self-investigation and complete disclosure of the results to the SEC.” See also Sealed Case, supra, 676 F.2d at 801. Made available to the SEC, under that program, were a copy of the investigation’s final report and several binders which contained pertinent corporate records and documents of Tesoro, as well as the notes of the lawyers taken during the course of their investigation. The SEC filed a civil complaint against Tesoro, following the agency’s receipt and consideration of the documents, which was resolved by entry of a consent decree. The Commission also referred some aspects of Tesoro’s circumstances to the Department of Justice, which then presented the matter to a grand jury, convened in October 1978 in the District of Columbia. Vinson represented Tesoro before the grand jury, and also is Tesoro’s counsel in the Texas litigation. The grand jury obtained copies of the same documents through subpoenas served on the law firms. After a hearing on the motion, the District Court ordered compliance, rejecting appellants’ attorney-client and work product arguments. By Supplemental Memorandum and Order, the court denied appellants’ motion for reconsideration, and confirmed its prior decision. A Revised Supplemental Memorandum corrected a reference to the clerk that issued the subpoenas. A motion for a stay pending appeal was subsequently granted by the court below. II The questions before us are whether the District Court correctly determined that appellants’ voluntary disclosure of the documents to the SEC effected waivers of attorney-client and work product privileges with respect to the documents now sought for discovery in the Texas suits. We deal with each privilege in turn. A. Attorney-Client Privilege Attorney-client communications ordinarily are privileged, and thus are protected from discovery by a party opponent under Fed.R.Civ.P. 26(b). By allowing confidentiality of the substance of client and lawyer discussions, the privilege is held by clients as a means of encouraging their candor in discussing their circumstances with their chosen legal representatives. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege, however, is not absolute. As stated by this court in Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C.Cir.1981) (quoting United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980)), “[a]ny voluntary disclosure by the holder of such a privilege is inconsistent with the confidential relationship and thus waives the privilege.” See also Sealed Case, supra, 676 F.2d at 818; see generally 8 J. Wigmore, Evidence §§ 2327-28 (McNaughton rev. 1961); McCormack on Evidence § 93 (Cleary ed. 1972). There was, of course, disclosure here but appellants maintain that, although Tesoro’s disclosure to the SEC was voluntary, their waiver of the attorney-client privilege with respect to those disclosures was limited to the SEC. They contend that Permian is compatible with a theory which allows a “limited waiver” of the attorney-client privilege (excluding disclosures to government agencies) and cite authority from other courts supporting the correctness of that rule. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977). We disagree, and hold that the District Court correctly interpreted and applied this court’s precedent. Contrary to appellants’ assertion, the waiver theory explicated by the court in Permian is not limited to circumstances in which material that has been disclosed to one federal agency is sought by another federal agency. In Permian, Occidental Petroleum Corporation (Occidental) had allowed the SEC access to certain documents pursuant to an agreement by which Occidental attempted to retain its privileges. When the Department of Energy later sought access to some of the privileged materials, Occidental claimed that several of the documents were protected by the attorney-client privilege and that the prior disclosure to the SEC was a limited waiver of the privilege, i.e., it was a waiver with respect to the SEC alone. Rejecting the limited waiver argument, this court stated: “we are aware of no congressional directive or judicially recognized priority system that places a higher value on cooperation with the SEC than on cooperation with other regulatory agencies, including the Department of Energy,” Permian, 665 F.2d at 1221. Appellants use this quotation to urge that the Permian court rejected the limited waiver theory only as between federal agencies. However, such a narrow reading of that case is an incorrect characterization of its reasoning and holding. There is no need to elaborate on this court’s emphatic rejection of the limited waiver doctrine in a lengthy discussion in Permian, see 665 F.2d 1220-1222, in which the court stated that The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit ____ The attorney-client privilege is not designed for such tactical employment. 665 F.2d at 1221. There is no meaningful distinction in the adventitious fact that only federal agencies were involved in Permian. For the purposes of the attorney-client privilege, there is nothing special about another federal agency in the role of potential adversary as compared to private party litigants acting as adversaries. Like Occidental in Permian, Tesoro willingly sacrificed its attorney-client confidentiality by voluntarily disclosing material in an effort to convince another entity, the SEC, that a formal investigation or enforcement action was not warranted. Having done so, appellants cannot now selectively assert protection of those same documents under the attorney-client privilege. A client cannot waive that privilege in circumstances where disclosure might be beneficial while maintaining it in other circumstances where nondisclosure would be beneficial. “We believe that the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality”. Permian, 665 F.2d at 1222. To the same effect, see United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980). Having failed to maintain genuine confidentiality, appellants are precluded from properly relying on the attorney-client privilege. B. Work Product Privilege The harder question concerns appellants’ claim that the District Court erred in concluding that the disclosure effected an implied waiver of their work product privilege. While the attorney-client privilege is intended to promote communication between attorney and client by protecting client confidences, the work product privilege is a broader protection, designed to balance the needs of the adversary system to promote an attorney’s preparation in representing a client against society’s general interest in revealing all true and material facts relevant to the resolution of a dispute. See Hickman v. Taylor, 329 U.S. 495, 509-512, 67 S.Ct. 385, 392-394, 91 L.Ed. 451 (1947); see generally Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Georgetown L.Rev. 917 (1983). As this court stated in United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980), “the work product privilege does not exist to protect a confidential relationship, but rather to promote the adversary system by safeguarding the fruits of an attorney’s trial preparation from the discovery attempts of an opponent____ A disclosure made in the pursuit of such trial preparation, and not inconsistent with maintaining secrecy against opponents, should be allowed without waiver of the privilege.” (Emphasis in original.) Recently this court decided a work product case which called upon the court to discuss the legal considerations underlying waiver of that privilege in the context of the SEC’s voluntary disclosure program, In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982). Sealed Case involved resistance to a grand jury subpoena by a multinational corporation on work product grounds (among others) for its counsel’s records which had been disclosed previously to the SEC in the voluntary disclosure program. This court affirmed the district court’s determination that the corporation had waived its work product privilege: Company entered into an arrangement with the SEC under which, as a matter of both common sense and common knowledge, Company relinquished its right to prevent the government from examining whatever documents were necessary for a fair evaluation of the final report offered to its shareholders and the SEC. Just because Company was successful in hiding crucial documents from the SEC, we need not allow Company to withhold them from a grand jury investigating possible crimes uncovered during the SEC’s investigation. Sealed Case, 676 F.2d at 817. Although the circumstances before us differ — this is a case involving private parties, not a grand jury investigation, and appellees here are seeking the documents which were disclosed to the SEC, not those which might have been successfully hidden — and though that opinion left open the precise case before us, the general reasoning of Sealed Case leads us to a similar conclusion here. As Judge Wright stated, “[t]he doctrine of implied waiver allows courts to retain some discretion to ensure that specific assertions of privilege are reasonably consistent with the purposes for which a privilege was created,” 676 F.2d at 817, and “[t]he question with respect to implied waiver is whether Wigmore’s ‘objective consideration’ of fairness negates [the] assertion of privilege.” Ibid. See also id. at 818. Obviously, the application of such a “fairness” standard is not without difficulty. However, because the underlying rationale of the work product privilege itself is also one of fairness, an analysis of whether that rationale maintains viability in particular circumstances involves of necessity the weighing of more abstract considerations within the context of those particulars. Our present decision that there has been a waiver of the privilege rests on three main factors: (1) “the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege,” Sealed Case, 676 F.2d at 818; (2) appellants had no reasonable basis for believing that the disclosed materials would be kept confidential by the SEC; and (3) waiver of the privilege in these circumstances would not trench on any policy elements now inherent in this privilege. First, the advantage that the appellants seek from their attempt selectively to disclose their work product is greater “than the law must provide to maintain a healthy adversary system.” Id. Fairness and consistency require that appellants not be allowed to gain the substantial advantages accruing to voluntary disclosure of work product to one adversary — the SEC — while being able to maintain another advantage inherent in protecting that same work product from other adversaries. See Sealed Case, 676 F.2d at 818-821. We are convinced that the health of the adversary system — which spawned the need for protection of an attorney’s work product from discovery by an opponent — would not be well served by allowing appellants the advantages of selective disclosure to particular adversaries, a differential disclosure often spurred by considerations of self-interest. “When a corporation elects to participate in a voluntary disclosure program like the SEC’s, it necessarily decides that the benefits of participation outweigh the benefits of confidentiality for all files necessary to a full evaluation of its disclosures. It foregoes some of the traditional protections of the adversary system in order to avoid some of the traditional burdens that accompany adversary resolution of disputes, especially disputes with such formidable adversaries as the SEC.” Sealed Case, 676 F.2d at 822-23 (footnote omitted). There is no question that the SEC was an adversary to Tesoro. This was not a partnership between allies. Tesoro was not simply assisting the SEC in doing its job. Rather, Tesoro independently and voluntarily chose to participate in a thorough disclosure program, in return for which it received the quid pro quo of lenient punishment for any wrongdoings exposed in the process. That decision was obviously motivated by self-interest. Appellants now want work product protection for those same disclosures against different adversaries in suits centering on the very same matters disclosed to the SEC. It would be unreasonable to suppose that litigation with these other adversaries was not anticipated at the time of disclosure to the SEC. It would also be inconsistent and unfair to allow appellants to select according to their own self-interest to which adversaries they will allow access to the materials. Second, appellants did not have any proper expectations of confidentiality which might mitigate the weight against them of such general considerations of fairness in the adversary process. Although we agree with appellants that not all voluntary disclosures effect a work product waiver, there is not here any “existence of common interests between transferor and transferee,” United States v. AT&T, 642 F.2d 1285, 1299 (1980), which might establish a basis for expectations of confidentiality. Appellants contend, however, that such expectations were warranted because the materials were disclosed to the Commission pursuant to (1) SEC regulations which required their confidentiality and, (2) an understanding between Fulbright and the SEC that the materials would remain confidential. There is a dispute between the parties whether the question of SEC regulations said to require confidentiality was raised below by appellants. We put aside this question because the regulations cited by appellants are not relevant to the circumstances before us. See 17 C.F.R. §§ 203.2, 230.122, 240.0-4 (1978). These regulations apply to formal SEC investigations — they afford no protection to documents previously disclosed under the voluntary disclosure program. Appellants maintain that “disclosure” of the materials did not occur until the formal investigation began — and thus the regulations do apply — because the SEC did not have physical possession of the materials until that time. But even before taking physical possession, the SEC unquestionably had full access to all of the documents and perused them. Contrary to appellants’ argument, there is no significance to the distinction between full access and physical possession with respect to the issue of when disclosure took place. The materials were disclosed in full to the SEC prior to the institution of a formal investigation, and the regulations do not apply. Likewise without merit is appellants’ claim that the SEC had agreed by letter to maintain the confidentiality of the submitted materials. Appellants were not entirely forthcoming below on this issue. Only after the District Court held against appellants in its first memorandum did they request reconsideration of that decision based on the new submission of correspondence consisting of two letters between Fulbright and the SEC. Appellants maintain that these letters — one dated October 3, 1978 from Fulbright to the SEC and one dated October 19, 1978 from the SEC to Fulbright — demonstrate that the SEC did agree to maintain the confidentiality of the documents in question. We are not persuaded that the District Court erred in law or fact in its assessment that “there has been no commitment by the SEC to receive and hold the documents in confidence on terms which negate the waiver of [appellants’] work product privilege effected in 1978 when they submitted the documents to the SEC.” Responding to Fulbright’s October 3 letter, which stated appellants’ own understanding concerning disclosure of the documents, the SEC said that “[t]he Commission staff will maintain the confidentiality of any documents produced pursuant to any subpoena issued to your firm or to Tesoro, ... as it does in connection with any other private investigation.” As noted by the District Court, these documents were not “produced pursuant to any subpoena.” They were provided voluntarily by Tesoro to persuade the SEC not to engage in a formal investigation of possible wrongdoings. The distinction between voluntary disclosure and disclosure by subpoena is that the latter, being involuntary, lacks the self-interest which motivates the former. As such, there may be less reason to find waiver in circumstances of involuntary disclosure. With regard to third party access, the SEC stated: In the event that, during the period of investigation and thereafter, the Commission shall receive a request from any third party other than a grand jury or agencies of the federal government for access to any document submitted by your firm or Tesoro, voluntarily or pursuant to subpoena, ... the staff of the Commission will notify Tesoro of the receipt of such a request ____ In the further event that the Commission should determine that it is not able to grant confidential treatment consistent with the provisions of the Freedom of Information Act, the staff will immediately advise Tesoro of such decision and endeavor to afford you ten days notice prior to the release of such documents Clearly, the SEC’s assurance that Tesoro would be notified in the event of a third party request is hardly an agreement to maintain complete confidentiality. Regardless of Fulbright’s attempts to extract such a promise from the SEC, neither these letters nor any other part of the record indicates any such agreement by the SEC. Indeed, the record shows that the exchange of these letters occurred after the SEC had already been given access to all of the documents in question. The letters were sent sometime after the beginning of a formal investigation of Tesoro by the SEC, not prior to the initial disclosure of the documents. The record shows no attempts by appellants to structure a confidentiality agreement prior to making the documents available, much less an agreement to do so by the SEC even after disclosure had been made. See Sealed Case, supra, 676 F.2d at 823. In short, the letters exchanged between Fulbright and the SEC warrant no expectations of confidentiality on appellants’ part for the materials which were made available. The attempt to secure confidentiality occurred after the SEC had seen the voluntarily disclosed documents, and the SEC’s statement concerning third party requests for documents said only that Tesoro would receive notice of any release of materials which would have been deemed appropriate by the Commission. Appellants offer two other factors to support their expectations of confidentiality, neither of which weighs in their favor: (1) The SEC has not in fact released any of the materials, including to a private party who requested copies of the Tesoro documents under the Freedom of Information Act (FOIA), and (2) the SEC apparently will propose legislation concerning waivers of evidentiary privileges by companies involved with the SEC. There is no significance to the fact that the SEC has not released any of the materials. The SEC denied an FOIA requestor by asserting exemption 7(A) (5 U.S.C. § 552(b)(7)(A)) because “the production of such records would ... interfere with law enforcement proceedings,” i.e., with the then on-going grand jury proceedings. However, since the grand jury proceedings have ended, the SEC has advised a requestor that the exemption will no longer be asserted and that the Commission’s FOIA officer will review the Tesoro file to determine whether any material is releasable. This is a slim basis on which to claim an expectation of confidentiality. Likewise without weight is appellants’ contention that confidentiality should be accorded because the SEC has recently announced that it will propose legislation which would “provide that submission of information to the Commission does not waive the attorney-client privilege, or any other applicable evidentiary privilege, and that such information is exempt from the FOIA.” This statement by the SEC hardly supports appellants’ position. Rather, it seems to indicate a belief by the SEC that, under current law, submission of information to the SEC waives applicable evidentiary privileges and is not exempt from FOIA requests. We note that the SEC has not taken any public position in this case concerning judicial resolution of these problems, nor has it adopted regulations embodying the substance of its suggestion to Congress. Finally, we believe that no policy factor now inherent in the work product privilege calls for a special exception for the SEC’s voluntary disclosure program (or similar governmental enforcement projects). A healthy adversary system affords protection to an attorney’s trial preparation as against actual and potential opponents. United States v. American Telephone & Telegraph, supra, 642 F.2d at 1299. But, as we have said, the privilege does not protect against the manipulation of selecting a particular opponent for selective disclosure — most probably for the discloser’s own benefit. The SEC was such a poten-, tial opponent but Tesoro (and the other appellants) voluntarily and deliberately made disclosures to that agency, undoubtedly in the hope and expectation of receiving a benefit under the voluntary disclo- , sure program. It is said that, nevertheless, such voluntary programs will be hindered unless the work product privilege covers disclosures under them. Permian, supra, has already rejected, for the attorney-client privilege, an exception for such disclosure, saying “we cannot see how ‘the developing procedure of corporations to employ independent outside counsel to investigate and advise them’ would be thwarted by telling a corporation that it cannot disclose the resulting reports to the SEC if it wishes to maintain their confidentiality.” The same choice is open under the work product privilege. Or the company can insist on a promise of confidentiality before disclosure to the SEC. Cf. Sealed Case, 676 F.2d at 823. If a change is to be made because it is thought that such voluntary disclosure programs are so important that they deserve special treatment, that is a policy matter for the Congress, or perhaps for the SEC (through a regulation). Courts are not the appropriate forum — for one thing, courts do not know enough — to decide on policy grounds to treat those programs (or others like them) in an exceptional way. See Sealed Case, supra, 676 F.2d at 824. Affirmed. . The orders were entered by District Judge Oberdorfer on September 23 and October 18, 1983 in District Court Misc. No. 83-0217. . Plaintiff-appellees are Robert J. Bolton, George E. Meyer and Leo A. Walker, III, individually and on behalf of all persons similarly situated, and Robert J. Bolton derivatively on behalf of Tesoro. . Tesoro intervened after appellees moved to compel compliance with the subpoenas. . The special committee later retained Vinson to advise it with regard to certain legal matters arising in conjunction with the investigation. . We were informed by letter prior to oral argument that the grand jury investigation had been concluded with a decision not to seek a criminal prosecution. . Appellants are Tesoro and the two law firms. . Fed.R.Civ.P. 26(b)(3) provides: (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of docu7 ments and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. . "We do not consider whether we would imply a waiver in other types of litigation for all of Company's privileged files relating to the report." 676 F.2d at 817. . Wigmore stated that "Regard must be had ... in every waiver ... [to] the element of fairness and consistency.” 8 J. Wigmore, Evidence § 2327 at 636 (J. McNaughton rev. 1961)). . As we show infra, the SEC did not promise confidentiality to appellants. . The newly submitted letters between Tesoro and the SEC were exchanged in October 1978. The SEC’s formal investigation of Tesoro commenced in August 1978. Appellants have also placed into evidence a copy of a letter, dated September 18, 1978, from Fulbright to the SEC in which confidentiality was claimed for all documents. This letter, too, was sent after the formal investigation was commenced, and the record shows no response from the SEC. . In Permian, supra, 665 F.2d 1214, the District Court upheld claims to work product protection, and we affirmed. Appellants say that that holding supports their position that their voluntary production of documents to the SEC did not effect a waiver of their work product protection. Permian was quite different, though it involved production of allegedly privileged documents to the SEC. Those documents had first been produced in private litigation in which both a stipulation between the parties and a judicial protective order stated that inadvertent production of a privileged document would not be deemed a waiver. The District Court found that work product waiver had not in fact occurred for 36 documents at issue because a special agreement with the SEC established a protective attitude of confidentiality. The question on appeal was the correctness of the District Court’s factual findings concerning the agreement with the SEC. That finding was upheld by this court as not clearly erroneous. 665 F.2d at 1218-19. Here, on the other hand, the District Court found no such special agreement, and we agree that its decision was correct on this record. . Taken from a letter dated February 22, 1984 from John S.R. Shad, SEC Chairman, to the Honorable Timothy E. Wirth, Chairman of the House Energy and Commerce Committee Subcommittee on Telecommunications, Consumer Protection and Finance. Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Frank W. JACOBS, Sr., Appellant, v. UNITED STATES of America, Appellee. No. 16302. United States Court of Appeals Eighth Circuit. June 22, 1960. Sidney M. Glazer, St. Louis, Mo., for appellant. William C. Dale, Jr., Asst. U. S. Atty., St. Louis, Mo., for appellee. Before GARDNER, WOODROUGH and VOGEL, Circuit Judges. VOGEL, Circuit Judge. Frank W. Jacobs, Sr., appellant, was indicted on charges of willfully attempting to evade income taxes for the years 1950, 1951 and 1952 by the filing of fraudulent income tax returns. After a jury trial, in which the government relied upon the net worth theory of proof, appellant was acquitted on the count applicable to the year 1950 and convicted on the counts relating to the years 1951 and 1952. He was sentenced to concurrent terms of imprisonment of five years and was fined $20,000, from which result this appeal is taken. Appellant urges, first, that the trial court committed error by inquiring as to the division of the jury and in giving an additional charge during the jury’s deliberations after the inquiry had elicited the information that the jury was unevenly divided. The court concluded its main charge to the jury at noon of the seventh day of the trial. The jurors were then taken to lunch, subsequent to which they retired. At 5:53 o’clock p. m. on that day the jurors were again brought into court, whereupon the following proceedings transpired: “The Court: I am going to ask first that no member of the jury volunteer any statements at all, simply answer as succinctly as you can the questions that I may ask you. You haven’t arrived at a verdict, have you? A Juror: No sir. “The Court: Do you think you are near a verdict? A Juror: No sir. A Juror: No sir. “The Court: Are you the foreman? A Juror: I am. “The Court: Oh. Mr. Foreman, do you think it possible you are going to arrive at a verdict? “The Foreman: I doubt very much. “The Court: Now, let me ask you —I don’t want anybody to say, I don’t want you to say, I don’t want anybody to say how you are divided numerically; but I would like to ask whether there is, whether the division is, the sentiment of the jury, whether it is very largely one-sided, whether or not- — I don’t want anybody to comment how many taking one position or how many another, but are there — is it equal, largely one-sided ? “The Foreman: Can I answer that? “The Court: Without any numbers. “The Foreman: Not equally divided. “The Court: Have you been that way throughout the afternoon? “The Foreman: Yes sir. “The Court: That being the case, I want to say this to you at this time: This is an important case; the trial has been long and expensive. The failure to agree upon a verdict will necessitate another trial, probably equally as expensive. In the Court’s opinion the case would not be tried any better or exhaustively than it has on either side. It is therefore very desirable that you should agree upon a verdict. “The purpose of a trial is to arrive at a verdict, a just verdict, not a disagreement. It is the duty of a jury to agree upon a verdict, that is the purpose of a trial. It is your duty to adjust your differences of opinion by comparison of views and by discussion of the evidence, having your minds at all times open to the truth as may be impressed upon you by fair argument and a fair presentation of the evidence. Such a method adopted by reasonable men and women, having due regard to the opinions of your fellow jurymen will almost inevitably lead to an agreement and a just verdict. On the other hand, a dogged persistence in a position which will not listen to a fair argument or to the persuasive force of reason is destructive of justice and has no place in the jury box. “Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own or her own convictions, and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; and you are selected in the same manner and from the same source from which any future jury must be. There is no reason to suppose the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it; or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide the case if you can conscientiously do so.” Thereafter, counsel for appellant moved for a mistrial on the ground that the court’s inquiry followed by the supplemental instruction was improper, which motion was overruled. After further deliberation, the jury returned a verdict finding appellant guilty on two counts and acquitting him on one. It is the contention of appellant that the inquiry and the additional instruction coerced the jury into arriving at a compromise verdict. In so contending, appellant calls attention to the fact that the jury was “not evenly divided”, that the view of the minority at that time was so strong that the foreman and one other juror indicated that they were not near a verdict, and that the foreman, in response to the court’s, question, “do you think it possible you are going to arrive at a verdict”, replied, “I doubt very much” and that they had been “that way throughout the afternoon”. The propriety of inquiring of a jury how they stand has been considered by the Supreme Court and the Courts of Appeals, on numerous occasions. In Burton v. United States, 1905, 196 U.S. 283, 305-308, 25 S.Ct. 243, 249, 49 L.Ed. 482, the trial judge inquired of the jurors as follows: “I would like to ask the foreman, of the jury how you are divided. I do not want to know how many stand for conviction, or how many for acquittal, but to know the number who, stand the one way and the number who stand another way. I would like the statement from the foreman.” To which the foreman answered: “Eleven to one.” Thereupon the court instructed the jury further in the language approved by the Supreme Court in Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528, which instruction was similar to that used by the trial judge here. In reversing on this and other grounds, the Supreme Court stated: “We must say in addition, that a practice ought not to grow up of inquiring of a jury, when brought into court because unable to agree, how the jury is divided; not meaning by such question, how many stand for conviction or how many stand for acquittal, but meaning the proportion of the division, not which way the division may be. Such a practice is not to be commended, because we cannot see how it may be material for the court to understand the proportion of division of opinion among the jury. All that the judge said in regard to the propriety and duty of the jury to fairly and honestly endeavor to agree could have been said without asking for the fact as to the proportion of their division; and we do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge. Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain.” (Emphasis supplied.) Burton v. United States, supra, at page 307, 25 S.Ct. at page 250, 49 L.Ed. 482. More recently, in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, the Supreme Court had before it the single question of whether or not prejudicial error had been committed by the trial judge in inquiring of the jury, which had failed to agree, how it was divided numerically, which inquiry elicited the reply by the foreman that it stood 9 to 3 without any indication of which number favored conviction. In forceful language Mr. Justice Stone, speaking for a unanimous court, held the inquiry improper, declaring: “We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversed. Such procedure serves no useful purpose that cannot be obtained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measureable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.” (Emphasis supplied.) Brasfield v. United States, supra, 272 U.S. at page 450, 47 S.Ct. at page 135. In Jordan v. United States, 9 Cir., 1927, 22 F.2d 966, the trial court inquired : “I am not asking you for a division, Mr. Foreman; but I will ask you: Is the jury about evenly divided ? You can answer that yes or no. “The Foreman: Yes, sir.”' The Circuit Court reversed the conviction, relying upon both Burton v. United States, supra, and Brasfield v. United States, supra. In referring to the latter decision, the court stated: “This language is too plain to admit of further controversy. The court condemned both the form of the inquiry and the inquiry itself, and declared that in all future cases any such inquiry should be regarded as ground for reversal. It is idle to say that to ask a jury ‘If it is about evenly divided’ does not require it to disclose ‘the proportion of division of opinion among the jury,’ or ‘to reveal the nature or extent of its division.’ “For this error, the judgment is reversed, and the cause is remanded for a new trial.” Jordan v. United States, supra, 22 F.2d at page 967. In Stewart v. United States, 8 Cir., 1924, 300 F. 769, 782, this court considered the propriety of a trial court’s inquiry of the jury foreman: “ * * * that it did not wish him to say how the jury stood, but that it would like to know whether they were evenly divided, or whether there was a larger preponderance one way or the other, * * * ” to which the foreman replied that there seemed to be a large preponderance one way. In his opinion, Judge Walter San-born first reviewed the Supreme Court’s decision in Burton v. United States, supra, in detail and then explained: “The practice forbidden by this opinion [the Burton opinion] seems to be any inquiry ‘as to the proportion of the division’ of the jury, although ‘not meaning by such queS' tion how many stand for conviction or how many stand for acquittal, but meaning the proportion of the division, not which way the division may be.’ It is difficult to describe the question asked by the court below more clearly and accurately than it is described by this language of the Supreme Court. It was exactly an inquiry how the jury was divided, not meaning how many stood for conviction, or how many stood for acquittal, but meaning the proportion of the division, not which way the division was. While in questions of this nature, which exclude inquiries and answers as to the standing of the jury in regard to the conviction or acquittal of the accused, such as the question asked in this case, and such as, Is there a preponderance of jurors one way or the other? Is there a great preponderance of jurors one way or the other? Is there an overwhelming preponderance of jurors one way or the other? Courts and juries use the word ‘preponderance,’ they actually think and mean majority, and they think of and seek for the numerical proportion of the division of the jury. “This court had occasion to consider the true construction and effect of the opinion of the Supreme Court in the Burton case, relative to the question now under consideration, in St. Louis & S. F. R Co. v. Bishard, 147 F. 496, 500, 501, 502, 78 C.C.A. 62, and concluded that the trial court’s inquiry of the jury in that case, not how many were for conviction or how many were for acquittal, but what the bare proportion of their division was, was erroneous, reversed the judgment, and ordered a new trial. There is no such difference between the facts in that case and the facts in the case in hand as will warrant a contrary result in this case.” Stewart v. United States, supra, 300 F. at pages 783, 784. Subsequently, in Nigro v. United States, 8 Cir., 1925, 4 F.2d 781, 783, this court had before it the following situation: “ ‘The court inquired of the foreman of the jury if they had agreed upon a verdict. The foreman replied that the jury had not agreed. The court inquired if the foreman thought they would likely agree. The foreman replied that it did not appear that they would likely be able to agree. The court then inquired if the difficulty of the jury was upon a question of fact or in respect to the law of the case, and stated that if it was upon a matter of law he would give further instructions, if they would indicate the difficulty, but if it was upon a question of fact he would not be able to help them. The foreman replied that it was upon a question or issue as to facts. The court then requested the foreman that, without indicating how the jury stood in numbers, he, the foreman, should state to the court whether or not there was a predominance of the individual jurors in favor of a verdict one way or the other ; the foreman replied there was a predominance.’ ” The trial court then instructed the jury further in accordance with Allen v. United States, supra. On appeal this court concluded: “On the authority of the Stewart Case and for the reasons therein assigned, we hold that the inquiry made of the jury and the reading of the abstract statements from the Allen Case was error.” Nigro v. United States, supra, 4 F.2d at page 785. United States v. Samuel Dunkel & Co., 2 Cir., 1949, 173 F.2d 506, 507, involved the following inquiry of the jury foreman: “May I ask you, Mr. Whitney, I believe it is, without disclosing the way in which the jury stands, can you tell me, are they nearly equally divided as to a question of fact, or is there a majority, a pronounced majority in agreement, with a pronounced minority in disagreement? I think you know what I mean. “The Foreman of the Jury: There is a majority, very much.” The court thereupon gave the Allen instruction. The Court of Appeals, after reviewing prior cases touching the problem and quoting from Brasfield v. United States, supra, stated: “The language of the Court is so clear and sweeping that further question seems now impossible. * * * “Under these circumstances we do not see how these convictions can be sustained upon the authorities. Thus two of the cases approved in the Brasfield case were those of reversals for the eliciting of information that ‘a large preponderance’ [300 F. 783] or ‘a predominance’ of the jury were voting one way. Such inquiries were at least no more direct than the inquiry here as to whether or not there was ‘a pronounced majority’ in agreement, bringing out the answer that there was ‘a majority, very much.’ If the fault is in directing the admonitions of the Allen charge toward a minority, indeed a small minority, of the jury, there seems no justification for advancing fine differentiations resting upon the non-use of specific numbers or upon the nomenclature employed in the isolating of that minority. Practically the possibilities of coercion seem the same; legally it would be undesirable further to add to the uncertainties of criminal law administration by such over-refined distinctions. * * * “ * * * the federal precedents are compelling and we would hardly improve the situation by trying to introduce into the system refined distinctions lacking substance.” United States v. Samuel Dunkel & Co., supra, 173 F.2d at pages 510-511. Recently, in Anderson v. United States, 8 Cir., 1959, 262 F.2d 764, certiorari denied 360 U.S. 929, 79 S.Ct. 1446, 3 L.Ed 2d 543, rehearing denied 361 U.S. 855, 80 S.Ct. 43, 4 L.Ed.2d 94, this court considered the effect of giving the Allen charge after an inquiry had elicited the information that the jury was evenly divided. Conviction therein was affirmed on the basis that there was no minority to coerce. In that ease we explained: “The government concedes that the inquiry made by the trial court in the instant case was ‘ill. advised’ but it contends that it was not prejudicial and, under the circumstances, not coercive of the jury. “The teaching of most of the cases relied upon by the defendants is that where the inquiry from the court elicits the information that the jury is unevenly divided, the giving of the extracts from the opinion in Allen v. United States, supra, is probably coercive of the minority and, hence, prejudicial error. That is not the situation here. The trial judge was told that the jurors were ‘pretty evenly divided’. From a purely practical standpoint, then, we do not see how the giving of a supplemental charge from the Allen case could possibly have been coercive. Here there was no minority to coerce and the trial judge was meticulous in avoiding any reference to a minority.” Anderson v. United States, supra, 262 F.2d at page 773. Manifestly, where the inquiry of the trial court does elicit the fact that a minority exists, the language of the Anderson decision compels a result contrary to that reached there. The government attempts to justify the court’s inquiry in the instant case by pointing out that the trial court did not ask for the numerical division of the jury. We see no logical distinction between a question to the foreman as to whether or not the division of the jury is “very largely one-sided” and the inquiry “how do you stand numerically”. In either case the existence of a minority may be revealed, making possible their coercion. No good can come from the inquiry used in the instant case. Much harm may result. Thus, upon the authority of the decisions discussed herein and upon the sound principles of non-interference with jury deliberations, we are impelled to the conclusion that the inquiry made here, followed by the Allen instruction, had a coercive effect on the jury, constituted prejudicial error and requires a new trial. We repeat the admonition of Judge Walter Sanborn given over thirty years ago in Stewart v. United States, supra, 300 F. at page 785: “ * * * the better and safe way for the presiding judge to proceed is for him to avoid asking any question of the jury or of its foreman as to the standing of the jury or the proportion of their division upon any issue, * * An additional reason necessitates the retrial of this case. During the presentation of its case, the government relied upon the testimony of a Special Agent and an Internal Revenue Agent. These witnesses testified in detail regarding the acquisition and disposition of assets and liabilities during the periods for which the government attempted to show increased net worth in excess, of reported income. They further testified with reference to the taxpayer’s living expenses as well as to conversations they had with him. Appellant’s counsel requested that he be allowed to examine all reports and statements made to the government by those witnesses. Government’s counsel furnished appellant memoranda made contemporaneously with interviews of the appellant but rejected his request to inspect other reports or statements. Alternatively, appellant moved that the trial court inspect the statements to determine which ones appellant was entitled to receive. The trial court sustained the government’s objections to both requests. The denial of appellant’s motions was in violation of the provisions of 18 U.S.C.A. § 3500. Appellant’s contention of error thereon must be sustained. See our opinion in Burke v. United States, 8 Cir., 279 F.2d 824. In view of our conclusions as to the errors already discussed, consideration of appellant’s additional contentions will be pretermitted. Reversed and remanded for retrial. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_applfrom	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Maida Ludvik SHERIS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. Maida Ludvik SHERIS, Appellee, v. The TRAVELERS INSURANCE COMPANY, Appellant. Nos. 73-1462, 73-1463. United States Court of Appeals, Fourth Circuit. Argued Nov. 7, 1973. Decided Feb. 12, 1974. James H. Simmonds, Arlington, Va., and Richard A. Mehler, Washington, D. C. (Lawrence S. Schaffner, Washington, D. C., on brief), for Maida Ludvik Sheris. James C. Gregg, Washington, D. C., for The Travelers Ins. Co. Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges. BUTZNER, Circuit Judge: This appeal questions the apportionment of an attorney’s fee between a workmen’s compensation carrier and the administratrix of an estate who recovered damages for the wrongful death of an employee. The district court used only the compensation installments actually paid as a basis for assessing the carrier’s proportionate share of the fee. We conclude that the entire compensation award furnished the appropriate basis for apportionment, subject to a credit allowable to the carrier. Accordingly, we vacate the judgment and remand the ease for further proceedings. William T. Sheris perished in the crash of a transatlantic aircraft. Because his death occurred during the course of his employment, the Industrial Commission of Virginia awarded his widow and minor children compensation payable by his employer’s insurance carrier, the Travelers Insurance Company, in 400 weekly installments of $45, totaling $18,000. Mrs. Sheris, suing in district court as administratrix of her husband’s estate, also received $75,000 from the airline responsible for his death. From her share of the recovery against the airline, she paid an attorney’s fee of $25,000. Thus, while this litigation is cast in terms of apportioning an attorney’s fee, it is really an attempt by Mrs. Sheris to obtain from Travelers partial reimbursement for her outlay. Before the court made final distribution of the $75,000, a dispute over Travelers’ right to subrogation was submitted to the Industrial Commission. In that forum, Mrs. Sheris contended .that the subrogation provisions of the Workmen’s Compensation Act were inapplicable because the airline’s liability rested on contractual aspects of the Warsaw Convention and the damages recovered by the estate were in the nature of insurance. The Industrial Commission ruled against Mrs. Sheris, holding that Travelers was subrogated to the estate’s rights against the airline. Consequently, it ordered that Travelers should be reimbursed for the weekly installments it had already paid, aggregating $5,040, and it relieved the company of future payments. Thus, Travelers was saved harmless from liability on the entire $18,000 award. The Supreme Court of Virginia affirmed, Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). Neither the Commission nor the Court apportioned counsel fees. Returning to the district court, the parties sought distribution of the award. Travelers asked to be repaid the sum of $5,040 without contribution for counsel fees, because Mrs. Sheris had opposed its right of subrogation. Mrs. Sheris urged that the carrier be assessed a fee of $6,000 based on the entire compensation award of $18,000. The court accepted neither party’s position. It ruled Travelers’ contribution for fees should be based on $5,040, the amount of compensation it had paid, rather than its potential liability of $18,000. It made no adjustment for Travelers on account of Mrs. Sheris’ opposition to subrogation. Accordingly, from the $75,000 recovery against the airline, the court awarded Travelers $5,040 less 33%% which it deducted for Travelers’ share of the fee. Dissatisfied, both parties appealed. The Virginia Workmen’s Compensation Act allows either the employer or the employee to sue the person responsible for the employee’s injury except for reasons not pertinent to this case. If the employer sues, he may retain from the damages he recovers a sum sufficient to reimburse himself for the compensation paid, or payable, to the employee, but he must account to the employee for money collected in excess of the award. If the employee sues, the employer is entitled to be reimbursed for compensation already paid and to be discharged from liability for future payments to the extent that the judgment against the wrongdoer is sufficient to satisfy the compensation award. The balance may be retained by the employee. In either instance, the employer’s workmen’s compensation insurance carrier stands in the shoes of the employer. For many years an employer who sued the wrongdoer has been authorized to deduct reasonable attorney’s fees before remitting to the employee. But before 1960 an employee who brought suit was not entitled to charge any attorney’s fees against the employer’s share of the recovery. Frequently these rules placed all of the expense of suing a wrongdoer on the injured employee or his survivors even though the employer or his compensation carrier benefited substantially. To remedy this inequity, the legislature amended the Workmen’s Compensation Act by apportioning attorney’s fees between the employer and employee as their respective interests may appear regardless of who instituted the suit. The Supreme Court of Virginia has not been called upon to decide the correct basis for apportioning an attorney’s fee when the employee’s recovery against the wrongdoer is in excess of both the paid and unpaid portions of a compensation award. Several courts, however, have interpreted apportionment statutes similar, though not identical,-to Virginia’s. They have ruled that apportionment must be based on the full liability of the employer—the compensation it has paid in the past and the amount that it would be required to pay in the future were it not for the employee’s successful suit. The reasoning of these cases is sound. It rests on the conclusion that there is no rational distinction between the benefit an employer enjoys from being reimbursed for compensation payments already made and the benefit of being released from the obligation to make future compensation payments. Therefore, as one court has pointed out, it is reasonable to assume that the legislature intended the attorney’s fee to be prorated to the extent of the benefits the employer received from the recovery against the wrongdoer. Stated negatively, there is nothing to indicate that when the Virginia legislature directed proration of the fees as the interests of the parties may appear, it intended that only part of the interest of the compensation carrier should be taken into account. While some compensation awards may be modified with respect to future payments, the employee’s right of apportionment should not be defeated. The prospect of modification, however, is a factor that a court should consider in light of the contingency that may affect the award. In the case before us, the possibility of modification of the award presents no problem. Upon Travelers’ application, the Industrial Commission released it from future payments because Mrs. Sheris and her children recovered $75,000 from the airline. Travelers asserts that cases from other jurisdictions are not persuasive because Va.Code Ann. § 65.1-42 (1973) expressly provides that the employer’s share of attorneys’ fees shall be deducted from the compensation actually paid. This provision, Travelers argues, shows conclusively that proration of attorneys’ fees must be based on installments of an award already paia, and not on the unpaid installments. The difficulty with Travelers’ position is that it overlooks the significance of the 1960 amendment to the Compensation Act. The principal substantive change was the enactment of a new section recodified as § 65.1-43 providing that upon the recovery of damages by either the employer or the employee against the wrongdoer, the court should apportion reasonable attorney’s fees between the employer and the employee as their interests appear. To carry out this substantive change, the amendment modified two existing sections dealing respectively with suits brought by the employer and suits brought by the employee. These modifications are procedural. They are designed to insure that the attorney’s fees shall be apportioned in accordance with the substantive changes made in § 65.1-43 when the proceeds of the judgment against the wrongdoer are disbursed. Section 65.1-42, on which Travelers relies, simply authorizes a deduction of a proportionate share of the fee from the reimbursement payable to the employer “as provided in § 65.1-43.’’ It is obvious, therefore, that § 65.1-42 is not, as Travelers contends, a limitation on the general apportionment statute, § 65.1-43. Section 65.1-42 does not deal expressly or by implication with the employer’s obligation for attorney’s fees arising out of the release of future payments that would have been due under the compensation award were it not for the employee’s successful suit. This question is governed by § 65.1-43, which explicitly states that apportionment must be made as the respective interests of the employer and employee appear. Travelers’ interest in the recovery of $75,000 against the airline is substantially the same with respect to both the paid and unpaid portions of the compensation award. Travelers was relieved from liability from both parts of the award for precisely the same reason —Mrs. Sheris’ suit against the airline. Fortuities affecting the time required to bring that litigation to a successful conclusion determined in part the amount of compensation that remained unpaid. But these fortuities, similar to those attending all litigation, furnish no rational criteria for determining a just apportionment of the attorney’s fee. We conclude, therefore, that Travelers’ obligation to pay a part of the attorney’s fee must be based on the full compensation award of $18,000. We turn next to Travelers’ cross appeal which charges that because of Mrs. Sheris’ opposition to its right of subrogation, the court erred in assessing any fees against it. Travelers’ argument, we believe, does not defeat Mrs. Sheris’ claim, but it is a factor the court must consider in apportioning the attorney’s fee between the parties. The Compensation Act’s direction to apportion fees as the interests of the parties may appear is broad enough to encompass this situation. Travelers has benefited by Mrs. Sheris’ suit against the airline, and under the Act it must pay its share of the fee. But the company also had to spend its own money when Mrs. Sheris assumed an adversary position on the issue of subrogation. Therefore, the district court should allow as a deduction from the fee that Travelers would otherwise owe, the amount it reasonably expended to perfect its right of subrogation. In this way the mandate of the statute requiring consideration of the interests of both parties will be fully observed. The judgment of the district court is vacated, and the ease is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs. . Va. Code Ann. §§ 65.1-41 and 42 (1973). The text is quoted in notes 14 and 15, infra. . Va. Code Ann. § 65.1-41 (1973). The text is quoted in note 14, infra. . Va. Code Ann. § 65.1-42 (1973). The text is quoted in note 15, infra. Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). . Va. Code Ann. § 65.1-112 (1973). . See VEPOO v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424, 425 (1933) (dictum). . See Stancil v. United States, 200 F.Supp. 36, 44 (B.D.Va.1961) (dictum). Travelers’ reliance upon Stancil is misplaced. In Stancil claim was made only for apportionment of attorney’s fees on the basis of the compensation already paid, and, therefore, the court had no occasion to discuss the issue presented in the case now before us. . Oh. 89, § 39.1 [1960] Va.Acts 108. This section has been recodified as Va.Code Ann. § 65.1—43 (1973). It provides: “In any such action, or claim for damages, by such employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.1-41, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney’s fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.” . Dowhy v. Moyer, Inc., 278 F.2d 753 (3rd Cir. 1960) ; Yeager v. Heckman, 158 F.Supp. 933 (E.D.Pa. 1957) ; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261 (1955) ; Dante v. Gotelli, Inc., 17 N.J. 254, 111 A.2d 267 (1955) ; McMullen v. Maryland Casualty Co., 123 N.J.Super. 248, 302 A.2d 181 (1973) ; Wall v. Conn. Welding & Machine Co., 197 Pa.Super. 360, 179 A.2d 235 (1962) ; Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425 (1958) ; cf. Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ct.App.Ky. 1969) (apportionment based on equitable, not statutory, grounds) ; see Atleson, Workmen’s Compensation : Third Party Actions and the Apportionment of Attorney’s Fees 19 Buffalo L. Rev. 515, 532 (1970). . See Yeager v. Heckman, 158 F.Supp. 933, 935 (E.D.Pa. 1957). . See Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425, 428 (1958). . See note 15, infra. . Ch. 89, §§ 65-38, 39 and 39.1 [1960] Va. Acts 108. The Workmen’s Compensation Act was revised and recodified in 1968. Ch. 660, §§ 65.1-41, 42, and 43 [1968] Va. Acts 1130. The text of these sections was not affected by the 1968 recodification. For convenience, the recodified section numbers have been used in this opinion. . The text of this section is quoted in note 7, supra. . Section 65.1-41 of the Va. Code Ann. (1973) provides: “The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured emjdoyee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney’s fees as provided in § 65.1-43 [The 1960 Amendment is italicized]. . Section 65.1-42 of the Va. Code Ann. (1973) provides: “In any such action by such employee, his personal representative or other person against any person other than the employer, the court shall, on petition or motion of the employer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses, incurred by the employer under the provisions of this Act, and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43; and in event of judgment against such person other than the employer the court shall in its order require that the judgment debtor pay such compensation and expenses of the employer, less said share of expenses and attorney’s fees, so ascertained by the court out of the amount of the judgment, so far as sufficient, and the balance, if any, to the judgment creditor-[The 1960 Amendment is italicized]. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. FACUNDO et al. v. YABUCOA SUGAR CO. No. 3564. Circuit Court of Appeals, First Circuit. March 10, 1941. Edward O. Proctor, of Boston, Mass. (Guillermo Silva and Geigel & Silva, all of San Juan, P. R., on the brief), for appellants. E. T. Fiddler, of San Juan, P. R. (Fiddler, McConnell & Gonzalez, of San Juan, P. R., on the brief), for appellee. Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge. MAGRUDER, Circuit Judge. This was a suit for annulment of foreclosure proceedings and revendication of certain real properties, brought against the present recorded owner, whose title is derived, through various mesne conveyances, from a deed executed by the marshal pursuant to a foreclosure sale. A judgment by the District Court of Humacao dismissing the complaint was affirmed by the Supreme Court of Puerto Rico, from whose judgment the present appeal is taken. Fortunately the facts of this protracted and intricate litigation, or series of litigations, need not be set forth at length; a drastically condensed statement will suffice for the disposition of the case, in the view we take of it. The present plaintiffs are members or successors of members of a dissolved agricultural partnership called Cintron Hermanos. This partnership was constituted by public deed in 1891, for a term expiring June 30, 1901. In 1895, to secure advances made to the partnership by El Banco Territorial y Agrícola de Puerto Rico (hereinafter called the Bank), the partnership, through its managing partners, constituted a mortgage of the properties now in question, in favor of the Bank. The loan was to be repaid in 40 semi-annual instalments, the final one to fall due on April 30, 1915.' Upon expiration of the term on June 30, 1901, the partnership was dissolved. Several instalments being in arrears, the Bank on September 30, 1902, in virtue of an acceleration clause in the mortgage, instituted summary foreclosure proceedings in the District Court of Humacao. Service of demand for payment was made upon one of the original partners only, as binding on all the members and their successors We assume, as the insular courts have held, that such service was defective* though this conclusion is challenged by the Bank with considerable force of argument. An auction sale, as decreed by the court, was held on January 22, 1903, but no bidder appeared. Pursuant to a further decree a second sale was held on March 17, 1903, based upon a reduction of 25% in the appraised value of the mortgaged properties. Again no bidder' appeared. ' Thereafter, on March 26, 1903, the District Court by order adjudicated the properties to the Bank. The adjudication was recorded in the Registry of Property on May 14, 1903, and the Bank was put into possession as owner. On April 28, 1903, a suit was brought in the District Court of San Juan against the -Bank for a declaration that the above award of the properties to the Bank in the summary foreclosure proceedings was null and void, and for a decree "that matters be placed in the condition in which they were before the institution of the summary execution proceedings against the firm of Cintron Hermanos.” The plaintiffs in this suit were two of the original partners, and the successors of a third deceased partner. The fourth of the original partners did not appear as a party. Various technical points were alleged as grounds of invalidity of the foreclosure proceedings, but at this time the sufficiency of the service of the demand for payment was not attacked. These points were raised in a separate suit because under the local mortgage law the debtor is not a party in summary foreclosure proceedings. El Banco Territorial y Agrícola v. Cintron, 7 P.R.R. 194. The District Court entered a decree setting aside the award. On appeal, the Supreme Court of Puerto Rico held that the second auction sale was invalid in that the sale was held in Guayama though the notice implied that it-would be held at Humacao, the regular seat of the District Court. On this ground alone, the Supreme Court in its order, dated June 24, 1905, annulled the summary foreclosure proceedings “from and after the date on which the second auction sale was held in Guayama on March 17, 1903, and orders that said proceeding be restored to the condition it had at that time.” Thus the court inferentially affirmed the regularity of the earlier steps in the foreclosure proceedings, including the service of the demand for payment. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220. In compliance with the Supreme Court’s judgment, the District Court of Humacao reopened the summary foreclosure proceedings and ordered another auction sale. The sale was duly held on May 19, 1906, and the properties were adjudicated to the Bank for a total bid price of $47,000, no higher offer having been made by any other bidder. On the same day the marshal executed a deed to the Bank which was recorded in the Registry of Property. The marshal’s deed recites the order of the District Court, in compliance with the Supreme Court’s mandate, annulling everything done in the summary foreclosure proceedings “from and after the celebration of the second auction sale held in Guayama, the seventeenth of March, 1903” and directing that another auction sale be held. However, neither the marshal’s deed nor the corresponding entry in the Registry sets forth the specific steps taken by the Bank in serving the original demand for payment upon the debtor partnership. All the mesne conveyances are recorded, as is the deed of July 31, 1912, by which the Yabucoa Sugar Company, appellee herein, acquired title and under which it has remained in possession since that time. There is no suggestion that the appellee had actual notice of any defect in the original demand for payment. At no place in the records of the Registry does it appear how this demand was served. No question had been raised as to the sufficiency of the service. Indeed, it would have appeared to anyone examining the entries in the Registry that the Supreme Court had already approved the steps in the summary foreclosure proceedings up to the second auction sale. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220. The present suit for revendication was filed on June 1, 1929. It is claimed that the summary foreclosure proceedings were invalid upon a ground never before advanced, namely, that the original demand for payment was defective because it was not served upon each of the partners. An amended complaint was filed March 1, 1932, in which “appeared for the first time in this lengthy proceeding, party Zoilo Cintron Cintron, through his heir Rene Cintron Parra.” (Zoilo had not appeared as a party in the earlier suit seeking annulment of the foreclosure proceedings. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220. Just why, we cannot make out.) In a lengthy opinion the District Court held that the amended complaint should be dismissed. Various reasons were assigned, including prescription and res judicata. On appeal, the judgment of the District Court was affirmed by the Supreme Court of Puerto Rico. The Supreme Court, while expressing an inclination to agree with all the grounds taken by the District Court, rested its opinion on res judicata, the only point extensively discussed in its opinion. We think the judgment below should be affirmed. Without considering other defenses, we think it clear that, regardless of any defect that there may have been in the summary foreclosure proceedings by which the Bank acquired title, the Yabucoa Sugar Company has acquired an unassailable title by ordinary prescription, under the applicable provisions of the Civil Code of Puerto Rico.8 The two chief sections of the Code dealing with prescription of ownership in real property are §§ 1857 and 1859. Under § 1857, read in conjunction with § 1840, title to land by prescription results from possession “in good faith and under a proper (justo) title” for ten years as against persons present in Puerto Rico and for twenty years as against persons absent from Puerto Rico. Under § 1859 ownership of real property prescribes “by uninterrupted possessiqn of the same for thirty years without the necessity of title nor good faith.” Since less than thirty years had elapsed between the date of the marshal’s deed to the Bank in 1906 and the filing in 1929 of the original complaint in the case at bar, appellee cannot invoke § 1859. But at the time of the original complaint, appellee had been in possession for over ten years, which was long enough for the acquisition of a prescriptive title under § 1857, if the other conditions were present, since the plaintiffs during that time have admittedly “always resided in the Island of Puerto Rico.” Appellee’s possession has been “in the capacity of an owner, public, peaceful, and uninterrupted” (§ 1841). Has this possession been “in good faith” ? This must be presumed, unless the adversary maintains the burden of showing bad faith (§ 364). We must take it on the record before us that appellee as possessor had the “belief that the person from whom he received the thing was the owner of the same, and could convey his title” (§ 1850); also, that appellee comes within § 363, describing a bona fide possessor as a “person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same.” It is true that appellee upon acquiring the land in 1912 was made aware by the entries in the Registry of Property that a predecessor in title had taken under an auction sale pursuant, to summary foreclosure proceedings ag'ainst Cintron Hermanos. But so far as the record disclosed, all the proceedings were regular. Good faith is not negatived under these circumstances by any doctrine of constructive notice charging appellee with knowledge of a “latent or occult” defect dehors the record. Ayllon v. Gonzalez, 28 P.R.R. 61. We thought otherwise in that case, 1 Cir., 288 F. 28, but were reversed in turn by the Supreme Court sub nom. Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 45 S.Ct. 52, 69 L.Ed. 209. To the same effect see Larracuenta v. Fabian, 56 D.P.R. 775. See also Arvelo v. Banco Territorial y Agricola, 25 P.R.R. 677, 693; Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712; Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734. Finally, has appellee been in possession under “a proper (justo) title” (§§ 1840, 1857), a “true and valid” title (§ 1853) ? As the court pointed out in Ayllon v. Gonzalez, 28 P.R.R. 61, 67: “Just title and good faith are intimately related and a just title arises generally where the transferee believes that the person from whom he takes is the true owner and there was nothing in the record or in the facts known to him to show the defect or to put him on inquiry.” The words “proper” and “true and valid” in the sections of the Code in question have never been read literally as meaning a perfect title, “as otherwise prescription would not be needed.” Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. See People of Porto Rico v. Livingston, 1 Cir., 47 F.2d 712, 717. In Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712, the court said: “As regards color of title, section 1853 [§ 1852 of the 1930 ed.] expressly provides that it is understood to be that which legally suffices to transfer the ownership or property right, the prescription of which is in question. In order that the title may be colorable it is not necessary that it actually transfers the ownership or property right, but that it is sufficient to transfer it although it may contain a defect which invalidates it. And this is necessarily so, because if under the name of color of title, which the law requires for prescription, is meant only a title clothed with all the internal and external requisites necessary for the real and actual transfer of ownership, prescription would be superfluous as a means of acquiring ownership.” Further, the court said in the same opinion (page 714 of 25 P.R.R.), discussing the meaning of “true and valid” in § 1853: “We cannot give to the word 'valid’ a meaning which would eliminate from our code the method of acquiring by ordinary prescription as would be the case if we should understand a valid title to be one clothed with all the internal and external requirements of the law.” In a companion case to the one just quoted, also entitled Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734, 735, the court said: “In so far as regards the colorable title for acquisition by prescription, which in the present case is the deed executed by Juan Roure Dalmau in favor of J. Ochoa & Brother, although it could not have conveyed to the firm the ownership of the property sued for because of the invalidity of the title of the vendor, yet inasmuch as the said deed, besides conforming to all the external requirements of law, constitutes in form a title conveying ownership, it is evident that it fulfils the requirements of sections 1853 and 1854 of the Revised Civil Code (§§ 1852 and 1853 of the 1930 ed.], because if it is required that the title relied on shall convey to the purchaser in fact and in law the ownership of the thing, there would be no need for him to set up the plea of prescription and this mode of acquisition, in so far as it relates to ordinary prescription, would be superfluous and would have to be eliminated from the methods of acquiring title under our laws as unnecessary and useless.” Nor does ordinary prescription operate only in cases of voidable title, as distinguished from void title. In the present case, if the title acquired by the Bank through the marshal’s deed was voidable merely, the defect not appearing in the Registry, the subsequent deed to appellee as a bona fide purchaser in 1912 gave appellee an indefeasible title forthwith, without the necessity of awaiting the lapse of the statutory period for prescription. Cf. Arts. 33 and 34 of the Mortgage Law of Puerto Rico (Rev.Stat. Arts. 6717, 6718). But ordinary prescription, as provided in § 1857 of the Civil Code, operates in favor of a subsequent possessor in the position of the appellee, even though the marshal’s deed, because of extrinsic facts not appearing in the Registry, may have been void as between the Bank and Cintron Hermanos. See Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 712, 715. In other words, “proper title” has been construed by the insular courts to mean merely that the record title must be clear; that the possessor must have “colorable title”. The matter in issue is peculiarly one of the local law of property, and we cannot 'say that the decisions of the insular courts construing the sections of the Civil Code dealing with prescription are clearly erroneous. Fernandez & Bros. v. Ayllon v Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. Appellants rely heavily on Anaud v. Martinez, 40 P.R.R. 641, but this case is distinguishable, because there it appeared in the Registry that service of demand for payment in the' summary foreclosure proceedings had not been made upon the debtor nor upon the debtor’s attorney in fact nor upon a lessee in charge of the property; hence the subsequent purchaser having taken 'with notice was not a purchaser in good faith. We pointed that out when the Anaud case came here on appeal, sub nom. Cabo Rodriguez v. Anaud, 1 Cir., 54 F.2d 585, 587, 588. Furthermore, the Anaud case raised no question of prescription since the suit for revendication in that case had been brought within less than ten years after the invalid foreclosure sale. If certain expressions in Longpre v. Diaz, 237 U.S. 512, 35 S.Ct. 731, 59 L.Ed. 1080, may be taken as favoring the position of appellants in the case at bar, they must be considered as limited by the subsequent decision in Fernandez & Bros. v. Ojeda, 266 U.S. 144, 45 S.Ct. 52, 53, 69 L.Ed. 209, which explains the Longpre case as standing merely for the obvious proposition that “persons holding under a conveyance that was void upon the facts known to them could not be possessors in good faith.” The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee. The opinion of the Supreme Court makes no comment upon the fact that partner Zoilo did not appear as a party in the previous litigation. 3 The following sections are quoted from, the Civil Code, 1930 Ed. The earlier edition of the Code (1902), which appears to be the one applicable in the case at bar, contained identical language though the section numbers were different. “Section 363. — A bona fide possessor is deemed to be the person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same. “A possessor in bad faith is deemed to be any person possessing in any case contrary to the aboye. “Section 364. — Good faith is always presumed, and any person averring had faith on the part of a possessor, is bound to prove the same.” “Section 1840. — For ordinary prescription of ownership and other property rights, it is necessary to possess things in good faith and under a proper title, during the time specified by law. “Section 1841. — Possession mnst be in the capacity of an owner, public, peaceful, and uninterrupted.” “Section 1850. — Good faith of the possessor consists in his belief that the person from whom he received the thing was the owner of the same, and could convey his title. “Section 1851. — The conditions of good faith, required for possession in sections 363 and 364, Chapter I, Title Y, and in section 473, Article Second, Chapter I, Title VII, Second Book, of this Code, are equally necessary for the determination of said requisite in the prescription of ownership and of other property rights. “Section 1852. — By a proper title is understood that which legally suffices to transfer the ownership or property right, the prescription of which is in question. “Section 1853. — The title for prescription must he true and valid. “Section 1854. — A proper title must be proven; it never can be presumed.” “Section 1857. — Ownership and other property rights in real property shall prescribe by possession for ten years as to persons present, and for twenty years with regard to' those absent, with good faith and with a proper title.” “Section 1859. — Ownership and other property rights in real property shall also prescribe by uninterrupted possession of the same for thirty years without the necessity of title nor good faith and without distinction between present and absent persons, with the exception mentioned in section 475, second article, Chapter I, Title VII, Second Book, of this Code.” Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_casetyp1_7-3-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". BALTIMORE & ANNAPOLIS R. CO. v. CONTINO et al. No. 6107. United States Court of Appeals Fourth Circuit. Argued Nov. 8, 1950. Decided Dee. 18, 1950. Frank L. Fuller, III, Baltimore, Md. (R. E. Fee Marshall and Marshall, Carey, Doub & Mundy, all of Baltimore, Md., on the brief), for appellant. J. Richard Wilkins, Baltimore, Md., for appellees. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. Upon the former appeal in this case, Contino v. The Baltimore & Annapolis R. Co., 4 Cir., 178 F.2d 521, we held that the Railroad Company was liable for negligence in respect to its participation in the construction and maintenance of an underpass on its line of less than normal clearance, without proper warning to the users of th-e highway. The responsibility for the erection of the crossing resided primarily with the State Roads Commission of Maryland, hut the Railroad participated in the project by approving the plans and sharing the cost; and since the Railroad and the Commission engaged in the enterprise jointly, it was held that the Railroad Company was liable for damage to a truck 12 feet in height which, due to the failure to illuminate, collided with the bridge in the nighttime. The Maryland statutes gave exclusive jurisdiction to the Commission to set up warning signs along the highways but the Railroad was nevertheless held liable since it joined in a construction which necessarily created an unreasonable risk unless suitable precautions to avoid accident were taken. Upon the new trial, after the case was remanded to the District Court, the Railroad -endeavored to escape liability on a ground not broached or considered at the first trial. It offered to show that it was not in existence when the underpass was built; that at that time the road was being operated ¡by a predecessor corporation and that the property was sold at a receiver’s sale upon the condition that the purchaser should not be liable for any obligation or liability in respect to the property purchased, and that the appellant bought the property from the purchaser. This offer of proof was made as the basis for the contention that since the appellant had no share in the original ¡construction and no right to erect warning signs on the ■highways, it had no responsibility for the dangerous condition of the bridge which it uses in the operation of its line. The District Judge rejected this offer and rendered a verdict for the plaintiff in the sum of $5180. This ruling was correct. We know of no authority for the proposition that a railroad corporation may -escape liability for a dangerous condition existing on its line by showing that the condition was initiated by the preceding owner. Liability springs from the acceptance of the situation and continued operation by the new owner in spite of th-e obvious danger. No duty rested upon it to purchase and operate the property if safe operation was impossible. Moreover, in the present instance ther-e is no showing that the overpass could not have been conspicuously marked and lighted so as to be visible to the traveling public without offending th-e Maryland statute. Indeed it was conceded in argument in this court that it lay within the power of the Railroad to place a light on its right of way at the crossing and its failure to do so is sufficient basis for an affirmance of the judgment. We do not mean by this holding to imply that the Maryland statute which directs the State Roads 'Commission and forbids others to erect and maintain warning signs along the public 'highways was intended to prevent a railroad from marking its roadbed where it makes a crossing above a public highway, or that the Railroad had no obligation to secure the erection of suitable warning signs by or with the consent of the State authority, for it may not be assumed that public officials would be unwilling to perform a simple duty to safeguard the public. Affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". SIMS v. RIVES. No. 6574. United States Court of Appeals for the District of Columbia. May 11, 1936. James J. Laughlin, of Washington, D. C., for appellant. Leslie C. Garnett, U. S. Atty., and Allen J. Krouse, Asst. U.S.Atty., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. STEPHENS, Associate Justice. This is an appeal from a judgment in the Supreme Court of the District of Columbia discharging a writ of habeas corpus and dismissing the petition upon which the writ had been issued. The facts are as follows: On December 19, 1934, the appellant was convicted in the United States Police Court of the District of Columbia, on an information charging violation of the District of Columbia. Alcohol Beverage Control Act, approved and- effective January 24, 1934, 48 Stat. 319, as amended by the Act approved April 30, 1934, 48 Stat. 654. The petition for the writ asserted that the information charged “transportation of two cases of untaxed whisky.” It Was agreed by counsel at the bar and stipulated for the record that the actual offense involved was violation of subparagraph (c) of Section 17 of the Liquor Regulations prescribed under the Act referred to. The subparagraph provided: “(c) Whenever alcohol, spirits, or wines shall be transported in quantities in excess of 12 quarts, or beer in excess of 48 quarts, the person in charge of such transportation shall have in his possession a bill or memorandum from the seller to the purchaser, showing the names and addresses of the seller and of the purchaser, and the quantity and character o.f the beverage sold and transported, or a permit from the Board. Upon the demand of any police officer or duly authorized inspector of the Board, the person in charge of such transportation shall exhibit the bill, memorandum, or permit.” A sentence of four months’ imprisonment was imposed upon the appellant for violation of this regulation. This sentence has been executed, and the appellant raises no question herein concerning this conviction or the sentence thereunder. The general purpose of the District of Columbia Alcohol Beverage Control Act (hereinafter referred to as the Beverage Control Act) was, as indicated by the title, “To control the manufacture, transportation, possession, and sale of alcoholic beverages in the District of Columbia.” Under Section 4, the Alcohol Beverage Control Board was created, with members to be appointed by the Commissioners of the District of Columbia. By Section 7, the Commissioners were authorized to prescribe such rules and regulations not inconsistent with the Act as they might deem necessary to carry out the purposes thereof and to make rules and regulations for the issuance, transfer, and revocation of licenses, and to facilitate and insure the collection of taxes. By Section 23 it was provided that “There shall be levied and collected by the District of Columbia on all beverages, except beer, manufactured by a holder of a manufacturer’s license and on all beverages, except beer, purchased by the holder of a wholesaler’s or retailer’s license, except such beverages as may have been purchased from a licensee under this Act” certain taxes. At the outset the act provided: “That the National Prohibition Act, as amended and supplemented, insofar as it affects the manufacture, sale, and possession in the District of Columbia, and the transportation in, into, and from the District of Columbia, of alcoholic beverages, is hereby repealed, with the exception of title III, and section 4 of title II insofar as it affects denatured alcohol.” On January 11, 1934, there had been passed, and on the same date approved, effective, however, as to Title 1 on the day following and as to Title 2 thirty days thereafter, the “Liquor Taxing Act of 1934,” 48 Stat. 313. The main purpose of this Act, as indicated by its title, was “To raise revenue by taxing certain intoxicating liquors * * It was a general revenue statute stipulating the amount of tax on various types of intoxicating liquors and containing assessment and collection provisions. Section 201 of Title 2 (26 U.S.C.A. § 1152a) provided in part: “No person shall * * * transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits.” By section 207 of Title 2 (26 U.S.C.A. § 1152g) violators: “shall on conviction be punished by a fine not exceeding $1,000, or by imprisonment at hard labor not exceeding five years, or by both.” On August 15, 1934, appellant was indicted, under two indictments in the Supreme Court of the District of Columbia charging violation of the Liquor Taxing Act of 1934. The specific nature of the charge does not appear from the record, but it was again agreed by counsel at the bar and stipulated for the record that the offense was the transportation of liquor without having affixed to the container thereof the stamp required by Section 201, and that the transportation and the liquor in question were identical with those concerned in the conviction under the Beverage Control Act as above set forth. Under these two indictments, the appellant was convicted. Under one, he was on January 10, 1935, sentenced to a penitentiary for a period of not less than one nor more than three years, and under the other, on March 14, 1935, for a period of not less than one year nor more than fifteen months, the second sentence to run concurrently with the first. These sentences were imposed, however, not according to the terms of the Liquor Taxing Act of 1934, but under the Act of July IS, 1932, “To establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes,” 47 Stat. 696, as amended by the Act of June S, 1934, 48 Stat. 880. This Act established in the District of Columbia “a board of Indeterminate Sentence and Parole for the penal institutions for said District,” whose duty it shall be: "“to examine into the physical, mental, and moral records of the prisoners committed to the penal institutions of the District; receive reports of wardens and other officials, including the psychiatrist; recommend the treatment which, in their opinion, is most conducive to the prisoners’ reformation; and provide for a system of determining the proper time of release and the rehabilitation of the ex-prisoner in the community.” Section 1. Subject to the approval of the Commissioners of the District -of Columbia, the Board was by the Act authorized to adopt rules and regulations for its procedure and to appoint parole officers. Section 3 provided, so far as here pertinent: . “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court' imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence * * The Act further provided: “Sec. 4. That whenever, within the limitations of section 3 of this Act, it shall appear to the Board of Indeterminate Sentence and Parole, from the reports of the prisoner’s work and conduct which may be received in accordance with the rules and regulations prescribed, and from the study and examination made by the board itself, that any prisoner serving an indeterminate' sentence is fitted by his training for release, that there is a reasonable probability that such a prisoner will live and remain at liberty without violating the law, and in the opiaion of the board such release is not incompatible with the welfare of society, said Board of Indeterminate Sentence and Parole may, in its discretion, authorize the release of such prisoner on parole, and he shall be allowed to go on parole, outside of said prison, and in the discretion of the board to return to his home upon such terms and conditions, including personal reports from said paroled prisoner, as said Board of Indeterminate Sentence and Parole shall prescribe, and to remain, while on parole, in the legal custody and under the control of the superintendent of the institution from which the prisoner may have been paroled, until the expiration of the maximum of the term or terms specified in his sentence, less such good-time allowance as is, or may hereinafter be, provided by law; and the said board shall in every parole fix the limits of the residence of such person paroled, which limits, however, may be thereafter changed in the discretion of the board. “Sec. 5. If said Board of Indeterminate Sentence and Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the ' retaking of such prisoner. Any officer of the penal institution from which such prisoner shall have been paroled or any Federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning him to said penal institution. “Sec. 9. Upon the appointment of the members of said board, the powers of the existing parole board [the Federal Parole Board] over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powcrs of said existing parole board under the authority of the Act of Congress approved June 25, 1910, entitled ‘An Act to parole United States prisoners, and for other purposes,’ as amended, over said prisoners confined in the penal institutions of the District of Columbia shall be transferred to and vested in said Board of Indeterminate Sentence and Parole * * Under the foregoing and by virtue of his assignment of errors, the appellant raises three points: I. That the Liquor Taxing Act of 1934 was repealed by the Beverage Control Act for the District of Columbia; II. That contrary to the Fifth Amendment of the Constitution, he has for the same offense between twice put in jeopardy; III. That his sentences under the Indeterminate Sentence Act are void because (a) that Act is not applicable to offenses against general laws of the United States and (b) if it is, it is unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government. I. Was the Liquor Taxing Act of 1934 repealed by the Beverage Control Act? The foundation of the appellant’s argument on this point is the language above quoted in the Beverage Control Act, “That the National Prohibition Act, as amended and supplemented * * * is hereby repealed * * Appellant asserts that the Liquor Taxing Act is an amendment of or a supplement to the National Prohibition Act, and is therefore expressly repealed by the Beverage Control Act. This point we think is without merit. The Liquor Taxing Act is not, and indeed does not at all purport to be, either an amendment of or a supplement to the National 'Prohibition Act in any legal sense. It is a revenue law, not a prohibition law. That a law taxing liquor and a prohibition law are different has been recognized by the Supreme Court. United States v. Rizzo, 297 U.S. 530, 56 S.Ct. 580, 80 L.Ed. 844, decided March 9, 1936. Moreover, the Liquor Taxing Act can hardly be regarded as either an amendment of or a supplement to that which had itself at the time of the going into effect of the Liquor Taxing Act lost its constitutional foundation. The Twenty-First Amendment to the Constitution became effective after ratification by three-fourths of the states December 5, 1933; the Liquor Taxing Act, as above pointed out, not until January, 1934. The Beverage Control Act cannot be said to operate as an implied repeal of the Liquor Taxing Act because, as' appears from the statement of the two acts above, their purposes are different, the one being a revenue measure of a general nature, the other a regulatory statute' with such tax features as apply only within the District of Columbia. “It is * * * necessary to the implication of a repeal that the objects of the two statutes are the same, in the absence of any repealing clause. If they are not, both statutes will stand, though they may refer to the same subject.” United States v. Claflin, 97 U.S. 546, 552, 24 L.Ed. 1082. II. Has the appellant been twice put in jeopardy? In support of an affirmative answer to this question, the appellant relies on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann. Cas. 640, holding that a soldier in the United States Army, tried for homicide before a general court martial, could not, because of the double jeopardy provision of the Fifth Amendment, be also tried for the crime of assassination under the penal code of the Philippines in a court of the province of Iloilo, the facts underlying the two charges being the same, i. <?., in each instance the defendant was charged with the killing of the same two Filipinos. It was suggested, as against the plea of double jeopardy, that the defendant had committed two distinct offenses, one against military law and discipline, the other against the civil law, and that a trial for either offense .is no bar to a trial for the other. The Supreme Court held to the contrary, resting its decision: “upon the broad ground that the same acts constituting a crime against the United States cannot, after the acqttittal or conviction of the' accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government.” [206 U.S. 333, at page 352, 27 S.Ct. 749, 754, 51 L.Ed. 1084, 11 Ann.Cas. 640.] This case is not determinative of the question here; it is distinguishable for the reason that identical evidence would have supported a conviction upon either of the charges. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 422, 55 L.Ed. 489, the defendant, who, under a Manila ordinance, had been convicted of behaving in a drunken and boisterous manner in a public place open to public view, was held not to have been put twice in jeopardy by a subsequent trial for outraging and insulting a public official by word of mouth and in his presence contrary to a provision of the penal code of the Philippine Islands penalizing such conduct, the acts and words of the accused being in each case the same. The Court said: “It is to be observed that the protection intended and specifically given [by the double jeopardy clause of the Fifth Amendment] is against second jeopardy for the same offense. The question, therefore, is, Are the offenses charged, and of which a conviction has been had in the municipal court and in the Court of First Instance, identical. An examination of the ordinance shows that the gist of the offense under it was behaving in an indecent manner in a public place, open to public view. It was not necessary to charge or prove under the municipal ordinance any outrage, insult, or threat to a public official or agent of the authorities. The charge contained in the record shows that under the municipal ordinance the plaintiff in error was charged with wilfully and unlawfully, in a public street car and in the presence of numerous persons, including ladies, conducting himself in a reckless, indecent and discourteous manner. “It is true that the acts and words of the accused set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the misbehavior in deed and words was addressed to a public official. In this view we are of opinion that while the transaction charged is the same in each case, the offenses are different. This was the view taken in Morey v. Commonwealth, 108 Mass. 433, in which the Supreme Judicial Court of Massachusetts, speaking by Judge Gray, held: “ ‘ A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ” [220 U.S. 338, at page 341, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489.] Again, in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, the defendant pleaded guilty to an indictment containing two counts, the first of which, under Section 192 of the 'penal code (18 U.S.C.A. § 315), charged the unlawful and forcible breaking into and entering a post office building with the intent to commit larceny, and the second of which charged under Section 190 (18 U.S.C.A. § 313) that the defendant at the same time and place unlawfully and knowingly stole, took and conveyed away money and property of the United States belonging to the post office department. Sentences were imposed under each count. The acts set forth in the second count were performed in the post office under the burglarious entry charged in the first count. It was asserted that the double jeopardy clause forbade confinement after the expiration of imprisonment under the first count. The Supreme Court rejected this point of view, saying: “this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.” [237 U.S. 632, at page 641, 35 S.Ct 712, 715, 59 L.Ed. 1153.] These cases control the instant situation. The evidence required to support the conviction of the defendant under the Beverage Control Act is different from that required to support a conviction under the Liquor Taxing Act. Under the Beverage Control Act, i. e., under subparagraph (c) of Section 17 of the Liquor Regulations prescribed thereunder, it would be necessary to prove that the defendant transported the liquor in question without having in his possession a bill or memorandum from the seller to the purchaser, and also that the defendant was transporting in excess of 12 quarts of the liquor; but to support a conviction under the Liquor Taxing Act, it would not be necessary to make any showing as to the quantity of liquor, and it would be necessary to prove that there was not affixed to the container of the liquor the required revenue stamp. III. Are the sentences imposed upon' the appellant under the Indeterminate Sentence Act void? (a) Is that Act applicable to persons convicted in the District of Columbia of offenses defined in the general laws of the United States? Appellant asserts that it is applicable only to persons convicted of crimes defined in the District of Columbia Code. There can be no doubt that Congress intended the Act to be applicable to persons convicted in the District of Columbia of crimes against the general laws of the United States. As set forth above, Section 3 provides: “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court imposing such sentence shall * * * ” impose the same in indeterminate form as further stipulated in the Section. This language is all inclusive, not restrictive. Moreover, if the appellant’s view is taken, those prisoners convicted in the District of Columbia of violating general criminal laws of the United States are left without parole privileges because, as above appears under Section 9 of the Indeterminate Sentence Act, all of the powers of the Federal Parole Board under the authority of the Act of Congress approved June 25, 1910, “over prisoners confined in the penal institutions of the District of Columbia shall cease and determine,” and are “transferred to and vested in” the Board of Indeterminate Sentence and Parole created by the Indeterminate Sentence Act. Even if theo statute were ambiguous, we could hardly hold that Congress intended such a hiatus. (b) Is the Indeterminate Sentence Act unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government? The Fifth Amendment: Congress has plenary and exclusive power to legislate for the District of Columbia. Clause 17 of Section 8 of Article 1 of the Constitution extends to Congress the power “to exercise exclusive legislation in all cases whatsoever over” the District of Columbia. The United States Supreme Court has in a number of instances recognized this power of Congress. Wight v. Davidson, 181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900; Parsons v. District of Columbia, 170 U.S. 45, 18 S.Ct. 521, 524, 42 L.Ed. 943; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170. In Parsons v. District of Columbia, wherein a local assessment statute was held valid, the Court said: “The legislation in question in the present case is that of the Congress of the United States, and must be considered in the light of the conclusion, so often announced by this court, that the United States possess complete jurisdiction, both of a political and municipal nature, over the District of Columbia.” [170 U.S. 45, at page 52, 18 S.Ct. 521, 42 L.Ed. 943.] In legislating for the District of Columbia, Congress acts with substantially the powers that a state legislature has in legislating for a state. Congress “has the entire control over the District of Columbia for every purpose of government, national or local. It may exercise within the District all legislative powers that the legislature of a State might exercise within the State * * * so long as it does not contravene any provision of the Constitution of the United States.” Capital Traction Company v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873. See .also District of Columbia v. Kraft, 35 App.D.C. 253, 30 L.R.A.(N.S.) 957. It thus follows that, apart from constitutional limitations later to be mentioned applicable to the legislation itself, it was within the power of Congress to pass the Indeterminate Sentence. Act, although it applies only to offenders against the Liquor Taxing Act who are convicted in the District of Columbia and not to offenders against such Act who are convicted outside of the District of Columbia. Within its plenary power to legislate for the District of Columbia, Congress is, of course, subject to all-of the constitutional limitations upon the exercise of Federal power, including the Fifth Amendment. This -is recognized in Capital Traction Company v. Hof, and District of Columbia v. Kraft, supra. The Fifth Amendment as applied to the District of Columbia implies equal protection of the laws. Lappin v. District of Columbia, 22 App.D.C. 68. But equal protection of the laws means merely that a law must deal alike with all of a given class within the jurisdiction to which the law is applicable. Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062; Lappin v. District of Columbia, supra. The Indeterminate Sentence Act does deal alike with all of the class to which, within the District of Columbia, the law applies, to wit, persons convicted of a felony. The theory of the appellant seems to be that he, as one convicted of a felony in the District of Columbia, is entitled to be sentenced in the same manner as if he had been convicted of the same felony outside of the District of Columbia, that is to say, he points out that had he been convicted outside the District of Columbia of violating the Liquor Taxing Act, he would have received a straight sentence and not an indeterminate sentence. Even if — contrary to what has been said above — this were in the abstract a proper ground of complaint, the appellant in the instant situation has shown no concrete injury. As to the sentences themselves, the two concurrent sentences imposed as a result of the Indeterminate Sentence Act involved a maximum of three years and a minimum of one. What might have been imposed upon the appellant had the Indeterminate Sentence Act not been applicable to him, is a speculative question; but he could, according to the penalty provisions of the Liquor Taxing Act, have been subjected to a fine not exceeding $1,000 or to imprisonment at hard labor not exceeding five years, or to both. See Title 2, § 207 (26 U.S.C.A. § 1152g), supra. As to the appellant’s parole privileges, under the Indeterminate Sentence Act he is eligible for parole after serving the minimum sentence imposed, in this case one year. Indeterminate Sentence Act, § 3, supra. If sentenced under the Liquor Taxing Act, irrespective of the Indeterminate Sentence Act, the appellant would not have been eligible for parole until he had served one-third of the straight sentence imposed. See Act June 25, 1910, c. 387, § 1, 36 Stat. 819, as amended by Act of January 23, 1913, c. 9, 37 Stat. 650 (18 U.S.C.A. § 714). It is again speculative to say what this might have been. But had it been the maximum of five years, his parole privileges would not have arisen until twenty months had been served. It is suggested by the appellant that with respect to the lesser of the two concurrent sentences, the one for not less than one year nor more than fifteen months, he is prejudiced in his parole privileges compared with those to which he would have been eligible had he received a straight sentence of fifteen months; that is to say, appellant points out that under the sentence of one year to fifteen months, he is eligible for parole only at the expiration of the minimum of the one year, whereas, had he been sentenced under a straight sentence of fifteen months, he would have been eligible at the end of one-third thereof, or five months. This asserted injury is theoretical only. The lesser of the two sentences imposed has, because it is concurrent with the greater, no practical effect except under the contingency of the greater being void, and there is no contention here by the appellant that as between the two sentences the greater is void. As to the appellant’s good conduct rights, appellant asserts that under his sentences imposed by virtue of the Indeterminate Sentence Act, he will be deprived of good conduct deductions. These arise under the Act of March 3, 1875, c. 145, § 1, 18 Stat. 479, as amended by the Act of March 3, 1891, c. 529, § 8, 26 Stat. 840, as amended by the Act of June 21, 1902, c. 1140, § 1, 32 Stat. 397 (18 U.S.C.A. § 710), and under the Act of May 27, 1930, c. 340, § 8, 46 Stat. 392 (18 U.S.C.A. § 744h). It is not made apparent that anything in the Indeterminate Sentence Act forbids offenders upon whom sentences are imposed in indeterminate form to receive good conduct deductions. It is this Act which is under attack here, not the good conduct statutes. It may be proper to add, however, that it is not made apparent that anything in the good conduct deduction statutes themselves makes them inapplicable to offenders who have been subjected to sentences in indeterminate form. The Fourth Amendment: Appellant asserts that Section 5, supra, of the Indeterminate Sentence Act, providing for the issuance of warrants by the Parole Board or a member thereof for the retaking of prisoners who have violated parole is unconstitutional as violative of the provision of the Fourth Amendment that “no warrants shall issue but upon probable cause supported by oath or affirmation,” for lack of provision for oath or affirmation of probable cause for the retaking of the prisoner. Appellant is not in a position to raise this point. He has not been paroled and retaken on warrant. “Not a law alone, but a law and its incidence, are necessary to a justiciable right or injury.” Clark v. Kansas City, 176 U.S. 114, 118, 20 S.Ct. 284, 286, 44 L.Ed. 392. Delegation of judicial power to the executive branch of the Government: Appellant asserts that the powers of the Board of Indeterminate Sentence and Parole are judicial in nature and that no standards have been set up for their exercise. We think this point without merit. It is true that the Parole Board is given wide powers of discretion, but essentially. its function is administrative, not judicial. It has to do with the treatment of prisoners after sentence. In accordance with the foregoing, the judgment of the trial court discharging the writ of habeás corpus and dismissing the petition upon which the writ had been issued is Affirmed. Or later, if on or before twenty days the Secretary of the Treasury proclaimed it impracticable to put the Act into effect on the thirtieth day, and specified a later date. Section 3 of the Act further read: “Provided, however, That this Act shall not abrogate the power of the justice or judge to sentence a convicted prisoner to the death penalty as now or hereafter may be provided by law: Provided further, That where a justice or a judge of the Supreme Court of the District of Columbia has imposed a life sentence on the prisoner convicted in the District of Columbia, said prisoner serving such sentence shall be eligible to parole as herein provided at any time after having served fifteen years of his life’s sentence.” Section 9 of the Act further stated: “Provided, however, That'in the case of a prisoner convicted of felony committed prior to the effective date of this Act, and in the case of any prisoner convicted of misdemeanor when the aggregate sentence imposed is in excess of one year, said Board of Indeterminate Sentence and Parole may parole said prisoner, under the provisions of this Act, after said prisoner has served one-fifth of the sentence imposed.” The provision empowers Congress: “To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States * * Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Manuel TALAVERA, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Defendant-Appellee. No. 76-3595 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 2, 1977. Rehearing Denied April 6, 1977. Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for defendant-appellee. Before GODBOLD, HILL and FAY, Circuit Judges. Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: On April 14, 1976, Manuel Talavera, a Florida state prisoner, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit and sentenced to a prison term of 120 years. His convictions were affirmed on direct appeal. Talavera v. State, 314 So.2d 22 (Fla.App.1975). The district court in an exhaustive opinion dismissed the petition. We vacate and remand the case for further proceedings. Petitioner was convicted in state court of robbery and three (3) counts of false imprisonment. He contends that there was a total lack of competent evidence to sustain his convictions. However, a fingerprint found on the handcuffs used on two of the hostages was identified as that of the petitioner. Several witnesses testified that one of the robbers was wearing a grey suit. A forensic chemist found that the fibers in petitioner’s “cut-off” grey pants matched the fibers in a certain grey suit-jacket which was found in the vicinity where the getaway car was abandoned. Finally, while petitioner presented one Jerry Helms who testified that he and an unnamed accomplice had committed the robbery and not petitioner, Helms spoke with a Southern accent. The hostages testified that neither of the perpetrators had a Southern accent. Moreover, a government rebuttal witness testified that on the day that Helms had initially confessed to the crime, he had seen Helms and petitioner conversing for 30 to 45 minutes. Matters concerning the sufficiency of the evidence are not cognizable on federal habeas corpus unless the record indicates that a state prisoner was denied due process of law. Colbroth v. Wainwright, 466 F.2d 1193, 1194 (5th Cir. 1972). However, the issue of the sufficiency of the evidence does not present a due process question where there is conflicting testimony supporting a state conviction. Jenkins v. Wainwright, 488 F.2d 136, 137 (5th Cir. 1973), cert. denied, 417 U.S. 917, 94 S.Ct. 2620, 41 L.Ed.2d 222 (1974). Since there is some evidence in this case against petitioner, there is no sufficiency of the evidence problem rising to constitutional proportions for habeas corpus relief. Dreske v. Holt, 536 F.2d 105 (5th Cir. 1976); Jackson v. State of Alabama, 534 F.2d 1136 (5th Cir. 1976). Petitioner next challenges a search of his rental automobile as violative of his Fourth Amendment rights. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482, 96 S.Ct. at 3046. This decision of the Supreme Court was rendered subsequent to the time that the district court in the instant case considered the merits of petitioner’s claim. This case presents the question of the proper disposition of Fourth Amendment claims on the appellate level in light of this Supreme Court decision. This court appears to have embarked upon two courses of conduct. In some cases we have undertaken on appeal to review the record to determine whether the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim. See e. g. Stinson v. State of Alabama, 545 F.2d 485 (5th Cir. 1977); Flood v. State of Louisiana, 545 F.2d 460 (5th Cir. 1977); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases we have vacated the decision of the district court and remanded so that the trial court might determine this issue in the first instance. See e. g. White v. State of Alabama, 541 F.2d 1092 (5th Cir. 1976); Caver v. State of Alabama, 537 F.2d 1333 (5th Cir. 1976). The differing courses of action appear to depend upon the circumstances and state of the record in each case. Thus, in the first line of cases the record appears to have been sufficiently clear so as to make the issue as to whether or not the state court had provided an opportunity for full and fair litigation of Fourth Amendment claims certain beyond peradventure. A remand under these circumstances would be a futile gesture and expensive in terms of judicial economy. In the second line of cases the record appears not to have been so clear. Under these circumstances, the appropriate appellate response is to remand the case to the district court in order to allow the parties “a chance to be heard upon the legal standard announced in Stone v. Powell.” Caver v. State of Alabama, supra at 1336. In the case sub judice the district court apparently based its conclusions with regard to the petitioner’s Fourth Amendment claim upon a review of the trial transcript. However, there were two preliminary hearings which focused on the Fourth Amendment issue that were not before the district court. In addition, of course, petitioner did not address himself to the sufficiency of the state court proceedings in his habeas' petition. Under these circumstances we conclude that the case should be remanded so that the parties might address the question of opportunity for full and fair litigation of the Fourth Amendment claim before the district court, and that court may be afforded the opportunity of determining that question. VACATED AND REMANDED. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Appellant, v. Lucy Thomas POWELL, Nellie Louise Powell and Elmer E. Fox, as Co-Executors under the will and of the Estate of Leonidas Hudson Powell, deceased, Appellees. No. 6920. United States Court of Appeals Tenth Circuit. July 13, 1962. William Jay Howard, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson and I. Henry Kutz, Attys., Dept. of Justice, Newell A. George, U. S. Atty., and Robert M. Green, Asst. U. S. Atty., were with him on the brief) for the United States of America. John F. Eberhardt, Wichita, Kan. (George B. Powers, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., were with him on the brief) for appellees. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. Lucy Thomas Powell, Nellie Louise Powell and Elmer E. Fox, coexecutors of the estate of Leonidas Hudson Powell, deceased, brought this action against the United States to recover federal estate taxes paid by them on the Powell estate. The action was tried to the court without a jury and judgment was entered in favor of the taxpayers in the sum of $55,-762.46. The United States has appealed. On June 4, 1932, Leonidas Hudson Powell created an irrevocable living trust. The trust instrument designated Powell and the Fourth National Bank in Wichita as cotrustees. Under it, Powell’s wife is the life tenant and his two daughters are the remaindermen. The income of the trust is payable to the wife at her request, but if not so requested, it is added to the principal. On the death of the wife, the residue of the trust is to be divided into equal shares for the benefit of the two daughters, or their surviving issue, per stirpes. Upon reaching the ages of 37, 47, 52, 57 and 62, each daughter is to receive a one-fifth portion of her share of the trust corpus. The trust also makes provision for alternative dispositions in the event of the death of the daughters without issue prior to final distribution. Powell died on May 16, 1954. An estate tax return was filed which did not include the assets of the trust in the gross estate. The Commissioner of Internal Revenue assessed a deficiency predicated upon the inclusion of such trust assets in the gross estate, which was paid under protest by the taxpayers. A claim for refund was duly filed, which was disallowed by the Commissioner. The instant action was then commenced. The trust instrument provides, in part, as follows: “Second: * * * “During the lifetime of the grantor and while he is acting as a Joint-Trustee hereunder the said Trustees are expressly authorized and empowered to sell, contract for sale, mortgage, pledge, hypothecate, or otherwise deal with the assets comprising this trust estate, and to invest, or re-invest the said trust property or any part thereof in such securities or other property, real or personal, as in the discretion of said Trustee-may be deemed most advisable for the benefit of the trust estate herein-created, including the right to purchase life insurance, annuity contracts or income bearing contracts, issued by legal reserve life insurance companies authorized to do-business in the State of Kansas. “Upon the death of the grantor or upon his incapacity to act, or resignation as Joint-Trustee hereunder, thereafter the Trustees shall invest or re-invest only in high grade municipal, Government, or other bonds, or any loans secured by first mortgages on farm lands or improved’ City real estate located in a productive part of the country, such mortgage loans not to exceed forty per cent (40%) of the fair market value of such real estate as in the discretion of the Trustees shall be deemed' most advisable in order to assure a reasonably safe investment, and to produce satisfactory income, the protection of the principal however to be more important than securing: higher rate of income. # * , •* * * * “The Trustees of this estate shall not be held responsible for any loss resulting to this trust estate by reason of retaining any previous investments made by the said Trustees while the grantor is acting as one of the Trustees hereunder. “Fifth: If, at any time during the continuance of this trust, it is necessary or advisable to use some portion of the principal for the maintenance, luelfare, comfort or happiness of the •Grantor’s wife, * * * or Grant- or’s daughters, * * * or for the education of Grantor’s said daughters, the Trustee is hereby authorized and empowered to use so much of the principal as in the discretion of the Trustee is necessary or advisable to be used to meet such conditions, and provided that the Trustee shall deem that the purpose for which the payments are to be made, justifies the reduction in the principal of the trust properties. * * * ” (Emphasis added.) The trust instrument contained no exculpatory clause, other than that quoted above. At the time of the creation of the trust, June 4, 1932, the corpus had a value of approximately $60,000. Mr. Powell’s income for each of the years of 1931 and 1932, before taxes, was approximately $100,000 and his net worth in 1932 was-$502,628. Mrs. Powell’s net worth in 1932 was $59,452. In the period between the creation of the trust and Powell’s death, Mrs. Powell withdrew $32,000 of trust income and left the balance of such income in the trust. At the death of Powell, the accumulated and reinvested trust income totalled approximately $210,000 and the value of the trust corpus was approximately $170,000. From time to time during his life Powell made gifts to his wife and daughters from his personal assets, totalling over .$200,000. The taxpayers called five witnesses, who testified that during his life Powell was an extremely conservative, frugal and thrifty person. In 1940 Powell hired his son-in-law to work in his grain elevator business at a salary of $100 per month. At this time such son-in-law had no outside income and was required to support his family on this amount. Such salary had been raised to $400 per month when the son-in-law left the business in 1945 or 1946. Powell was 63 years old when he created the trust. He actively engaged in the grain elevator business until 1944, at which time he sold his business and retired. Until a few years before his death, he remained vigorous and actively managed his investments. In its findings of fact the court, in part, found: “10. * * * in all of his business, personal, and family affairs Mr. Powell was an extremely conservative, frugal and thrifty person to whom the thought of making distributions to his wife or daughters from the corpus of the June 4, 1932, living trust for the purpose of administering to their subjective pleasures or ‘happiness’ — as distinguished from distributions necessary to maintain them according to the conservative standard of living to which they had been accustomed — would have been repugnant. * * * “11. * * * that * * * paragraph Fifth of the * * * living trust was intended by the settlor, * * , to mean only that distributions might be made to his wife and two daughters from the corpus of the trust if, but only if, such use of the corpus were required to maintain them in the conservative mode of living to which they had been accustomed during his lifetime, and that as used by Mr. Powell the word ‘happiness’ in the phrase ‘maintenance, welfare, comfort or happiness’ was intended to and must be equated with basic maintenance and welfare, not with ‘pleasure’ or subjective ‘delight.’ ” Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, in part provides: “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, * . *** “(d) Revocable transfers **** “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * * The court concluded that the investment powers and the power to invade the corpus did not reserve to the settlor power to “alter, amend, revoke, or terminate” the trust within the meaning of § 811(d) (2) of the Internal Revenue Code of 1939 and that the deficiency was improperly determined. The contentions of counsel for the United States are: 1. The decedent’s power to invest in life insurance or annuities constituted power to alter or amend the corpus of the trust, within the meaning of § 811(d) (2); 2. The decedent’s power to invade the trust corpus for the benefit of his family’s “happiness” constituted a power to alter and amend the trust, within the meaning of § 811(d) (2); and 3. The powers retained, if not sufficiently broad individually, were sufficiently extensive cumulatively to require inclusion of the trust corpus in the gross estate. I The Investment Powers It will be observed that the trustees were to exercise their power of investment, including the power to purchase life insurance, annuity contracts, or income bearing contracts in a manner deemed by them in the exercise of their discretion to be for the benefit of the trust estate. It will be further observed that the trust instrument gave the set-tlor no direct power to alter or amend the corpus of the trust or the trust instrument, itself, and if it did give the settlor power to affect beneficial interests, it did so indirectly, as a secondary consequence of the exercise of administrative investment powers. It should be noted, also, that there were no provisions in the trust instrument manifesting an intent to give the trustees broad powers of investment without limitation or restraint, to exculpate them from improper exercise of those powers, to authorize them to act individually, rather than as fiduciaries, in the exercise of such powers, or to prevent a court of equity from reviewing their exercise of such powers and correcting any abuses of discretion. The trust instrument was executed and was to be carried out in the State of Kansas, for the benefit of persons who were citizens and residents of that state. It was governed, therefore, by Kansas law. It is well settled, under the law of Kansas, that a court of equity has power to review the exercise of discretionary powers conferred upon trustees and to correct any abuse in the exercise of such discretion. The Supreme Court of Kansas so held in Keeler v. Lauer, 73 Kan. 388, 85 P. 541, 543, with respect to a trust instrument which gave large discretionary powers to the trustee. It reiterated that doctrine in In re Porter’s Estate, 164 Kan. 92, 187 P.2d 520, 525, in which the court said: “Notwithstanding the powers and discretion given to the trustee he is subject to the direction and control of a court of equity, which will have full power to prevent mismanagement of the estate and to correct any abuses of the trust.” Counsel for the United States assert that the investment power, with respect to life insurance, annuities and income bearing contracts, authorized the trustees to invest the corpus so as to deprive the life tenant, the wife, of all income and of all benefits of the trust and, conversely, to invest the corpus in annuities for the term of the wife’s life and thereby deprive the re-maindermen, the daughters, of all benefits of the trust. In our opinion, the instrument gave the trustees no such unbridled discretionary power or authority. It is well settled that where there are two or more beneficiaries of a trust, it is the duty of the trustee to administer the trust impartially, as between the beneficiaries, and where a trustee under a trust is directed to pay the income to a beneficiary during his life and on his death to pay the income from the trust or the corpus to another beneficiary, it is the duty of the trustee so to administer the trust as to preserve a fair balance between them. Accordingly, it was the duty of the trustees in the exercise of their discretion to invest the corpus for the benefit of the trust estate and in such a manner as to preserve a fair balance between the life tenant and the remainder beneficiaries. That constituted an ascertainable, external and judicially established standard, enforceable by courts of equity in the exercise of their powers to review the action of trustees in administering trusts. We have no doubt that the courts of Kansas, in the event the trustees under the instant trust so exercised their investment powers partially as between the life tenant and the remainder beneficiaries and so as not to preserve a fair balance between them, would hold that the trustees had abused their discretion and were subject to judicial review and control. Counsel for the United States rely heavily on State Street Trust Company v. United States, 1 Cir., 263 F.2d 635. That case was predicated upon § 811(c) (1) (B) of the Internal Revenue Code of 1939. It involved three spendthrift trusts, established in 1925. The trusts gave to the trustees these extraordinarily broad powers: “ * * * to retain and invest and reinvest in securities or properties although of a kind or in an amount which ordinarily would not be considered suitable for a trust investment, including, but without restriction, investments that yield a high rate of income or no income at all and wasting investments, intending hereby to authorize the Trustees to act in such manner as it is believed by them to be for the best interests of the Trust Fund, regarding it as a whole, even though particular investments might not otherwise be proper; * * * to determine what shall be charged or credited to income and what to principal notwithstanding any determination by the courts and specifically, but without limitation, to make such determination in regard to stock and cash dividends, rights, and all other receipts in respect of the ownership of stock and to decide whether or not to make deductions from income for depreciation, amortization or waste and in what amount; * * * and generally to do all things in relation to the Trust Fund which I, the Donor, could do if living and the Trust had not been executed.” Each contained the following exculpatory clause: “All such acts and decisions made by the Trustees in good faith shall be conclusive on all parties at interest and my Trustees shall be liable only for their own wilful acts or defaults, but in no case for acts in error of judgment.” In holding that the trust came within the provisions of § 811(c), the court said: “Perhaps no single power conferred by the decedent on the trustees would be enough to warrant inclusion of the corpora of the trusts in his estate. But we believe that the powers conferred on the trustees, considered as a whole, are so broad and all inclusive that within any limits a Massachusetts court of equity could rationally impose, the trustees, within the scope of their discretionary powers, could very substantially shift the economic benefits of the trusts between the life tenants and the remaindermen. We therefore conclude that under the trusts the decedent as long as he lived, in substance and effect and in a very real sense, * * * ‘retained for his life * * * the right * * to designate the persons who shall possess or enjoy the property or the income therefrom; * * * ’ ” The case, in our opinion, is clearly distinguishable on the facts. In that case, the First Circuit held that the powers of the trustees were so broad and all inclusive that they were not within any limitation the Massachusetts court of equity could rationally impose. In contrast with the broad powers given the trustees in the State Street Trust case, it should be noted that the trust instrument in the instant case did not give the trustees any power to exchange trust property for other property, to invest and reinvest “without restriction” in speculative securities yielding a high rate of income, in “no income” producing securities, or in wasting assets, or to allocate receipts, including stock dividends and stock rights, as between principal and income, nor “generally to do all things in relation to the Trust Fund,” which the settlor “could do if living and the Trust had not been executed,” and in the instant case, the trust instrument did not, as in the State Street Trust case, undertake to exculpate the trustees from liability, other than for wilful acts or defaults. We conclude the investment power given to the trustees by the trust instrument was subject to and limited by a judicially established and judicially enforceable external and ascertainable-standard and, hence, was no more than-a management or administrative power, and that in exercising it the settlor acted in a fiduciary capacity, as trustee, and not individually. It follows that the granting of the investment power did not give the settlor power to alter and amend the corpus of the trust, within the meaning of § 811 (d) (2), supra. II The Power to Invade the Corpus The trust instrument gave the trustees power to invade the corpus, if they deemed it necessary or advisable to provide for “the maintenance, welfare, comfort or happiness of the Grantor’s wife, * * * or Grantor’s daughters, * There is nothing in the context in which the term “happiness” is found, or in the instrument as a whole, that indicates an intent that it should be given a broader connotation than its usual and ordinary meaning. Rather, the contrary is indicated by the qualifying language that resort to principal should not be made, unless the need “justifies the reduction in the” corpus. The usual and ordinary meaning of “happiness” is “a state of well-being characterized by relative permanence.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 1136. It is synonymous with “comfort” or “welfare.” Macmillan’s Modern Dictionary, Rev.Ed.1944; Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900. It is “That more permanent enjoyment of life which attends on, and is almost identical with, welfare.” 39 C.J.S. Happiness p. 773. Webster’s New Collegiate Dictionary, 11th Ed., 1959, p. 375, defines “happy” as “enjoying well-being, peace, and comfort.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900, defines “welfare” as “state or condition in regard to well-being; esp., condition of health, happiness, prosperity, or the like.” In its ordinary sense “happiness” has the characteristic of permanence or endurance, as distinguished from pleasure, which is transitory. Funk & Wag-nail’s Synonyms, Antonyms and Prepositions, Rev.Ed.1947, delineates the objective qualities of “happiness,” as contrasted with “pleasure,” as follows: “Happiness is * * * more serene and rational than pleasure; pleasure is of necessity transient; happiness is abiding; thus, we speak of pleasures, but the plural of happiness is scarcely used. Happiness, in the full sense, is mental or spiritual or both, and is viewed as resulting from some worthy gratification or satisfaction; we can speak of vicious pleasure or delight, but not of vicious happiness * * There are many adjudicated cases holding that the terms “happiness,” “welfare,” and “comfort” are synonymous. It is true that the United States Supreme Court in Merchants Nat. Bank of Boston v. Commissioner, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35, construed the word “happiness,” as used in the trust there involved, as having a broader meaning than “welfare” and “comfort.” In that case the will authorized the trustee to invade the corpus: “ * * * at such time or times as my said Trustee shall in its sole discretion deem wise and proper for the comfort, support, maintenance, and/ or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund to my said wife, * * * my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.” It is clear, we think, that the court accorded such broader connotation to the word “happiness,” because of the context in which it was found and, particularly, the instructions to the trustee to exercise its discretion with liberality to the wife and to consider her welfare, comfort and happiness prior to the claims of the residuary beneficiaries. In the opinion the court said: “ * * * Introducing the element of the widow’s happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, * * >> Here, the trust instrument not only did not provide that the power to invade the corpus should be exercised with liberality and to gratify the wishes of the beneficiaries, but, on the contrary, indicated that the power should be exercised with restraint and only when the purpose justified a reduction of the corpus. Of course, the exercise of discretion to invade the corpus with liberality and in accordance with the wishes of a beneficiary is not a power restricted by a fixed standard. Likewise, Henslee v. Union Planters Bank, 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259, is distinguishable from the instant case. There, the will authorized and empowered the trustees to invade or wholly utilize the corpus for the life tenant’s (the mother of the decedent) “pleasure, comfort and welfare” and stated that “The first object to be accomplished * * is to take care of and provide for my mother in such manner as she may desire” and directed the trustees to manage the estate “primarily for this purpose.” We are of the opinion that the word “happiness,” in the sense it is used in the trust instrument, is synonymous with “welfare” and “comfort.” It is well settled that the words “welfare” and “comfort” provide an ascertainable and judicially enforceable external standard. We conclude that the provisions in the trust instrument giving the trustees power to use the corpus “for the maintenance, welfare, comfort or happiness” of the beneficiaries and for the “education” of the daughters, the remaindermen, “provided * * * the purpose for which the payments are to be made, justifies the reduction in” the corpus, established an ascertainable, external and judicially enforceable standard and that the trustees, in exercising such power, were limited by such standard and the supervision and control of the courts of Kansas in the exercise of their equity powers. Hence, the authority given the trustees to invade the corpus did not give to the settlor power to alter or amend the trust, within the meaning of § 811(d) (2). Ill The Cumulative Effect of Such Powers In view of the conclusion we have reached, with respect to the investment power and the power to invade the corpus, it is our opinion that their combined or cumulative effect would not bring the trust within § 811(d) (2). Here, the whole is no greater than the sum of its parts. The judgment is affirmed. . See Scott on Trusts, 2nd Ed., Vol. II, § 183; Redfield v. Critchley, 252 App.Div. 568, 300 N.Y.S. 305, 310, affirmed, 277 N.Y. 366, 14 N.E.2d 377; Restatement of the Law of Trusts, § 183. . Pennsylvania Co., Etc. v. Gillmore, 137 N.J.Eq. 51, 43 A.2d 667, 670, 671; Security Trust Co. v. Mahoney, 307 Ky. 661, 212 S.W.2d 115, 119; In re Simpson’s Will, Sur., 33 N.Y.S.2d 614, 616; Restatement of the Law of Trusts, § 232; Scott on Trusts, 2nd Ed., Vol. III, § 232, p. 1744. . Cf. Estate of Willard P. King, 37 T.C. 973 (decided February 21, 1962). . National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295, 36 A.L.R. 1171; Combs v. Carey’s Trustee, Ky., 287 S.W.2d 443; Industrial Trust Co. v. Commissioner of Int. Rev., 1 Cir., 151 F.2d 592, 594, 169 A.L.R. 144, c. d. 327 U.S. 788, 63 S.Ct. 807, 90 L.Ed. 1014; Estate of Albert E. Nettleton, 4 T.C. 987, 993; Gannert v. Rupert, 2 Cir., 127 F. 962, 963; Wiseman v. Tanner, D.C.Wash., 221 F. 694, 698, reversed on other grounds, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336; In re Buell’s Estate, 198 Misc. 358, 66 N.Y.S.2d 180, 185; English v. English, 32 N.J.Eq. 738, 750, 751; 39 C.J.S. Happiness p. 773. . The interpretation we have placed on the opinion in the Merchants Bank case finds support in the following adjudicated cases: Commissioner of Int. Rev. v. Wells Fargo B. & U. Tr. Co., 9 Cir., 145 F.2d 130, 132; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 592; Lincoln Rochester Tr. Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425; Lincoln Rochester Trust Company v. McGowan, 2 Cir., 217 F.2d 287, 291. . In the following cases the quoted language was held to provide an ascertainable, external and judicially enforceable standard: Ithaca Trust Co. v. United States, 279 U.S. 151, 154, 49 S.Ct. 291, 73 L.Ed. 647, “from the principal any sum ‘that may be necessary to suitably maintain her in as much comfort as she now enjoys’”; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 36 E.2d 710, “to pay over to * * * my said wife (the life tenant) any part of the principal * * * which it (the trustee) may deem necessary or advisable for her comfortable maintenance and support”; Berry v. Kuhl, 7 Cir., 174 F.2d 565, 566, payment from principal to life tenant for “treatment, support or maintenance”; Lincoln Rochester Trust Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425, 427, to advance to the life tenant “such sums of principal as may be necessary for her proper care, support and maintenance”; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 591, to pay to the life tenant “from the principal any amount in their discretion for her comfort and welfare”; Jennings v. Smith, 2 Cir., 161 F.2d 74, 75, 76, to use net income “to enable the beneficiary * * * to maintain himself and his family * * * in comfort and in accordance with the station in life to which he belongs”; Blunt v. Kelly, 3 Cir., 131 F.2d 632, to use such portion of the principal as the trustees may deem proper “for the support, care or benefit of” the settlor; Estate of Walter E. Frew, 8 T.C. 1240, 1241, 1244, 1245, power of the trustees “in their sole discretion, if at any time * * * the net income payable to any beneficiary shall, in their opinion, be insufficient for the proper maintenance and support of said beneficiary, apply to such purposes so much of the respective part of the principal from which said income is derived as they may deem proper”; Estate of Horace G. Wetherill, 4 T.C. 678, 679, 681-684, invasion of corpus for “care, maintenance and support” of life tenant, Petition to Review dismissed 150 F.2d 1019; Estate of Lucius H. Elmer, 6 T.C. 944, invasion of corpus for “comfortable support” of life tenant. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. F. W. POE MFG. CO. v. NATIONAL LABOR RELATIONS BOARD. No. 4735. Circuit Court of Appeals, Fourth Circuit. April 7, 1941. James H. Price, of Greenville, S. C. (James D. Poag and James H. Price, Jr., both of Greenville, S. C., on the brief) for petitioner. Mortimer Kollender, Asst. Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Owsley Vose, and Frank Donner, National Labor Relations Board, all of Washington, D. C., on the brief), for respondent. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. F. W. Poe Manufacturing Company, a South Carolina corporation, petitions the court to review and set aside an order of reinstatement issued by the National Labor Relations Board, and based on the finding that, in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the corporation had wrongfully refused to reinstate one Coley L. Smith to his former position in its employ. Originally, the complaint was formulated by the Board upon charges filed by the Textile Workers Union of America, and alleged, amongst other unfair labor practices, that the corporation, in violation of §.8(1) and. (3) of the Act, had discharged Smith on June 12, 1939, because of his membership in and activities on behalf of the Union. After a hearing, the trial examiner recommended a dismissal of the complaint in its entirety. Thereupon, the Union filed amended charges and the Board amended its complaint by adding the allegation that, in violation of § 8(1), (3) .and (4) of the Act, the corporation, on and alter October 1, 1939, refused to reinstate Smith as an employee because he had filed charges against it. When the case came before the Board, the following findings were made with reference to the charges originally filed: “We find that the allegations of the complaint that the respondent has advised its employees to withdraw from or refuse to join the Union; threatened them with layoff, discharge, or disciplinary action if they were active in its behalf; promised them better jobs if they withdrew therefrom; informed Union members that it disliked their attitude because of their activities; and advised employees that the Union would not benefit them, are not sustained by the evidence. We will, accordingly, order that such allegations be dismissed.” The Board also concurred in the findings of the trial examiner that Smith was not discharged in violation of the Act in the following words: “To summarize, we concur in the Trial Examiner’s findings that Smith was not discharged because of his Union membership and activity but was laid off along with 7 other weavers and 8 loom fixers, none of whom were shown to be members of the Union, when installation of the new machinery enabled the respondent to effect a saving by thus reducing its force of employees; that when Smith and the other IS employees were laid off they were told to report to the spare floor but that Smith did not do so and for this reason did not receive reemployment. “Upon the entire record we find that the evidence fails to sustain the allegations of the complaint that the respondent discriminated against Smith because of his Union membership and activity by discharging him on June 12, 1939, and thereafter refusing to reemploy him. We will accordingly order that such allegations be dismissed.” The events in June, 1939, referred to in the Board’s summary, are shown by the undisputed testimony of Smith or -other witnesses. Smith had worked for the corporation for six or seven years, and understood that when an employee was not discharged, but laid off and told to report to the spare floor, it was his duty to report every day in order to see if there was available work. Instead of complying with this practice, Smith, being angry because he was deprived of his regular position, failed to report to the spare floor and a few days later, made complaint to the Union that he had been discharged. On June 13, a position of weaver became vacant, and Smith would have been given the place had he been on the spare floor. In his absence, another was chosen. On June 22, acting under the instructions of the Union, he returned to the mill and asked for employment, but was told that there was none. It is now conceded that the conduct of the employer up to this time was without fault, but it is said that the subsequent circumstances and the testimony of the employer’s executives demonstrate that thereafter the corporation wrongfully refused to reinstate Smith for the reason that he had filed charges against it under the act. The subsequent circumstances are thus summarized in the findings of the Board: “The complaint as amended alleges that Smith was refused employment on or about October 1, 1939, and thereafter, for the additional reason that he filed or caused to be filed charges under the Act. “On September 12, 1939, the Union filed its charges herein. In the latter part of September or early in October 1939, a representative of the Board called at the plant and informed Stall, the respondent’s president, that the Union had filed charges with respect to Smith’s dismissal on June 12, 1939. This was the first notice given the respondent that it was being charged with having discharged Smith because of his Union membership and activity. On this occasion Stall was asked by the Board’s representative if he would give Smith employment and refused to do so, assigning as his reason therefor that there were no jobs available at that time. On or about October IS, 1939, Smith went to the door of the plant, asked for Burnett, and when he appeared, requested employment. Burnett advised Smith that there was no employment for him. Subsequent to Smith’s application for employment two weavers, who had not previously been in the respondent’s employ, were given employment by the respondent. (The record is not altogether clear as to the dates of the employment of the two weavers but apparently one was hired in November and one in December). Burnett testified that at the time the two new weavers were employed weavers were needed, that there were none available on the spare floor who could do the work, and that the two men came in ‘wanting to work’ and were employed. Burnett testified that he made no effort to locate Smith when these vacancies occurred because he did not know where to find him and also because he thought that Smith was working elsewhere.” The company’s executive and supervisory employees testified that there was no vacancy on June 22 or October 15, 1939, when Smith asked for employment, or on the occasion in September or October when the Board’s representative called at the mill and inquired if the company would give Smith employment. There was no evidence to the contrary. It was also proved without contradiction that it was not the practice of the mill to keep a written list of employees ordered to report to the spare floor, or to send for one of them when a vacancy occurred; but in such event, the overseer went to the spare floor and selected an employee from those present. Similarly, there was no evidence in conflict with the employer’s testimony that there were no suitable weavers on the spare floor on the two subsequent occasions when outside weavers were taken on, and hence the positions were given to men, who came in and asked for work. One of these selections was made in November, 1939, and the other on or about January 1, 1940. At these times, according to the uncontradicted testimony, Smith’s whereabouts were unknown to the company officials. He was in fact working at the Isaqueena Mill at Central, South Carolina, for about five weeks before Christmas, 1939, and at the Mills Mill in Greenville, South Carolina, from about January 1, 1940 up to and including the day of the hearing before the trial examiner in the middle of February, 1940. Obviously, no inference of hostile discrimination against Smith can be drawn from these circumstances. On the contrary, discrimination in his favor, such as the employer was under no duty to grant, would have occurred if the employer had performed the acts whose omission the Board accepted as evidence of illegality. If Smith had been reinstated in June or October, of necessity some other worker would have been displaced to make room for him; and if his whereabouts had been known to his employer in November and December, and he had been sent for and given a place in preference to the new men present and asking for work, a favor would have been extended that it was not the practice of the company to grant to absent employees. It should be kept in mind that the so-called spare list was not a written memorandum kept in the course of business, but a group or body of extra hands that were willing to report daily to the mill to fill casual vacancies; and that Smith, refusing to acxept this limited opportunity, chose to consider himself discharged, complained to the Union, and sought other employment. Whatever were the privileges of persons on the spare list, Smith had no claim to them. Upon what then does the adverse holding of the Board rest? It is succinctly stated in The following paragraph from the Board’s decision: “When the two new weavers were employed, there were no weavers available on the spare floor and in such circumstances it was the respondent’s practice to recall weavers on the spare list. In view of the testimony of both Stall and Rodgers that the respondent had determined in October not to reemploy Smith because of the charges filed herein we do not credit Burnett’s testimony that Smith was not offered employment on those occasions because his whereabouts was unknown or because it was thought that he was employed elsewhere. (While Smith was employed at a textile mill in Greenville at the time of the hearing it appears that this employment began about the first of January 1940).” “By reason of the application made on behalf of Smith by the Board’s representative in early October and Smith’s personal application on October 15 the respondent knew that Smith was available and desired reinstatement. Moreover, Burnett conceded that Smith was a ‘very fair weaver’ and it is reasonable to assume that when the spare floor was exhausted this factor would have entitled him to consideration over weavers who had not previously been in the respondent’s employ. Under these circumstances we are satisfied and find that Smith was a laid-off employee and that the actual reason Smith was not recalled to work was the one stated by both Stall and Rodgers, namely, because he had filed allegedly ‘false’ charges against the respondent; we likewise find that, except for the filing of such charges, Smith would have been employed by the respondent on or before December 1, 1939.” There was, however, no substantial evidence to support the premise of fact stated by the Board that it was the company’s practice when it needed weavers and none were found on the spare floor, to pass over new applicants on hand and send for old employees on the spare list. Isolated statements in the testimony of the company’s executives in an examination covering several hundred pages indicate that if the spare floor was bare of employees at the time of an emergency, absent employees would be sent for; but no one testified that this would be done if new hands were immediately available. The contrary policy of the company to require the presence of its workers was so clearly and forcibly stated in the testimony as to be unmistakable. Nor, was there-any testimony to show that Stall, the president, or Rodgers, the superintendent, knew the whereabouts of Smith in November and December, 1939, and January, 1940, during which period he was in fact working most of the time in other mills. This lack of proof was not supplied by th'e Board’s inability to credit the testimony of the employer’s witnesses in this respect; the existence of knowledge on the part of an accused who denies his guilt cannot be shown by merely refusing to believe him. And, even if-Smith’s whereabouts were known, there was no obligation to send for him. ' The conclusion of the Board really rests upon testimony of Stall, the president of the company, and Rodgers, the superintendent of the plant, that indicated an unwillingness on their part to reinstate Smith because he had filed charges against the company. When the representative of the Board called in September or October and asked whether the company would take Smith back, the representatives of the company replied that there was no vacancy and they refused to say whether they would or would not take him back in case a vacancy should occur. They were unwilling to take him back during the pendency of the charges, of which they were then for the first time informed. Stall testified that he did not think that an employee who had filed false charges would make a loyal and truthful employee, and that if Smith had appeared on the spare floor when a weaver was needed, he would not have received employment. Rodgers testified that while he would have put Smith back to work if he had not made the charges against the company and had reported to the spare floor, he did not feel, after the charges were filed, that Smith would make a faithful or efficient employee, and hence it would, not be to the best interest of the company to reinstate him. Undoubtedly this evidence warrants the conjecture that if Smith had been available when vacancies occurred, he would probably have not been chosen, although of course one cannot be quite certain what decision the company would have made if confronted with the actual situation. It is sufficient to say that the employer was never called upon to make this particular choice, and that no unlawful discrimination actually occurred. The National Labor Relations Act is not concerned with hypothesis, but with realities; it does not seek to prohibit evil intent but unfair labor practices, and there was no substantial evidence of such a' practice in this case. A decree will be entered setting aside the order of the Board. As shown above, Smith was also employed in a mill at Central, South Carolina, for five weeks before Christmas, 1939. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Appellee, v. Milton Carl HESSE, Appellant. No. 19574. United States Court of Appeals Eighth Circuit. Oct. 22, 1969. Louis Gilden, St. Louis, Mo., for appellant. Daniel R. O’Neill, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., same address, on the brief. Before VAN OOSTERHOUT, Chief Judge, and LAY and HEANEY, Circuit Judges. LAY, Circuit Judge. This appeal arises from the defendant’s conviction under 50 U.S.C.App. § 462 for failing to report for induction into the armed forces. Defendant basically claims he was (1) denied procedural due process in his reclassification from I-A-0 to I-A, and (2) that there exists no basis-in-fact for his I-A classification. The district court denied defendant’s motion for acquittal and found him guilty of the offense charged. 293 F.Supp. 991 (E.D. Mo. 1968). We hold that defendant’s selective service file demonstrates no basis-in-fact for his reclassification to a I-A status. We reverse. Defendant, at age 18, registered with his local board on April 13, 1964. At that time he filled out Selective Service Form 150 asserting that he was a conscientious objector. He stated that he was a member of the Radio Church of God and had become so when he first attended the church in New Athens, Illinois, on August 21, 1963. In his application he acknowledged the existence of a Supreme Being and because of his religious beliefs would refuse to use force or to kill. He wrote his beliefs in detail and premised them upon his religious teachings. He quoted from the church constitution which forbids the taking of human life. He quoted various scriptural passages. Based upon this application, his local board classified him I-A-0 (eligible for noncombatant military service). The defendant, seeking a 1-0 classification, appealed this ruling. Under the then existent Selective Service regulations, 32 C.F.R. § 1626.25 (1954), and statute, 50 U.S.C.App. § 456(j) (1951), the appeals board, while tentatively affirming his I-A-0 classification, sought a Department of Justice investigation and recommendation. Following a standard procedure, a hearing officer conducted a personal interview of the defendant and made a written report to the Department. The F.B.I. investigated the defendant and a résumé of the investigation was made. On January 10, 1966, the Chief of the Conscientious Objector Section of the Department of Justice reported to the appeals board. He stated that the hearing officer concluded the registrant is not “conscientiously opposed to participate in combatant and noncombatant military training and service” and that “the résumé, on the whole, is consistent with the findings of the Hearing Officer.” He then recommended that Hesse not be classified in Class 1-0 or in Class I-A-O. Nevertheless, the appeals board continued Hesse in Class I-A-O. The defendant was found physically fit and ordered to report for induction on May 31, 1966. He reported but refused to take the oath of induction. Thereafter, the United States attorney declined to prosecute since he was of the opinion that there was no basis-in-fact to support the I-A-0 classification. He wrote the state director that the registrant was either I-A or 1-0 depending upon the sincerity of his convictions. The state director, acting under 32 C.F.R. § 1625.3 (1969), requested the local board to reclassify the defendant. In a letter accompanying the request he called the board’s attention to the Department of Justice recommendation that Hesse should' not be in either Class 1-0 or I-A-O. On July 5, 1966, the local board reclassified Hesse as I-A. Hesse appealed. Once again,the appeals board referred the matter to the Department of Justice for investigation and recommendation. The same hearing officer who conducted the 1965 interview again conferred with the defendant. Another F.B.I. investigation was also made. On October 23, 1967, the same Department of Justice official who had authored the January 10, 1966, report, once again made the recommendation. The Department recommended on the basis of the hearing officer’s interview and the résumé of the more recent F.B.I. investigation that Hesse had still not met his burden of showing that he was a conscientious objector. On December 4, 1967, the appeals board, presumably on the basis of the new investigation and recommendation, classified Hesse I-A. The defendant was once again ordered to report for induction, and once again refused. Prosecution and conviction ensued leading to this appeal. The fundamental issue is whether there existed a basis-in-fact for the appeal board’s I-A classification of December 4, 1967. Since the appeals board determines the classification de novo (32 C.F.R. § 1626.26(a) (1969)), the only factors which could possibly have affected Hesse’s classification was the 1967 investigative résumé and the Department of Justice’s report and recommendation. We cannot accept defendant’s contention that this résumé and recommendation could not be considered as additional facts related to classification. See United States v. Corliss, 173 F.Supp. 677 (S.D.N.Y. 1959), aff’d 280 F.2d 808 (2 Cir. 1960), distinguishing United States v. Stasevic, 117 F.Supp. 371 (S.D.N.Y. 1953). See also United States v. Nugent, supra; Simmons v. United States, supra; Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); and Gonzales v. United States, supra. However, this court is at a complete loss to understand the statements of the Department pf Justice in both the 1965 and 1967 reports that the F.B.I. résumés “on the whole” are consistent with the hearing officer’s finding that Hesse was insincere as to his conscientious objector claim. We are mindful that our jurisdiction to review is a narrow one. Whether there exists basis-in-fact for the defendant’s classification is both a subjective and objective test. The obligation of review in this circuit has been construed to discount mere disbelief of a conscientious objector’s claim without affirmative evidence to measure contradiction. Batterton v. United States, 260 F.2d 233 (8 Cir. 1958). Additionally we recognize as Judge Friendly said in United States v. Corliss, 280 F.2d 808, 814 (2 Cir. 1960): “[T]hat although denial of exemption may be and often is supported by objective facts inconsistent with the claim, denial may also rest on a disbelief in the sincerity of the claim, unaccompanied by any inconsistent facts, provided the disbelief is honest and rational. * * * to sustain the denial of a claim on a mere ipse dixit of lack of sincerity from the Local Board or the hearing officer would create serious possibilities of abuse.” Mere speculation or conjecture as to insincerity is not enough. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). Nor can basis-in-fact in this case rest upon Hesse’s doubtful demeanor. The only personal interview of Hesse was by the hearing officer and he is the only one who could assess evasive demeanor as a ground of insincerity. However, the hearing officer did not rely upon this ground. Cf. Parr v. United States, 272 F.2d 416 (9 Cir. 1959); United States v. St. Clair, 293 F.Supp. 337 (E.D.N.Y. 1968) (per Weinstein, J., an excellent authoritative opinion). There exists evidence that Hesse was nervous before the hearing officer but this fact alone is not evidence of doubtful demeanor. However, if there exists any inconsistency or honest or rational disbelief with the defendant’s claim, then it is not for this court to weigh the substantiality of these facts to find any basis-in-fact. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). Cf. Esteban v. Central Missouri State College, 415 F.2d 1077 n. 3 at 1092 (8 Cir. 1969) (dissenting opinion). Nevertheless, where disbelief is said to exist, the appellate court, in each case, must examine the board’s alleged basis-in-fact to see whether it has any “rational” and “honest” foundation. Cf. United States v. Corliss, 280 F.2d 808 (2 Cir. 1960). The appeals board was silent as to its reasons for changing Hesse’s classification to I-A. We can only assume, by reason of its changed position, that it felt justified to follow the second recommendation of the Department of Justice. The problem is, however, that the Justice Department’s recommendation was based in part upon gross error. After reporting that the hearing officer concluded the defendant was not sincere, the recommendation reads: “The Department of Justice believes that the résumé, on the whole, is not inconsistent with the findings of the Hearing Officer.” Examination of the résumé markedly demonstrates to the contrary. The résumé reveals that the F.B.I. interviewed officials of two former employers, six officials (including three supervisors) of his then present employer, a friend, a fellow worker, a relative, four neighbors, a town marshall, church members, defendant’s pastor and assistant pastor. This investigation was much more extensive than the one which the F.B.I. conducted in 1965, and entailed many hours of interviews in at least three different cities. There does not exist within the entire résumé one statement which reflects a flaw upon the sincerity of Hesse’s beliefs. The investigation verifies Hesse’s good behavior and repeatedly states his sincere attitude as being conscientiously opposed, for religious reasons, to military service. The résumé shows that he refused to work on Saturday because of its religious significance, that he had attended church conferences as far away as Georgia and Texas despite giving up his pay for several workdays, that he was active in church work and that he had professed his sincerity and beliefs to many persons. Significant was a supervisor’s statement that: “Registrant mentioned to him that he was a conscientious objector to the military service based on his religious beliefs. This reference stated that he [supervisor] is a member of the United States Army Reserve and feels that everyone has a responsibility to serve in the military service in some manner, however, he feels that the registrant is a genuine conscientious objector and that the registrant does not want to have anything to do with the Armed Forces. He tried to convince the registrant to go into the Armed Forces in a noncombatant status, but the registrant said he could not do so. He believes the registrant is sincere in his objections to military service and registrant has stated that he cannot go into the Army since any type of service contributes to death or killing. He recalled that the registrant said he attends the Radio Church of God.” Further analysis shows, in addition, that on the grounds set forth in the October 1967 recommendation there exists no rational” or “honest” basis for the hearing officer to have doubted the sincerity of the defendant’s claim. As the district court summarized, the hearing officer questioned defendant’s sincerity because he found the registrant was not familiar with the doctrines and beliefs of the church. The district court further observed that the hearing officer found that the church opposed use of tobacco and that the defendant had not given up smoking until two weeks before the first hearing. Also the defendant was found to have made inconsistent statements to the hearing officer as to when he commenced tithing in the church. Lack of knowledge of his church’s doctrine has been held to cast sufficient doubt upon the sincerity of an alleged conscientious objector so as to constitute a basis-in-fact for a I-A classification. See e. g., Maynard v. United States, 409 F.2d 505 (9 Cir. 1968); Bishop v. United States, 412 F.2d 1064 (9 Cir. 1969). However, where the basis upon which a hearing officer or draft board concludes a registrant’s lack of knowledge rests upon arbitrary and irrational standards, the conclusion itself cannot stand. It is fundamental that each case deserves its own factual analysis. In the 1967 interview the hearing officer doubted Hesse’s sincerity because he did not know that it was unnecessary to be 21 years old in order to be a member of the church; he could not give the correct chapter and verse for a biblical scripture that he had memorized ; Hesse stated he attended church from 9 to 10 a. m. on Saturday; Hesse stated he was active in midweek church speech classes but a witness accompanying Hesse to the interview said the speech classes were “totally unrelated” to the church; without the witness the defendant would have been thoroughly confused; Hesse was not able to define all of the church holidays and unable to state exactly when they occurred ; Hesse did not know whether anything in the church tenets forbade taking orders from officers or superiors. The hearing officer also referred to his 1965 report stating that he still felt it was significant that Hesse had started going to church only shortly before he registered for the Selective Service and that Hesse had stopped smoking only three weeks before his first hearing in 1965. The hearing officer also referred to the earlier interview where the registrant had given inconsistent statements as to when he had started to tithe. The reasons given by the hearing officer in the Department of Justice’s report do not serve as reasonable grounds to doubt a person’s sincerity as a conscientious objector. The F.B.I. résumé, as well as the subsequent letters by the witness Flurry and the defendant Hesse, cast grave doubt upon the accuracy of the report of the hearing officer’s interview. After the erroneous light cast upon the F.B.I. résumé by the author of the Justice Department’s recommendation, a serious question arises on the record itself as to whether the hearing officer’s interview has been inaccurately related. Hesse’s church receipts, voluntarily sent by him to the appeals board in order to accurately verify the dates he began tithing in his church, contradict that he intended any misrepresentation. These receipts constitute the best evidence to prove the dates and amount of his church donations. And whether a young man of 19 can accurately cite scripture quotations or define every church holiday is of little consequence to his religious convictions. Cf. United States v. Owen, 415 F.2d 383 (8 Cir. 1969). Were this not so, we imagine many persons of all denominations with sincere religious faith would find the door to God’s Kingdom narrower than they thought. To hold sincere religious conviction, one does not have to be a theologian. We realize that the hearing officer was the only official who personally interviewed the defendant. Yet this fact should not be controlling when the conclusion of “insincerity” is based upon technicalities, some with doubtful verity, and the record as a whole completely contradicts the observations the hearing officer purportedly made. It is at best speculative to say on this record that the defendant is not possessed of sincere beliefs. Every person interviewed by the F.B.I., including employers, supervisors, associates and neighbors, verified this young man’s sincerity as a conscientious objector. Under the record presented, we find that there was no justification for the appeals board to rely on the report of the Department of Justice and, therefore, there was no basis-in-fact for the I-A classification. Reversed and remanded with direction to enter a judgment of acquittal. . No personal hearing was specifically requested nor was one granted. Local Board Memorandum No. 41 as now amended, which advises boards to give a preclassification interview to selectees requesting 1-0 classfication, was not yet promulgated. It was amended on July 30, 1968. Defendant claims denial of due process by reason of the lack of a personal hearing. We need not decide this issue here. . This procedure has now been deleted from the classification proceedings. Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j). For full discussion of the old procedure see United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953). See also Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955). . It is not necessary to be a member of any organized church to sustain a claim of conscientious objector. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). See also Batter-ton v. United States, supra. . In the 1966 letter defendant was reported as quoting various scripture naming chapter and verse. . Hesse wrote the board this was incorrect. At the time of the interview he said he told the hearing officer he attended from 9 to 11 a.m. . This same witness contradicted this report in a subsequent letter to the board. His observations, relating to a young man’s grasp of religious knowledge, must reflect rather accurately a true appraisal of young people and their religious beliefs : “To AVliom It May Concern: “I was the witness for Milton Hesse on April 17, 1967. He informed me of the results of the hearing. “I was told that the hearing officer said that Mr. Hesse stumbled around and sounded unsure of himself. Milton is a rather nervous type person at times. I know, since I have attended a speech club with him for quite a while. “However, at Milton’s age, the church doesn’t require that a person have a great deal of Icnowledge. And it seemed to me that some of the questions would he a little hard for any young fellow in the church to answer. (Emphasis ours.) “The hearing officer said that I stated that the speech club was totally unrelated to the church. Maybe I expressed myself badly, but the club is related. In fact, those that attend the club are almost invariably the strongest members of the church. “Milton does seem to me to know quite a lot about the church. Unless a person makes a good attempt in the church toward acquiring knowledge, and has the right attitude, the church won’t allow them to be a member of the speech club. “This is true partly because it is a college level club and we are provided with college trained directors. The church simply can’t afford to spend this time and money on people whom we consider to be insincere. “Milton has had very little of this type training in the past and he certainly needs a lot more training to gain more poise and lack of nervousness. “If you could take this into consideration in determining his sincerity, we would be deeply grateful. Thank you. “Sincerely, 8/ Gerald Flurry “Gerald Flurry.” . Hesse, however, subsequently wrote the board that at the time of his interview, he read from prepared notes the names of the church holidays and their mean- ■ ing, so he could be as accurate as possible. The fact that he read these to the hearing officer is not disclosed in the Justice Department’s report. . However, Hesse stated he would follow orders as long as doing so did not conflict with his religious convictions. . If this is relevant, it would seem of greater significance that the defendant had not smoked since that time. Cf. Parr v. United States, 272 F.2d 416, 420 (9 Cir. 1959). No mention of this is made by the hearing officer. . The hearing officer’s report is not included in his selective service file and was never shown to him. This in. itself raises serious due process questions. See United States v. Purvis, 403 F.2d 555 (2 Cir. 1968); and cf. United States v. Owen, 415 F.2d 383 (8 Cir. 1969). . Even the Apostle Paul taught the Churches of Corinth that faith should not stand in wisdom. 1 Cor.2:5; and at Galatia, that faith is not found in obedience to church law, Gal. 3:12, or in works, Rom. 4:5. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_agen_acq	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court rule for the government in an issue related to agency acquisition of information (e.g. physical inspections, searches, subpoenas, records, etc)? Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Leon B. McLAIN, Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Appellee. No. 82-1510. United States Court of Appeals, Fourth Circuit. Argued Jan. 14, 1983. Decided Sept. 1, 1983. Peter M.D. Martin, Baltimore, Md. (Dennis W. Carroll, Judith F. Fournelle, Administrative Law Center,. Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellant. Nathan K. Kobin, Dept, of Health and Human Services, Baltimore, Md. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee. Before HALL, MURNAGHAN and SPROUSE, Circuit Judges. K.K. HALL, Circuit Judge: Leon B. McLain appeals from an order of the district court, affirming the Secretary’s denial of his claim for disability insurance and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i); 423(d); 1382 et seq. This denial was based on the determination by the Secretary’s Administrative Law Judge (ALJ) that McLain, while suffering from a nervous disorder and arthritis, was able to perform his previous work activities in a non-stressful environment. The district court found that there was substantial evidence to support the ALJ’s decision. We agree with the district court that there is substantial evidence to support the finding that McLain was not disabled solely because of his arthritis. But, contrary to the conclusion of the district court, we find that McLain established a prima facie case that his nervous condition disabled him from performing his previous customary work. We also find that the Secretary failed to prove that McLain could engage in alternative work in the national economy. Accordingly, we vacate the judgment of the district court and direct that the ease be remanded to the Secretary for further proceedings consistent with this opinion. I. Claimant was 49 years old at the time of the Secretary’s decision and has completed high school, as well as two years of studies at the university level. He was employed as a traveling sales representative for a cheesecake company from 1968 to 1973 and also worked as a security guard for Wells Fargo for seven months in 1977. At the administrative hearing, McLain testified to the existence of a long-standing nervous disorder and arthritis in his right ankle. According to McLain, he left his job as a salesman with the cheesecake firm because of stress. He stated that he cannot tolerate noise, including telephones, televisions, typewriters, and people singing. McLain further testified that he is afraid of crowds, or even groups of four to five people, and believes that others want to create problems for him. He stated that his private physician was treating his nervous disorder with medication (Azene). In response to questioning by the ALJ, McLain said he would be willing to try sedentary work as a telephone order taker or dispatcher. According to the uncontradicted medical evidence presented to the ALJ, McLain has a 20-year history of an acute nervous disorder, including institutionalization for psychiatric problems. An internist, Dr. George Angov, who examined McLain in January, 1979, at the request of the Social Security Administration, made reference to McLain’s irritation with noise and people and concluded that his “[inadequate personality will be a major disabling factor.” McLain was referred by the Social Security Administration to Dr. Katherine V. Kemp, a psychiatrist, in May, 1979. Following this consultative examination, Dr. Kemp reported that McLain had a paranoid-like trend to his thinking and was “a somewhat marginal individual with multiple somatic complaints whose present state of reality testing approaches the psychotic.” It was Dr. Kemp’s opinion that McLain’s preoccupation with his multiple physical complaints was probably the only thing preventing a complete psychotic depressive break. She concluded that McLain could not interrelate with others and would be unable to withstand the pressures of the employment world without strong, supportive psychological treatment. In the fall of 1979, McLain was seen by another psychiatrist, Dr. U.L. Mallya, who confirmed that interpersonal relationships with others were difficult for McLain. Dr. Mallya’s diagnosis was neurotic depression with anxiety. He alluded to at least one unsuccessful attempt to alleviate McLain’s condition with antidepressant medication. The ALJ found that McLain’s primary impairment was his nervous disorder, but concluded that McLain was able to perform his previous salesman and security guard work activities in nonstressful environments. The ALJ further noted the existence of sales positions in the area, such as telephone order takers and sedentary security guard positions, which would not involve stress or crowds. Accordingly, the ALJ concluded that McLain could perform his previous work and was, therefore, not disabled. The district court subsequently found that this determination was supported by substantial evidence. From that decision, McLain appeals. II. On appeal, McLain contends that he presented a prima facie case of disability by showing that he was unable to perform his previous work. McLain further contends that the Secretary failed to show by particularized proof that McLain could perform an alternative job existing in significant numbers in the national economy. We agree with McLain with respect to. both of these contentions. The well-established procedure for arriving at a determination of disability under the Social Security Act places the initial burden of proof on the claimant to show that, because of his impairment, he is unable to perform his previous work. Once this prima facie showing of disability has been made by the claimant, then the burden of going forward shifts to the Secretary. To overcome a prima facie case of disability, the Secretary must establish that the claimant has sufficient residual functional capacity to engage in an alternative job existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B); Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980); Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir.1975). In this case we first must determine whether McLain has met his initial burden of establishing a prima facie case of disability. In addition to his own testimony confirming a history of nervous problems, the record reveals that McLain was being treated with medication for a nervous disorder by his personal physician. He was also examined by three other doctors, including two psychiatrists, who all agreed McLain had a psychiatric problem. One psychiatrist, Dr. Kemp, stated that he was borderline psychotic. Objective medical facts and the opinions and diagnoses of the treating and examining doctors constitute a major part of the proof to be considered in a disability case and may not be discounted by the ALJ. See Oppenheim v. Finch, 495 F.2d 396 (4th Cir.1974); Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir.1971); Underwood v. Ribicoff, 298 F.2d 850 (4th Cir.1962). In the present case the medical findings and opinions unanimously support the conclusion that McLain has a serious psychiatric disorder. It is clear that McLain’s impairment prevents him from performing the demands of his previous jobs as a salesman and security guard. Both of those jobs by their very nature involved stress and required interaction with others, which, as the evidence overwhelmingly shows, McLain is unable to tolerate. A return to either of those particular jobs is unquestionably foreclosed. In order to establish a prima facie case of disability, all that a claimant must ordinarily show is his inability to perform his past specific relevant jobs. We conclude that under the circumstances present in this case McLain has met this initial burden of proof. Cf. Wyatt v. Weinberger, 519 F.2d 1285, 1286-87 (4th Cir.1975) (claimant established a prima facie case of disability from nervousness, which prevented her from returning to her former job as a spinner in a textile mill); Taylor v. Weinberger, supra, at 666 (claimant presented a prima facie case of disability by showing she could not return to her former occupation as a clothes presser in a laundry). Because McLain established his prima facie case, the burden then shifted to the Secretary to come forward with proof of McLain’s capacity to perform alternate work. In this case the Secretary came forward with no evidence showing that, considering McLain’s age, education, work experience and impairment, there are jobs which he could perform. The reliance by the Secretary and the district court on McLain’s testimony that he would be willing and possibly able to try certain jobs is misplaced. This in no way satisfies the requirement of producing evidence of McLain’s skills and abilities and says nothing of the availability of work to match those abilities. The ALJ’s administrative notice of sales positions and. sedentary security guard positions, which would not involve stress or crowds, is totally insufficient in this case to establish, as the Secretary must, McLain’s specific vocational ability. Previous decisions of this Court have held that the testimony of a vocational expert is ordinarily required in order for the Secretary to meet his burden. Smith v. Califano, 592 F.2d 1235, 1236 (4th Cir.1979); Hall v. Harris, supra, at 264; Taylor v. Weinberger, supra, at 666. We find that the presence of a vocational expert continues to be particularly appropriate in a case such as this, which involves a nonexertional disability. See Wilson v. Califano, supra at 1053-1054. We, therefore, conclude that the case must be remanded to allow the Secretary to adduce appropriate proof to counter the claimant’s prima facie case. Of course, the claimant may also submit additional evidence to rebut the Secretary’s evidence or to supplement his own. III. For the foregoing reasons, the judgment of the district court is vacated and remanded, with instructions to remand to the Secretary for proceedings consistent with this opinion. VACATED AND REMANDED. . We recognize that the Supreme Court has recently approved the use of the Secretary’s medical-vocational guidelines in lieu of a vocational expert’s testimony in appropriate cases. Heckler v. Campbell, — U.S.-, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). These guidelines, however, “are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs,” and “may not be fully applicable where the nature of an individual’s impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e). As the Supreme Court in Campbell points out, “[i]f an individual’s capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered.... Thus, the regulations provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately.” Campbell, supra at -, n. 5, 103 S.Ct. at 1955, n. 5. See also, id at-, n. 11, 103 S.Ct. at 1958, n. 11. Because McLain has demonstrated the existence of a nonexertional impairment, resort to the medical-vocational guidelines would be inappropriate and the presence of a vocational expert will be required for the Secretary to establish McLain’s alternate vocational capacity. See Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). Question: Did the court rule for the government in an issue related to agency acquisition of information (e.g. physical inspections, searches, subpoenas, records, etc)? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, United Food and Commercial Workers Union, Local 222, AFL-CIO, CLC, Unincorporated Associations; William Schmitz, Frank Cassidy, Sally Sanchez, Leroy Bergin, Individuals; Millwright, Machinery & Erectors Local 1463, An Unincorporated Association, Appellees, v. IBP, INC., a Delaware Corporation, K.A. Orr, Governor of the State of Nebraska; Robert Spire, Attorney General; Colonel Harold LeGrande, Superintendent of the State Patrol; Raymond Brown, Commander of the Nebraska State Patrol for the area encompassing Dakota City; James Carmona, Adjutant General of the Nebraska National Guard, Appellants, Kurt A. Hohenstein, Dakota County Attorney. No. 87-2251. United States Court of Appeals, Eighth Circuit. Submitted May 10, 1988. Decided Sept. 8, 1988. Douglas Peterson, Asst. Atty. Gen., Lincoln, Neb., for appellants. Renee L. Bowser, Washington, D.C., for appellees. Before McMILLIAN, Circuit Judge, ROSS, Senior Circuit Judge, and LARSON, Senior District Judge. The HONORABLE EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation. LARSON, Senior District Judge. Three unions and union officials from one of the unions brought this declaratory judgment action challenging the validity of two Nebraska picketing statutes. The district court found a justiciable controversy was presented and ruled both statutes were unconstitutional. The court held the “numbers/distance provision” of Neb.Rev. Stat. § 28 — 1318(1)—(3) constituted a content-neutral regulation of pure speech that was facially overbroad. The court further held the “communications provision” of Neb. Rev.Stat. § 28-1317(l)(a) was a content-based regulation not limited to “fighting words” which violated the First and Fourteenth Amendments. On appeal, defendant state officials claim there is no case or controversy sufficient to establish jurisdiction and further that limiting constructions are available which would render both statutes constitutional. We find, for the reasons discussed below, that the case is properly before us for decision. We agree with the district court that the numbers/distance provision and the second clause of the communications provision are facially overbroad. We find, however, that the first clause of the communications provision prohibiting “threatening language” is readily subject to a narrowing construction limiting its application to “fighting words.” Accordingly, we uphold the “threatening” clause of section 28-1317(l)(a). I. FACTS Plaintiffs United Food and Commercial Workers International Union and United Food and Commercial Workers Local 222 (“the union”) have represented workers at the IBP, Inc., beef processing plant in Dakota City, Nebraska, for many years. In 1982, union members went out on strike after negotiators were unable to reach agreement on a contract with IBP officials. During the strike, the Dakota County Attorney specifically informed the union that Nebraska’s mass picketing law would be enforced. Violence erupted, and numerous arrests were made. Some picketers were charged with violating the numbers/distance provision of Neb.Rev.Stat. § 28 — 1318(1)—(3), which prohibits “any form of picketing in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets.” At the end of 1986, the union again engaged in a labor dispute with IBP. Prior to the expiration of the collective bargaining agreement in December, 1986, union representatives met with state law enforcement officials to discuss strike procedures in the event of another strike. Union representatives expressed their view that the provisions of the Nebraska mass picketing law were unconstitutional, based upon a federal district court decision striking down similar provisions of Texas law. The Dakota County Attorney told the union that until the Nebraska law was found unconstitutional or the law was changed, he would have to enforce it. Officials from the Nebraska State Patrol said nothing to contradict the county attorney’s position regarding the statutes, and specifically did not disavow an intention to enforce the law during the ensuing labor dispute. In December, 1986, IBP locked out the Dakota City employees, and the union went on strike. During the strike, the county attorney notified the union both orally and in writing of his power and responsibility to enforce the mass picketing law. He informed the union that he would not literally enforce the law unless there were “problems,” and, acting in cooperation with the Nebraska State Patrol, he determined the allowable parameters of the union’s picketing activity. At times, he denied the union access to the side of the plant where employees would exit after work. Other times, he allowed technical violations of the law to occur. For example, he located the union’s picket shacks closer than fifty feet to each other, and he permitted 25 to 26 demonstrations to occur, subject to guidelines he had imposed. All of the union’s picketing activity was subject to his approval, however, and because of their fear of arrest, union members picketed within the confines of the county attorney’s directions. No arrests or prosecutions under the challenged statutes occurred, and the dispute between the union and IBP was eventually resolved. In April, 1987, plaintiff Millwright, Machinery & Erectors Local 1463 conducted an area standards picket protesting the payment of less than union scale wages at the United Parcel building in Omaha, Nebraska. The union and its picketers were aware of the Nebraska mass picketing statutes and picketed within the restrictions imposed by the numbers/distance provision. The company marked fifty foot intervals at the site and a police officer reviewed the location of the pickets during the strike. No arrests or threats of arrest were made. Approximately one week after commencing picketing, the union discontinued its activities because it perceived that picketing within the statutory restrictions was ineffective. A union official testified that picketing would be resumed in furtherance of the union’s area standards message were it not for the limitations imposed by the numbers/distance provision. II. JUSTICIABILITY Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, plaintiffs sought a declaration from the district court that both the numbers/distance and the communications provisions of the Nebraska mass picketing law were unconstitutional. Relief under the Declaratory Judgment Act is available only when an “actual controversy” is presented. This statutory limitation is equivalent to the constitutional limitation that federal courts may exercise jurisdiction only over actual “cases or controversies.” U.S. Const. art. III, § 2 cl. 1; Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir.1978). A “case or controversy” is presented when the “conflicting contentions of the parties... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citing Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945)). The difference between an abstract question and a “case or controversy” is necessarily one of degree and must be determined by a review of the facts presented in each case. Babbitt, 442 U.S. at 297, 99 S.Ct. at 2308; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). After considering the circumstances presented in this case, the district court held there was a justiciable case or controversy because plaintiff unions possessed the requisite standing and the issues were not moot. The doctrines of standing and mootness are distinct but related aspects of justiciability under Article III. The doctrine of standing focuses on whether the plaintiff before the court is the proper party to request adjudication of a particular issue. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1038 (8th Cir.1988). The purpose of the standing requirement is to ensure the parties have “such a stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir.1988). In order to establish they have standing to sue, plaintiffs must show they have suffered “some actual or threatened injury” fairly traceable to the challenged conduct of the defendants that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Defenders of Wildlife, at 1039; McLain, at 1048. Plaintiffs must possess the requisite injury with respect to each of the statutes they wish to challenge. See Babbitt, 442 U.S. at 292, 99 S.Ct. at 2305. Defendants argue there is no actual or threatened injury in this case because no picketers were arrested, prosecuted, or threatened with prosecution during the United Food and Commercial Workers’ most recent picketing activities, even though violations of the numbers/distance provision occurred at the IBP site. This argument misapprehends the nature of the injury in fact requirement. Plaintiffs need not expose themselves to actual arrest or prosecution if they legitimately possess more than an “imaginary or speculative” fear of prosecution. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309; Steffel, 415 U.S. at 459, 94 S.Ct. at 1215. In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Court found an actual controversy where a plaintiff had twice been warned to stop distributing handbills and had been told that, if he continued to pass out leaflets, he would likely be prosecuted. His companion was in fact prosecuted, and the Court held this evidence constituted “ample demonstration that petitioner’s concern with arrest has not been ‘chimerical.’ In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Id. at 459, 94 S.Ct. at 1215-1216. But for the existence of the challenged statute, the petitioner would have continued his leafleting activities; his injury was sufficiently concrete to confer standing. The Tenth Circuit has also found sufficient injury to confer standing where a plaintiff refrained from continuing conduct which had precipitated past arrest for fear of rearrest. Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987). The court found the plaintiff suffered not only the threat of future prosecution, but an ongoing injury resulting from the statute’s chilling effect on his desire to exercise his First Amendment rights. Id. Other courts have found sufficient threatened injury to confer standing even when government officials disclaimed an intention to prosecute because of concerns about a statute’s constitutionality, because they would not rule out such prosecution. See KVUE, Inc. v. Moore, 709 F.2d 922, 928-30 (5th Cir.1983), aff'd, 465 U.S. 1092, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984). In this ease, the county attorney indicated clearly to the United Food and Commercial Workers Union his authority to enforce the picketing laws and acted throughout the union’s strike against IBP to curtail the union’s picketing activities. Union official William Schmitz testified that but for the existence of the Nebraska picketing statutes and the county attorney’s statements regarding enforcement, the union would have had more people picketing, would have had more people stationed at the entrances to the plant, and would have held more demonstrations. Schmitz limited picketing activities and organized picketers in accordance with the county attorney’s directions to avoid “problems,” which the county attorney had warned would trigger enforcement of the statutes. Union members had reason to fear arrest based upon past experience: members had been arrested and prosecuted for violation of the numbers/distance provision in 1982. Contrary to defendants’ argument, we believe such past experience is relevant to determining the existence of a present threatened injury. See City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 2508 n. 7, 96 L.Ed.2d 398 (1987); O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974); Wilson, 819 F.2d at 946. Past arrests or threats of arrest, while relevant, are not necessary to establish the justiciability of plaintiffs’ claim, however, and we reject defendants’ contention that the lack of any previous arrests under the communications provision precludes plaintiffs’ current challenge to that statute. Where plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement. In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), for example, the Supreme Court accepted jurisdiction over a school teacher’s challenge to an Arkansas law which prohibited the teaching of the theory of evolution or the use of any textbook that teaches the theory. School administrators had selected a coursebook containing a chapter on evolution for use in the next academic year. Although the statute had never been enforced, the Court reached the merits of plaintiff’s challenge, finding she faced “at least a literal dilemma because she was supposed to use the new textbook... but to do so would be a criminal offense and subject her to dismissal.” Id. at 100-02, 89 S.Ct. at 268-69. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court also found a justiciable controversy and held physicians had standing to challenge Georgia statutes which made abortion a crime “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes.” Id. at 188, 93 S.Ct. at 745. See Carey v. Population Services International, 431 U.S. 678, 682-84, 97 S.Ct. 2010, 2014-15, 52 L.Ed.2d 675 (1977); Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 504-08, 92 S.Ct. 1749, 1754-56, 32 L.Ed.2d 257 (1972). Lower courts have followed suit. The Fifth Circuit has flatly stated: “[tjhat the statute has not been enforced and that there is no certainty that it will be does not establish the lack of a case or controversy.” KVUE, Inc., 709 F.2d at 930. See International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 817-19 (5th Cir.1979). This court has also entertained constitutional challenges where the statute clearly applies to the plaintiff, and the plaintiff has stated a desire not to comply with its mandate. See Pursley v. City of Fayetteville, 820 F.2d 951, 953, 957 (8th Cir.1987); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir.1978). Commentators agree with this result: “[wjhere the enforcement of a regulatory statute would cause plaintiff to sustain a direct injury, the action may properly be maintained, whether or not the public officer has ‘threatened’ suit; the presence of the statute is threat enough,” at least where the challenged statute is not moribund. 6A Moore’s Federal Practice, paragraph 57.18[2] at 57-189 (2d ed. 1987). See Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1342 n. 1 (9th Cir.1980), aff'd, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). In Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), the Supreme Court found a case or controversy presented by a union’s challenge to the consumer publicity provisions of a comprehensive statute governing agricultural employment relations in circumstances very similar to those presented by the union’s challenge to the communications provision in this case. The publicity provision prohibited the use of “dishonest, untruthful and deceptive publicity.” The union had engaged in publicity campaigns, had alleged an interest in continuing to do so, and claimed that “erroneous statement [was] inevitable in free debate.” Id. at 301, 99 S.Ct. at 2310 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964)). Defendants argued the unfair labor practice of dishonest consumer publicity may never be prosecuted as a criminal violation, but the Court found a case or controversy presented based upon the union’s contention that its members were being forced to forgo the full exercise of their First Amendment rights. Id. at 302, 99 S.Ct. at 2310. The communication provision in the case at bar prohibits the interference or attempted interference with persons in the exercise of their right to work by using threatening language or by persisting in talking to or communicating in any manner with them for the purpose of influencing or attempting to influence them to quit their employment. Neb.Rev.Stat. § 28-1317(l)(a). The provision plainly circumscribes union members’ speech to strikebreakers, and the union alleges that its members’ knowledge of the statute, combined with the restrictions imposed on access to the entrance used by working IBP employees during the most recent strike, effectively curtailed the striking workers’ right to communicate with workers hired by IBP to replace them and caused them to forgo the full exercise of their First Amendment rights. Despite the obvious parallels with Babbitt, defendants distinguish the circumstances in Babbitt from those presented here on the ground that in Babbitt the state had not disavowed any intention of invoking the statute against the union, whereas in this case the state has submitted affidavits of the Major General of the Nebraska National Guard, the Colonel of the Nebraska State Patrol, and the Attorney General which state the above officials have no “present plan” to enforce either the numbers/distance or the communications provisions of the Nebraska picketing law in the labor dispute between the union and IBP. The district court rejected this evidence as showing “no more than a hesitant, qualified, equivocal and discretionary present intention not to prosecute,” the clear implication of which was that the state’s position could well change. We too reject defendants’ argument that their affidavits deprive the court of jurisdiction to decide plaintiffs’ claims. It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Thus, in City of Mesquite, the Supreme Court refused to dismiss a constitutional challenge to an ordinance which had been repealed, since the Court found the repeal “would not preclude [the city] from reenacting precisely the same provision if the District Court’s judgment were vacated.” 455 U.S. at 289, 102 S.Ct. at 1075. See Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.1985). Other courts have refused to dismiss cases where a governmental body discontinued a wrongful practice and promised not to resume it, since “[p]resent intentions may not be carried out,” and “it is not certain that changes in leadership or philosophy might not result in reinstitution of the [challenged] policy.” Phillips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 569-70 (3d Cir.1981), cert. denied, 455 U.S. 924, 102 S.Ct. 1284, 71 L.Ed.2d 466 (1982). See Solomon v. City of Gainesville, 763 F.2d 1212, 1213 (11th Cir.1985) (city commission’s direction to discontinue any and all prosecutorial action now and in the future with respect to plaintiffs activities does not deprive court of jurisdiction). Defendants in this case did not disclaim their intent to enforce the Nebraska picketing statutes until the day of the hearing on the union’s motion for a temporary restraining order, and then said only they had no present intention to enforce the statutes with respect to the then-current dispute between IBP and the union. Because defendants — even by their own statements — are “free to return to [their] old ways,” the public interest in having the legality of the statutes settled prevents a finding of nonjusticiability in this case. City of Mesquite, 455 U.S. at 289 n. 10, 102 S.Ct. at 1074 n. 10; W.T. Grant & Co., 345 U.S. at 632, 73 S.Ct. at 897. See 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, § 3533.7 at 359 (1984). Both the numbers/distance and communications provisions by their terms apply directly to plaintiffs’ picketing activity. Plaintiffs have picketed in the past and been subjected to threats of arrest as well as actual arrest under the numbers/distance provision. They will very likely picket again, and when they do, they desire to engage in conduct violative of both provisions, yet arguably protected by the constitution. The statutes are not moribund and the state’s only disclaimer of enforcement does not by its terms apply to future strike activity. Under these circumstances, we find that plaintiffs are not simply attempting to obtain an advisory opinion or to enlist the court in a general effort to purge the Nebraska statute books of unconstitutional legislation. Rather, we find their interests sufficiently adverse to the defendants with respect to both the numbers/distance and the communications provisions to present a case or controversy within the court’s jurisdiction. III. THE MERITS We turn now to the merits of plaintiffs’ challenge. We first consider the numbers/distance provision of Neb.Rev. Stat. § 281318(1) — (3), which prohibits as “mass picketing” any form of picketing “in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets.” Originally enacted in 1949, Neb.Rev.Stat. § 28-1318 has never been authoritatively construed by the Nebraska courts. The district court construed the numbers/distance provision as a time, place, and manner restriction on expressive activities in a public forum. Recognizing a legitimate state interest in the regulation of violence, the court nonetheless found there was no clear danger of violence presented by the type of picketing prohibited, i.e., two persons standing within fifty feet of each other or within fifty feet of a company entrance. Moreover, the court held the state had failed to show the statute was the least restrictive means of preventing violence, noting the state had ample alternative means of achieving this end. The court thus concluded section 28-1318’s numbers/distance provision was facially over-broad. Defendants challenge this conclusion on appeal, arguing primarily that a narrowing construction of the statute could be adopted which would avoid the constitutional difficulties. Defendants suggest the numbers/distance provision could be interpreted to apply only when picketing has become violent or involves violence. Ami-cus urges the court to read the fifty foot formula as applicable only when ingress or egress is obstructed. We recognize that the overbreadth doctrine is “strong. medicine” to be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). A statute is not overbroad unless the overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. Id. at 615, 93 S.Ct. at 2917. See Boos v. Barry, — U.S. -, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1988); City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987). Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. Boos, 108 S.Ct. at 1168-69; Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. Thus, a state statute should be deemed facially invalid only if (1) it is not readily subject to a narrowing construction by the state courts and (2) its deterrent effect on legitimate expression is both real and substantial. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). In considering the possibility of a narrowing construction, however, the court must bear in mind that federal courts are generally without authority to construe or narrow state statutes. Boos, 108 S.Ct. at 1168; Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). “Federal courts ‘do not sit as a ‘super’ state legislature, [and] may not impose [their] own narrowing construction... ’ if the state courts have not already done so.” Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir.1986), aff'd, — U.S. -, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). In Boos v. Barry, — U.S. -, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), the Supreme Court considered the constitutionality of a provision of the D.C.Code which prohibited congregating within 500 feet of an embassy and refusing to leave after being ordered to do so by law enforcement officials. The Court of Appeals had narrowly construed the statute to apply only to situations in which “the police reasonably believe that a threat to security or peace of the embassy is present.” Id. 108 S.Ct. at 1168. The Supreme Court approved this narrowing construction, emphasizing that the D.C.Code could properly be narrowed by the Court of Appeals since it was enacted by Congress, not by a state legislature, and federal courts had both the power and the duty to adopt narrowing constructions of federal legislation. Id. at 1168-69. Our role in this case, given that we are presented with a challenge to a state statute which has not been authoritatively construed, is to determine whether the constructions of section 1318’s numbers/distance provision urged by defendants and amicus are “reasonable and readily apparent.” Id. at 1168. See Hill v. City of Houston, 789 F.2d at 1112. After careful examination, we conclude they are not. Nothing in the language of section 1318 suggests the fifty foot limitations apply only in circumstances of violence or in situations where ingress or egress is being restricted. In fact, the language of the statute suggests to the contrary, since to hold the limitations applied only where ingress or egress is restricted would render superfluous that portion of the statute specifically directed to restrictions on ingress or egress. See Neb.Rev.Stat. § 28-1318(1). Nebraska courts consider all parts of an act relating to the same subject in construing a particular statute, and will interpret each part so as to avoid rejection of a sentence, clause, or word as superfluous, since the legislature is presumed to have intended every provision of a statute to have meaning. See, e.g., Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173, 177 (1985); Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186, 188 (1984). The available legislative history of section 1318 is inconclusive. While it suggests legislators were concerned with the violence and restrictions on access to premises which had occurred in prior strikes in Omaha, it also reveals an awareness that the statute’s reach was broader than those concerns. See Minutes of the Senate Government Committee Meeting, March 23, 1949. Finally, there is no consistent enforcement history which supports the narrowing construction urged by the state, and the record reveals the statute has been literally enforced at least as recently as 1982. Under these circumstances, we find it beyond our power as a federal court to rewrite the broad, straightforward language of the numbers/distance provision to avoid the constitutional difficulties presented by the plain meaning of its terms. See City of Houston, 107 S.Ct. at 2513-15; Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). We agree with the district court that as written section 28-1318’s numbers/distance provision is facially over-broad. See Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 558-61 (5th Cir.1988) (striking down similar provision of Texas law). Plaintiffs also challenge the communications provision of section 1317(l)(a), which penalizes the interference or attempted interference with any person’s exercise of his or her lawful right to work or right to enter upon or pursue any lawful employment by (1) using threatening language toward such person or the person’s family for the purpose of influencing such person to quit or refrain from seeking certain employment, or (2) by persisting in talking to or communicating in any manner with such person or members of the person’s family against their will for a similar purpose. In view of the other provisions of the statute which govern conduct, see Neb.Rev. Stat. §§ 28-1317(1)(b)-(e) (1985), we agree with the district court that the communications provision is clearly intended to apply to matters of speech. See City of Houston, 107 S.Ct. at 2508-09; United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983); Cohen v. California, 403 U.S. 15, 18-19, 91 S.Ct. 1780, 1784-85, 29 L.Ed.2d 284 (1971). That the speech is unwelcome does not deprive it of protection. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982); Cohen, 403 U.S. at 26, 91 S.Ct. at 1788; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971). “Speech is often provocative and chal-lenging_ [But it] is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” City of Houston, 107 S.Ct. at 2509 (citing Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949)). “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminello, 337 U.S. at 4, 69 S.Ct. at 896. The government may regulate speech in a public forum only if the restrictions “are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.” Grace, 461 U.S. at 177, 103 S.Ct. at 1707 (citations omitted). “Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” Id. For the state to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Frisby v. Schultz, — U.S. -, -, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988) (citing Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). When a regulation allegedly infringes upon the exercise of First Amendment rights, “the proponent of the regulation must demonstrate that the government’s objectives will not be served sufficiently by means less restrictive of first amendment freedoms.” ACORN v. City of Frontenac, 714 F.2d 813, 818 (8th Cir.1983). . The pivotal issue in this appeal with respect to the communications provision is whether the provision is readily susceptible to a construction which is narrowly tailored to achieve the state’s interest in preventing violence. Defendants argue section 1317(l)(a) can be construed to apply only to “fighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 569, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). So construed, the statute would not be facially overbroad, since “such utterances are of no essentia] part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. As with section 1318, our role is not to redraft the statute, but rather to “extrapolate its allowable meaning.” Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). See Boos, 108 S.Ct. at Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". METROPOLITAN PROPERTY AND LIABILITY INSURANCE CO., Plaintiff, Appellant, v. Bonnie McCosker KIRKWOOD, et al., Defendants, Appellees. No. 83-1503. United States Court of Appeals, First Circuit. Argued Dec. 8, 1983. Decided March 15, 1984. Sterling H. Schoen, Jr., Manchester, N.H., with whom Wiggin & Nourie, Man-Chester, N.H., was on brief, for plaintiff, appellant. N. Michael Plaut and H. Neil Berkson, Keene, N.H., with whom Bragdon, Berkson & Mangones, Keene, N.H., were on brief, for Bonnie McCosker Kirkwood. Before COFFIN and BREYER, Circuit Judges, and MALETZ, Senior Judge. Of the United States Court of International Trade, sitting by designation. BREYER, Circuit Judge. On April 19, 1982, James Kirkwood shot and killed his stepson, shot and wounded his wife, and then committed suicide. His wife, acting for herself and her son’s estate, sought damages from Kirkwood’s estate. She and the Kirkwood estate joined in asking Metropolitan Property and Liability Insurance Company to pay the damages according to the terms of Kirkwood’s homeowner’s insurance policy. Metropolitan believed it was not liable, for the policy covered only negligently inflicted, not .intentionally inflicted, injuries. And Metropolitan brought a declaratory judgment action against both wife and estate in federal district court, seeking a determination that Kirkwood had acted intentionally, not negligently. Kirkwood’s wife then filed her tort claim against the estate in New Hampshire state court. She claimed (on her own and her son’s behalf) that Kirkwood had either acted intentionally or (being drunk) acted negligently. In either event, the estate would be liable. The estate removed the ease to federal court. When the federal judge hearing the declaratory judgment action learned about the tort suit, he dismissed the declaratory judgment action. He reasoned that the issues could be resolved at least as well, if not better, in the tort action. Metropolitan appeals from this dismissal. We conclude that Metropolitan is correct and reverse the district court’s dismissal of the declaratory judgment action. The hornbook law about hearing or dismissing declaratory judgment actions tends to be written in highly general terms. In deciding whether to exercise the power to grant declaratory judgment, given to them by 28 U.S.C. § 2201 and Fed.R.Civ.P. 57, courts look to see whether the declaratory judgment will serve the interests of the litigants or the public. Public Affairs Associates v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 581, 7 L.Ed.2d 604 (1962) (per curiam); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2759, at 645-51 (2d ed. 1983). Do considerations of efficiency, fairness and practical convenience for the court and parties warrant the court’s granting a declaration of rights? Interdynamics, Inc. v. Wolf, 698 F.2d 157, 167 (3rd Cir.1982). Will a declaratory judgment help clarify the legal questions at issue? Will it relieve the uncertainty or insecurity that gave rise to the dispute? President v. Vance, 627 F.2d 353, 364 n. 76 (D.C.Cir.1980); Alsager v. District Court, 518 F.2d 1160, 1163-64 (8th Cir.1975); 10A C. Wright, A. Miller & M. Kane, supra, § 2759, at 646-51 (quoting E. Borchard, Declaratory Judgments 299 (2d rev. ed. 1941)). Will the action expedite resolution of the underlying dispute? See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126-28, 88 S.Ct. 733, 746-747, 19 L.Ed.2d 936 (1968). In reviewing a district court’s application of these principles in a particular case, the courts of appeals have examined the record quite closely to decide whether the court’s decision was “sound” in the circumstances. Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir.1981); Hanes Corp. v. Millard, 531 F.2d 585, 591 (D.C.Cir.1976). Case law has given these general principles a somewhat more specific meaning in the context of insurance disputes. Courts have consistently refused to entertain a declaratory judgment action about insurance coverage when a tort action could resolve the same factual issues. E.g., Indemnity Insurance Co. of North America v. Schriefer, 142 F.2d 851, 853-54 (4th Cir.1944); Employers’ Fire Insurance Co. v. Beals, 103 R.I. 623, 630-31, 240 A.2d 397, 402 (1968); A. Windt, Insurance Claims and Disputes § 8.04 (1982); 10A C. Wright, A. Miller, & M. Kane, supra, § 2760, at 665. This practice prevents duplicative proceedings, may allow the insured his choice of forum, and avoids the danger of inconsistent judgments. The Fourth Circuit, however, has noted an important exception — an exception that was not called to the attention of the district court. In Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir.1962), it upheld a district court’s decision not to dismiss a declaratory judgment action when a conflict of interest existed that would have prevented the insurance company from managing the insured’s defense in an underlying tort suit. In that case, as here, the insured was covered for negligently inflicted, but not intentionally inflicted, injury. The court reasoned that the declaratory judgment action would decide whether the policy required the insurer to defend the tort action. Thus, deciding the declaratory judgment action first would allow the tort action to be tried without the potential conflict between the interests of the insurance company and the insured that would otherwise arise. The case before us is virtually the same as Stout. In this case, however, the district court decided to dismiss, rather than to retain, the declaratory judgment action. Thus, we must ask whether the particular facts of this case allow the district court to reach a different result than in Stout. We conclude that they do not for two reasons. For one thing, the district court’s opinion itself suggests that the decision does not rest upon detailed knowledge of any individual facts and circumstances relating to this case; nor did the court rely upon its practical familiarity with litigating rules, procedures or their consequences. Rather, the district court simply relied upon the general “declaratory judgment” rule in insurance cases; it did not mention the Stout exception; and oral argument here revealed that no one called this exception to the district court’s attention. Had someone done so, the court might well have decided differently. For another thing, the procedural facts that the parties have brought to our attention suggest that this litigation will proceed with significantly greater efficiency if the declaratory judgment action is tried first. The basic issue in dispute apparently is not whether the estate is liable, but whether liability flows from negligent, or intentional, action. This issue can be tried directly in the declaratory judgment proceeding. Trial by jury is available. Fed.R.Civ.P. 57. All interested persons are parties to that proceeding. A decision will bind them all. Although Kirkwood’s wife and estate would prefer a tort trial, they have not explained how the declaratory judgment proceeding could otherwise work to their disadvantage. The tort track, however, seems more complicated. The. papers before us suggest that Metropolitan is not formally a party in that suit (though it may be helping the estate with its defense). We are uncertain whether all relevant parties (Metropolitan, the estate, and the wife in both her capacities) can be brought together in that suit. Metropolitan might seek to intervene, Fed.R.Civ.P. 24; the estate might seek to implead it, Fed.R.Civ.P. 14; but if Metropolitan and the estate are unwilling, the wife seems unable to bring the insurance company into the tort suit. St. Paul Fire & Marine Insurance Co. v. Mannie, 91 F.R.D. 219, 221 & n. 3 (D.N.D.1981) (joinder unavailable in diversity case if applicable state law prohibits direct action against insurer); see Burke v. Fireman’s Fund Insurance Co., 120 N.H. 365, 367-68, 415 A.2d 677, 678-79 (1980) (New Hampshire law prohibits direct action). If Metropolitan is not a party to the tort suit, it is unlikely to be bound by the judgment. Cf. Burd v. Sussex Mutual Insurance Co., 56 N.J. 383, 267 A.2d 7, 10 (1970) (insurer may dispute coverage when it refuses to defend underlying tort action). That is because its interest — that liability rest on intent — conflicts directly with that of the estate, which would likely prefer that liability rest on insured negligence. And, case law suggests that an insurer can relitigate the liability issue if a conflict prevents it from controlling the insured’s initial defense. Farm Bureau Mutual Automobile Insurance Co. v. Hammer, 177 F.2d 793, 799-801 (4th Cir.1949), cert. denied, 339 U.S. 914, 70 S.Ct. 575, 94 L.Ed. 1339 (1950); Kelly v. Cherokee Insurance Co., 574 S.W.2d 735, 737 (Tenn.1978); A. Windt, supra, § 6.19, at 264-65 & n. 151; Restatement (Second) of Judgments §§ 57, 58 (1982). Regardless, even if Metropolitan were formally a party to the tort action, the parties have not explained how the tort action could proceed so as to avoid the risk of litigating the liability issue twice. We recognize that to proceed with the declaratory judgment action deprives Kirkwood’s wife of her choice of proceedings. Yet, we are aware of no law giving her an absolute preference. The declaratory judgment rule, Fed.R.Civ.P. 57, states that an action can be maintained despite the “existence of another adequate remedy.” Id. The reasons for granting such a judgment are stronger where, as here, the alternative appears neither simple nor totally adequate. Because the declaratory judgment route provides a fairly straightforward way to resolve the underlying controversy, because neither wife nor estate points to harm or prejudice, and because the tort alternative, based on the parties’ description of it here, may contain significant pitfalls, we conclude that Stout should govern. The judgment of the district court is therefore Reversed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party VERSYSS INCORPORATED, Plaintiff, Appellant, v. COOPERS AND LYBRAND, ETC., et al., Defendants, Appellees. No. 92-1212. United States Court of Appeals, First Circuit. Heard July 31, 1992. Decided Dec. 30, 1992. Patrick J. Sharkey, Henry A. Sullivan, John F. Sylvia, and Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., Boston, MA, were on brief, for plaintiff, appellant. Steven W. Phillips, Christian M. Hoffman, Peter M. Casey and Foley, Hoag & Eliot, Boston, MA, were on brief, for defendants, appellees. Before TORRUELLA, CYR and BOUDIN, Circuit Judges. BOUDIN, Circuit Judge. This case presents a common problem in statutory interpretation. Congress drafted a law that clearly embraces some transactions, clearly excludes others, and is now brought to bear on a transaction that Congress probably did not consider. We are left to make a judgment based on clues garnered from statutory language, legislative history, purpose and policy. In our view, the transaction at issue does not fit comfortably within the statutory language, and no clear policy or precedent encourages courts to extend that language beyond its normal bounds. I. On May 17, 1985, Continental Telecom, Inc. (“Contel”) entered into a merger agreement with Northern Data Systems, Inc. (“NDS”). The agreement provided that NDS would be merged into a newly created subsidiary of Contel and, in exchange, NDS stockholders would receive Contel stock. Both Contel and its merger subsidiary were Delaware corporations; NDS was a Massachusetts corporation. At the time of the merger agreement, NDS stock was publicly traded. Previously, a registration statement under the Securities Act of 1933 had been filed with the Securities and Exchange Commission in connection with an August 1984 public offering of NDS stock. See sections 5-16, 15 U.S.C. §§ 77e-77p. The merger was approved by NDS stockholders, and NDS was merged into the Contel subsidiary on July 16, 1985. In accordance with the merger agreement, Contel's subsidiary as the surviving corporation acquired effective ownership of the assets, and responsibility for the debts, of the former NDS. The merger agreement provided that on the date of the merger, the “separate corporate existence of NDS shall terminate.” Thereafter, in accordance with the merger agreement, the former NDS stockholders sent in their now defunct NDS stock certificates to Contel’s exchange agent and received their Contel stock certificates. Subsequent to the merger, Contel concluded that the NDS registration statement had contained materially misleading financial information, including information certified by the accounting firm of Coopers & Lybrand. Although the registration statement had been issued before the merger, section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, imposes (subject to certain limitations) continuing liability for misstatements or material omissions in registration statements; after the registration statement becomes effective, a federal damage action may be brought, by “any person acquiring such security,” against any of a list of specific responsible persons, including the certifying accounting firm. Section 11(a), 15 U.S.C. § 77k(a). Accordingly, the present suit, now conducted by Versyss Incorporated as Contel’s assignee, was brought against the accounting firm of Coopers & Lybrand. In the district court, Coopers & Lybrand moved for summary judgment on the ground that Contel did not qualify as a section 11 plaintiff because it had not “acquired [NDS] securities].” Patently, Con-tel “acquired” something in exchange for the many Contel shares it issued in the merger, so the focus of the dispute is upon the term “security.” Pointing to the transfer of the NDS certificates, Yersyss claimed that NDS securities were acquired by Contel through the merger. The district court, adopting Cooper & Lybrand’s view of the matter, held that the NDS stock certificates were an empty shell not qualifying as a “security” and that the essence of what Contel received was the assets and liabilities of the former NDS. The district court then granted summary judgment for Coopers & Lybrand on the section 11 claim, dismissing pendant state claims without prejudice. This appeal followed. II. Statutory construction begins with statutory language. The language in this case is straightforward: section 11 of the Securities Act of 1933, so far as pertinent here, creates a federal cause of action in favor of a purchaser “acquiring a security” after a false or misleading registration statement for that security has gone into effect unless the defendant makes out a statutory defense comprising, in general terms, reasonable inquiry and good faith belief. Sections 11(a)(4), (b), 15 U.S.C. §§ 77k(a)(4), (b). The term “security” is defined in both the Securities Act of 1933 and Securities Exchange Act of 1934, provisions which despite differences in language are construed alike. Landreth Timber Co. v. Landreth, 471 U.S. 681, 686 n. 1, 105 S.Ct. 2297, 2301 n. 1, 85 L.Ed.2d 692 (1985). Nothing in the language of the definitions precisely resolves the present issue except so far as the variety and breadth of the definitions encourage a broad construction. But terms, even broadly construed, have outer limits, and those limits are strained badly by describing what Contel acquired through the merger as a “security." On the date of the merger, and before any NDS stock certificates were to be transferred to Contel’s exchange agent, NDS ceased to exist as a corporation. This is ordinary merger-law jurisprudence (Frandsen v. Jensen-Sundquist Agency, Inc., 802 F.2d 941, 944 (7th Cir.1986) (“in a merger the shares of the acquired firm are not bought, they are extinguished”)) and accords with the Contel-NDS agreement already quoted. Delaware’s merger statute follows this pattern, providing that in a merger “the separate existence ... of all such constituent corporations except the one into which the other or others ... have been merged ... shall cease____ [and] all property ... shall be vested in the corporation surviving____” Del. Code Ann. tit. 8, § 259(a). Accord, Mass.Gen.Laws Ann. ch. 156B, §§ 80(a)(1), (5). Under the same statutes and the merger agreement, upon the merger the assets and liabilities of NDS became those of the surviving Contel subsidiary. It follows that, when the merger became effective, NDS stock underwent a considerable transformation. At that point, the NDS stock certificates ceased to represent an investment interest in the separate assets of NDS (since it no longer existed), ceased to reflect voting rights in the management of NDS (since NDS ceased to have a management), and ceased to comprise a claim to dividends declared from NDS earnings (since no such dividends could be issued). In sum, for the NDS stock the essential characteristics of securities ceased to pertain. “[A]t the moment a stock for stock merger is effective, the stock in a constituent corporation (other than the surviving corporation) ceases to exist legally.” Shields v. Shields, 498 A.2d 161, 168 (Del.Ch.), appeal refused, 497 A.2d 791 (Del.1985). If this view is taken, then — when the former NDS stockholders turned in their NDS certificates after the merger — what Contel received was not “securities.” At worst, the certificates were wall-paper; at best, they represented evidence that the parties who surrendered the certificates were prior owners of NDS stock, entitled by virtue of the merger agreement to be paid the Contel stock promised as consideration. Nor does Contel’s position improve if one views the situation at the time after the merger agreement was signed but before the merger was consummated. It may be that for some purposes a contract to acquire securities can be treated as an acquisition. Cf Sections 3(a)(13)-(14) of the 1934 Act, 15 U.S.C. §§ 78c(a)(13)-(14). But, as the trial judge pointed out, the merger agreement in this case between Contel and NDS was not a step on the road to Contel’s acquiring of NDS securities but rather was an agreement to merge NDS out of existence. There is a second piece of evidence, culled from the statutory language, that hinders Versyss’ claim. Section 11 provides a damage formula for the cause of action it creates. Simplifying somewhat, Section 11(e) provides that the recovery is to be the difference between the (presumptively higher) price paid for the security when acquired by the plaintiff-buyer and either of three (presumptively lower) numbers: “(1) the value thereof [of the security] as of the time such suit was brought, or (2) the price at which such security shall have been disposed of in the market before suit, or (3) the price at which such security shall have been disposed of after suit but before judgment____” 15 U.S.C. § 77k(e). This language assumes a buyer of securities who pays a price for and receives securities. Then, finding that the securities are worth less than the price paid, the buyer brings suit either for the loss of value or, if the buyer sells before suit or before judgment, for the loss suffered on account of the reduced sale price received by the buyer on resale. In sum, the continuation of the acquired securities in the hands of the plaintiff-buyer is a premise of the damage calculation. Yet in this case the NDS securities ceased to exist at the time of merger because the corporation ceased to exist. It would be fantasy to speak of the nonexistent NDS securities as suffering a post-merger decline in value or being resold for less than the purchase price. Doubtless some formula could be jury-rigged to replicate the substance of section 11(e), were the merger to be treated as an acquisition of NDS securities by Contel. After all, if Contel acquired all of the NDS securities in a tender offer and then merged the company into its subsidiary, securities would have been “acquired” and an arguable claim would exist under section 11. But the statutory damage provision does limn the transactions toward which Congress directed section 11; and, as we have just seen, the extinction of NDS securities incident to the merger conflicts with section ll’s premise of continuity. Viewing the case from the standpoint of damages may itself underscore the nature of Contel’s real complaint: that effective upon the merger it acquired a package of assets and liabilities formerly pertaining to NDS that was worth less than Contel had been led to believe. III. Words normally have some elastic in their makeup. Courts in other cases have stretched language further than Versyss asks us to do in this case. If legislative history or purpose encouraged that result, the question here might be a close one. The difficulty is that an inquiry into history and purpose, if instructive at all, favors the more literal reading of the statute adopted by the district court. The background of the 1933 Act is familiar history. During the stock market boom that preceded the Great Depression, a wave of speculation drove up the largely unregulated market in securities. When the market collapsed in 1929, “[fjully half ... of the securities floated during this period ... proved to be worthless. These cold figures spell[ed] tragedy in the lives of thousands of individuals who invested their life savings, accumulated after years of effort, in these worthless securities.” H.R.Rep. No. 85, 73rd Cong., 1st Sess. 2 (1933). The most notorious example was Samuel Insull’s sale of several million shares of utility stock to the public. The stock, sold to family members and friends of Insull at $12 or less, opened at $30 in the market and climbed to $149 a share, before it collapsed — to the detriment of a million stock and bondholders. Joel Seligman, The Transformation of Wall Street 21-23 (1982). One of the “foremost” causes of such losses was, in the view of Congress, “the failure to furnish essential information to prospective investors when they were invited to buy securities.” I Louis Loss & Joel Seligman, Securities Regulation 25 (3d ed. 1989). The broad purpose of the 1933 Act was to require full disclosure to investors, and section 11 was “designed to assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability on the parties who play a direct role in a registered offering.” Herman & Maclean v. Huddleston, 459 U.S. 375, 381-82, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983). Contemporaneous writings confirm that the main target of section 11 was the sale of registered securities to the public. See 77 Cong.Rec. 2918 (1933) (Rep. Rayburn); Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 174-77 (1933). Needless to say, there is little resemblance between this scene of ill-informed small investors buying investment securities on original issue or later through the market and the triangular “forward merger” by which Contel acquired NDS, doubtless after careful study of information that went far beyond the registration statement issued some years before incident to a public NDS offering. This mismatch ought not deprive Contel of a section 11 remedy in any case where section ll’s “acquiring such security” language fits the transaction (for example, a tender offer acquisition by Contel of the NDS shares). The mismatch does, however, create doubt that stretching the language to fit Contel’s circumstances can be justified as serving Congress’ purpose. As the Supreme Court has reminded us, the federal securities laws were not designed to provide “a broad federal remedy for all fraud,” Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982), let alone for all negligence. If Coopers & Lybrand has been careless in certifying the registration statement and Contel relied on that statement in setting the terms of the merger, then state law might or might not provide a remedy, depending on how the state court approached issues of negligence, foreseeability, and standing. Section 11, by contrast, is remarkably stringent where it applies, readily imposing liability on ancillary parties to the registration statement (like accountants) for the benefit even of purchasers after the original offering. Its very stringency suggests that, whatever the usual rule about construing remedial securities legislation broadly (e.g., SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 284, 11 L.Ed.2d 237 (1963)), some care should be taken before section 11 is extended beyond its normal reading. This is apparently a case of first impression, and virtually none of the precedents provides much assistance. Versyss’ best case is SEC v. National Securities, 393 U.S. 453, 466, 89 S.Ct. 564, 571, 21 L.Ed.2d 668 (1969), which it offers for the proposition that the transfer of stock in a merger is a purchase or sale of securities under section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b). It is surely true under National Securities that the NDS stockholders would be treated for purposes of section 10(b) as having “sold” their NDS stock and “purchased” Contel stock in return. Nothing in National Securities suggests, however, that Contel is to be treated as “acquir[ing]” the NDS securities. The key to the anomaly — that a sale of securities may occur without a purchaser of securities — is that the securities, although relinquished by the seller are never acquired by anyone because they cease to exist as securities (by operation of merger law) at the same time as they are relinquished. The lack of precedent for applying section 11 to our facts may mean only that the acquiring company in a merger transaction rarely relies upon statements in an earlier registration statement of the acquired corporation. On the other hand, it may be that such reliance has occurred from time to time but, when the registration statement proved false and the reliance misplaced, no one thought that section 11 applied. Even so, applying section 11 to merger acquisitions might not unfairly upset settled expectations; under section 11, accountants are held to demanding standards when they certify registration statements and are liable to remote purchasers well beyond more predictable common law limits. But section 11 does not make accountants liable to everyone for any harm remotely flowing from a false or inaccurate statement. See Abbey v. Computer Memories, Inc., 634 F.Supp. 870, 875 (N.D.Cal.1986). The problem, simply put, is to determine where Congress drew the line. Many statutes, notably statutes of limitation, set limits that create arbitrary stopping-points for liability. Here, it has been assumed that Contel might well have a claim under section 11 if it had acquired the NDS stock in a tender offer and later merged it out of existence. It is even more clear that it would have no claim whatever if the Contel-NDS transaction had been framed as a pure acquisition of NDS assets. Faced with a merger transaction that fits neatly into neither category, any construction of the statute will leave discontinuities and a sense of lingering unease. For us, there is greater conformity to language and less unease in concluding that a defunct security in a non-existent corporation is not a “security” within the meaning of section 11. The judgment of the district court is affirmed. . The 1933 Act definition, section 2(1), 15 U.S.C. § 77b(1), provides: "The term "security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a "security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” . Subsection (e) provides a rule for choosing between alternatives (2) and (3) if the security has been disposed of after suit but before judgment, and it has several further limitations and provisos dealing with special circumstances. None of these provisions alters the basic structure of the damage formula. . The section 11 damage remedy was added by amendment in 1934, 48 Stat. 908, but the original section 11 remedy — rescission of the sale— also assumes continuation of the securities. . The same reasoning disposes of Junker v. Crory, 650 F.2d 1349 (5th Cir.1981), in which the court held that a merger may involve a purchase or sale of securities under section 12(2) of the 1933 Act, 15 U.S.C. § 77l(2) (condemning material misstatements or omissions in connection with such a transaction). The court there was concerned with whether the plaintiff who surrendered securities in the merged corporation and received new securities in the surviving corporation was a purchaser or seller (the court said the plaintiff was both). Once again, this case would treat the NDS stockholders as possible plaintiffs but says nothing about the status of Contel. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. Linda Jean BOURDON, Defendant-Appellant. No. 79-1694. United States Court of Appeals, Ninth Circuit. July 8, 1980. John J. Cleary, San Diego, Cal., for defendant-appellant. Judith S. Feigin, Asst. U. S. Atty., on the brief, Michael H. Walsh, U. S. Atty., Judith S. Feigin, Asst. U. S. Atty., argued, San Diego, Cal., for plaintiff-appellee. Before SNEED and PREGERSON, Circuit Judges, and TEMPLAR, District Judge. Honorable George Templar, Senior United States District Judge for the District of Kansas, sitting by designation. PER CURIAM. Appellant Bourdon pleaded guilty to one count of conspiracy to import marijuana in violation of 21 U.S.C! § 963 (1976). Although appellant initially received a suspended sentence and was placed on probation, she violated the terms of the probation order and was sentenced to 18 months imprisonment and, in addition, there was imposed a special parole term of two years. Appellant thereafter filed a Rule 35 motion to reduce the sentence. The term of imprisonment was reduced but the district court refused to strike the special parole term. Appellant appeals on the ground that the special parole term is not authorized when the offense is conspiracy in violation of 21 U.S.C. § 963. The appellant is correct. In Bifulco v. United States, - U.S. -, 100 S.Ct. 2247, 64 L.Ed.2d-(1980), the Supreme Court held that a court may not impose a special parole term for conspiracy to commit a drug offense under 21 U.S.C. § 846 (1976). Though appellant’s conviction was obtained under 21 U.S.C. § 963 (1976), the wording of that section is identical to that of section 846. Bifulco makes it clear, we think, that the special parole term given in this case was improper. We reverse and remand to the district court for resentencing in accordance with the authority of Bifulco. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_district	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Willie Lee DIGBY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee. No. 16159. United States Court of Appeals Fifth Circuit. Jan. 4, 1957. John T. Gano, Fort Worth, Tex., Clint A. Barham, Dallas, Tex., for appellant. Curtis White, Dallas, Tex., for appellee. Before RIVES, TUTTLE and CAMERON, Circuit Judges. TUTTLE, Circuit Judge. This appeal from a judgment of the trial court dismissing appellant’s suit under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., presents two questions: (1) Whether the alleged failure of the appellant to institute and prosecute his suit within twenty days would deprive the trial court of jurisdiction over the lawsuit, and (2) whether the evidence and affidavits furnished sufficient basis for the trial court’s decision that there was a failure to prosecute the suit. If the motion to dismiss the suit on the ground that the Texas court from which it was removed to the federal district court did not acquire jurisdiction of the subject matter because of a failure to comply with the statutory requirements truly addressed itself to the lack of jurisdiction of the court, then that issue could properly be tried by the court without a jury. Hardin v. McAvoy, 5 Cir., 216 F.2d 399, 403. The suit was in the District Court by removal from the Texas state court. It had been filed by a workmen’s compensation claimant who was not willing to abide by the final ruling of the Industrial Accident Board and had given due notice of such fact. Thereupon the following provision of the Texas statute became applicable : “If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto.” Rev.Civ. Stat.Tex. art. 8307, § 5, Vernon’s Ann.Civ.St. art. 8307, § 5. The record discloses that the suit was filed in the State court on September 19, 1955, two days after the notice, but that citation thereon was not issued by the clerk of the district court of Dallas County until October 24, 1955. After removal to the federal court appellee filed its motion to dismiss, alleging a lack of jurisdiction by reason of the following circumstances: Upon the filing of the suit the clerk was instructed not to issue citation thereon; these instructions were changed on October 24th and citation issued. It is contended that such delay in “prosecuting the suit” for more than 20 days after giving notice deprived the court of jurisdiction to entertain the action. Of course this motion is taken as an attack on the jurisdiction of the state court over the subject matter and not as an attack on the jurisdiction of the federal court as such since upon removal the federal court’s jurisdiction over the subject matter is limited to that which could be acquired by the state court before removal. Our determination whether this is a jurisdictional question or merely an attempt to interpose a plea of the statute of limitations must depend upon the Texas law, although appellant here seems not to question the assertion that compliance with the terms of the statute must be shown in order to confer jurisdiction on the trial court. Appellant says in his brief: “The question here presented to this Honorable Court is one of jurisdiction alone and not limitation.” To be absolutely certain that this was not an unintended concession by counsel we inspect the Texas cases cited by appellant to support his legal theory of the case. The decision cited immediately preceding the language quoted above is Maryland Casualty Co. v. Jones (Texas Commission of Appeals, opinion adopted by the Texas Supreme Court), 129 Tex. 392, 104 S.W. 2d 847, 849. The following passages are « quoted from that case in appellant’s brief here: “Many cases involving the question of the tolling of ordinary statutes of limitation by the filing of a petition with direction to the clerk to withhold the issuance of citation are cited and relied upon. We do not find it necessary to consider or discuss these cases, because the question is not whether ordinary limitation statutes were tolled, but whether the court acquired any jurisdiction. * * “Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient. “In the instant case it clearly cannot be held, as a matter of law, that the employee had no bona fide intention to prosecute his suit at the time he filed his petition.” We think it clear that the Texas decisions unvaryingly support this proposition. In Mingus v. Wadley, 285 S.W. 1084, at page 1087 the Supreme Court ■of Texas used the following language: “The Workmen’s Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies * * Because of the important effect that a correct determination of the question of whether the challenge is really to the jurisdiction of the trial court has on the procedure of disposing of that challenge we have thus carefully examined the Texas decisions on this point notwithstanding the apparent concession by appellant himself. We therefore conclude that if there was a failure to prosecute the suit within 20 days by the failure of the plaintiff to cause the citation to issue the trial court acquired no jurisdiction of the suit; further we hold that the trial court could determine the disputed fact issue as to whether the plaintiff did fail to prosecute timely upon affidavit or oral testimony and without a jury trial. There remains the question whether there was sufficient evidence to support the finding of fact by the trial court that there was such failure to prosecute. The sworn motion of the defendant alleged that the plaintiff had instructed the clerk not to issue citation when the suit was filed, and it is undisputed that none issued for 35 days after filing and that the clerk testified that he had been instructed not to issue it at the time the suit was filed. It was also testified to by the lawyer who had filed the suit, not counsel of record on this appeal, that he had filed several suits on September 19th, and that in one of them (which he did not identify) he had instructed the clerk not to issue the citation. On the hearing the court stated: “Either one of you can send me a statement of what the clerk’s records show” (as to the cases filed by counsel on that particular day). Immediately thereafter, appellee submitted an affidavit by two deputy clerks to the effect that counsel had filed but one suit on the 19th and none on the previous or following days. The legal test under the Texas cases, whether “prosecution” has proceeded within 20 days is not in issue. Both parties agree that the test is whether the suit is filed within 20 days “with the bona fide intent that citation shall issue and be served at once upon the defendants.” This quotation comes from Ocean Accident & Guaranty Corp. v. May, Tex. Com.App., 15 S.W.2d 594, 597, which case is cited by both parties here as stating the law. Appellant also cites Maryland Casualty Co. v. Jones, supra. In that case there was an immediate effort made to obtain a waiver of citation but a delay in causing the citation to issue which the court held to be sufficient compliance with the requirement. The court then repeated substantially the test of the Ocean Accident & Guaranty case, saying: “Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same.” The court then added “an undisclosed intention not being sufficient.” Here there was ample evidence that the lawyer, at the time of filing the suit, whether at the very moment he handed it to the clerk or simply before he left the clerk’s presence, told him not to have citation issue. It is immaterial if, as appellant contends, the clerk testified that he was first told to issue and then not to do so, since he testified it was all at the time of filing. This evidence is ample to authorize the court to resolve the issue against the appellant. In fact, in light of the undisputed testimony of the clerk and the testimony of the lawyer himself, a contrary holding by the trial court would be without substantial support. It being our function not to retry this issue on the facts, but only to determine whether the court’s holding was clearly erroneous, we must affirm the judgment of the trial court. CAMERON, Circuit Judge, concurs in the result. . Footnote 5 there quotes from Wetmore v. Rymer, 169 U.S. 115, 120, 121, 18 S. Ot. 293, 42 L.Bd. 682 and subsequent Supreme Oourt and other authorities. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_judgdisc	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. David William ROBERTS, Defendant-Appellant. No. 84-3124. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 1985. Decided Dec. 10, 1985. Designated for Publication Feb. 21,1986. Carl E. Rostad, Asst. U.S. Atty., Great Falls, Mont., for plaintiff-appellee. James Parke Taylor, Stewart A. Pearce, II, Missoula, Mont., for defendant-appellant. Before BROWNING and ALARCON, Circuit Judges, and WILKINS, District Judge. The Honorable Philip C. Wilkins, Senior United States District Judge for the Eastern District of California, sitting by designation. WILKINS, District Judge. David William Roberts appeals from his convictions on one count of bank fraud, one count of bankruptcy fraud, and two counts of perjury. We affirm the convictions on all counts, but remand to the district court for modification of its order regarding restitution. MULTIPLICITY OF CHARGES Appellant contends that the trial court committed reversible error by refusing to dismiss three multiplicious counts of perjury. The indictment contained a count of concealment of assets of a bankrupt estate in violation of 18 U.S.C. § 152 (1982) and three counts of making a false statement under oath concerning the location of assets of a bankrupt estate in violation of 18 U.S.C. § 1621 (1982). An indictment is not multiplicious if each count requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). In determining whether a count requires proof of a fact which the other does not, “[t]he elements of the offense are determinative, even if there is substantial overlap in their proof.” United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir.1985). The perjury counts required proof of facts which the concealment count did not, and the district court did not abuse its discretion in denying Roberts’ motion to dismiss the perjury counts. Appellant also contends that the district court erred by failing to merge Roberts’ convictions for perjury and concealment for purposes ' of sentencing. When the same act constitutes a violation of two separate criminal statutes, a defendant may be convicted of and receive punishment under both statutes without offending the double jeopardy clause if proof of one violation does not necessarily include proof of the other offense, and there is no evidence that Congress intended to prohibit separate punishment for the two offenses. See United States v. Woodward, — U.S. -, 105 S.Ct. 611, 612-13, 83 L.Ed.2d 518 (1985) (per curiam). Under this test the district court properly declined to merge appellant’s convictions for purposes of sentencing. SEVERANCE Appellant contends further that the district court erred in denying his motion to sever the various counts into three trials. Offenses may be joined in the same indictment and tried together when they are “based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 8(a), Fed.R.Crim.P. “When the joined acts are logically related, and there is a large area of overlapping proof, joinder is appropriate.” United States v. Anderson, 642 F.2d 281, 284 (9th Cir.1981). In this case all of Roberts’ offenses involved the assets of his bankrupt cookie company. He committed bank fraud to obtain financing for the company, and then committed bankruptcy fraud and perjury to conceal assets from the trustee of the bankruptcy estate. The counts were logically related with a large area of overlapping proof, and their joinder in one indictment and one trial was proper. LIMITATION OF CROSS-EXAMINATION Appellant argues that the district court abused its discretion in limiting his cross-examination of adverse witnesses and by refusing to admit into evidence some of his proposed exhibits. He contends that the excluded evidence was relevant to show bias and prejudice on the part of the witnesses. The fact that appellant’s creditors threatened him with prosecution if he failed to divest himself of his interest in the cookie business had no bearing on their credibility as witnesses. Assuming, however, that the evidence was relevant the court did not abuse its discretion in excluding it. “When the trial court excludes evidence tending to impeach a witness, it has not abused its discretion as long as the jury has in its possession sufficient information to appraise the biases and motivations of the witness.” United States v. Kennedy, 714 F.2d 968, 973 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984). We believe that the jury in the present case had sufficient evidence to appraise the bias and motives of the witnesses. MATERIALITY Roberts claims that the district court erred in holding that his testimony before the bankruptcy trustee in Count IV was material as a matter of law. We do not agree. In this perjury count Roberts was questioned about the names of a group of investors to whom he was selling one of the assets of his bankrupt company. He contends that the purpose of the questioning was to determine the location and value of the assets of the bankrupt estate, and that the names of the investors were not material to the investigation. However, the withheld information that he was one of the investors in the new baking company could have assisted the trustee in discovering the estate’s extent and whereabouts and was material. See Sigman v. United States, 320 F.2d 176, 177-78 (9th Cir.1963), cert. denied, 375 U.S. 967, 84 S.Ct. 485, 11 L.Ed.2d 415 (1964). Appellant also argues that the district judge erred because he refused to make his ruling on materiality prior to trial, and did not rule on this issue until after the close of the government’s case. Any error in the timing of the ruling could not have been prejudicial, however, because Roberts was acquitted on Count IV. IMPEACHMENT Appellant contends further that the trial court erred in allowing a bill of sale to be used to impeach him during trial. Roberts had made a motion pursuant to Fed.R. Crim.P. 16(a)(1)(A) requesting that the United States be required to produce any statements, copies of statements, or the substance of any oral statement of the defendant in the custody or control of the United States. At the hearing the prosecutor represented to the court that he had already supplied the defendant with everything which the United States intended to introduce into evidence. At the trial the United States impeached the defendant’s credibility by showing him and discussing with him a bill of sale for a baking oven signed by the defendant. Roberts objected to the use of the document for impeachment because it was a prior written statement of the defendant subject to disclosure under Rule 16, and the trial court held that the bill of sale was not a relevant written statement within the meaning of Fed.R. Crim.P. 16(a)(1)(A). We need not decide whether the bill of sale should have been disclosed by the government. If there was error, we are satisfied that the error was harmless and did not materially affect the verdict. See United States v. Bailleaux, 685 F.2d 1105, 1116 (9th Cir.1982). The record does not indicate that knowledge by Roberts that the government would use the bill of sale would have changed his defense strategy or that he would have changed his decision to take the stand. Moreover, the exhibit was withdrawn by the government and never seen by the jury, and the jury acquitted Roberts on the count relating to perjured testimony regarding the oven mentioned in the bill of sale. RESTITUTION Appellant’s final contentions challenge the district court’s imposition of a $200,000.00 order of restitution as part of his sentence. Roberts contends, inter alia, that restitution is improper because he was adjudged a personal bankrupt and none of his creditors filed an objection to discharge. However, the failure of Roberts’ creditors to object to his personal bankruptcy does not prevent the court from ordering restitution in the criminal case. United States v. Carson, 669 F.2d 216, 217-18 (5th Cir.1982); United States v. Alexander, 743 F.2d 472, 480 (7th Cir.1984). Bankruptcy proceedings are not generally concerned with criminality, and discharge may occur regardless of how the debtor has incurred his debts. Although appellant’s restitution order was made pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3579, rather than a condition of probation as in Carson and Alexander, his period of confinement was relatively short. The restitution order is still a critical element of his rehabilitative process and was properly imposed by the trial judge in lieu of a longer period of imprisonment. We do not find any of appellant’s other contentions regarding restitution convincing except for the objection to the timing of payment. 18 U.S.C. § 3579(f)(3) provides that unless the sentencing court provides to the contrary in the restitution order, restitution is due immediately. The district court here did not specify a payment period in its order and we believe unintentionally made restitution due immediately when appellant does not have the funds available at the present time. The trial judge found that Roberts was a speculator and may have assets again in the future. Accordingly, we remand to the district court for the limited purpose of modifying the order to make restitution payable within a specified period or in specified installments in accordance with 18 U.S.C. § 3579(f)(2) and United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985). CONCLUSION We affirm appellant’s convictions and remand to the district court for modification of its restitution order consistent with this Memorandum. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party SALEM MFG. CO. v. FIRST AMERICAN FIRE INS. CO. OF NEW YORK. No. 9372. Circuit Court of Appeals, Ninth Circuit. May 9, 1940. Stephen W. Matthieu, of Portland, Or., and Rhoten & Rhoten, of Salem, Or., for appellant. H. A. Thornton and Evans M. Taylor, .both of San Francisco, Cal., and A. L. Veazie and J. C. Veazie, both of Portland, Or., for appellee. Before GARRECHT, HANEY, and HEALY, Circuit Judges. GARRECHT, Circuit Judge. This action was instituted to recover the sum of $20,000 and interest under the terms of what is commonly known as a riot and civil commotion insurance policy. During all the time herein referred to, the appellant was a corporation, organized and existing under and by virtue of the laws of the State of Oregon. Prior to February 26, 1938, the name of said corporation was Salem Box & Manufacturing Company, Inc., but on said day the name was changed to Salem Manufacturing Company, and it may hereinafter be referred' to as the box company. The appellee, First American Fire Insurance Company, is a corporation, organized and existing under the laws of the State of New York, and by virtue of the laws of the State of Oregon is authorized to do an insurance business in that state. This action was instituted in the Circuit Court of the State of Oregon for Polk County and upon petition of appellee was thereafter removed to the United States District Court for the District of Oregon. The complaint alleged that on July 27, 1937, in consideration of a premium paid, the insurance company executed and delivered to the 'box company a policy of insurance which insured it “Against All Direct Loss or Damage Caused by Any of the Following: “(1) Riot; (2) Riot Attending a Strike; * * * ” Other pertinent provisions of the policy were: “If loss occur the insured shall give immediate notice in writing to this Company * * * ; and within sixty days after the loss, unless such time is extended in writing by this Company shall render a statement to this Company, signed and sworn to by said insured, * * . [Here follow the details to be furnished, which, we believe, do not require consideration.] “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the loss ; * » It was further alleged that on or before November 20, 1937 (while the policy was in effect), a riot participated in by the persons named in the complaint and others, occurred at or near the box factory and that as a part of said riot and as a result thereof the insured property was completely destroyed by fire; that the property so destroyed was of a value in excess of the insurance, and that by reason of the riot appellant sustained loss totaling $20,000. Appellant alleged in an amended complaint its full compliance with the terms of the policy (this having been denied by the answer). Appellee’s answer pleaded certain provisions of the insurance policy, one of which was that appellant was required to furnish proof of loss within sixty days after the fire occurred, and the answer averred that although the fire occurred on November 20, 1937, appellant furnished no proof of loss until August 11, 1938. In its amended complaint appellant admits that it did not present proof of loss until about said date but avers that it did not discover that the fire was the direct and proximate cause of the riot until during the month of July, 1938. This allegation was controverted by appellee. The answer also denied there was any riot which was the proximate cause of the fire or any riot at all. Other affirmative defenses were pleaded in the answer to the effect that after the destruction of the property, the policy was surrendered and canceled; that appellant had collected other insurance for the loss; that there was no opportunity given appellee for appraisal of the loss; that it had been deprived of its right to ■subrogation; that there had been an election of remedies; and, finally, there was a plea of estoppel. Affirmative matters alleged in the answer are not pertinent on this appeal as the appellee was awarded a directed verdict at the conclusion of appellant’s evidence. The following is a summary of the facts of the case based upon the evidence presented by appellant. During the year 1937 appellant had become involved in a controversy with a labor union which was attempting to unionize the box factory at Salem, Oregon. Beginning about July 23, 1937, a picket was placed near the box factory plant. About the second day some of appellant’s employees went out and ordered the pickets to leave, which they did for that day. The next day they returned with a bodyguard of about twenty men, who stationed themselves across the road from the plant. Soon after their arrival the employees and bodyguard began throwing at one another, the employees using rotten eggs, the bodyguard using rocks, some of which hit the box factory building. On the first day the pickets stopped a Japanese gardener and interfered with his effort to back his truck into the plant; other customers were stopped and warned against coming into the box factory. After the first encounter only a few of the bodyguard accompanied the picket. He usually arrived at eight o’clock, when work started, and quit at five, when the factory closed for the evening. About July 31, 1937, the appellant procured a court injunction, and there was no picketing through August and until September 10, when the court dissolved the injunction. On that day the picket returned, but he had no bodyguard until after about October 1, when the employees of appellant went out and tore his banner off of him; on the next day he returned with his bodyguard. The picket at no time disturbed or interfered with appellant’s customers, but the bodyguard “would holler at the customers and tell them to stay out.” They would stop the trucks when they were backing in, and warn against going into the plant. Off and on there was throwing between the plant employees and the picket guard. Concerning the strike situation appellant’s president and manager, among other things, testified that on different occasions there was some trouble between his employees and the picket guards. He said, “I didn’t pay so much attention to it, but the boys somehow didn’t like the picket there.” “Q. Well, did the picket have some help at different times? A. Oh, he had help pretty near all the time. “Q. And what do you mean by help? A. I think he had protection. * * “A. When the pickets were first placed there were two pickets there, one for the Salem Box Company and one for the Beut-ler-Quistad Lumber Company. The one for the Salem Box Company was outside of the city limits and the one for the Beutler-Quistad was in the city limits. There was an ordinance against carrying a banner without a permit and this picket was arrested, * * * After the picket was arrested about half a dozen of the bodyguard came over that afternoon. “Q. And then what happened? “A. And there was a lot of milling around, and some of our boys, some of the boys in the shop, got in arms and quite a number of them got clubs ready and I discovered it and I told them to lay off of the clubs, We don’t want any trouble over here.’ Later on we had trouble anyway, you just couldn’t stop it, because the men were never approached by the organizer. * * * “Q. All right. You say there was clubs; did you see those clubs? A. Yes, I saw those clubs. “Q. Were you present at the time there was any throwing of rocks back and forth ? A. Well, I didn’t see it at first and then somebody called my attention to it and I looked out and they were throwing rotten eggs from our side, from the factory side, and rocks from the other side, and I went and stopped it. I told the boys to lay off of it because we didn’t want to get anybody hurt.” Another witness for appellant, testifying concerning the trouble between the representatives of the labor union and the employees of appellant, said, “Well, the picket had been mobbed and his banner torn off and he came back to the Labor Temple and reported * * * ” A. N. Banks was the business agent of the Teamsters’ Union in Salem. Rosser was secretary of the Joint Council of the State of Oregon and Southwestern Washington, and the superior officer of the council in the district. Banks at numerous times reported the activities going on about the box factory and the trouble there about the picket being' mobbed and his banner torn off. Thereupon Rosser decided that the method to be used for taking care of the trouble was to burn the box factory. The events leading up to and attending the setting of the fire were testified to by appellant’s witnesses, Banks, C arson, and Newland. At the time of the trial all of these men were prisoners in the Oregon State penitentiary, serving sentences for arson for having been implicated in setting fire to appellant’s factory. On November 19, 1937, the day preceding the fire, the picket and the bodyguard were at their accustomed places near the plant. The bodyguard left early in the day, and the picket left about two-thirty or three o’clock in the afternoon. About noon that day Newland and Carson, accompanied by one Moore, who had just arrived from California, came to Banks’ office. After having had breakfast they all got into Newland’s automobile and drove past the box factory. They were shown a building in the back of the factory where chips were kept. It was agreed that Moore, Carson, and Newland were to come back that night, about midnight, and burn the factory. Newland testified that while discussing the arrangements for the burning, there was some talk as to the possibility of a watchman being on duty at the plant; that Moore said “if there was a watchman there; why, just knock him out and leave him lay.” However, Banks told them that there was no watchman at the plant after about ten or eleven o’clock at night, but in case that he was there, they were to forget the job, and if it did not look right, for them to let it go. The remarks of Moore regarding possible violence to the watchman is referred to at several places in the testimony and is emphasized in appellant’s brief as basis for the contention that the burning of the box factory was the culminating disaster of the alleged riot. Concerning the conversation appellant’s witness testified: “Q. Now Cecil Moore said that he was willing to go in and touch that off himself, didn’t he? A. Yes. “Q. And you went with him to prevent any violence in case you encountéred anybody; isn’t that right? A. Yes, sir. “The Court: Was one reason for that because Banks said he didn’t want any violence? A. I don’t remember if there was any discussion about that with Banks. “The Court: Your recollection is that was just your idea and Carson’s idea? A. Yes, sir. “The Court: That you two didn’t want any violence? A. That is right; yes, sir. “Q. And during the time that you were in or around that factory you saw nobody that night, did you? A. No, sir. “Q. That is, except Moore and Carson? A. Yes, sir. “Q. And that is true, taking the time a little before you reached the factory until after you left there, you saw nobody except the other two mfen; is that, right? A, Yes, sir.” The testimony shows that the burning of the factory was to be effected by Moore, Newland, and Carson. Moore had volunteered to set fire to it himself, but on account of the remark made by him relative to knocking out any watchman that might appear on the scene, Newland and Carson were anxious to avoid the possibility of any violence being done the watchman, if he should be about the premises. So instead of letting Moore do the job alone, it was agreed between Carson and Newland that the latter was to be with Moore and that the fire would not be set until about one o’clock in the morning. About that time Carson drove the car to a point in the roadway in front of the plant; Moore and Newland got out, took with them a gallon of gasoline and a book of matches. Neither had any weapons. They sprinkled the gasoline on some trash and old lumber at the rear of the box factory, lighted it, and then ran back and got into the car, which was driven away as fast as possible. As to Proof of Loss. It is admitted that the loss occurred on November 20, 1937, and that the proofs of loss were not made until August 11; 1938. Appellant pleads as an excuse for the delay that “The fact that said destruction was the direct and proximate result of a riot was not discovered by or known to plaintiff until during the month of July, 1938.” Appellant is charged with the knowledge of its manager and agents. The manager, Mr. Friesen, and Mr. Crabb, the bookkeeper, testified at length on conditions existing in and about the plant during the time the strike was on up to the day of the fire. Thereafter they kept informed on events pertaining to the fire. Mr. Crabb knew of the picketing of the mill; the rocks and rotten egg encounter; the truck stopping episodes and other difficulties narrated above. He knew that Newland, Carson, and Moore on January-31, 1938, were arrested for burning the factory, that they all three pleaded guilty. He knew that Banks was arrested February 8, 1938, pleaded guilty February 16, 1938, and was sentenced April 24, 1938. Mr. Friesen, the manager, knew of the conflict between the boys in the shop and the picket and his bodyguard, the throwing of eggs from the factory side and rocks from the other side; that a number of the shop boys got clubs ready to beat up the opposition and that he made them lay off because he did not want anybody hurt. He was advised of the fire immediately after it started to burn. Proof of loss was presented to other insurance companies, in which was set forth the following statement: “A fire loss occurred on the 20th day of November, 1937, about the hour of 1:30 o’clock A. M., which upon the best knowledge and belief of assured originated incendiary — person or persons unknown.” The instrument was signed by Mr. Friesen and sworn to on the 23d day of November, 1937. On his examination he said he did not know his statement was in the proof. However, he admitted that he did know during the first part of the month of February, 1938, that the fire had been set and that he had read The Oregon Statesman, of February 9, 1938, which contained pictures of .Banks, Carson, Newland, and Moore, and the news item that these men had been arrested charged with burning appellant’s box factory. This item, among other matters, reported that Mr. Friesen had said “he had been convinced at all times that it was incendiary.” Friesen admitted that about February 9th or 10th, 1938, he had talked to Banks at the Polk County Court House relative to the fire, that Banks broke down and cried and told him he was sorry about the fire. C. M. Lindberg, a witness for appellant, testified that in the latter part of April, 1938, he was employed by appellant to make an appraisal of the property that had been destroyed by the fire, to be used in a suit the appellant contemplated bringing against the unions on account of the destruction of the plant. Mr. Friesen employed him. At the conclusion of plaintiff’s evidence defendant moved for a directed vedict on the following grounds: “First, the plaintiff has failed to prove that the loss and damage caused by the fire alleged in the complaint was caused by or arose out of a riot. “Second, the plaintiff has failed to prove that the loss and damage alleged in the complaint was covered by the policy of insurance issued by the defendant. “Third, the plaintiff has failed to comply with policy conditions relative to filing proofs of loss. “Fourth, the plaintiff has failed to prove compliance with the policy conditions as alleged in plaintiff’s complaint. “Fifth, that it affirmatively appears that the loss and damage alleged in said complaint was covered by policies of fire insurance, whereas in and by the policy of insurance issued by the defendant it was and is provided that this company shall not be liable for loss or damage covered under any fire or other kind of insurance contracts.” After hearing the argument upon the motion the court directed the jury to return a verdict for the defendant. A verdict, as directed was received and entered, and thereupon judgment was rendered for appellee from which appellant appeals to this court. In passing on the motion for directed verdict the court below stated to the jury: “This case involves a question as to whether a riot occurred under the Oregon statute, which requires the use of force or violence by three or more persons acting together. In my opinion there has been no substantial credible evidence offered indicating that force or violence was used, and, therefore, it is my duty to request and direct you to return a verdict for the defendant * * * ” The appellant assigns this action of the trial court as the sole error presented on this appeal. “It is the contention of the appellant that ‘force and violence’ within the meaning of the Oregon statute abundantly appear by the evidence.” In opening its argument appellant says in its brief: “As stated by the trial court in directing the verdict, this question evolves around the Oregon statute which defines the term ‘riot.’ It has been assumed by all of the parties and the trial 'court as well, and we think properly so, that the Oregon statutory definition of riot should be read in connection with terms of the policy. The policy of insurance insures against all direct loss or damage caused by riot, but no attempt is made in the policy to define the term ‘riot.’ ” Section 14-601, Chapter VI, Title 14, Oregon Annotated Code, undertakes to define riot and unlawful assembly in the same section — the first sentence applies to riot; the second sentence, immediately following, refers to unlawful assembly. For purposes of clarity we here separate the two sentences, but in the original text both are parts of the same paragraph: “Definition of riot and unlawful assembly. — [1st sentence] Any usé of force or violence, * * * if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot. [Emphasis supplied.] “[2d sentence] Whenever three or more persons assemble with intent, or with means and preparation to do an unlawful act, which would be riot if actually committed, but do not act towards the commission thereof, or whenever such persons assemble without authority of law, and in such manner as is adapted to disturb the public peace or excite public alarm, or disguised in a manner adapted to prevent them from being identified, such assembly is an unlawful assembly.” It conclusively appears that the plan to burn the box factory of appellant was to be accomplished with great secrecy and without causing any disturbance. The hour of one o’clock in the morning was selected because it was known that the watchman, who usually stayed on duty until ten or eleven o’clock at night, would have gone home. It was understood that if a watchman was found on the premises, or some other interruption occurred, that the purpose to burn the buildings would be deferred to a more favorable time. Neither Newland or Moore, who set the fire, was armed in any way. They accomplished their purpose quietly, without any disturbance whatever. They saw or heard no one, and there is no evidence that they were seen or heard by anyone. It is worthy of note that appellant pleads that it did not discover that a riot had occurred until about a year after the event. The circumstances attending the setting of this fire did not constitute a riot according to the common understanding of the word or according to the definition of the common law. “ * * * In the common-law authorities there is no substantial disagreement concerning the definition of a riot. In 4 Blackstone (Chitty’s Ed.) p. 147, we find the following: ‘ “A riot” is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as, if they beat a man, or hunt and kill game in another’s park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.’ In 1 Russell on Crimes, p. 265, an old English work of high repute, the author states: ‘A “riot” is described to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and after-wards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. * * * It seems to be agreed that the injury or grievance complained of and intended to be revenged or.remedied by a riotous assembly must relate to some private quarrel only, * * * or such like matters relating to the interests or dispute of particular persons in no way concerning the public. It seems to be clearly agreed that in every riot there must be some such circumstance, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people. * * * But it is not necessary, in order to constitute this crime, that personal violence should have been committed. * * * But the violence and tumult must be in some way premeditated; for if a number of persons being met together at a fair, market, or any other lawful or innocent occasion happen on a sudden quarrel to fall together by the ears, it seems to be agreed that they are not guilty of a riot, but only of a sudden affray. * * * But, if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous.’ This definition is also found in 1 Hawkins, Pleas of the Crown, p. 513. Webster defines a riot to be ‘the tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object.’ And Bouvier in his Law Dictionary as ‘a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist each other against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.’ The common-law definition of a riot is generally approved by modern text-writers on the subject of criminal law. Thus Bishop in his work on Criminal Law (volume 2, §§ 1143, 1149), although he makes slight criticism of the definition laid down by Russell on Crimes, says: A ‘riot is such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is calculated to terrify others. * * * The act of the rioters need not be such as it would be unlawful for one to perform. Whether iir this sense lawful or unlawful, if it is done by three or more in a turbulent manner, calculated to excite terror, it is a riot.’ Wharton in his work on Criminal Law (volume 2, §§ 1537 [1539], 1544), defines a riot as ‘a tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object. * * * It must be also shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror; such as being armed, making threatening speeches, turbulent gestures, or the like. * * * To constitute a riot it is not necessary that there should be actual fright to the public generally. It is enough if the action of the parties implicated be so violent and tumultuous as to be likely to cause fright, and if individuals are frightened.’ These general definitions are approved in Aron v. Wausau, 98 Wis. 592, 74 N.W. 354, 40 L.R.A. 733; State v. Stalcup, 23 N.C. 30 [1 Ired.Law 30], 35 Am.Dec. 732; Lycoming F. Ins. Co. v. Schwenk, 95 Pa. 89, 40 Am.Rep. 629; Dupin v. Mutual Ins. Co., 5 La.Ann. 482; Com. v. Gibney, 2 Allen (Mass.) 150; State v. Snow, 18 Me. 346; State v. Hughes, 72 N.C. [25], 27. It will thus be seen that the modern definition of a riot is in harmony with and follows the common-law definition, and that the legal meaning of the word corresponds with the meaning given to it in ordinary usage. It has no technical import as distinguished from its signification when used in the everyday affairs of life. If we look to either Blackstone or Webster, we have the same result.” The above quotations are taken from the opinion in Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S.W. 234, 235, 20 L.R.A.,N.S., 277, 279, 280, 136 Am.St.Rep. 164, cited in appellant’s brief. To sustain its claim that the burning of the factory in the case at bar was the culmination of a riot and within the definition of the Oregon statute appellant cites and comments on a number of criminal cases decided by Oregon courts: State v. Mizis, 48 Or. 165, 85 P. 611, 86 P. 361; State v. Seeley, 51 Or. 131, 94 P. 37; and State v. Allen, 152 Or. 422, 53 P.2d 1054. It would require too much space to discuss these cases at length; it is sufficient to point out that in each of them the facts comported with the common understanding of a riot as expressed in the citations of authority heretofore quoted. The conduct of the participants in each case was boisterous and disorderly. They all involved disturbances connected with force and violence and the use of firearms, always resulted in someone being hurt, and in every case, with a single exception, one or more persons were killed. Appellant also cites as supporting its contention a number of insurance cases, which required the determination of what constituted a riot within the terms of the policy of insurance: Lycoming Fire Insurance Co. v. Schwenk, 40 Am.Rep. 629, 95 Pa. 89; Spring Garden Insurance Co. v. Imperial Tobacco Company, 132 Ky. 7, 116 S.W. 234, 20 L.R.A.,N.S., 277, 136 Am.St.Rep. 164; Luckett-Wake Tobacco Co. v. Globe & Rutgers Fire Insurance Co., C.C., 171 F. 147; Brous v. Imperial Assurance Co., 130 Misc. 450, 224 N.Y.S. 136; Insurance Co. of North America v. Rosenberg, 2 Cir., 25 F.2d 635. In these cases the courts held that the facts showed that the fire was the work of rioters. But, just as in the criminal cases heretofore noted, in each case there was putting in fear by threats to do bodily harm or the exhibition of weapons or actual discharge of firearms; in fact there was such display of force that people were terrified. Of course such unlawful acts constituted riot. Appellant contends that the commission of the crime of arson, the effort required to carry gasoline to the box factory, pouring it upon the inflammable debris, and striking and applying the match constituted such acts of force and violence as to render the action of the trial court erroneous. Such a construction would make practically every crime committed by three or more persons a riot. If three unarmed men acting together at night entered a field through a gate and without noise or disturbance carry away three sacks of .grain, could it be said that they had been engaged in a riot? The words used in phrasing the statute preclude any such construction. It says: “Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, * * * .” This cannot mean the force used to light a match. In Walter v. Northern Ins. Co., 370 Ill. 283, 18 N.E.2d 906, 121 A.L.R. 244, damage was done to an unoccupied house by persons who entered it by stealth, without disturbing anyone; it was held not to be within the coverage of an insurance policy against damage by riot, and it was further held that a statute defining criminal “riot” and penalizing those engaging therein would not be construed as changing the common law beyond what is expressed by the words of the statute. In that connection the court said (370 Ill. 283, 18 N.E.2d 908, 121 A.L.R. 248) : “The question comes, then, on the construction of the terms ‘force’ or ‘violence.’ Do they mean merely the manual force necessary to accomplish the act, or do they mean something more ? There is no doubt that under the common law ‘force or violence’ meant a concerted intent of the perpetrators to mutually assist one another against all who should oppose them in the doing of an unlawful act. 3 Greenleaf on Evidence, 16th ed., sec. 216. Thus the definition of riot, under the common law, meant more than the mere force necessary to do the act; it meant a defiance of constituted authority or of the rights of the person injured, or his effort to protect such rights. The terms ‘force’ and ‘violence,’ as applied to offenses of this character, are, according to such standard lexicographers as Webster and Bouvier, synonymous.” The force contemplated by the act is the united force of three or more individuals acting in concert with the increased capacity to overcome resistance, and significantly the statute makes the threat to use force or violence equally punishable. Clearly, then, the force and violence forbidden was not merely muscular exertion, but of a kind with which a person could be threatened. The threat contemplated by the law was not one made against some inanimate object, but against an individual. In this sense there can be no threat without a person to be threatened. “Threat” is defined in Funk & Wagnall’s New Standard Dictionary as: “1. A declaration of an intention to inflict pain, injury, or punishment; a menace. “2. Law. Any menace of bodily hurt through fear of which a man’s business is interrupted; any menace of destruction or injury to life, reputation, or property, with a view to restrain a person’s freedom of action. [Emphasis supplied] The Supreme Court of Oregon has held that words used in statutory definitions are to be construed in accordance with common understanding. “In construing penal statutes, the legislative intent is in most cases to be found by giving to the words the meaning in which they are used in ordinary speech.” Kirk v. Farmers’ Union Grain Agency, 103 Or. 43, 202 P. 731, 732. The case of International Wire Works v. Hanover Fire Ins. Co., 230 Wis. 72, 283 N.W. 292, was an action to recover on a riot insurance policy. Plaintiff owned a manufacturing plant. On the night in question the janitor locked the plant and went home. On his return in the morning he found that someone had entered during the night and had done very extensive damage to the machinery and to cases of wire cloth which were ready for shipment. The guilty persons apparently used a pickaxe, or some such instrument, and an electric drill. While the wording of the statute against riot was not exactly like the Oregon statute, it was generally similar. In sustaining the action of the trial court in dismissing the action the Supreme Court said (230 Wis. 72, 283 N.W. 293): “The generally understood meaning of the word ‘riot’ is an assembly of individuals who commit a lawful or unlawful act in a violent or tumultuous manner, to the terror or disturbance of others. * * * “The trial court correctly ruled that there was no material distinction between the common meaning of the word ‘riot’ and the definition contained in the statutes. The court was also correct when it said, ‘The essence of the offense is violence and tumult. There has been a total absence of any proof which would establish riotous destruction of property, and the court must therefore hold for the defendant.’ “Taken together, the definition of riot in sec. 347.02 and the imposition of liability in sec. 66.07 leave no room for doubt that the generally accepted definition of riot obtains in this state and that an element which must be included is the terror or disturbance of persons who are not participating in the violent or tumultuous acts. The parties to the insurance contracts upon which the present action is brought contemplated something more than violent acts done by three or more persons in stealth without the knowledge of others who might resist their acts or summon the armed force of the city. Even though there is terror or disturbance at the time that the damage is discovered, a crime committed secretly away from the public view is not a riot. No riot exists in the absence of publicity at the time of the vio--lent or tumultuous acts.” In Kirshenbaum v. Massachussets Bonding & Ins. Co., 107 Neb. 368, 372, 186 N.W. 325, 326, it is said: “The words ‘riot or civil commotion’ as used in the policy in suit will be given their popular or usual meaning, and be held to imply the wild or irregular action or tumultuous conduct on the part of three or more persons assembled together for the common purpose of doing an unlawful act.” No decisions from the Courts of the State of Oregon construing this statute as it may relate to insurance contracts have been brought to our attention; so we follow here the generally accepted rule. According to the weight of authority the term “riot” as used in a policy of insurance will be given its usual and ordinary meaning. In such cases it will not be presumed that a criminal statute defining “riot” has changed the common-law meaning or definition of that term beyond what is expressly declared therein or that any innovation is intended further than is specifically expressed or clearly to be implied. Since the views heretofore expressed are decisive of this case, it is not necessary to discuss appellant’s failure to furnish proof of loss within the time required by the terms of the policy of insurance. Affirmed. HANEY, Circuit Judge, concurs in the result. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_search	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CARRION, Defendant-Appellant. Nos. 71-2425, 71-2426. United States Court of Appeals, Ninth Circuit. June 29, 1972. Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., Carl E. Stewart, Orange, Cal., for defendants-appellants. Jan Lawrence Handzlik, Asst. U. S. Atty. (argued), Eric A. Nobles, Darrell W. McIntyre, Asst. U. S. Attys., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before DUNIWAY and KILKENNY, Circuit Judges, and MURPHY, District Judge Honorable Thomas P. Murphy, United States Senior District Judge, Sharon, Connecticut, sitting by designation. DUNIWAY, Circuit Judge: Michael and Anthony Carrion were convicted in a jury trial of conspiring to smuggle marijuana into the United States from Mexico and to receive and conceal illegally imported marijuana, violations of 21 U.S.C. § 176a, and they appeal. We affirm. FACTS The jury found that appellants conspired illegally to import large quantities of marijuana from Mexico into the United States by aitrplane. To aid them, appellants enlisted two comrades, Ponting and Cassidy, who testified for the prosecution. Ponting testified that Anthony telephoned him twice during the summer of 1970 and offered him a job driving a truck. In late August 1970, Ponting and Michael drove a rented truck to the Agua Dulce Air Park near Los Angeles, where they met Anthony and Cassidy and unloaded a large quantity of marijuana which the latter two had just flown in from Mexico. Several days later Michael asked Ponting to meet another shipment. Ponting drove to the same airport, met Anthony and Cassidy, and transferred the shipment from the plane to the truck. Ponting received another call from Michael several days later and again drove to the airport to meet another load, but the plane never arrived. Ponting made another run to the airport on September 11 for the same purpose, but he and Cassidy were arrested by United States Customs agents at the airport and the marijuana in the plane was seized. Cassidy testified that Anthony induced him to fly plane loads of marijuana from Mexico to the Agua Dulce Air Park in the summer of 1970. He flew to Mexico several times before his arrest on September 11 at the airport, usually accompanied by Anthony, and brought back loads of marijuana. A. Anthony Carrion’s appeal. 1. Search and seizure. Anthony filed a motion to suppress the marijuana seized at the airport on September 11, but the trial judge rejected Anthony’s theory that a conspirator has standing to challenge a search directed against a co-conspirator when the fruits of the search are introduced against him. The trial judge was right. Alderman v. United States, 1969, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176; Diaz-Rosendo v. United States, 9 Cir., 1966, 357 F.2d 124, 132, cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83. Anthony then asked for an evidentiary hearing under Rule 41(e), F. R.Crim.P., to show that he was in fact the object of the search. The trial judge refused the hearing because Anthony was not present at the airport when the plane was searched and did not, in the motion to suppress or the supporting affidavit, allege either ownership or possession of the matter seized. The trial court correctly distinguished Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, which held that one charged with a crime that includes possession as an essential element does not have to allege possession in order to challenge the legality of the search. Possession is not an essential element of the crime of which Anthony was convicted. Anthony argues that he alleged a possessory interest in the marijuana in essence when he requested suppression of “all items of personal property” taken from the plane. That position was properly rejected by the trial court on the ground that the term “personal property” was too vague and indefinite to be read as including an allegation of possessory interests in the marijuana. Evidentiary hearings need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved. Cohen v. United States, 9 Cir., 1967, 378 F.2d 751, 760, 761, cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L. Ed.2d 215. 2. Foundation for testimony about telephone conversations. Anthony argues that the testimony of Ponting and Cassidy concerning their various telephone conversations with a person claiming to be Anthony should have been excluded because neither witness stated that he recognized the caller’s voice as that of Anthony, and therefore no proper foundation was laid for admission of the testimony. We do not agree. We decided this issue in Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 743, cert. denied, Palermo v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498. See also Noriega v. United States, 9 Cir., 1971, 437 F.2d 435, 436, cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648. We find no abuse of discretion here because there is abundant circumstantial evidence to support a jury finding that the caller was Anthony. 3. Limitations on scope of cross-examination. Anthony claims that the trial judge improperly restricted his right to cross-examine government witnesses. Specifically, he objects to the refusal of the judge to permit inquiry into Cassidy’s relationship with one Cliff Guttersrud, the person Anthony claims was responsible for the marijuana-smuggling scheme. The rule in this circuit was recently stated in United States v. Haili, 9 Cir., 1971, 443 F.2d 1295, 1299: “The scope of cross-examination is within the discretion of the trial court and limitation will not result in reversal unless it is clear that the defendant was denied his constitutional right of confrontation. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967).” The trial judge acted within the scope of his discretion in limiting cross-examination. While the questioning was undoubtedly designed to impeach the witness, the transcript reveals that appellant’s counsel began to range too far afield of the issues to be determined by the jury. One duty of the trial court is to limit cross-examination at that point to prevent defense counsel from confusing the jury with a proliferation of details on collateral matters. The judge did not deprive Anthony of his Sixth Amendment rights. 4. Allegedly prejudicial behavior of the trial judge. During the trial the presiding judge berated and disparaged Anthony’s counsel on several occasions, both in and out of the presence of the jury. Anthony argues (1) that these remarks by the trial judge evidenced a lack of impartiality and suggested to the jury that the defense was without merit, thereby prejudicing Anthony and depriving him of a fair trial, and (2) that the comments intimidated defense counsel and prevented effective representation of Anthony. In a jury trial the judge should exercise caution and restraint to avoid any possibility of prejudicing the defendant in the eyes of the jury by unnecessary criticism of or hostility toward defense counsel. We have carefully examined the transcript of the trial and the comments of the trial judge. Although the judge’s remarks were unquestionably improper, we cannot hold that the result of those unfortunate remarks was the creation of an atmosphere so prejudicial as to prevent Anthony from receiving his constitutionally guaranteed fair trial. We arrive at this conclusion for several reasons. First, the judge repeatedly warned the jury that his criticisms of counsel’s tactics and abilities had no bearing on the guilt or innocence of the accused and should be ignored. While cautionary instructions of this nature will not always cure the effect of a trial judge’s hostile behavior toward defense counsel (see United States v. D’Anna, 2 Cir., 1971, 450 F.2d 1201, 1206, and Bursten v. United States, 5 Cir., 1968, 395 F.2d 976, 983), the warnings here were given carefully and often and were sufficient to overcome the prejudicial tendency that the judge’s remarks undoubtedly had. Carroll v. United States, 9 Cir., 1963, 326 F.2d 72, 83. Second, the trial judge did not confine his caustic rebukes to defense counsel; in fact, the prosecutor was treated more harshly than defense counsel, the judge even suggesting that the prosecutor did not know the most basic rules of questioning a witness or submitting evidence. Given the more or less “even-handed” application of the judge’s improper remarks, we think the jury was unlikely to think that the judge was biased against the defense. Third, all the cases cited by Anthony in which convictions have been reversed on the grounds here asserted involved behavior by the trial judge which interfered more seriously with defense eounsel’s representation of his client or which more clearly demonstrated a bias against the accused. Compare, for example, Bursten v. United States, supra, and Peekham v. United States, 1953, 93 U.S.App.D.C. 136, 210 F.2d 693, 703-706, cert. denied, 350 U.S. 912, 76 S.Ct. 195, 100 L.Ed. 800. The attitude and behavior of the trial judge here, while involving improper belittling of the prosecutor and defense attorneys, did not quite descend to the level of judicial hostility evident in the cases cited by appellant. This case is similar to those in which, although the comments of the trial judge were inappropriate, we could not say that they impaired the accused’s right to a fair trial. See e. g., United States v. Allen, 9 Cir. 1970, 431 F.2d 712; Duran v. United States, 9 Cir., 1969, 413 F.2d 596, cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L. Ed.2d 195; Justice v. United States, 9 Cir., 1969, 407 F.2d 1323, cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230; Robinson v. United States, 9 Cir., 1968, 401 F.2d 248; Carroll v. United States, 9 Cir., 1963, 326 F.2d 72; Smith v. United States, 9 Cir., 1962, 305 F.2d 197, cert. denied, Corey v. United States, 371 U.S. 890, 83 S.Ct. 189, 190, 9 L.Ed.2d 124. Neither do we believe that defense counsel was so intimidated by remarks of the trial judge that he thereby failed adequately to represent his client. On the contrary, the record reveals forceful advocacy by the appellant’s attorney in spite of the judge’s rebukes. Compare the situation here with that in United States v. Davis, 10 Cir., 1971, 442 F.2d 72, 74-78. B. Michael Carrion’s appeal. 1. Sufficiency of the evidence. Michael’s challenge to the sufficiency of the evidence is without merit. In addition to substantial circumstantial evidence indicating his involvement in the conspiracy, the testimony of the two unindicted co-conspirators, Ponting and Cassidy, directly implicated him in the conspiracy. 2. Limitations on cross-examination. Although the trial judge did not interfere with the cross-examination of government witnesses by Michael’s attorney, Michael argues that he can take advantage of the trial court’s erroneous limitations on cross-examination by Anthony’s counsel. However, we have already concluded that the actions of the trial judge in restricting questioning by Anthony’s attorney was not error. This reasoning applies, a fortiori, to Michael. Affirmed. . The following are samples of the judge’s remarks: Remarks to defense counsel. 1. A government witness testified that defendant Anthony Carrion “evaded” a question asked him by the witness. “MR. NASATIR : I object to the last comment and ask that it go out as a conclusion of the witness. “THE COURT: Overruled. Now, counsel, I want to tell you now that I will make the rulings on your objections in this case, but I am not going to have you jump up every two minutes on flimsy objections. Now, keep that in mind.” 2. “THE COURT: Do you see any necessity for the question really? “MR. NASATIR: Yes, your Honor, to impeach the witness. “THE COURT: Well, I don’t really believe you, but I will let you do it.” 3. “THE COURT: Now that was obvious to you when you asked the question, wasn’t it? “MR. NASATIR: Yes, your Honor. “THE COURT: Then don’t ask any more questions of that kind.” 4. The judge questioned defense counsel as to the relevance of a particular line of cross-examination: “MR. NASATIR: To show the relevance in front of the witness would destroy my cross-examination. May we approach the bench? “THE COURT: No you may not. Proceed. You are going to find out in due time counsel that I have had a little experience in this business myself. “MR. NASATIR: I am well aware of that, your Honor. “THE COURT: I am glad to hear that. Now, proceed. I don’t want to hear any more. Proceed unless you want me to excuse the jury, and we will carry on. All right, proceed.” 5. Defense counsel requested that a package of marijuana that had been opened in court be replaced by an unopened package before being offered into evidence. “THE COURT: Let it be said that you never close a day without complicating something. I am glad we are not in a hospital. I can just imagine that the doctor would be put to sleep instead of the patient.” 6. Defense counsel asked to make an offer of proof after the judge denied an evidentiary hearing on the motion to suppress: “THE COURT: I see that, you like to play games, don’t you? “MR. NASATIR: No, sir. I’m just trying to represent my client. “THE COURT: I’m getting kind of tired of hearing these games. Go ahead. At least I will try.” 7. After the motion for an evidentiary hearing was denied: "MR. NASATIR: May I make one further motion, your Honor? “THE COURT: I’m afraid I am going to have to sit you down, and I may sit you down pretty hard. What is your other motion. You heard me order the jury in.” 8. Defense counsel continued cross-examining an unindicted co-conspirator about the government’s failure to prosecute him, after the prosecutor had objected to the line of questioning as irrelevant : “THE COURT: Are you endeavoring to get yourself in contempt, counsel? “MR. NASATIR: No, I am not, your Honor. “THE COURT: Well, you are on the road to it. About half a dozen times I have told you to take up something else, and you come right back to the same question. Now I want to tell you something. I wouldn’t test this court out the way some people in the country are testing judges out, because I will deal with you in a harsh fashion, a very harsh fashion. Now, you’d better listen to me. When I rule hereafter, don’t come back with the same question; do you understand?” Remarks to Prosecutor. 1. “MR. MAC INTYRE [prosecutor]: What is depicted in the picture, Government’s Exhibit No. 12? “THE COURT: Counsel, the picture speaks for itself. Anybody who can read plain English can read what’s in that picture. I could read it by the time I was three and a half years old, and I hope you could. “MR. MAC INTRYE: Would you look at Government’s Exhibit No. 10, the picture of the cartons. “THE COURT: If you are going to put these matters into evidence — but what I cannot get over to the United States Attorney’s Office is that the proper way to try a case is to offer exhibits at the time they become admissible, and if they are admissible, they may be shown to the jury, so that the jury, the poor jury, may keep up with what is going on in this case.” 2. During the prosecutor’s direct examination of a government witness : “MR. NASATIR: I object. The prosecutor is leading the witness. “THE COURT: Yes, he is. He can’t help it, counsel. I don’t know how you can cure him, counsel. I just don’t know how it is possible. I will sustain the objection. Ladies and gentlemen, leading means that the suggestive question suggests the answer, and that is not permissible in a court of law. This has been in effect for the last 350, 400 years, and I do not think counsel has found it out yet.” 3. “THE COURT: . . . You know, ladies and gentlemen, I am sorry you can’t see a case tried as it should be tried. It can be a real art, I mean from the standpoint of prosecution, short questions, the most marvelous things in the world, the easiest things in the world to understand — who, when, how, where, and what.” 4. The prosecutor began the direct examination of a government witness; and the defense counsel objected: “THE COURT: It is rebuttal only. I am not permitting you to open up on anything except rebuttal, and you are starting out as if it is not rebuttal. “MR. MAC INTYRE: Well I’ve got to lay a foundation, your Honor. “THE COURT: Well, this is going to be the most amazing statement you have ever made, because heretofore, you have never laid a foundation on a single witness. All right, proceed.” . “Few claims are more difficult to resolve than the claim that the trial judge, presiding over a jury trial, has thrown his weight in favor of one side to such an extent that it cannot be said that the trial has been a fair one. Where there is any substance to such a claim the reviewing court must examine the entire record and attempt to determine whether the conduct of the trial has been such that the jurors have been impressed by the trial judge’s partiality to one side to tlie point that this became a factor in the determination of the jury.” United States v. Guglielmini, 2 Cir., 1967, 384 F.2d 602, cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48. . We agree with the Second Circuit that “Where mild admonitions to counsel did not suffice, any sterner or more forceful directions which may have been warranted should have been given in the absence of the jury.” United States v. Coke, 2 Cir., 1964, 339 F.2d 183. . Examples of the trial judge’s comments to the prosecutor are included in footnote 1. . We note that all the cases cited, except Robinson and Smith, involved the same district judge who presided in this case. Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BOSTON-CONTINENTAL NAT. BANK et al. v. WENDELL PHILLIPS CO. No. 3135. Circuit Court of Appeals, First Circuit. June 25, 1936. MORTON, Circuit Judge, dissenting. both of Boston, Mass. (Goodwin, Proctor & Hoar, of Boston, Mass., on the brief), for Boston-Continental Nat. Bank and another. Murray F. Hall and Donald J. Hurley, Alfred Gardner, of Boston, Mass. (Peabody, Arnold, Batchelder & Luther, of Boston, Mass., on the brief), for Wendell Phillips Co. Before BINGHAM, WILSON, and MORTON, Circuit Judges. BINGHAM, Circuit Judge. This is an appeal from a judgment of the federal District Court for Massachusetts of October 21, 1935, in favor of the plaintiff in the sum of $9,850.37. The case was tried together with Kennedy v. Boston-Continental Nat. Bank (C.C.A.) 84 F.(2d) 592, Nos. 3131-3132 and Ulin v. Deitrick (C.C.A.) 84 F.(2d) 601, Nos. 3133-3134 by the District Judge, a jury having been duly waived. May 21, 1926, the plaintiff leased to the defendant bank certain rooms in the Wendell Phillips building in Boston for ten years from July 1, 1926, at $7,000 a year for the first five years and $7,500 for the last five years, payable in equal monthly installments on the first day of each month for the preceding month. On December 17, 1931, the bank failed and the Comptroller took possession and appointed receivers, as stated in Nos. 3131— 3132, for the purpose of winding up the affairs of the bank. On January 13, 1932, the receiver notified the plaintiff that he elected not' to retain possession of the premises and, on March 30, 1932, vacated the same. 'The plaintiff’s declaration contains three counts. In the first one he seeks to recover a balance of $41.67 remaining unpaid on the installment of rent falling due December 1, 1931, for the preceding month. In the third count he seeks to recover rent at the stipulated rate from December 1, 1931, to December 17, 1931, amounting to $312.50. In the second count it is alleged that the defendant owes the plaintiff $16,250, the difference between the rental value of the premises for the remainder of the term and the rent reserved in the lease. This count is based on the following provision of the lease: “This lease is made on the further condition that if the said Lessee shall neglect or fail to perform or observe any of the covenants herein contained, on its part to be performed or observed, or if the estate hereby created shall be taken on execution or by any process of law, or if the said Lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of its property for the benefit of creditors, or, if, the Lessee being a corporation, any Receiver of its property shall be appointed by a court of competent jurisdiction, then and in any such case (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance) the said Lessor may lawfully, immediately or at any time thereafter, without notice or demand, enter into or upon said premises or any part thereof in the name of the whole, and repossess the sáme as of its former estate and expel the said Lessee and those claiming through or under him, and remove their effects (forcibly if necessary), and if it elects may store the same for account and at the expense and risk of the Lessee without being guilty of any. manner of trespass and without prejudice to any rights or remedies which might otherwise be used for arrears of rent or preceding breach of covenant, repossess the same as of its former estate; and upon entry aforesaid the lease shall determine and the Lessee covenants that in the case of such termination, or in case of termination under the provisions of statute by reason of default on the part of the Lessee, it will indemnify the Lessor against all loss of rent and other payments which it may incur by reason of such termination during the residue of the time first above specified for the duration of the said term, or at the election of the Lessor the Lessee will upon such termination pay to the Lessor, as damages, such a sum as at the time of such termination represents the difference between the rental value of the premises for the remainder of the said term and the rent and other payments herein named; in case of eviction of the said Lessee, or in case of the termination of this lease from any cause, the said Lessor may immediately recover of the said Lessee the pro-rata rent up to such time, irrespective of the periods herein prescribed for the payment of rent.” The District Court found that the plaintiff entered to terminate the lease on March 30, 1932, and that it was terminated on that day; that the fair rental value of the premises from March 30, 1932, to the end of the term was $21,250; that the rent reserved for the same period was $31,875, and the excess of rent reserved over the fair rental value, discounted at 5 per cent., amounted to $9,496.20. It also found for the plaintiff as claimed in the first and third counts. These several sums make up the judgment appealed from. No question is made as to the liability of the defendants on the first and third counts. The defendants, however, complain that the District Court erred in finding that the plaintiff was entitled to recover $9,496.20 on the second count.- We think that the District Court erred in its finding and ruling as to the second count, for the reasons stated in our opinion in Nos. 3131-3132. The claim sued upon in this count did not arise and become fixed until after the entry and termination of the lease, a time long after the bank was declared insolvent, and in the nature of the thing the amount of the claim could not be determined as of a time the claim did not exist i. e., the time of the declaration of insolvency. The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs in this court to the appellants. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_applfrom	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Michael O. WATSON, Petitioner-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellee. No. 76-1979. United States Court of Appeals, Sixth Circuit. Argued Dec. 3, 1976. Decided and Filed June 14, 1977. James R. Willis, Stephen O. Walker, Cleveland, Ohio, Michael O. Watson, for petitioner-appellant. William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellee. Before WEICK, PECK and LIVELY, Circuit Judges. JOHN W. PECK, Circuit Judge. Appellant Michael Watson was indicted by a Cuyahoga County, Ohio, grand jury for deliberate and premeditated murder in the first degree, in violation of former section 2901.01 of the Ohio Revised Code. At trial, appellant claimed self-defense. The jury found appellant guilty of the lesser included offense of murder in the second degree, and appellant was sentenced to life imprisonment. After appealing to the Cuyahoga County Court of Appeals and to the Ohio Supreme Court, appellant sought collateral review of his conviction in the federal district court by petition for writ of habeas corpus. The district court, however, denied the petition. Appellant has brought this appeal, making several arguments in support of his petition. We reach only one, that appellant was denied due process of law under the Fourteenth Amendment when he was forced during the state court trial to defend against a charge of felony-murder, which was not contained in the indictment. Because we agree with appellant on this issue, we reverse and remand the case to the district court with instructions to grant the writ of habeas corpus. I On February 6, 1973, in the late afternoon, appellant and a friend, John Bell, entered the store of a Cleveland, Ohio grocer, William Dallas. Bell asked the grocer’s wife, who was working in the store along with her husband, for a six-pack of beer. Mrs. Dallas got the beer from the cooler and set it on the counter. William Dallas then came over and asked Bell for some identification to show that he was of age to buy the beer. A conversation concerning credentials followed. The conversation ended when appellant drew a pistol and shot Mr. Dallas twice. One bullet struck Dallas in his left arm. The other bullet struck Dallas in the head, killing him. Mrs. Dallas witnessed the shooting. According to Mrs. Dallas, immediately before the shooting, appellant had said to Mr. Dallas that he had credentials and had asked whether Mr. Dallas wanted to see them. According to appellant and Bell, however, Mr. Dallas had pulled a gun, and appellant claimed that he had fired in self-defense. Most of the store owners in the area were armed, and on that day, Mr. Dallas had carried a gun in the pocket of his white butcher-type apron. The police later found the gun owned by Mr. Dallas on the floor, under the victim’s body. That gun had not been fired. Immediately after the shooting, appellant and Bell fled the scene without the beer in a red 1964 Cadillac, which had transported appellant and Bell to the store and which had carried two other friends. A description and the license plate number of the automobile were given to the police by a witness in the vicinity of the store. A couple of hours later, the automobile was stopped. Three males were arrested, but appellant escaped on foot. Six days later, on February 12,1973, appellant surrendered to the police. Appellant was indicted for deliberate and premeditated first degree murder only. Nevertheless, at the state court trial, the prosecutor in his opening statement, after reading the indictment for deliberate and premeditated murder, asserted that: “... the evidence... will convince you beyond a reasonable doubt that this man Watson [appellant] did in fact maliciously, premeditatively and while in the act of a robbery murder Willie Dallas.” Defense counsel, before making his opening statement, moved to dismiss the indictment. He argued that it was an infringement of a defendant’s right to notice of criminal charges to be brought against him by the State for the prosecutor to present a case on the basis of felony-murder when the indictment specified only a charge of first degree murder with deliberate and premeditated malice and did not include a charge of felony-murder. The prosecutor, when asked by the Court to reply to this argument, stated that premeditated murder and felony-murder were both first degree mur-. der and that the indictment, by charging first degree murder, did not have to include a statement that the indictment was for felony-murder for a defendant to be prosecuted on that charge. The trial court overruled the motion to dismiss, and the trial proceeded with the presentation of the State’s case. The prosecutor called several witnesses: Mrs. Dallas, the wife of the victim; a witness who was near the scene of the crime; Willie Waldon and Gerald Ford, friends of appellant who waited in the Cadillac when the killing took place; Peter Becker, a police detective who interrogated Ford after the shooting; and a police officer who arrived at the scene of the crime shortly after the killing. Much of the questioning focused on the possible robbery. When the prosecution stated that it would rest its case, defense counsel, out of the jury’s hearing, moved to withdraw the charge of first degree murder from the jury’s consideration. Defense counsel argued that there was no evidence to support a possible jury verdict of first degree murder, first, because there was no evidence of premeditation or deliberation on appellant’s part and secondly, because there was no evidence to show the commission of a robbery. The prosecutor disagreed, responding that the evidence did show a premeditated killing and that he had proven a prima facie case of robbery. The Court denied the defense motion. After a short recess, the prosecutor in proceedings between the Court and counsel in the Court’s chambers, requested the Court not to charge the jury on first degree felony-murder. The prosecutor stated that the proof showed that some of the elements of armed robbery were present and that such facts were relevant with respect to the complete circumstances of the case. Defense counsel immediately protested. He reminded the Court that at the start of the trial he had moved for the exclusion of any reference to a felony-murder because the indictment did not mention felony-murder. He further argued that because the Court allowed the trial to proceed with the inclusion of the felony-murder charge and because the defense had patterned its cross-examination in large part on the refutation of inferences supporting a charge of felony-murder, to drop the felony-murder charge would be prejudicial since it would preclude the defense counsel from talking about what he had tried to establish on cross-examination. The prosecutor replied that the effect of not charging the jury on felony-murder was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” (State Court Trial Transcript 171.) The prosecutor denied that there could be prejudice in removing that one count since there was evidence to support a verdict of deliberate and premeditated first degree murder. The evidence of a robbery was characterized as “ancillary” to the deliberate and premeditated murder. The Court agreed with the prosecution and made a tentative ruling that the jury would be charged only on deliberate and premeditated first degree murder. Defense counsel stated for the record that it was a strange situation for the State to start out by saying that it would prove felony-murder along with premeditated murder, to deny that there had to be a separate indictment for felony-murder from premeditated murder, to spend a great part of its case trying to prove felony-murder, and then, after resting its case, to seek withdrawal of the felony-murder charge and admit that a separate indictment was needed for felony-murder. Nevertheless, the Court adhered to its tentative decision to charge only deliberate and premeditated first degree murder. The trial proceeded with the defense calling appellant and John Bell and the prosecution calling Mrs. Dallas in rebuttal. After the Court denied certain defense motions, the Court charged the jury on deliberate and premeditated first degree murder as charged in the indictment. The jury found appellant not guilty of deliberate and premeditated first degree murder but guilty of the lesser included offense of second degree murder. Appellant appealed unsuccessfully to the Cuyahoga County, Ohio Court of Appeals and to the Ohio Supreme Court. His case is now before us because the district court denied his petition for a writ of habeas corpus. The question which we reach deals with the fact that appellant was forced to defend against a charge of felony-murder that was not brought by the grand jury in the indictment. There are two main issues with respect to this question: (1) whether there was a constructive amendment to the indictment, and (2) whether, if there was a constructive amendment, it violated appellant’s constitutional rights under the Fourteenth Amendment in this state court, as opposed to federal court, trial. II Under the Fifth Amendment’s provision that no person shall be held to answer for a capital crime unless on the indictment of a grand jury, it has been the rule that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct. 781, held that a defendant could only be tried upon the indictment as found by the grand jury and that language in the charging part could not be changed without rendering the indictment invalid. In Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, the Supreme Court stated that Bain “stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” This rule has been reaffirmed recently several times in this Circuit. United States v. Maselli, 534 F.2d 1197, 1201 (6th Cir. 1976); United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). Although the language in Bain is broad, it has been recognized that Bain and Stirone do not prevent federal courts from changing an indictment as to matters of form or surplus-age. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. 1038; United States v. Hall, 536 F.2d 313, 319 (10th Cir. 1976); United States v. Dawson, 516 F.2d 796, 801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); United States v. Huff, 512 F.2d 66 (5th Cir. 1975). In Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (1969), this definition of an amendment prohibited by Stiro,ne and Bain, as opposed to the concept of a variance in proof from the indictment, appears: An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. These definitions have been quoted with approval by several courts of appeal. United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972). This distinction between an amendment and a variance is critical because a variance is subject to the harmless error rule, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), whereas an amendment prohibited by Stirone and Bain is prejudicial per se. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir. 1971);. Gaither v. United States, supra, 413 F.2d at 1072. Sometimes, however, there is a problem in identifying when an amendment is made to an indictment. That problem occurs when the charging terms of an indictment have not been literally changed but have been effectively altered by events at trial. United States v. Somers, supra, 496 F.2d at 744. Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, involved a “constructive” amendment. The defendant was found guilty, but the Supreme Court reversed the conviction, stating that the defendant’s right to be tried only on charges presented in an indictment returned by a grand jury had been destroyed even though the indictment had not been formally changed. Stirone v. United States, supra, 361 U.S. at 217, 80 S.Ct. 270. Under Stirone, the question to be asked in identifying a constructive amendment is whether there has been a modification at trial in the elements of the crime charged. United States v. Somers, supra, 496 F.2d at 744; United States v. DeCavalcante, supra, 440 F.2d at 1272; United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification would result in a constructive amendment. Of course, if a different crime was added to the charges against which the defendant had to meet, there would have been a constructive amendment. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); United States v. Holt, 529 F.2d 981 (4th Cir. 1975). Applying this test to the present case, there clearly was a constructive amendment made to the indictment if appellant is correct in stating that felony-murder was added to the charges against which appellant had to defend at the state trial. Under Ohio law, a felony-murder conviction cannot be sustained under an indictment charging first degree murder with premeditated and deliberate malice. The Ohio Supreme Court in State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), held that although felony-murder and premeditated murder were both included in the same paragraph of the then existing first degree murder statute, felony-murder and premeditated murder constituted separate offenses. For appellant to be convicted of felony-murder he would have had to be indicted for that crime. The question that the present case poses is whether, under the facts of this case, felony-murder was effectively added to the charges against which appellant had to defend. The district court held that there was no factual basis from which to conclude an amendment had been made to the indictment, even though the prosecutor, during the State’s case, improperly tried to prove felony-murder. The district court reasoned, and on appeal appellee contends, that there was no amendment to the indictment because the prosecutor’s opening statement included a reading of the indictment and because the trial court’s charge to the jury was only for deliberate and premeditated first degree murder and did not include a charge of felony-murder. However, the prosecution and defense counsel throughout the State’s case relied on the trial court’s ruling and sought respectively to prove and negate commission of a robbery at the time of the shooting. On cross-examination, defense counsel elicited from Mrs. Dallas the statements that neither appellant nor Bell said “stick it up,” that neither appellant nor Bell gave any indication that they were robbing or attempting to rob the store, that neither appellant nor Bell took anything of value in the store, and that neither appellant nor Bell acted — until the shooting — as other than normal customers. In response, the prosecution called Henry Towns, a witness in the vicinity of the store. Towns described seeing appellant and Bell run up a street away from the area of the grocery store and enter a waiting red 1964 Cadillac, which quickly sped away from the scene. Towns further testified that he saw either appellant or Bell with something under his arm and that he thought that the bar next to the Dallas grocery store had been robbed. After brief testimony from an intervening witness, the prosecution called Gerald Ford. The prosecution’s sole purpose in calling and vigorously questioning Ford was to prove a robbery. After the prosecution was granted permission to cross-examine Ford as a hostile witness, he was asked whether in the car after the shooting if appellant had admitted to his friends that in the store he told William Dallas that it was a “stickup.” Ford first denied that appellant had said anything about a stickup and then asserted that he could not remember. The prosecutor read from Ford’s statement, which was taken by police after he was arrested and which incriminated the appellant. Ford said that he had signed the statement but repeated his claim that he did not remember that he had stated anything about a robbery. In permitting the prosecutor to cross-examine Ford as a hostile witness, the Court gave as its “principal reason” for allowing the cross-examination the fact that the State in its opening statement contended that the killing took place during an attempted robbery. When cross-examined by defense counsel, Ford denied that there was any conversation among the four friends in the Cadillac about an effort to rob the grocery store. Ford also testified that the statement he gave was made under pressure of possible criminal charges against him at a time when he was not free to leave the police station. The prosecution also called two police detectives, Peter Becker, who was one of the two officers who took Ford’s statement, and William Vargo, who was an officer who arrived at the scene of the crime shortly after the killing. On direct examination, Becker was questioned about the nature of his interrogation of Ford to show that the statement was freely given. On cross-examination, Becker admitted that Ford never said that any of his three companions in the Cadillac on the day of the shooting ever stated to Ford that appellant and Bell had the intention of robbing the store. Vargo admitted on cross-examination that when he turned over the dead body of William Dallas, he saw that the right hand of Dallas was inches away from where his gun lay on the floor. Shortly thereafter, the prosecution stated that it would not ask that the Ford statement be formally received into evidence. It thus clearly appears that the strategy of counsel was vitally affected by the trial court’s ruling allowing the prosecution to prove felony-murder. The trial proceeded on the basis that, under the Ohio first degree murder statute, former Ohio Revised Code § 2901.01, to uphold a conviction of first degree murder, the State had to prove that appellant purposely killed another person and that appellant either killed with deliberation and premeditation or killed during the commission of a felony. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951); Robbins v. State, 8 Ohio St. 181 (1857); Note, The Felony Murder Rule in Ohio, 17 Ohio St. L.J. 130 (1956). A major portion of the trial, during the State’s case, concerned the possible robbery and not facts going to a determination of premeditation. The trial court ruling that the State could prove felony-murder was critical to defense strategy because appellant at trial claimed self-defense, which is not a defense to felony-murder. The trial court thus permitted a constructive amendment and then, upon request of the prosecution, permitted a withdrawal of the amendment. As the prosecutor aptly put it, when he asked the trial court not to charge the jury on felony-murder, the effect was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” The Ohio grand jury had not put such a felony-murder count in the indictment. Ill Because the law of a constructive amendment has developed in the context of federal court trials and the Fifth Amendment, it must be determined whether appellant’s constitutional rights under the Fourteenth Amendment were violated in his state court trial. The problem stems from the fact that the rule against amendments contained in Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, rests on the Fifth Amendment’s guarantee of a grand jury indictment before a person can be held to answer for a capital crime. Ex Parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786, 788, made clear the Fifth Amendment basis for the rule: If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says, “no person shall be held to answer,” may be frittered away until its value is almost destroyed. [A]fter the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists. The Fifth Amendment’s guarantee of a grand jury indictment in cases of capital crimes, however, has never been incorporated into the Fourteenth Amendment and hence is not applicable to the states. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a grand jury indictment in a prosecution by the State of California for a capital crime. While it is true that Hurtado once stood in a line of Supreme Court cases that refused to incorporate Bill of Rights guarantees relating to criminal procedure into the Fourteenth Amendment and while it is true that such older precedent, except for Hurtado, has been overruled and most of the Bill of Rights guarantees relating to criminal procedure have been incorporated into the Fourteenth Amendment as fundamental rights, Hurtado remains good law. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Picard v. Connor, 404 U.S. 270, 273, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Saunders v. Buckhoe, 346 F.2d 558, 559 (6th Cir. 1965). In addition, even if a state adopts a grand jury system, federal constitutional requirements, binding in federal criminal cases are not binding on the states, Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. 1221, except with respect to the racial or national composition of grand juries. Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Thus, with respect to amendments, federal courts have viewed their legality as “primarily a matter of state law.” United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975). See Henderson v. Cardwell, 426 F.2d 150, 152 (6th Cir. 1970); Stone v. Wingo, 416 F.2d 857, 859 (6th Cir. 1969). By statute, Ohio law allows certain amendments. Ohio Revised Code § 2941.30 at the time of appellant’s trial provided, and now provides: The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form of substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted. In the present case the Ohio Revised Code § 2941.30 would not permit an amendment that changed the indictment to add another, different crime. See Breinig v. State, 124 Ohio St. 39, 42-43, 176 N.E. 674 (1931); Hasselworth v. Alvis, 76 Ohio Law Abs. 238, 143 N.E.2d 862 (1956); Horsley v. Alvis, 281 F.2d 440 (6th Cir. 1960). In no way was Ohio Revised Code § 2941.30 involved in the present case. According to Breinig, such a far reaching amendment as occurred in the present case would violate fundamental laws, cloaking the defendant with the right under the Ohio State Constitution to “demand the nature and cause of the accusation against him.” 124 Ohio St. at 42-43, 176 N.E.2d at 676. More important to appellant’s petition for a writ of habeas corpus is the fact that an amendment to an indictment in certain cases can implicate rights under the United States Constitution which are applicable to the states, such as fair notice of criminal charges, double jeopardy, and effective assistance of counsel. See United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d 425. This Court in United States v. Pandili-dis, supra, 524 F.2d at 648, recognized that: . the rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury. There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that: A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence.. Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that: No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932). To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. DeCavalcante, supra, 440 F.2d 1264; Gaither v. United States, supra, 134 U.S.App.D.C. 154, 413 F.2d 1061. The fact that the charge to the jury only included first degree premeditated murder according to the indictment could not cure the prejudice to the appellant. Furthermore, an amendment cannot properly be justified by a prosecuting attorney on the ground that defense counsel should have sought a bill of particulars. Russell v. United States, supra, 369 U.S. at 769-70, 82 S.Ct. 1038; United States v. Norris, supra, 281 U.S. at 622, 50 S.Ct. 424. The order of the district court is reversed, and the case is remanded to the district court with instructions to grant the writ of habeas corpus, conditioned on the State’s right to retry the appellant. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). . Appellant presented to the district court and to this Court four contentions. First, due process was denied appellant when the prosecutor introduced, as substantive proof of guilt, testimony showing that appellant had exercised his right to remain silent at the time of arrest. Second, due process and effective assistance of counsel were denied appellant when he was forced to defend against charges not brought by the grand jury. Third, due process was denied appellant when the prosecutor asked inflammatory questions without a reasonable belief that such questions would produce admissible evidence. Fourth, due process was denied appellant when the state trial court required him to prove affirmatively, by the preponderance of the evidence, self-defense. . Appellant’s fourth contention, regarding the burden of proof he had to shoulder on the issue of self-defense, was never presented to the state courts. Also, appellant’s third contention, regarding prosecutorial misconduct, was not presented in the application for leave to the Ohio Supreme Court. With respect to these contentions, appellant apparently has not exhausted his state remedies. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Appellant did exhaust his state remedies as to his first contention, that the prosecutor’s elicitation of testimony from a police detective showing that appellant had exercised his rights to remain silent and to retain counsel at time of arrest was introduced as substantive proof of guilt and thus, in view of the circumstances of the questioning, was, under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), harmful unconstitutional prosecutorial comment upon an accused’s assertion of his constitutional rights [as distinguished from proof of an accused’s silence at time of arrest offered for impeachment purposes, held unconstitutional in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)]. We have not reached that contention, however, because of our disposition of the case on the ground that appellant was forced to defend against a charge of felony-murder when the indictment specified only premeditated first degree murder. . Former Ohio Revised Code § 2901.01 provided as follows: No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another. Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life. Murder in the first degree is a capital crime under Sections 9 and 10 of Article 1, Ohio Constitution. . Appellee also responds to appellant’s argu- ■ ment by stating that it is not properly before us because it was not raised in the Ohio courts and that it is a different argument than presented in the district court. Appellee’s position is without merit and refuted by a review of the Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appel1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. CAROLINAS FARM & POWER EQUIPMENT DEALERS ASSOCIATION, INC., Appellee, v. UNITED STATES of America, Appellant. No. 82-1230. United States Court of Appeals, Fourth Circuit. Argued Oct. 7, 1982. Decided Jan. 24, 1983. David L Pincus, Tax Div., Dept, of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, David English Carmack, Tax Div., Dept, of Justice, Washington, D.C., on brief), for appellant. Curtis A. Twiddy, Raleigh, N.C. (Thomas L. Norris, Jr., Maria M. Lynch, Poyner, Geraghty, Hartsfield & Townsend, Raleigh, N.C., on brief), for appellee. Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge. HARRISON L. WINTER, Chief Judge: The issue presented here is whether a tax-exempt trade association receives unrelated business taxable income when it assists its members in procuring economical group insurance and receives a percentage rebate of the premiums paid by them from the insurance provider. The district court held that the rebates do not constitute unrelated business taxable income. We reverse. I. The facts are established by stipulation of the parties: Carolinas Farm & Power Equipment Dealers Association, Inc. (Association) is a trade association exempt from federal income tax under Section 501(a) and (c)(6) of the Internal Revenue Code of 1954. Its purpose is to promote the general welfare of independent retail distributors of farm and power equipment in North Carolina and South Carolina by monitoring state and federal legislation, conducting workshops, publishing a newsletter, and offering its members an opportunity to obtain group insurance. During the years 1973-1977, it had approximately 421 members, including corporations, partnerships, and sole proprietorships involved in that trade. In 1955 the Association created an insurance trust fund to operate and fund a group insurance program for its members. The present trustees are members of the Association’s Board of Directors. The trust acquired a master group insurance policy issued by the Federated Mutual Implement and Hardware Insurance Company of Owatonna Minnesota (Federated), providing life insurance, accident and health insurance, and hospital and surgical insurance coverage. Enrollment in the program is limited to members of the Association, of which approximately 41 percent chose to participate during the years in question. The Association distributes information pamphlets prepared by Federated to its members or prospective members, answers questions its members have about the program, forwards to Federated changes in coverage requested by its members, and transmits monthly premium notices to participating members. The members pay their premiums to the trust, which remits the premiums, in full, to Federated. The Association has four employees, all of whom handle the operation of the group insurance program to some extent. One devotes full time, one two-thirds time, one one-third time, and one one-fourth time to such activities. The trust pays the Association an administrative fee for these services. During the years at issue here, 1973 through 1977, Federated rebated seven percent of gross accident and health insurance premiums to the Association or the trust as an administrative allowance. From 1973 to 1976 it paid approximately two-thirds of this amount to the Association and one-third to the trust. In 1977 it paid the entire rebate to the trust. The trust used its receipts to pay operating expenses and maintain a reserve fund. The Association used its receipts to pay operating and other general expenses. The rebates were quite large in relation to the Association’s other income from membership fees and assessments. For example, in 1973 it received $41,604.34 as an administrative allowance, on which it earned a tax profit of $15,542.75 and an accounting profit of $27,592.16, as compared to only $24,425.74 it received from membership fees and assessments. During the years 1973-77, the Association’s total gross receipts was $569,005 and its total insurance rebates was $246,572. In addition to the administrative allowance or rebate, the Association also receives an experience refund from Federated when the claims of its members are less than the premiums paid for a year. The Association distributes these experience refunds to its members in proportionate shares. The Internal Revenue Service makes no claim that the rebated experience refunds constitute unrelated business taxable income. After the Internal Revenue Service determined that the administrative allowance was taxable income, the Association paid the contested amounts and filed claims for refund. When these were not honored, the Association filed suit for refund of the tax paid, asserting: first, that the rebates are not unrelated business taxable income; second, even if they are, that any funds received by it from Federated are held in trust for its members and therefore are not income to it. A magistrate to whom the case was originally referred recommended that both contentions be rejected but the district court held that the rebates are not unrelated business taxable income, and so did not reach the second issue. II. Section 511 of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 511 imposes a tax on “unrelated business taxable income,” and §§ 512 and 513, 26 U.S.C. §§ 512 and 513, define “unrelated trade or business income” as gross income, less deductions, if the income: (1) arises from a trade or business, (2) which is regularly carried on, and (3) which is not substantially related to the organization’s exempt purpose. 26 C.F.R. § 1.513 — 1. It is undisputed that the Association’s insurance activities are regularly carried on, so the only issues here are whether those activities constitute a trade or business which is not substantially related to the purpose for which the-Association’s exemption was granted. A. Section 513(c) states that “[f]or purposes of this section, the term ‘trade or business’ includes any activity which is carried on for the production of income from the sale of goods or the performance of services.” Thus, one might easily conclude that the proper inquiry is whether an organization conducts an activity to earn a profit. If so, the activity is a trade or business. Accord, Louisiana Credit Union League v. United States, 693 F.2d 525 (5 Cir.1982), affirming 501 F.Supp. 934 (E.D.La.1980); Clarence LaBelle Post No. 217 v. United States, 580 F.2d 270 (8 Cir.1978); Professional Insurance Agents v. Comm’n, 78 T.C. 246 (1982). Kaplan, Intercollegiate Athletics and the Unrelated Business Income Tax, 80 Colum. L.Rev. 1430, 1438 (1980). Certainly there can be no dispute given the consistently profitable result of the operations, the proportion of insurance income to total income and the use of the income for its own purposes that the Association carried on its insurance activities to earn a profit. However, several courts, reasoning that the intent of Congress in enacting the unrelated business tax provisions and subsequent amendments was to prevent charitable organizations operating essentially commercial operations from having a competitive advantage over taxpaying enterprises, have adopted more restrictive tests. One has held that the proper inquiry is whether the activity might be unfairly competitive with taxpaying enterprises. Hope School v. United States, 612 F.2d 298 (7 Cir.1980). Accord, Clarence LaBelle Post No. 217, VFW v. United States, 580 F.2d 270, 275 (8 Cir.1978) (Schatz, J., dissenting). Another has stated the test to be whether the activity is one traditionally engaged in by a charity or whether it is an “abusive" step into traditional commercial areas. Mass. Medical Soc. v. United States, 514 F.2d 153 (1 Cir.1975). While still another concludes that while unfair competition need not be established, the proper inquiry is whether the activity is conducted in a competitive and commercial manner. That is, whether a good or service is offered in a competitive manner for a competitive price. Disabled American Veterans v. United States, 650 F.2d 1178 (Ct.Cl.1980). The legislative history of the unrelated business income tax provisions and their amendments is thoroughly explored in the majority and dissenting opinions in Clarence LaBelle Post, supra. That history strongly suggests that Congress’s primary intent in enacting these provisions was to avoid endowing tax-exempt organizations with an unfair competitive advantage. Nonetheless, we think that the plain language of Section 513(c) should control and that an activity is a “trade or business” if an exempt organization conducts it for the production of income from the performance of services. While there is no need to look to legislative history where, as here, the language of a statute is quite clear, see, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976), defining an activity as a trade or business on the basis of the taxpayer’s motive for conducting it arguably effectuates Congress’s intent since an activity conducted with a profit motive and not substantially related to a charitable end “presents sufficient likelihood of unfair competition to be within the policy of the tax.” 26 C.F.R. 1.513-l(b). In the light of inaction on the part of Congress over a period of thirty-two years to create a requirement of actual competition with taxable entities as a prerequisite for taxation of unrelated business income, see Louisiana Credit Union League v. United States, 501 F.Supp. 934, 939 (E.D.La.1980), it is difficult to conclude that the activities must compete with for-profit enterprises as a prerequisite to taxation. On the basis of the record before us we must infer the Association undertook this activity with a profit motive. The district court held it did not, reasoning that the Association’s explicit purpose was to provide low-cost group insurance to benefit the industry. By contrast, the Fifth Circuit has found a trade association had a profit motive in endorsing and aiding its members to acquire insurance, debt collection and data processing services when it consistently earned significant profits from rebates or fees paid by the providers of those services. Louisiana Credit Union League, supra. Similarly, the Tax Court in Professional Insurance Agents v. Comm’n, supra, on facts somewhat similar to these here, found a profit motive in large part because the contested activity was highly profitable. We follow the Fifth Circuit and the Tax Court, because we think that there is no better objective measure of an organization’s motive for conducting an activity than the ends it achieves. Accord, Kaplan, supra, 80 Colum.L.Rev. at 1438-40. This factor weighs heavily against the Association since it consistently received far more in rebates than it expended in providing insurance services. Second, other strong evidence of profit motive can be found by implication when the taxpayer does not meet the third part of the test for unrelated business income: whether the activity is substantially related to an organization’s charitable purpose. If an activity which is not substantially related to a charitable purpose is conducted in a competitive profit-seeking manner and regularly earns significant profits, a heavy burden must be placed on the organization to prove profit is not its motive. Certainly where, as here, an organization could easily rebate any profits to its members and thus better fulfill its nonprofit, ostensible charitable purpose by providing them with even lower cost group insurance, that burden must be held unmet. B. The regulations state that for an activity to be substantially related to an organization’s exempt purposes it must bear a substantial causal relationship or contribute importantly to the achievement of those purposes other than through the production of income. 26 C.F.R. § 1.513-l(dX2). Indeed, the statute is specific that an activity is not substantially related merely because it obtains funds which are then applied to achieve a charitable purpose. 26 U.S.C. § 513(a). The Association is tax exempt under § 501(c)(6) of the Code as a “business league,” defined in 26 C.F.R. 1.501(c)(6)-l as “an association of persons having a common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit.” This regulation further admonishes that the activities of such an association “should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.” We think that the Association’s insurance activities constituted the performance of a service for its individual members and not activities substantially related to its corporate objectives. As Justice Reed (Ret.) noted in Evanston-North Shore Board of Realtors v. United States, 320 F.2d 375, 378, 162 Ct.Cl. 682, (7 Cir.1963), it is often difficult to determine whether a trade association’s activities primarily benefit individual members or the trade generally since the interests of both are inevitably intertwined. In this case, for example, the provision of low-cost life insurance most directly benefits those members of the Association who choose to participate in the program, but it can also be said to benefit the entire industry — at least that operating in North and South Carolina — since it makes available to all the option to join such a program. Several factors are present here, however, which are strong evidence that the program operates primarily to benefit individual members and not the industry as a whole. First, and most important, is the fact that the fees charged members for participation in the insurance program are in direct proportion to the benefits received. See, e.g., Contracting Plumbers Cooperative Restoration Corp. v. United States, 488 F.2d 684, 687 (2 Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974); Evanston-North Shore Board of Realtors, 320 F.2d at 378-379. Second, participation in the insurance program is limited to members of the Association, so unlike such activities as lobbying services, it is of no benefit to those in the industry who are not members. See, e.g., Contracting Plumbers Coop., 488 F.2d at 687; Evanston-North Shore Board of Realtors, 320 F.2d at 379. Finally, the service provided by the Association is one commonly provided by for-profit entities. This is significant because the regulation requires a substantial causal relationship between the activity and accomplishment of an exempt purpose. Where a service is available in the marketplace, a trade association need not provide it to accomplish an exempt purpose. Cf. Associated Master Barbers & Beauticians of America, Inc. v. Commissioner, 69 T.C. 53, 64 (1977) (trade organization that primarily provides insurance and supplies to members is not exempt because such goods are traditionally supplied by for-profit entities). For these reasons, we must conclude that the Association’s insurance service primarily advances the interests of participating members, and so it is not related to its charitable purpose. Because we conclude that Association’s income satisfied each factor of the tripartite test to render it taxable as unrelated business taxable income, we reverse the judgment of the district court. REVERSED. . Both amounts are derived by deducting the Association’s cost of providing the various services. The difference between the two figures exists because certain deductions are allowed for tax purposes which are irrelevant for accounting purposes. . In this appeal the Association has abandoned its contention that the funds received by it from Federated are nontaxable because they are trust funds held for the benefit of its members. It has failed to assert this contention as a ground of affirmance of the judgment of the district court even though the government’s brief called attention to the fact that the argument was asserted in the district court and stated its willingness to litigate the issue if it was renewed by the Association. We therefore will not consider it. . Section 513(c) was added to the Code by the Tax Reform Act of 1969, Pub.L. No. 91-172, § 121(c), 83 Stat. 487 (1969), and while its primary purpose was merely to render taxable the advertising revenues earned by professional journals, its language was not so restricted. See H.Rep. No. 91-413, reprinted in 1969 U.S. Code Cong. & Admin.News, pp. 1645, 1695-6. . When an activity presents sufficient possibility of profit to induce a tax-exempt organization to undertake it for the purpose of earning a profit, it seems logical to assume that engaging in the same activity would be attractive to a nontax-exempt organization, so that there exists a substantial likelihood of unfair competition. Cf. Clarence LaBelle Post, 580 F.2d at 275 (Lay, J., concurring) (Treasury’s determination that profit motive presents danger of unfair competition warrants judicial deference). . We intimate no view as to whether an activity conducted to earn income, but in a noncommercial manner, can be a trade or business. Cf. Louisiana Credit Union League v. United States, 693 F.2d 525, 541 n. 32 (5 Cir.1982); Disabled American Veterans v. United States, supra. An example of such an activity is mailing small items to potential donors and requesting a contribution in return. See Hope School v. United States, supra. We need not resolve this issue here, since the Association’s insurance activities are conducted in a sufficiently commercial manner to come within the definition of a trade or business even if such a limitation is assumed, for the Association affirmatively advertised the program to its members, and it was guaranteed remuneration, albeit by a third party, the insurance provider, if they elected to participate. . There was additional evidence of profit motive in Professional Insurance Agents not present here. First, an executive of the trade association testified that it would have found a new insurance provider but for the rebate. Second, the Association’s insurance activities had earlier been conducted in a taxpaying subsidiary. . The full text of the pertinent portion of the regulation follows: (2) Type of relationship required. Trade or business is “related” to exempt purposes in the relevant sense, only where the conduct of the business activities has causal relationship to the achievement of exempt purposes (other than through the production of income); and it is “substantially related,” for purposes of section 513, only if the causal relationship is a substantial one. Thus, for the conduct of trade or business from which a particular amount of gross income is derived to be substantially related to purposes for which exemption is granted, the production or distribution of the goods or the performance of the services from which the gross income is derived must contribute importantly to the accomplishment of those purposes.... . The Fifth Circuit has held that in order to be substantially related to its exempt function, the activities must be “unique” to the organization’s tax-exempt purpose and they must redound to the benefit of its members as members. Louisiana Credit Union League, supra. By this test, we think that the Association’s insurance service is not substantially related to its exempt function. The service is not unique; it is readily available in the marketplace. The service does not benefit members as members. It benefits only members who employ the service and it benefits them in their individual capacities. As a group, members gain no benefit from the fact that some avail themselves of the insurance service. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Raymond George MILLER, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee. No. 87-5342 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Nov. 1, 1988. Robert A. Butterworth, Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee. Before TJOFLAT, HILL and EDMONDSON, Circuit Judges. HILL, Circuit Judge: Raymond George Miller petitions this court for the writ of habeas corpus. A Florida state court convicted Miller of solicitation to commit murder in the first degree. In response to an ad in Soldier of Fortune magazine, Miller wrote and then called a California man named Jerry Baker, explaining that he was obligated to pay his former wife 40% of his military retirement pay, and that he sought a “solution” to his problem. Baker, acting as a government informant, recorded the phone call as a California police officer watched. Baker and Miller met in a Florida motel room, and their conversation again was taped. Miller was arrested on his way out of the motel room. After his conviction, Miller appealed on the grounds that the tapes of his conversations with Baker should have been suppressed. His conviction was affirmed by a Florida appellate court. Miller then filed a collateral state habeas petition, arguing that his appellate counsel had been ineffective in failing to raise four issues: (1) the vagueness of the Florida solicitation statute under which Miller was convicted; (2) the failure of the trial court to strictly construe the Florida statute so that it would not apply to Miller; (3) the affront to the confrontation clause caused when Miller was denied certain testimony from three witnesses; and (4) the vindictiveness of the court in sentencing Miller. A Florida appellate court examined Miller’s claim of ineffective assistance of appellate counsel, and ruled Miller’s counsel had been effective because on the merits none of the four proposed claims would have been successful. Miller then filed a federal habeas petition. In his petition, however, Miller raised the four issues directly, rather than through a claim of ineffective assistance of appellate counsel. The federal court dismissed the petition for failure to exhaust state remedies, noting that the four claims had been dealt with only indirectly by a state court. Miller again filed in state court, this time alleging the four claims as direct grounds for habeas relief. A state court summarily denied the claims. Miller returned to federal court with the four claims, but again was denied relief because he had failed to exhaust the claims in a Fla.R.Crim.P. 3.850 proceeding in state court. When Miller filed under Rule 3.850, a state court held Miller had defaulted on the four claims when he failed to raise them in his initial appeal. Miller again sought federal relief, but the federal court dismissed his claim, citing the state procedural default holding. Finally Miller brought this federal habe-as petition, turning again to his allegation that he was denied effective assistance of appellate counsel since his attorney failed to raise the four claims on Miller’s initial appeal. The district court denied the petition after reviewing the nature of the underlying claims. The court cited the original state habeas decision which also had denied the petition after review of the merits of various claims, including the four advanced here. See Miller v. State, 430 So.2d 611 (Fla.App. 4 Dist.1983). Although this petition represents Miller’s fourth attempt to obtain federal habeas relief, at this point no federal appellate court has examined the merits of Miller’s ineffective assistance claim. Consequently, we will not dismiss the petition for abuse of the writ. Appellate counsel may be effective and yet not raise claims “reasonably considered to be without merit.” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). “The most direct way to approach this question ... is to examine the alleged trial errors ... to see if they contain sufficient merit — actual or arguable — that his appellate counsel can be faulted for not having raised them.” Hooks v. Roberts, 480 F.2d 1196, 1197 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). Miller first maintains that his appellate counsel should have argued that the statute under which Florida convicted Miller, Fla.Stat. § 777.04(2) (1981), was unconstitutionally vague. The statute prohibits solicitation of “another to commit an offense prohibited by law_” Fla.Stat. § 777.04(2) (1981). Section 777.04(2) limits itself to offenses enumerated under section 777.04(4), or for which the law expressly prohibits solicitation. Section 777.04(4) lists only felonies. We treat petitioner’s void-for-vagueness argument as a fact-specific due process claim that his indictment should have been dismissed because no statute gave him adequate notice that what he did was criminal: The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Because section 777.04(4) delineates the offenses intended by section 777.04(2), and because petitioner’s action fits within section 777.04(4)(b), petitioner ought to have been fully aware that his solicitation was criminal . We conclude that petitioner was not denied due process. Next petitioner contends that he should have been afforded the protection of Fla. Stat. § 775.021(1) (1981). Under that section, Florida provides that criminal statutes are to be construed in favor of the accused. Petitioner argues that since the statute might be read as vague, section 775.021(1) entitles him to have the statute read and voided as too vague. The claim is frivolous. Thirdly, Miller contends he was denied the benefit of specific testimony by three witnesses. The testimony sought, however, was merely cumulative as to petitioner’s trial theory that: “Baker’s lifestyle caused him to be in dire need of police leniency and this accounted for his periodic efforts to urge others to commit crimes [so that Baker could] assist police in their conviction.” Petitioner’s brief at 26. Finally, petitioner maintains that the trial judge improperly sentenced him to thirty years after pre-trial negotiations had been headed toward a probationary term. Petitioner has not demonstrated a “realistic likelihood of ‘vindictiveness,’” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974), on the part of the sentencing judge. “We have no reason to attribute [the petitioner’s] increased sentence to anything other than the trial judge’s more accurate appraisal of the circumstances after hearing the full disclosure of the facts at trial.” Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981). “[I]t stretches our credulity to think that one who declines to plead guilty with a recommended sentence acceptable to the Court should nevertheless be given the benefits of a bargain available to, but rejected by, him.” United States v. Resnick, 483 F.2d 354, 358 (5th Cir.1973), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). Finding no merit in the contentions underlying the ineffective assistance claim, we cannot grant the writ. The decision of the district court is AFFIRMED. . Because the crime of murder is illegal in both Texas and Florida, we need not address the situation in which the solicitation is in Florida for an act to be committed in Texas, the act itself being legal in Texas but illegal in Florida. "[VJagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See also United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975). Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_circuit	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. RAINES v. LIGON et al. Circuit Court of Appeals, Tenth Circuit. January 15, 1930. No. 109. Wellington L. Merwine, of Okmulgee, Okl., for appellant. Y. R. Biggers, of Wewoka, Okl. (Biggers, Wilson & Aldridge, Pryor & Stokes, and A. M. Fowler, all of Wewoka, Okl., on the brief), for appellees Ligón, Mainard, Gamer, Brixey, and Casey. 0. Dale Wolfe and W. M. Haulsee, both of Wewoka, Okl., for appellee Mathis. Before LEWIS, PHILLIPS and MeDERMOTT, Circuit Judges. PHILLIPS, Circuit Judge. This is a suit in equity brought by Maceo Raines to cancel: (1) A warranty deed running from plaintiff and N. H. Raines, her husband, to J. A. ligón, conveying 120 acres of land in Seminole county, Oklahoma; (2) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein, from Ligón to W. E. Casey, J. D. Gamer, Mabel Gamer, Herman Shepard and J. L. Mainard; and (3) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein from Shepard to J. F. Remy and 0. Brixey. The complaint alleged that the plaintiff is a resident of Springfield, Tennessee; that she had employed one J. A. Burrows, of lima, Oklahoma, as her agent, to sell such tract of land; that, on March 5,1926, an oil well was being drilled in the vicinity of such land; that such well was then producing some oil and gas and was giving indications that it would eome in as a commercial well; that plaintiff had no knowledge of the oil and gas development in the vicinity of such land; that, on March 5, 1926, the above named grantees, with the knowledge that Burrows was plaintiff’s agent, induced Burrows to go to Springfield and negotiate with plaintiff for the conveyance of such land to them for $10,-5Ó0; that such amount was a grossly inadequate consideration; that such grantees, in order to induce Burrows to violate his trust, agreed to pay him a large sum of money, as commission for his services, and to pay his traveling expenses from his home in Oklahoma to Springfield and return; that, pursuant to such agreement with such grantees, Burrows went to Springfield, advised plaintiff to sell such land for $10,500, induced her to execute and deliver a deed for such land to J. A. ligón and concealed from her the fact of the drilling of such well and of the increased value of such land on account thereof. The complaint further alleged such conveyances of the oil, gas and other mineral rights in such land and that such grantees took such conveyances with the knowledge that Ligón had procured such deed to the land by fraud and deceit. The complaint tendered a restoration of the amount paid for such land and prayed for cancellation of such deeds and conveyances. Ligón filed an answer denying specifically the allegations of fraud and alleged that Burrows, as agent for the plaintiff, approached him on March 5,1926, and offered to sell such land to him; that he agreed to buy the land for $15,000; that Burrows thereupon went to the home of plaintiff and procured the deed; that such deed, with sight draft for $10,500 attached, was forwarded to the Farmers’ National Bank at Wewoka, Oklahoma; that plaintiff appeared in person at the bank, on the day the draft was presented to Ligón, and directed the bank not to deliver the deed until further notice from her; that plaintiff then entered into negotiations with Ligón for the sale of the land; that such negotiations eontinued for about fifteen days; that during such period plaintiff was in the immediate vicinity of the land and knew of the oil development near the land; that, as a result of such negotiations, plaintiff sold the land to Ligón for $15,000; that such sum was the reasonable market value of the land. Each of the other grantees filed separate answers denying the allegations of fraud and alleging that they were bona fide purchasers for a valuable consideration, without notice of such alleged fraud. ' The evidence showed the following facts: Plaintiff was a Negro woman, twenty-five years of age. She resided with her husband, N. H. Raines, a negro physician, in Springfield, Tennessee. Plaintiff employed Burrows, a negro school teacher, who lived in the immediate vicinity of the land, to act as her agent in the sale of the land and authorized him to sell the land for $10,000 cash or $12,-000 — one-third cash and the balance in deferred payments. Burrows was to receive, as his commission, any amount he could sell the land for in excess of the prices above stated. On March 6, 1926, Burrows approached J. L. Mainard, who was acting for himself, Ligón, M. F. Mainard and E. C. Aldridge, and agreed to sell the land to them for $14,000. A deed, reciting a consideration of $10,500, running to Ligón, as grantee, was prepared and delivered to Burrows. J. L. Mainard instructed Burrows to proceed to plaintiff’s home and consummate the transaction at once before some one telegraphed a fabulous offer to plaintiff. Burrows immediately left Wewoka for Springfield and arrived there on March 8, 1926. He remained there one day discussing the trade with plaintiff and her husband. He represented to them that the oil prospects were not promising; that it might be five or six years before there would be any oil development, and that the oil and gas rights were worth only from $25 to $40 per acre, since there was no oil well being drilled near plaintiff’s land. Burrows left Springfield the evening of March 8, 1926, and returned to Wewoka. On March 11, 1926, plaintiff and her husband executed the deed and forwarded it, with a sight draft for $10,-500 attached, through a Springfield bank to the Farmers’ National Bank, together with instructions to deliver the deed upon payment of the draft. While Burrows was in Springfield, Chas. B. Williams approached J. L. Mainard and said that he had a better offer for the land; that he would wire Burrows to cancel the trade unless Mainard would raise the price $1,000. Mainard assented to this demand and agreed to pay $15,000 for the land. On March 11th, 1926, Burrows and Williams entered into a written contract with Ligón. This contract provided that Williams and Burrows should procure a warranty deed for the land from plaintiff and her husband to Ligón and cause it to be delivered, with sight draft attached for $10,500, to the Farmers’ National Bank; that Ligón should deposit $4,500 in the Security Bank of Wewoka; that the Security Bank should pay to Williams and Burrows the sum of $4,500 upon approval of the title to the land. On March 13, 1926, the plaintiff, having received information from Burrows that some question was being raised about the title to the land, left immediately for Lima, Oklahoma, where her uncle, G. V. Gross, lived, for the purpose of clearing the title to such land. Plaintiff arrived at Lima about March 15, '1926. She agreed with J. L. Mainard, who represented Ligón, M. F. Mainard and Aldridge, to have the Springfield bank reduce the draft from $10,500 to $9,000 and that the sum of $1,500 should be used in remedying the defects in the title to the land. J. L. Mainard and his associates paid the draft, after its reduction to $9,000. After some attempts to clear the title to the land, a further contract was entered into on March 25,1926, by which it was agreed that Burrows and Williams should receive $3,500 instead of $4,500; that plaintiff should refund $2,000 of the consideration received by her; that plaintiff should be released from the warranty contained in her deed; and that Burrows and Williams should be released from any claims against them under the contract of March 11. This contract was carried out. The terms of this contract were proposed by Burrows, Williams and plaintiff and the contract was prepared by their lawyer. Plaintiff then returned to Springfield. Apparently the alleged defects in the title were substantial, because, at the time of the trial of this cause, three lawsuits were pending against Ligón and the other purchasers, by persons who claimed to own interests in the land. In the latter part of February and the early part of March, 1926, an oil and gas well was being drilled approximately a mile and a quarter north of the tract of land in question. The producing sand was reached at a depthl of 3,982 feet, about February 28, 1926, and the well on that date produced at the rate of 95 barrels of oil per day. It was drilled further into the sand and, on March 6th, at a depth of 4,009 feet the well produced at the rate of 489 barrels of oil per day. The well was completed on March 12th at a depth of 4,012 feet and produced at the rate of 995 barrels of oil per day. . During the time that plaintiff was in Oklahoma, she was in the vicinity of the land in question and this oil well, and the defendants in no wise concealed from her the drilling of such well and the increased value of the land on account thereof. The trial court found the issues in favor of the defendants below and entered its decree denying plaintiff any relief. Plaintiff has appealed. Fraud must he established by clear, satisfactory and convincing evidence. Lalone v. United States, 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed. 425; In re Locust Bldg. Co. (C. C. A. 2) 299 F. 756, 765, 766; United States v. Bucher (C. C. A. 8) 15 F.(2d) 783, 785; United States v. Hays (C. C. A. 10) 35 F.(2d) 948. £2] When a court of equity has considered conflicting evidence and has made its findings and decree thereon, such findings and decree are presumptively correct and will not be disturbed, in the absence of a serious mistake in the consideration of the evidence or an obvious error in the application of the law thereto. Fienup v. Kleinman (C. C. A.) 5 F.(2d) 137, 141; State of Iowa v. Carr (C. C. A. 8) 191 F. 257, 263; New York L. I. Co. v. Griffith, Adm’r (C. C. A. 10) 35 F.(2d) 945; Youngblood v. Magnolia Petroleum Co. (C. C. A. 10) 35 F.(2d) 578, 579. The evidence tended to establish that the agent, Burrows, was unfaithful to his trust, but it failed to establish, with the degree of certainty required, that the purchasers of such laud and mineral rights either participated in or had knowledge of any such fraud. It does not appear that the trial court made any serious mistake in the consideration, of the evidence or any obvious error in the application of the law to the facts. The decree is affirmed at plaintiff’s costs. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_casetyp1_7-2	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In re MORALES TRAVEL AGENCY, Bankrupt. Appeal of EASTERN AIR LINES, INC. No. 80-1225. United States Court of Appeals, First Circuit. Argued Oct. 6, 1980. Decided Jan. 7, 1981. As Amended on Denial of Rehearing March 2, 1981. Lawrence E. Duffy, Rio Piedras, P.R., with whom Francisco Ponsa Feliu, Francisco Ponsa Flores, San Juan, P.R., and Edda Ponsa Flores, Rio Piedras, P.R., were on brief, for appellant. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. Eastern Air Lines appeals from the district court’s affirmance of an order of the bankruptcy court denying Eastern’s petition to recover certain money in the possession of defendant’s trustee in bankruptcy. We affirm. Morales Travel Agency, Inc. was in the business of selling to the public tickets for passage on various airlines, including Eastern. The business was run by Jose E. Morales Padilla, its sole stockholder, president, and treasurer. The relationship between Morales Travel Agency and the airlines was governed by the International Air Transport Association (IATA) Passenger Sales Agency Agreement, and by Resolutions of IATA under that agreement. Resolution 820(a) provided that the airlines would provide Morales (and other travel agencies) with blank tickets, or “travel documents,” which were to remain the property of the airlines until sold to passengers. The Resolution provided that, upon the sale of a ticket, Morales became responsible to pay the airline the price of the ticket, whether it actually collected that amount or not. Under the resolution, whatever money Morales did collect “shall be the property of the Carrier and shall be held by the Agent in trust for the Carrier or on behalf of the Carrier, until satisfactorily accounted for to the Carrier and settlement made.” The IATA Resolutions did not, however, require that Morales keep the proceeds of each airline’s ticket sales in separate accounts, nor that it keep the proceeds of all ticket sales in an account separate from any other business or personal funds. It was apparently Morales’ practice to commingle funds, from whatever source, in a single account. The IATA Resolutions also did not include any restrictions on the agent’s use of the ticket proceeds while in the agent’s possession. It appears that Jose Morales and his associates diverted some funds of the business, including ticket proceeds, to their personal use. Under IATA’s Resolution 810(a), the agent was required to furnish each airline with sales reports twice each month. At the time of each sales report, Morales was to remit to the airline the amount of the tickets sold during that sales period, less its commission. Morales Travel Agency was adjudicated bankrupt in August 1978. At that time, Morales’ possessions amounted to $356,314, consisting of $258,473 in accounts receivable, $57,241 in cash, and the rest in office equipment, an automobile, and a very small amount of real property. Its debts, including the claim in question here, totalled $631,346.27. That amount included no secured claims, and only one claim having priority, a $1,500 debt for rent. The great majority of the claims were for airline tickets sold; by far the largest of these was Eastern’s claim for $379,482.29. The non-airline claims included $48,500 in bank loans for operation of the business, amounts ranging from $45 to $4,000 for various goods and services, and two judgment claims of $5,750 and $1,217. In September 1978, Eastern brought this action in the bankruptcy court, seeking to recover from the trustee in bankruptcy the $379,482.29 which Morales owed it for the sale of its airline tickets. Eastern argued that, under the terms of the IATA Agreement, the proceeds of its tickets were its property, held in trust by Morales, and were not part of the estate in bankruptcy. A trial was held in July 1979, and on October 15, 1979, the bankruptcy court issued judgment against Eastern and allowed Eastern an unsecured claim without priority in the amount of $379,482.29. Eastern then appealed to the United States District Court for the District of Puerto Rico, which at first affirmed the bankruptcy court on the ground that the relationship between Eastern and Morales was actually one of creditor and debtor, rather than one of trust, despite the language of the IATA Agreement, which the court found to be intended merely to ensure the debtor’s performance of its obligation. Upon Eastern’s motion for reconsideration, the district court revised its opinion to find that the contract did create a trust, but reached the same result on the ground that Eastern had failed to trace the trust funds into “specific or identifiable property” in the possession of the trustee. Eastern then brought this appeal. Under section 70(a) of the Bankruptcy Act of 1898, which applies to Morales’ petition in bankruptcy, the trustee in bankruptcy acquired whatever title to property the bankrupt had. In the case of property held by the bankrupt in trust for another, the trustee would acquire the property subject to the interests of the trust beneficiary. 4A Collier, Bankruptcy ¶ 70.25[1], at 339 (14th ed. 1964). The burden, however, is on the claimant to establish the existence of a trust and to identify the property held in trust. 4A Collier ¶ 70.25, at 350, 354. Therefore, to prevail Eastern must show first that the proceeds of Morales’ sales of Eastern’s tickets were impressed with a trust in favor of Eastern, and second, that those proceeds still exist in identifiable form among Morales’ possessions. Eastern has failed at both these tasks. The terms of the IATA Agreement and Resolutions were inadequate, in our view, to give rise to a trust upon the proceeds from tickets sold by Morales to its customers. To be sure, Resolution 820(a) recited, in general terms, that the agent was to hold whatever monies it collected in trust for the carrier until accounted for, and that these monies were the carrier’s property until settlement occurred. However, talismanic language could not throw a protective mantle over these receipts in the absence of a genuine trust mechanism. Here the relationship remained in practical fact that of debtor-creditor. The contract nowhere required Morales to keep the proceeds of Eastern’s ticket sales separate from any other funds, whether Morales’ own funds or the proceeds of other airlines’ ticket sales. Nor was any specific restriction placed upon Morales’ use of the supposed trust funds. Morales was left free to use what it received for its own benefit rather than Eastern’s, and to transform the receipts into assets with no apparent encumbrance, upon which potential creditors might rely. The use of the word “trust” and the designation of the airline as titleholder, in a contract which is not publicly filed, would not save potential creditors from relying on such assets as office equipment, accounts receivable, and a bank account solely in the name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. See In re Penn. Central Transportation Co., 328 F.Supp. 1278 (E.D.Pa.1971); Scott on Trusts § 12.2 (3d ed.). Our conclusion is buttressed by other terms of the agreement. Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored. We find this case to be very similar to the case of Lord’s, Inc. v. Maley, 356 F.2d 456 (7th Cir. 1966), in which the Seventh Circuit affirmed the bankruptcy court’s denial of a reclamation petition by the lessee of space in the bankrupt’s department store who sought to reclaim funds collected by the bankrupt through the sale of the lessee’s goods. Despite express language in the contract purporting to create a trust relationship, the court relied on such factors as the bankrupt’s freedom to use the funds between settlement dates and to commingle them with its own funds, to find a debtor-creditor relationship. The Lord’s case was followed by the Tenth Circuit in Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (1967). See also In the Matter of the Yaeger Co., Mendel v. Whitmer, 315 F.2d 864 (6th Cir. 1963); In re Martin’s, 11 F.Supp. 99 (E.D.N.Y.1935). Harvey Brokerage Co. v. Ambassador Hotel Corp., 57 F.2d 727 (S.D.N.Y.1932), which Eastern cites to support its argument for a trust, actually supports our conclusion. In that case involving bankruptcy, the court presumed that a trust relationship existed where the bankrupt collected debts on behalf of another; but the court observed that the presumption could be rebutted by a showing of circumstances in the relationship inconsistent with a trust, such as the bankrupt’s right to use the funds and commingle them with its own. The conclusion we reach is not shaken by Eastern’s citation of Article 1233 of the Civil Code of Puerto Rico, Title 31 L.P. R.A. 3471, which requires that the literal sense of a contract be observed where the terms of the contract are clear and leave no doubt as to the intention of the parties. Article 1233 is similar to the prevalent common law rule. See, e. g. 3 Corbin, Contracts § 573, on the Parol Evidence Rule. Neither Puerto Rico’s Code provision nor the common law rule, however, make the effect of a contract dependent solely upon the parties’ legal labels, nor do they relieve a court from the duty to examine the contract as a whole. 3 Corbin, Contracts § 549. Moreover, the principle embodied in Article 1233 has little to do with the problem at hand. Article 1233 relates to whether the parties’ intent is to be sought within or without the language of an agreement, whereas the present problem is to determine, in a bankruptcy setting where third-party interests are very much at stake, the legal consequences that flow from a prior contractual arrangement. If a ritualistic incantation of trust language were deemed conclusive, it would be a simple matter for one creditor, at the expense of others, to circumvent the rules pertaining to the creation of bona fide security interests. Nor are we persuaded by Eastern’s citation of three lower state court cases involving travel agency contracts. In Air Traffic v. Downtown Travel Center, 87 Misc.2d 151, 383 N.Y.S.2d 805 (N.Y. Supreme Ct. 1976), and Pan American v. Lev Art Travel, an unpublished California case described in Air Traffic, the contracts required the agencies to keep the proceeds of ticket sales in separate accounts. As we have indicated supra, such a requirement, whether in practice met or not, would go some distance toward establishing a legally effective trust, although we do not here consider whether such a requirement would by itself accomplish this for bankruptcy purposes. Rappa v. American Airlines, 87 Misc.2d 759, 386 N.Y.S.2d 612 (Civil Ct. of the City of New York 1976), appears to involve a like contract with the same separate account requirement. Furthermore, that case decided only that the airline was liable to refund the amount of a ticket to the purchaser despite the agent’s insolvency. The court there did cite Air Traffic’s reference to a trust relationship between the airline and the agent, but the result in Rappa follows from the contractual provisions of the ticket itself, regardless of the relationship between airline and agent. We need not conclusively rule that the relation here is, for all purposes, one of debtor/creditor, however, for our holding would be the same even were we to find that the relation was intended to be one of principal/agent or consignor/consignee. In either such relationship, a principal or consignor who allows property to appear that of the agent’s or consignee’s estate will in the event of the latter’s bankruptcy be es-topped from recovering that property from the trustee, see 3 Remington on Bankruptcy § 1212.02, at 52-53 (Henderson ed. 1957), and cases cited therein; cf. 4 Collier on Bankruptcy § 541.08(2), at 541-39 (15th ed.); 4A Collier on Bankruptcy § 70.18, at 202 (14th ed.), and Eastern’s failure to require segregation or restricted use of its funds has clearly served to create such an appearance here. Of course, no other questions relating to the nature of the airline/travel agency relationship are before us in this case, and our opinion intimates no view as to any such question. Because of our conclusion on this issue, it is not strictly necessary to consider the question of tracing. We discuss the matter, however, because the impossibility of, tracing in this case demonstrates the injustice that would result from allowing Eastern to recover. Eastern cites several cases involving consignment arrangements in which the consignor was permitted to retrieve its property upon bankruptcy of the consignee. None of these cases is helpful to Eastern here, since in each case the consigned goods were readily identifiable. See, e. g., Ludvigh v. American Woolen, 231 U.S. 522, 34 S.Ct. 161, 58 L.Ed. 345 (1913); In re DIA Sales Corp., Ray v. Maguire, 339 F.2d 175 (6th Cir. 1964); Fowler v. Pennsylvania Tire, 326 F.2d 526 (5th Cir. 1964). Where the consigned goods have been sold, the consignor has been allowed to recover the proceeds only where they could be traced. See, e. g., In re Midwest Gas, 174 F.Supp. 618 (W.D.Mo.1959). Eastern argues that the requirement of tracing does not apply here because the proceeds of its tickets could not have been commingled with Morales’ own funds, since Morales had no income other than the proceeds of ticket sales. This argument seems to be directed toward excluding non-airline creditors from any distribution of Morales’ assets. We reject both the factual premise and the legal conclusion. It appears to be true that Morales’ business consisted entirely of ticket sales, the proceeds of which would, if we were to give effect to the “trust” language of the IATA Agreement, all belong to the airlines until the time of settlement. But it does not follow that all of Morales’ assets derive from the proceeds of ticket sales. The claims against Morales’ estate demonstrate that Morales received some $48,500 in bank loans, as well as $1,250 worth of office materials bought on credit. In addition, Morales must have retained a commission on each past occasion when it settled the account with an airline. We have no reason to believe that Morales’ current assets do not derive at least in part from these sources, which have been commingled with the proceeds of ticket sales. Furthermore, although commingling usually does refer to a mixing with the debtor’s own funds, the doctrine of tracing requires the claimant to identify the property he seeks as his own, not just to exclude the possibility that it belongs to the debtor. See generally Sonnenschein v. Reliance Insurance Co., 353 F.2d 935 (2d Cir. 1965); Gulf Petroleum S.A. v. Collazo, 316 F.2d 257 (1st Cir. 1963); 4A Collier, Bankruptcy ¶ 70.25[2], at 354 (14th ed. 1964). Eastern is unable to do so here. The non-airline creditors, as well as the other airlines, are therefore entitled to receive their fair share of Morales’ assets through distribution in bankruptcy. Affirmed. . The summary of property lists $100 in real property. . The bankruptcy court awarded judgment for Eastern in the amount of $9,700.99, representing the proceeds of ticket sales made since filing of the petition for bankruptcy. That judgment is not challenged here. . In this court, the trustee in bankruptcy waived his right to file a brief and to participate in oral argument. . As the district court observed initially, the trust language may be viewed as an effort to créate a security interest in the ticket proceeds for the benefit of the airlines. Since Eastern has not asserted any claim to a security interest as such, we need not consider whether this contract could, under Puerto Rico law, be effective in the creation of such an interest. Quite possibly, although we do not purport to rule, Puerto Rico law may prohibit security interests in such property as the proceeds of future sales. See P.R.Code Ann. Title 30 §§ 204(1) and (5). The IATA Agreement makes applicable the law of the principal place of business of the agent. . Our knowledge of the unpublished Pan American case derives solely from the discussion of it in the Air Traffic decision. . Neither of these cases involved bankruptcy of the travel agency. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. GIRARD TRUST CORN EXCHANGE BANK, as Trustee of a Trust Under Deed of Albert R. Gallatin Welsh Dated March 19, 1935, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 10580. United States Court of Appeals Third Circuit. Argued Feb. 7, 1952. Decided Feb. 27, 1952. Rehearing Denied March 25, 1952. George Craven, Philadelphia, Pa. (Gar-roll R. Wetzel, Philadelphia, Pa., on the brief), for petitioner. Melva M. Graney, Washington, D. C. (Ellis N. Slack, Acting Asst. Atty. Gen., on the brief), for appellee. Before KALODNER and HASTIE, Circuit Judges, and MODARELLI, District Judge. PER CURIAM. The questions presented here are (1) whether payments from the principal of a trust, created by her deceased husband during his lifetime, to a divorced wife under a separation agreement and divorce decree, are taxable as income to her under Section 22(k) of the Internal Revenue Code, and (2) whether a payment in a lump sum of arrears in the monthly amounts provided under the separation agreement and divorce decree, constituted “fixed or determinable annual or periodical” income from sources within the United States, taxable to the divorced wife, a nonresident alien, under Section 211(a) (1) (A), and as such was subject to withholding tax under Section 143(b). The Tax Court ruled in the affirmative on the two questions and we are in complete accord with its disposition for the reasons so well stated in its opinion, 16 T:C. 1398. The decision of the Tax Court will be •affirmed. . 26 U.S.0.1946 ed. § 22. . 26 U.S.C.1946 ed. § 211. . 26 U.S.C.1946 ed. § 143. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_fedlaw	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. SHINGLETON et al. v. ARMOUR BOULEVARD CORPORATION. No. 11067. Circuit Court of Appeals, Eighth Circuit. April 22, 1938. Rehearing Denied May 12, 1938. Eaton Adams and John B. Pew, both of Kansas City, Mo. (G. W. Humphrey, Arthur N. Adams, Arthur N. Adams, Jr., Eaton Adams, and W. H. L. Watts, all of Kansas City, Mo., on the brief), for appellants. David M. Proctor, of Kansas City, Mo. (Phineas Rosenberg, William Buchholz, C. H. Ewald, and David M. Proctor, Jr., all of Kansas City, Mo., on the brief), for appellee. Before GARDNER, SANBORN, and THOMAS, Circuit Judges. GARDNER, Circuit Judge. This is an appeal from a judgment of the bankruptcy court dismissing an amended involuntary petition in bankruptcy filed against Armour Boulevard Corporation and refusing to adjudge it a bankrupt. The ground upon which the court dismissed the petition and refused adjudication was that the petition did not state facts sufficient to constitute an act of bankruptcy. The sole question on this appeal is therefore whether the amended petition was sufficient. The allegations of the petition pertinent to this inquiry are substantially as follows: That the Armour Boulevard Corporation did, on or about the 16th of February, 1937, while insolvent, and with .full knowledge of its insolvency, cause, suffer, and permit a creditor, one Lillian E. Meyenschein, to obtain a judgment against it in the circuit court of Jackson county, Mo., for $2974.82; that the Armour Boulevard Corporation entered its appearance in said cause and filed a confession of judgment and through its counsel presented this confession of judgment to the circuit court of Jackson county, Mo., where the cause was pending, and thereupon caused, permitted, and consented to the rendition by the said court of a judgment based upon such confession, the judgment being entered on the 16th day of February, 1937. That after judgment, the alleged bankrupt caused, suffered, and permitted general execution to issue thereon, and on or about the 3d day of March, 1937, pursuant to a general execution on such judgment, caused, suffered, and permitted the sheriff to seize and attach all debts due or to become due by the Modern Woodmen of America to said alleged bankrupt, or so much thereof as would be sufficient to satisfy its said judgment. That the alleged bankrupt, on or about the 5th of March, 1937, likewise caused, suffered, and permitted the sheriff to attach, levy upon, and seize in the hands of Thomas F. Sotham and Harold E. Sotham, both of Jackson county, Mo., all debts owing by them to the alleged bankrupt, together with all personal property, money, rights, credits, bonds, bills, notes, drafts, checks, and other choses in action, and also all other personal property of whatever kind liable to garnishment of said Armour Boulevard Corporation in possession of or under control or charge of or owing by the said named garnishees. That said transfer of property while insolvent was with the intent to prefer Lillian E. Meyenschein as a creditor over other creditors, including the petitioners; that Lillian E. Meyenschein had full knowledge of said intent. That the alleged bankrupt is asserting a claim against Thomas F. Sotham and Harold E. Sotham, the garnishees, said claim being the basis of a suit pending in the circuit court of Jackson county, Mo., entitled Armour Boulevard Corporation v. Harold E. Sotham and Thomas F. Sotham; that said suit is to recover money; that in said suit the attorneys of record of Armour Boulevard Corporation, the plaintiff, are the law firm of Proctor & Proctor. That Lillian E. Meyenschein is one of the original incorporators of the Armour Boulevard Corporation, and was its executive secretary at all times mentioned in the petition; that the books, records, and accounts of the corporation have been in her care and custody. The petition contains the usual jurisdictional allegations, sets out the character and amount and number of petitioners’ claims, but, as no question is raised as to these allegations, they need not be here reproduced. Appellants contended in the lower court, and contend here, that the action by Lillian E. Meyenschein against Armour Boulevard Corporation, the alleged bankrupt, followed by confession of judgment and levy under execution, constituted a transfer of a portion of debtor’s property, it being alleged that Armour Boulevard Corporation was insolvent, and that such transfer was with the intent to prefer the creditor Meyenschein over the other creditors of the debtor. Under the Bankruptcy Act, section 3a (2), 11 U.S.C.A. § 21(a) (2), a debtor who transfers while insolvent any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors commits an act of bankruptcy. It was the manifest purpose of this subdivision of the Bankruptcy Act to .protect creditors from the voluntary act of the bankrupt in an attempt to prefer one creditor over another. The word “transfer,” as used in the Bankruptcy Act is defined in subsection (25) of section 1, 11 U.S.C.A. § 1 (25) as follows: “ ‘transfer’ shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security.” It may be either directly to a creditor or indirectly. Whatever the nature of the mechanics employed, if the result is to procure a creditor a preference over another creditor, the transaction is forbidden. A debtor who actively aids a creditor in obtaining a judgment by means of which his debt is secured transfers his property, and, if it is done with intent to prefer, and as a result the creditor obtains security or payment of his debt in preference to other creditors, the transaction is an act of bankruptcy. In re Truitt, D.C., 203 F. 550; Folger v. Putnam, 9 Cir., 194 F. 793; In re Nusbaum, D.C., 152 F. 835. The lower court, in sustaining the motion to dismiss the petition, expressed the view that, if the proceeding alleged results in the giving of security on the debt- or’s property, it would constitute an act of bankruptcy, but expressed the view that the proceeding did not create a lien upon any of the debtor’s property and, hence, the' transaction did not result in giving security. It is to be noted that the petition charges the debtor with affirmative acts. It is charged that it caused its creditor Lillian E. Meyenschein, who, by the way, was one of its officers, to obtain a judgment against it; that it filed a confession of judgment and it caused judgment to be rendered against itself upon that confession. In addition to this, it is alleged not simply that it permitted acts to be done by third parties, but that it affirmatively caused the issuance of execution, and that it caused the sheriff to attach all debts due it in the hands of Thomas F. Sotham and Harold E. Sotham, and that it levied upon all personal property in their hands due it, including choses in action. According to these allegations, it was the instigator and the prime actor in this entire proceeding. In the case of In re Musgrove Mining Co., D.C., 234 F. 99, 100, an involuntary petition in bankruptcy was filed against the mining company. The acts of bankruptcy alleged were two confessions of judgment by the mining company. No execution had issued, but the statutes of Idaho, where the property was located, gave a judgment creditor a lien on all real estate owned by the debtor, so that in that case there was no doubt of the existence of a lien. In discussing section 3, subd. (a) (2) and subdivision (a) (3), 11 U.S.C.A. § 21 (a) (2, 3),'the court, among other things, said: “Upon consideration it is concluded that while a preference effected through judicial proceedings may fall within one class or the other, the two provisions do not necessarily overlap. The distinction is to be found in the presence or absence of an intent on the part of the debtor to give a preference, and by intent is meant an actpal, and not merely a constructive,' intent. If the debtor has acted in such a way as to give a preference with the intent and purpose so to do, it is quite immaterial by what means such purpose is accomplished, whether by judicial proceedings or in some other manner. In such case the act falls within a (2). Upon the other hand, if, through legal proceedings, a preference has in fact been permitted or procured, but without any intent or purpose on the part of the debtor to give it, then the act falls within the terms of subdivision a (3).” In that case, no execution had issued, but there was real estate. In the instant case, execution issued and attachments were levied upon property which the alleged bankrupt said it owned. In a judicial proceeding brought against Thomas F. Sotham and Harold E. Sotham, it alleged that they were indebted to it for money had and received. And, it must be remembered, it was the alleged bankrupt who caused execution to issue and garnish-, ment proceedings to be levied, and by so' doing it again declared that Thomas F. Sotham and Harold E. Sotham were indebted to it. It is here argued that the proceedings did not constitute an act of bankruptcy because the garnishees had not admitted they had money or property in their hands. The garnishees are not parties to this proceeding, but the alleged bankrupt is- a party, and it has not only admitted, but has affirmatively declared, both by the proceedings taken and by proceedings it caused to be taken by Lillian E. Meyenschein, that these garnishees had property in their hands belonging to it. The manifest purpose of the proceeding was to reach that property, and it was the purpose of the alleged bankrupt to subject it to the payment of the judgment which it had procured against itself in favor of Lillian E. Meyenschein. Manifestly, whatever these garnishees had was subjected to the payment of this debt and it became secured thereby. It was not essential that the garnishees admit that they had money or property belonging to the alleged bankrupt. It had itself in the most convincing manner admitted this to be a fact. Having so declared and admitted when it was presumably to its advantage so to do, it should not now be permitted to escape the results of its acts by taking an inconsistent position. Holly Hill Citrus Growers’ Ass’n v. Holly Hill Fruit Products, 5 Cir., 75 F.2d 13; Texas Company v. Gulf Refining Co., 5 Cir., 26 F.2d 394; Williams v. Mason, D.C., 289 F. 812; Michels v. Olmstead, 157 U.S. 198, 15 S.Ct. 580, 39 L.Ed. 671. In any event, there was a chose in action which by the garnishment proceeding was levied upon,'and this was property within the meaning of the statute. Section 655,.Revised Statutes of Missouri 1929, Mo.St.Ann. § 655, p. 4899; section 9977, Revised Statutes of Missouri 1929, Mo.St.Ann. § 9977, p. 8015; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A.,N.S., 140. But it is said that, even if there were property in the hands of Thomas F. Sotham and Harold E. Sotham which belonged to the alleged bankrupt, it was not by the proceedings taken under the Missouri statutes subjected to any lien, and the inference is that it was not made available for the payment of the judgment secured in favor of Lillian E. Meyenschein in preference to the bankrupt’s other creditors. Section 1397 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1397, p. 1612, provides as follows: “Garnishees summoned, how. When a fieri facias shall be issued and placed in the hands of an officer for collection, it shall be the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishees, and with like effect as in case of an original attachment.” Section 1296 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1296, p. 1507, provides the manner for serving writs of attachment as follows: “When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt and interest, or damages and costs, and summon such debtor as garnishee.” In Kansas & Texas Coal Co. v. Adams, 99 Mo.App. 474, 74 S.W. 158, 160, it is said: "This statutable declaration of sequestration to the garnishee takes the place of manual seizure on account of the intangibility of the credits there referred to. It constitutes constructive seizure of the credits.” Section 1399 of the Revised Statutes 1929, Mo.St.Ann. § 1399, p. 1615, provides that: “Notice of garnishment, served as provided in this article, shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other dioses in action of the defendant in the garnishee’s possession or charge, or under his control,” etc. As before observed, the claim of the bankrupt which was the basis of an action at law against Thomas F. Sotham and Harold E. Sotham was at least a chose in action, and under this statute it was reached by this garnishment proceeding. .As between the alleged bankrupt and Lillian E. Meyenschein, it gave over to her the right to collect the Sotham debt when it caused it to be levied on under execution. Whether or not there is a lien upon physical properties levied upon in the hands of a garnishee which will follow it into the hands of third parties without notice is not, we think, here material. No such question is presented. In Marx v. Hart, 166 Mo. 503, 66 S.W. 260, 266, 89 Am.St.Rep. 715, cited and relied upon by appellee, it is said: “By that service of the writ of attachment, the plaintiffs, while not obtaining a full and clear lien upon the specific property in their hands as against third persons, did obtain such a lien as against garnishees as gave plaintiffs the right to hold the garnishees personally liable for its value.” (Italics supplied.) Under statutes similar to the Missouri statutes, the Supreme Court of Michigan in National City Bank v. Torrent, 130 Mich. 259, 89 N.W. 938, held that garnishment proceedings were security even before any judgment had been taken against the garnishee. In Re Standard-Detroit Tractor Co., D. C., 275 F. 952, 954, the court, in discussing the effect of garnishment proceedings under a Michigan statute quite similar to the Missouri statute, said: “The effect, therefore, of the service of the writ of garnishment, was to fasten a lien upon the indebtedness of the garnishee defendants to the principal defendant in the garnishment proceedings, the bankrupt herein, and to thereby subject the property of such bankrupt, consisting of its right to recover such indebtedness, to the lien of such garnishment. In re Ransford [6 Cir.], 194 F. 658.” The effect of the service of the garnishment under execution after judgment entered was at least to create an equitable lien upon whatever property was in the hands of these parties. That there was such property in their hands was admitted and declared by the alleged bankrupt, and it is not in position to complain if its declaration be accepted as true. The object and purpose of the Bankruptcy Act, 11 U. S.C.A. § 1 et seq., being to secure an equal and just distribution of the property of the bankrupt among creditors, to hold that an act of bankruptcy was not committed under the facts, as described by the amended petition, would go far to break down and destroy that purpose and object. The judgment appealed from is therefore reversed, and the cause remanded to the lower court for further proceedings consistent herewith. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. METROPOLITAN LIFE INS. CO. v. WHITLER. WHITLER v. WHITLER. No. 9673. United States Court of Appeals Seventh Circuit. Jan. 31, 1949. James R. Hale, of Fayetteville, Ark., and Roy M. Seeley, of Springfield, 111., 'for. appellant. Harold G. T-alley and Anthony W. Daly, both of Alton, 111., and Thomas F. Butt, of Fayetteville, Ark., for appellee. Before MAJOR, Chief Judge/ KERNER, Circuit Judge, and LINDLEY, District Judge. KERNER, Circuit Judge. This' was an- interpleader suit. Plaintiffs, corporations. of the States of New Y-ork, Connecticut and Virginia, respectively, filed their complaint against Helen Marie Whitler, a citizen of the State of Illinois, -and Ruth L. Whitler, a citizen of the State of Arkansas, to have determined conflicting claims under k policy of ■insurance issued by the Metropolitan Life Insurance Company, w-hereby it agreed to pay to the beneficiary named therein, upon the death bf Isaac E.-Whitler, an employee of Shell Oil Company, the sum -of $4,500. The existence of the requisite jurisdictional amount, the diversity of citizenship of the adverse claimants, -and -the disinterestedness of plaintiffs made the remedy of the Interpleader Act .available to the insurer. Treinies v. Sunshine Mining Co., 308 U. S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Federal Life Ins. Co. v. Tietsort, 7 Cir., 131 F.2d 448. Isaac E. Whitler -died on February 26, 1947. Helen- is his. daughter and Ruth is his widow. Each defendant claimed to be the beneficiary. Helen based her claim to the fund on the ground that she was named as the beneficiary in the policy. Ruth claimed that she had been named as beneficiary in the application for the policy and -hence was entitled to the fund. The trial judge made special findings of fact, rendered his conclusions of law thereon, and entered a decree awarding Helen Marie Whitler the money deposited by Metropolitan in the court’s registry. To reverse the decree, Ruth L. Whitler appeals. The facts -are undisputed. On March 21, 1944, Isaac, an employee of Shell, pursuant to the terms of Group Life Insurance Policy No. 9960-G, issued by Metropolitan to Shell, .filed with Shell a written application for a policy of insurance in which ■he designated appellant as the beneficiary. The record is silent -as to any later and different -application made and filed by -him. Under this group policy, Metropolitan, about April 1, 1944, issued and delivered to Isaac the policy involved herein. This policy Isaac retained in his possession until his decease. The policy named appellee as beneficiary. Isaac knew and was ■fully aware that appellee was named as beneficiary in the policy and accepted the policy with knowledge that appellee was so named as beneficiary. After Isaac’s death the -policy was found in his safety-deposit box, to which appellant had access. She had examined the policy during.Isaac’s lifetime and knew that appellee’s name appeared therein as beneficiary. The court concluded that even if Isaac did originally intend that- appellant should be the beneficiary, by his acceptance and retention of the policy it must be presumed that he changed his mind and concluded to accept-the contract tendered by the insurer. Upon oral argument, counsel for appel-. lant stated that the only question in this appeal -is whether appellant is entitled -to. the fund because she was named as beneficiary in -the application under the provisions of the group -policy. She calls attention to the fact that section 3 of the group or master.policy provides that an employee may ¡become insured thereunder only by making written request to the employer on, a form furnished by the insurance company, and argues that the individual policy issued to Isaac was not a part of the contract of, or necessary to, the insurance, but that the master policy constitutes the contract of insurance. She cites cases where the certificate issued by an employer was merely evidence of the employee’s participation in a group plan, and not a policy issued by an insurance company. Such ca-ses are not in point and it would serve no useful purpose to discuss them. Here, Metropolitan issued its own insurance policy in which it certified that Isaac E. W'hitler was insured for $4,500 and agreed that if he died while in the employ of Shell and while insured under the group policy, the amount of insurance at the date of his death would be paid to Helen Marie Whitler. In consideration of appellant’s contention it is well to remember that the same rules of construction apply to group insurance as to other forms -of insurance. Howard v. Aetna Life Ins. Co., 329 Ill. App. 248, 255, 67 N.E.2d 878. Th-e law is well settled that an application f-or life insurance itself is not the -contract, but is a mere offer or proposal for a contract -of insurance. It is merely a -step in th-e creation of the insurance contract. 29 Am. Jur. p. 152. And wh-ere the insurance company tenders a policy at variance with the application, the tender constitutes a counter-offer, and upon acceptance of -the policy by the insured, there is a meeting of the minds a-nd -the policy becomes the contract between -the insured -and the -insurance company. 44 C.J.S., Insurance, § 232, page 972. See also Minnesota Mut. Life Ins. Co. v. Newman, Tex.Civ.App., 157 S.W.2d 667, 671. While it is true that an individual certificate or -policy of -group life insurance issued an-d delivered to- an ■insured employee is an integral part of the master policy, yet the provisions of the individual policy govern in determining the beneficiary entitled to the -proceeds of -the policy upon the death of -th-e insured employee. Baker v. Prudential Ins. Co., 279 Ill. App. 5; Wing v. John Hancock Mut. Life Ins. Co., 314 Mass. 269, 49 N.E.2d 905, 906. The application -confers no right -on the beneficiary named therein, and it ha-s been held that even where -an application is made a part of th-e policy -and there is an irreconcilable conflict between the application and th-e policy .issued, the provisions of the policy control. Burt v. Burt, 218 Pa. 198, 67 A. 210, 211; Aetna Life Ins. Co. v. Phillips, 10 Cir., 69 F.2d 901, 904. Moreover, receipt and retention of -a policy with knowledge as to whom it :i-s payable -constitutes ratification and it is accepted -as written. McFadden v. Equitable Life Assur. Soc., 351 Pa. 570, 41 A.2d 624; Woehr v. Travelers Ins. Co., 134 N.J.Eq. 38, 34 A.2d 136. We -conclude -that the District Court -did not -err in -awarding the proceeds -of the policy .to -appellee. Accordingly the decree is affirmed. 28 U.S.C.A. § 41(26) [now §§ 1335, 1397, 2361]. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. The TRAVELERS INSURANCE COMPANY and The Travelers Indemnity Company, Appellants, v. Rean William McELROY, Jr., Appellee. No. 20183. United States Court of Appeals Ninth Circuit. March 9, 1966. Rehearing Denied June 2, 1966. Daniel Cracchiolo, Kramer, Roche, Burch & Streich, Phoenix, Ariz., for appellant. Frank Lewis, Langerman, Begam & Lewis, Phoenix, Ariz., for appellee. Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges. HAMLEY, Circuit Judge. Rean William McElroy, Jr., was injured when the truck in which he was a passenger collided with an automobile. On May 20, 1963, he obtained a default judgment in an Arizona superior court for $105,000 against the driver of the truck. This judgment has remained wholly unsatisfied. McElroy filed the present action in the district court against Travelers Insurance Company (Travelers), alleging that Travelers is liable for the unsatisfied judgment under the terms of a policy of liability insurance issued to Colonial and Pacific Frig-idways, Inc., (C & P), the lessee of the truck. Federal jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332 (1964). The facts concerning the accident and the insurance policy are not in dispute. C & P, on September 10, 1962, sold Donald L. Jacobs a 1957 White Freight-line Tractor on a conditional sales contract. On the same date, Jacobs and C & P entered into a lease agreement whereby Jacobs leased his newly-acquired truck to C & P. These instruments were executed in Iowa where C & P maintained offices. Contemporaneously, Travelers issued a comprehensive automobile liability policy to C & P for the period of September 10, 1962 to September 10, 1963. The pertinent provisions of the policy are as follows: “It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Automobile Medical Payments and for Property Damage Liability applies with respect to all owned automobiles and hired automobiles, and the use, in the business of the named insured, of non-owned automobiles, subject to the following provisions : “ * * * The insurance with respect to any person or organization other than the named insured does not apply: * * * “(d) with respect to any hired automobile, to the owner or any lessee of such automobile, or to any agent or employee of such owner or lessee, if the accident occurs “(1) while such automobile is not being used exclusively in the business of the named insured. * * * “(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of his household; * * Acting pursuant to a provision of the lease agreement, Jacobs hired Mike E. Trujeque to assist in driving the truck. Trujeque was duly approved by C & P. On December 22, 1962, Jacobs and Trujeque were in Phoenix between trips; both men maintained homes in that city and intended to spend the Christmas holiday there. Trujeque was permitted by Jacobs to take the tractor without its trailer to his home in order to clean it. On the night of December 23, 1962, after washing the truck and having it serviced, Trujeque and appellee went in the truck to pick up Trujeque’s brother. As they were returning to Trujeque’s house, the accident occurred in which McElroy was injured. He was an acquaintance of Trujeque but at the time of the accident he was unknown to Jacobs. McElroy brought suit against Truje-que and Jacobs in the Superior Court of Maricopa County, Arizona, and was awarded a default judgment against Trujeque. At the time of the appeal in this case, the state court action against Jacobs was still pending. On December 5, 1963, McElroy filed suit in the district court of Arizona against Travelers, alleging in his complaint that Travelers, in its liability policy issued to C & P, had agreed to insure Trujeque for liability arising from the use of the truck. It was also alleged that the policy, by its terms, permitted an action based on the superior court judgment. Both parties moved for summary judgment. An order was entered on March 2, 1965, granting plaintiff’s motion for summary judgment but limiting recovery against Travelers to $10,000. Travelers has appealed from the district court order; appellee has not taken a cross-appeal with regard to the amount of recovery. Travelers bases its argument for reversal primarily on the provision of the insurance policy, quoted above, which excludes coverage from hired vehicles which are not being used exclusively in the business of the named insured, C & P. Appellee does not assert that Trujeque, at the time of the accident, was using the truck “exclusively in the business” of C & P. Rather, it is urged that this provision, limiting liability, is inconsistent with the established law and policy of the state of Arizona and is therefore ineffective as a defense to this action. In order to conform to the Arizona Safety Responsibility Act, a motor vehicle liability policy must insure the person named in the policy and any other person using the vehicle with the express or implied permission of the named insured. In the insurance business, such a provision is commonly referred to as an “omnibus clause.” The Arizona Supreme Court in Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145, held that the statutory omnibus clause is a part of every motor vehicle liability policy whether or not that policy has been “certified” pursuant to the state’s financial responsibility laws. If the effect of the Jenkins decision is to incorporate the omnibus clause into the insurance policy issued by Travelers, the summary judgment in favor of appellee must be affirmed. Appellee relies upon the following statement from the Jenkins case: “We hold, therefore, that the omnibus clause is a part of every motor vehicle liability policy, by whatever name it may be called.” 380 P.2d at 148. This language would appear to encompass the present case. However, Travelers contends that the court in Jenkins was referring only to liability policies issued to vehicle owners, and that the holding has no effect on “non-owner” policies. Travelers also points out that under the Arizona financial responsibility statutes a motor vehicle liability policy “ * * * means an owner’s or an operator’s policy of liability insurance, * * A.R.S. § 28-1170 (1956). Since, Travelers argues, the policy in this case was issued to C & P as lessee of the truck, it was a non-owner policy and hence outside the purview of the financial responsibility laws and the Jenkins decision. Although the Jenkins case involved a policy of liability insurance issued to a vehicle owner, we believe that the rationale of that opinion applies with equal force to the facts of the present case. Our conclusion is based not only on the broad language of Jenkins, but also on a realistic appraisal of the terms and conditions of the conditional sale and leaseback arrangement executed by Jacobs and C & P. The parties to the conditional sale contract agreed that the truck would be under permanent lease to C & P for the duration of the payment period — a total of thirty months. And, during this period it would be under the direction and control of the lessee, C & P; and it could not be used for the transportation of any commodity for any company or person other than C & P. Title to the vehicle was to remain in the conditional vendor until full payment of the consideration. The simultaneously executed lease agreement provided that C & P would maintain “exclusive possession, control and use” of the truck. Also the lessor was prohibited from using the truck for transportation of his own property. C & P agreed to obtain public liability and property damage insurance for the protection of the lessor as well as C & P. C & P also assumed responsibility to the public, the shippers, and to the various state Public Service Commissions and Motor Vehicle Departments. Jacobs or his driver was required to report his location to C & P at least once every twenty-four hours. C & P told Jacobs when and where to pick up a load and when and where to deliver it. The route to be traveled was designated by C & P and failure to sign in at various checkpoints along this route would subject Jacobs to fines. The truck remained registered and licensed in C & P's name; Jacobs’ name did not appear on anything pertaining to the truck other than the lease-purchase agreement. From this, it is obvious that the conditional vendee obtained no right to possession and control of the vehicle. In addition, C & P agreed to obtain liability insurance for the protection of the lessor as well as the lessee; sueh an agreement by C & P implies that the liability insurance so obtained will comply with the various state financial responsibility laws. Under these circumstances, the policy of insurance issued by Travelers to C & P must be deemed an owner’s policy within the meaning of section 28-1170 of the Arizona Revised Statutes. The Jenkins case is therefore applicable to conform this policy to the statutory requirements. This construction of the term “owner’s * * * policy of liability insurance” contained in section 28-1170 does not conflict with the definition of “owner” found in the definition section of the Arizona Vehicle Code. That definition provides: “ ‘Owner’ means a person who holds the legal title of a vehicle or, if a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested, in the conditional vendee or lessee, the conditional vendee or lessee, or, if a mortgagor of a vehicle is entitled to possession, the mortgagor.” A.R.S. § 28-130 (1956). In our case, Jacobs, the conditional ven-dee, was not vested with an immediate right of possession. Other courts have found that under lease arrangements similar to the one in this case, whereby the lessee is given exclusive possession and control of the vehicle and assumes the responsibility of obtaining liability insurance, the lessee can be deemed an “owner” for purposes of insurance coverage. Powell v. Home Indemnity Co., 8 Cir., 343 F.2d 856; Continental Casualty Co. v. Transport Indemnity Co., 16 Wis.2d 189, 114 N.W.2d 137; Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585. Travelers relies on Clarke v. Harleysville Mutual Casualty Co., 4 Cir., 123 F.2d 499, but that case did not involve the elements which we find determinative in the present case — exclusive right to possession and control in the lessee, and assumption by the lessee of the obligation to provide liability insurance. Section 28-1172, subsec. B is cited by Travelers in support of its argument that the Arizona financial responsibility requirements are not applicable in this case. That statute provides: “B. This chapter shall not be held to apply to or affect policies insuring solely the insured named in the policy against liability resulting from the maintenance or use by persons in the insured’s employ or on his behalf of motor vehicles not owned by the insured.” (Emphasis added.) The short answer to this contention is that the policy issued by Travelers did not insure C & P “solely” against liability arising from the use of non-owned vehicles. Coverage under C & P’s policy extended to owned, hired, and non-owned vehicles; and the definition of the “insured” contained in the policy includes, with some exceptions, those using the vehicle with the permission of C & P. It was a comprehensive automobile liability policy which did not restrict coverage solely to C & P and non-owned automobiles. The principal purpose of the Arizona financial responsibility laws is to protect the public using the highways from financial hardship resulting from the use of vehicles by financially irresponsible persons. Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136, 140. It would be inconsistent with this policy and with the spirit of Jenkins v. Mayflower Insurance Exchange, to hold that a lessee of a vehicle who has the exclusive right to possession and control, and who has assumed the burden of providing liability insurance, need not conform to the financial responsibility laws. We therefore hold that the policy issued by Travelers to C & P was an owner’s policy within the meaning of section 28-1170, and extended coverage to any use of the truck with the express or implied permission of C & P. It is unnecessary to review the arguments of the parties concerning whether or not C & P was, in fact, the sole owner of the truck. It is sufficient that C & P, by virtue of the terms of the sale and lease-back agreements, obligated itself to conform to the Arizona financial responsibility laws in the same manner as a vehicle owner. Travelers argues that appellee is bound by the fact that in the complaint in his damage action against Trujeque, he alleged that the truck-tractor was owned by Jacobs, and that a default judgment was obtained. In our view the question of whether Jacobs was the owner of the truck-tractor was not critical in the damage suit and the default judgment is therefore not an adjudication on that matter binding in this action by appellee against Travelers. Affirmed. . In Ms brief, appellee asserts that the district court erred in computing interest on the $10,000 judgment against Travelers rather than computing it on the $105,000 judgment recovered against Tru-jeque. In the absence of a cross-appeal this question is not properly before us. . “B. The owner’s policy of liability insurance must comply with the following requirements: :jc ¡fc H; ífc 5jt “2. It shall insure the person named therein and any other person, as insured, using the motor vehicle or motor vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of the motor vehicle or motor vehicles * * A.R.S. . § 28-1170 (1956). . The lower court rendered no written opinion in this case. Evidently, the district court was convinced that the Jenkins case was applicable to this policy and that the omnibus clause extended coverage to the use of the truck by Trujeque. This explains the limitation of the award to $10,000 which is the minimum amount of coverage specified by the Arizona financial responsibility laws. In other words, Travelers was found liable under the financial responsibility laws for the statutory minimum while the policy terms were effective to preclude recovery of an amount in excess of this minimum. See A.R.S. § 28-1170, subsec. G (1956). Travelers contends that the lower court erred in applying the substantive law to the undisputed facts of the case. It is conceded that there is no issue of material fact underlying the adjudication. While Travelers asserts that, under the established facts, the truck-tractor was not being used exclusively in the business of the named insured, the company does not, on this appeal, contend that Trujeque was not acting with the express or implied permission of O & P at the time of the accident. . With respect to financial responsibility laws, the policy issued by Travelers provided as follows: “Financial Responsibility Laws. When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use during the policy period of any automobile insured hereunder, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.” . No Arizona decisions have been called to our attention ■which define either the word “owner” or the term “owner’s policy of liability insurance” as used in the Arizona Motor Vehicle Code. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_stateclaim	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. James CHAMBERS and Lydia Chambers, Appellants, v. UNITED STATES of America, Appellee. No. 18021. United States Court of Appeals Eighth Circuit. March 3, 1966. Paul C. Zempel, St. Louis, Mo., for appellants. Harold F. Reis, Executive Asst, to Atty. Gen., Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., P®pt. of Justice, Morton Hollander and Robert V. Zener, Attorneys, Dept, of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee. Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge. MEHAFFY, Circuit Judge. Plaintiffs James and Lydia Chambers brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., seeking damages for the death of their son, Airman Third Class John E. Chambers. The complaint alleged that on the date of his death, decedent was an enlisted man in the United States Air Force assigned to Whiteman Air Force Base in Johnson County, Missouri; that the United States maintained and operated a base swimming pool for its personnel; and that while swimming in the base pool on August 17, 1963, decedent drowned or died of a blow on the head, or a combination of both. The Government filed a pleading entitled “Answer and/or Motion to Dismiss with Suggestions in Support,” admitting that the Government was engaged in maintaining and training military personnel and in connection therewith maintained and operated the Whiteman Air Force Base, including the base swimming pool. The Government further admitted that on the date of his death, decedent was an enlisted man assigned to White-man Air Force Base and that on August 17, 1963, while engaged in swimming in said pool, he drowned. The Government denied that decedent received a blow on his head. Plaintiffs alleged numerous acts of negligence, including failure to keep qualified life guards at the pool, failure to provide adequate life saving equipment, failure to instruct life guards properly in life saving methods, and in general failure to provide adequate protection for decedent while he was swimming in said pool. The Government denied all the allegations of negligence and moved to dismiss the complaint on the grounds that plaintiffs had no claim under the Tort Claims Act. The trial court dismissed the Government’s motion without prejudice because at that juncture it did not appear from the pleadings whether or not the decedent’s activities at the time of his death were incident to his military service. Subsequently, the Government resubmitted its motion to dismiss attaching in affidavit form a statement of an Assistant United States Attorney based upon information furnished to him by other government agents, asserting that decedent was considered a capable swimmer who was training for underwater swimming activities in an intersquadron swimming meet, and that he was known to practice physical endurance in underwater swimming by using a method of breathing called “hyperventilation.” The decedent was considered as being present and accounted for and subject to the command of the base authorities. He was not in furlough status. Also submitted was the certificate of Colonel R. J. Pugh, Director of Administrative Services of the Air Force and official custodian of the records of Air Force personnel, avowing that the records disclose that decedent was an enlisted man on continuous active service in the Air Force until his death on August 17, 1963. Additionally, the Government submitted the affidavit of First Lieutenant Hirum E. West, acting commander of decedent’s squadron, to the effect that decedent was present and accounted for on the day of his death, and that decedent was immediately subject to the command of affiant and other of his military superiors while on the base, including that time decedent was in the base pool immediately preceding his death. The trial court, in a memorandum and order sustaining defendant’s motion, noted: “From August 27,1964 to November 27, 1964, plaintiffs sought and obtained various extensions of time to respond with suggestions in opposition to defendant’s renewed Motion to Dismiss. The time granted in the last continuing order has now expired, and the plaintiffs still have not responded. We can only conclude that plaintiffs are unable to state controverting facts, or a tenable theory of law to rebut the defendant’s motion and its supporting affidavits.” The trial court concluded that the uncon-troverted affidavit established that, at the time of his death, decedent was on active duty status with the United States Air Force and subject to commands of his military superiors; that decedent’s swimming activity was performed while on active duty, and sufficiently related to military service to preclude an action under the Federal Tort Claims Act. The trial court considered defendant’s motion as a motion for summary judgment and sustained it. We affirm. The sole issue here is whether the District Court was warranted, after considering the record before it, in dismissing plaintiffs’ complaint and entering summary judgment for the Government under Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs have challenged the documents filed by the Government in support of its motion. We will ignore them in our initial discussion because we think the Government would have been entitled to summary judgment in this case even if no affidavit or supporting evidence had been offered in support of its motion. The Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), held that “[t]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are incident to service.” Feres also established that a serviceman cannot recover for injuries incident to service even though at the time he is not engaged in the performance of military duties. The complaint in the instant case does not allege or even suggest any fact that would take it outside the Feres rule and permit recovery. We have consistently held that summary judgment is appropriate where, had the case gone to trial, a directed verdict would have been required. Wolf v. Schaben, 272 F.2d 737 (8th Cir. 1959); Rubenstein v. Dr. Pepper Co., 228 F.2d 528, 532-533 (8th Cir. 1955); Durasteel v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953). It is not necessary for the defending party to support his motion for summary judgment by affidavits. Rule 56(b) Fed.R.Civ.P. The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact and is in the nature of an inquiry to determine whether genuine issues of fact exist. If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant’s favor after all evidence is adduced. Plaintiffs allege that Airman Chambers met his death while in service at the Whiteman Air Force Base when engaged in swimming in a pool that was a part of said base due to the alleged negligence of the Government. These facts do not constitute a cause of action under the Feres rule. The Feres case has been consistently followed. In United States v. United Services Auto. Ass’n., 238 F.2d 364 (8th Cir. 1956), this court, speaking through Judge Van Oosterhout, discusses Feres at length and the reasons the Supreme Court there assigned for denying a serviceman relief under the Tort Claims Act. Judge Van Oosterhout noted there that Feres was decided by a unanimous court and its rule had been steadfastly adhered to. The statement of the Assistant United State Attorney, based as it is upon information furnished by others, obviously does not comply with Rule 56 (e) and does not constitute admissible evidence. It is, therefore, not entitled to and will be given no consideration here. Hoston v. J. R. Watkins Co., 300 F.2d 869, 870 (9th Cir. 1962). The certificate of Colonel R. J. Pugh to the effect that Air Force personnel records indicated that Airman Chambers was an enlisted man and in active service until his death need not be considered as there is other evidence to the same effect in the pleadings as well as in the affidavit of Lieutenant West. Plaintiffs admit that the affidavit of Lieutenant West was in proper form and that in the Government’s second motion it was alleged that Airman Chambers died in the swimming pool “while engaged in activities which were incident to his military service.” The plaintiffs challenge this affidavit, asserting that it is devoted entirely to legal and factual conclusions not based on personal knowledge and thus failing the requirement of Rule 56 (c). It is true the affidavit does not state, in so many words, that it is based on personal knowledge, but all pertinent parts obviously were made from personal knowledge. Certainly Lieutenant West knew that he was Acting Commander of the squadron to which Airman Chambers was assigned on the date of his death and that on said date Airman Chambers was subject to his command as well as to that of all his military superiors, and that this subjection to control of his military superiors applied to Airman Chambers’ presence in the swimming pool in which he was drowned. Lieutenant West did not state that he had personal knowledge of Chambers’ presence on the base that day, but rather used the militaryese language “on the date of 17 August 1963 the said Airman Third Class John Edward Chambers was accounted for by the United States Air Force as being present for duty.” This statement, of which plaintiffs complain, is not significant because the complaint alleges and the answer admits that Airman Chambers met his death while swimming in the pool on August 17, 1963. We note that plaintiffs made no objection to the affidavit of Lieutenant West, or the other documents for that matter, and no motion was made to strike any of them. Under these circumstances, neither this court nor the trial court is precluded from giving the documents consideration. United States for Use and Benefit of Austin v. Western Electric Co., 337 F.2d 568, 575 (9th Cir. 1964). Plaintiffs assert that even if the disputed documents were considered they “[a]t most state that Chambers was on active duty at the time of his death. They do not negate the possibility that he was on furlough or weekend liberty at the time of his death.” It is not incumbent upon the defendant to negate any possibility not alleged in the complaint. Even if plaintiffs had available such proof, the existence of same would not be effective to raise a fact issue under the Feres rule. In Zoula v. United States, 217 F.2d 81 (5th Cir. 1954), servicemen were injured in a collision between the automobile they occupied and an Army ambulance. The servicemen had passes but recovery under the Federal Tort Claims Act was denied them. “At the time of the collision resulting in the injuries sued for, both the Plaintiffs were dressed in civilian clothes, were on business of their own, going from one part of the Reservation to the other, for the purpose of getting a check cashed, a hair-cut, making measurements for some clothes, probably spending the week end [sic] in town.” Id. at 82 n. 1 See also Gursley v. United States, 232 F.Supp. 614 (D.C.Colo.1964); Richardson v. United States, 226 F.Supp. 49 (E.D.Va.1964). In United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954), in discussing Feres, the Court said: “The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character.” The significant fact here is that Chambers was assigned to duty at the White-man Base, subject to the control of his military superiors. Even though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation, his claim would be subject to the Feres rule and no recovery permitted. As a matter of fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not have been privileged to use it. Plaintiffs neither objected to nor moved to strike any of the supporting documents filed with the Government’s resubmitted motion to dismiss. We think it is too late for plaintiffs to urge their objections for the first time in this court, having had ample opportunity to do so in the trial court. Had they made the same objections in the trial court, it would have afforded the Government an opportunity to correct any technical defects. In order for plaintiffs to successfully oppose the Government’s motion, they were obliged to come forward with either a denial of the allegations or evidence to show a factual conflict. United States v. Mt. Vernon Milling Co., 345 F.2d 404 (7th Cir. 1965). And, where a party has no countervailing evidence and cannot show any will be available at trial, he is not entitled to a denial of the motion. International Longshoremen’s and Warehousemen’s Union v. Kuntz, 334 F.2d 165, 169, n. 5 (9th Cir. 1964). Furthermore, plaintiffs failed to make an issue of fact by arguing in this court that Airman Chambers might have been on furlough or weekend liberty. Atex Mfg. Co. v. “Lloyds of London,” 139 F.Supp. 314 (W.D.Ark.1955). We, therefore, hold that plaintiffs' failure to state a cause of action under the Feres rule was sufficient to warrant the trial court’s entry of summary judgment. The trial court had a right to consider the affidavit of Lieutenant West in arriving at its decision, despite the affidavit’s omission of stating that it was made on personal knowledge. The judgment of the District Court granting summary judgment to the Goverment is affirmed. . The Supreme Court in Feres considered three cases in the one opinion.- Feres perished by fire while asleep in his barracks; the other two cases, Jefferson and Griggs, involved negligent treatment while the servicemen were in Army hospitals. The Supreme Court denied recovery in each of the three cases. . “Hirum E. West, First Lieutenant, USAF, 351 Civil Engineering Squadron, United States Air Force, Whiteman Air Force Base, Missouri, being duly sworn, deposes and states as follows: “On 17 August 1963 I was Acting Commander of the 340th Civil Engineering Squadron, which has been since redesig-nated 351st Civil Engineering Squadron, Whiteman Air Force Base, Missouri. On that date John Edward Chambers was assigned as an Airman Third Class, United States Air Force, to the 340th Civil Engineering Squadron, Whiteman Air Force Base, Missouri. On the date of 17 August 1963 the said Airman Third Class John Edward Chambers was accounted for by the United States Air Force as being present for duty. Further, while being on Whiteman Air Force Base on 17 August 1963 he was immediately subject to my command as well as to that of all his military superiors. This subjection to the control of his military superiors applied to the said Airman Third Class John Edward Chambers’ presence in the swimming pool in which he drowned as it was within the limits of Whiteman Air Force Base, Missouri * * . The Western Electric opinion in footnote 19, 337 F.2d at 575 quotes from Barron and Holtzoff: “The rule here applicable was stated in 3 Barron and Holtzoff, Federal Practice and Procedure 171: ‘An affidavit which fails to meet the requirements of Buie 56(e) may be stricken on motion. In the absence of a motion to strike or other objection the court may properly choose to consider a document which technically fails to conform to the rule.’ ” . The servicemen there bad passes issued to them and since the injury happened on the base and while they were thus subject to military control, their activities were “incident to service” within the meaning of the Feres rule. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Kentha Earl McDOWELL v. UNITED STATES of America. Nos. 7164, 7180. United States Court of Appeals Tenth Circuit. Feb. 5, 1963. Thomas S. Nichols, Denver, Colo., for appellant. Lawrence M. Henry, U. S. Atty., and Michael C. Villano, Asst. U. S. Atty., Denver, Colo., for appellee. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. PER CURIAM. In case No. 7164, judgment affirmed February 5, 1963, without written opinion, for the reason stated in the order of the United States District Court. In case No. 7180, appeal dismissed February 5, 1963, without written opinion, since the record conclusively shows that appellant is not now serving the sentence he attacks and relief under section 2255 is not available to him. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; Igo v. United States, 10 Cir., 303 F.2d 317. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CATES v. HADERLEIN. No. 10312. United States Court of Appeals Seventh Circuit. May 23, 1951. Frank E. Gettleman, Arthur Gettleman and Edward Brodkey, all of Chicago, Ill., for appellant. Otto Kerner, Jr., U. S. Atty., John Peter Lulinski and C. Wylie Allen, Assts. U. S. Atty., all of Chicago, Ill., for appellee. Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges. DUFFY, Circuit Judge. In this action plaintiff seeks to restrain and enjoin the postmaster of the city of Chicago from carrying out the terms of a Fraud Order issued by the Postmaster General after a hearing. The district court denied the plaintiff’s motions for a preliminary injunction and for a permanent injunction, and dismissed the complaint. In the complaint herein plaintiff described in detail the administrative procedure of the Post Office Department with reference to the hearing before that agency which led to the issuance of the Fraud Order. Appellant, trading as Glory Bee Products and Glory Bee, was charged with conducting a scheme for obtaining money through the mails by means of pretenses which were knowingly false and fraudulent, in violation of Secs. 259 and 732, Title 39 U.S.C.A. Appellant advertised its products, “Glory Bee Fast Luck Brand Incense” and “Incense Number Tablets,” by sending printed circulars through the mails. In answer to the complaint filed in the proceedings before the Post Office Department, appellant admitted that he had, in order to sell his products, caused to be printed and disseminated through the mails the circulars referred to, but he denied that the import of such advertising was as stated in said complaint, and also denied that any false or fraudulent representations had been made. On the hearing before the trial examiner, the government offered the testimony of a post office inspector and a medical officer of the Federal Food and Drug Administration. Appellant herein did not offer any testimony. The trial examiner, after the hearing, made findings of fact and recommendations to the Postmaster General for the issuance of a fraud order. On August 16, 1950, the Postmaster General issued the Fraud Order. Appellant contends that before a valid fraud order may be issued the Postmaster General and the Post Office Department must subject themselves to the provisions and requirements of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001 et seq., and grant a fair hearing, as required by Sec. 5(c) of that act. The terms of the statutes under which the Fraud Order here under consideration was issued, make no provision for a hearing in connection with the issuance of fraud orders, but provide, “The Postmaster General may, upon evidence satisfactory to him”, issue such orders. After it was held in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90, that a court review could be had to test the validity of such fraud orders, the constitutionality of the sections authorizing their issuance was upheld in Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092, and Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 92 L.Ed. 628. Despite these rulings, appellant contends that the Fraud Order here involved is void for failure on the part of the Postmaster General to comply with the Administrative. Procedure Act. Appellant specifically relies on the language of Sec. 5, as follows: “In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, * * * ****** “(c) The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision * * * no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. * * * ” We think that by its very terms the Administrative Procedure Act, applying as it does to cases “of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” is inapplicable to a mail fraud order issued under 39 U.S.C.A. §§ 259 and 732, since those statutes contain no requirement for hearing or opportunity therefor. The legislative history of the Administrative Procedure Act generally, or in connection with the provisions of Sec. 5, will not be referred to as it has been held to be “more conflicting than the text is ambiguous.” Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 14 L.Ed. 616. In that case, however, it was ruled, 339 U.S. at page 50, 70 S.Ct. at page 454: “We think that the limitation to hearings ‘required by statute’ in § 5 of the Administrative Procedure Act exempts from that section’s application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the' requirement for which has been read into a statute by the Court in order to save the statute from invalidity. * * * ” This is a definite and decisive construction of the statute rendering the Administrative Procedure Act inapplicable to the Fraud Order in question because, first, no hearing is required under 39 U.S.C.A. §§ 259 and 732, and, second, these statutes are constitutionally valid without any hearing requirement having been read into them. On this point, it was similarly concluded in Bersoff v. Donaldson, 84 U.S.App.D.C. 226, 174 F.2d 494, 495, viz.: “* * * In our opinion these provisions of the Act do not apply to mail fraud orders as Section 5, 5 U.S.C.A. § 1004, thereof confines the prescribed procedure to cases of adjudication ‘required by statute to be determined on the record after opportunity for an agency hearing.’ The fraud order statutes do not in terms require a hearing. Therefore, we think, they do not come within the scope of the procedural provisions of the Administrative Procedure Act. * * * ” It is clear that the contention of appellant that the Administrative Procedure Act should have been applied and followed in the issuance of the Fraud Order involved is without merit. As to the merits, appellant contends that there was nothing inherently fraudulent in his business of selling incense, concerning which he says there is an old and respectable superstition concerning good luck. He • further points out that in various places in his circulars and advertising he used such explanations as, “Remember we sell our incense only for what it actually is. We absolutely make no supernatural claims for our products,” and in the opening paragraph of the circular letter sent out by appellant he stated, “Note, I don’t claim any supernatural powers in luck.” Likewise some of appellant’s advertisements contained a promise that if the purchaser were not delighted and completely satisfied, the purchase price of the product would be refunded. “Fast Luck Brand Incense” consisted of an aromatic oil and coloring in a sawdust base. The incense itself was no different than ordinary commercial incense. With each pound of Fast Luck Brand Incense appellant included as a “special gift” a package of “Number Tablets,” which tablets were composed of an aromatic oil in a charcoal base, containing numbers made of ink saturated with copper sulphate. These numbers made their appearance in the burning incense when the tablets were lighted. The incense, lucky numbers, and the container were sold for $5. The senior trial examiner, after a hearing, made findings which were approved and adopted by the Solicitor, and later adopted by the Postmaster General. The record discloses that the findings are supported by substantial evidence. Appellant went much further in his advertisements and circulars than to offer his incense, as he contends, for what it was, that is, ordinary commercial incense. His sales efforts were predicated upon the use of his incense as a luck-changing medium. His advertisements were designed to prey upon the superstitious beliefs of ignorant people. As an example of the kind of advertisement used by appellant in Grier’s Almanac for the States of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Louisiana, Texas, and Arkansas, the following heading appeared in large black type: “Don’t Give Up! Luck May Change For You Into Power and Glory! ” Small print followed, reading: “Read very carefully — then decide! How you may find Good Fortune, Happiness, according to legend, same as I found it. I was real down — -so blue, confused, just couldn’t think what to do. Then I learned how Incense could soothe and calm — how it relax me — help me meditate what to do. It seemed like magic the way things got. I want you to know the amazing calming power of this Incense that helped me so much. * * * ” Numerous testimonials were printed in some of the circulars. Appellant referred to them in his advertisements as “personal excerpts from users of Glory Bee Fast Luck Brand Incense (containing) their sincere, heartfelt emotions of thankfulness.” These testimonials purported to attribute to the use of appellant’s incense such results as better health, improved financial condi-' tions, “power” to meet family obligations, wonderful changes for the better in the family home, the obtaining of profitable employment, improved social power, peace in the home, and acquisition of new “pep.” The lucky number tablets also were credited with bringing luck, cheer and good fortune to the user. The incense was described in other advertisements as “amazing.” In addition to the foregoing statements, the findings contained the following: “Thus, this respondent (appellant here) by these advertising devices- vouches through his advertising literature for the validity of the ‘legend’ and endorses it as worthy of belief. He misleads his superstitious readers to believe that the ‘legend’ is reality, and offers for sale the instrumentalities by means of which he shows this has been and can be accomplished. * * * He has composed advertisements well calculated to deceive and defraud the ignorant, the credulous and the superstitious.” The Postmaster General concluded that such statements materially misrepresented the value of appellant’s incense, its efficacy, and the benefits to be derived from the use thereof, and that from evidence satisfactory to him that appellant was engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises, in violation of Secs. 259 and 732, Title 39 U.S.C.A. The finding that appellant engaged in conducting a scheme for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises is a finding of fact, which by statute is committed to the Postmaster General and will not be reviewed by the courts when it is fairly arrived at and has substantial evidence to support it so that it cannot justly be said to be palpably wrong and arbitrary. Leach v. Carlile, 258 U.S. 138, 139, 42 S.Ct. 227, 66 L.Ed. 511. The buying public does not ordinarily carefully study or weigh each word in an advertisement and the ultimate impression upon the mind of the reader arises not only from what is said but also all of that which is reasonably implied. Aronberg v. Federal Trade Commission, 7 Cir., 132 F.2d 165, 167. The important criterion is the net impression which the advertisement is likely to make upon the purchasers to whom the advertisement is directed. Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 680. It has been held that even if an advertisement is so worded as not to make an express misrepresentation, nevertheless if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable. Durland v. United States, 161 U.S. 306, 313, 16 S.Ct. 508, 40 L.Ed. 709; McCarthy v. United States, 2 Cir., 187 F. 117. What the Supreme Court said in Donaldson v. Read Magazine, supra, 333 U.S. at page 189, 68 S.Ct. at page 597, is applicable to the case at bar: “ * * * That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest’s terms is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. Durland v. United States, 161 U.S. 306-313, 314, 16 S.Ct. 508-511, 512, 40 L.Ed. 709; Wiser v. Lawler, supra, 189 U.S. at page 264, 23 S.Ct. [624] at page 626, 47 L. Ed. 802; Oesting v. United States, 9 Cir., 234 F. 304, 307. People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. ‘Laws are made to protect the trusting as well as the suspicious.’ Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 115, 82 L.Ed. 141.” The administrative determination of whether the representations made by appellant left readers with a false impression is to be accepted if there is a rational basis for such conclusion. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260; Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 83 L.Ed. 1147. As the findings of the Postmaster General are supported by substantial evidence and as we find nothing arbitrary or palpably wrong in his conclusions, the district court correctly denied the motion for a permanent injunction 'and dismissed the complaint. The judgment is Affirmed. . 39 U.S.C.A. § 259 provides in part: “The Postmaster General may, upon evidence satisfactory to him * * * that any person or company is conducting any * * * scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, instruct postmasters at any post office at which registered letters or any other letters or mail matter arrive directed to any such person or company * * * to return all such mail matter to the postmaster at the office at which it was originally mailed, with the word ‘Fraudulent’ plainly written or stamped upon the outside thereof; and all such mail matter so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. ifc >¡í i\i » 39 U.S.C.A. § 732 provides in part: “The Postmaster General may, upon evidence satisfactory to him that * * * any person or company is conducting any * * * scheme for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, forbid the payment by any postmaster to said person or company of any postal money orders drawn to his or its order * * * and may provide by regulation for the return to the remitters of the sums named in such money orders.” Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_r_fed	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CENTRAL FORWARDING, INC. and Household Goods Carriers’ Bureau, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. EASTERN LABOR ADVISORY ASSOCIATION and Southern Tank Line Carriers, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. DRUG AND TOILET PREPARATION TRAFFIC CONFERENCE, INC. and the National Small Shipments Traffic Conference, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Nos. 81-4437, 81-4493 and 82-4019. United States Court of Appeals, Fifth Circuit. Feb. 28, 1983. Opinion on Denial of Rehearing May 13, 1983. John R. Sims, Jr., Dennis Dean Kirk, Washington, D.C., for intervenor Specialized Carriers. Thomas M. Auchincloss, Jr., Leo C. Franey, Washington, D.C., for petitioners in No. 81 — 4437 and intervenor Steel Carriers’ Tariff Ass’n. Leonard A. Jaskiewicz, Edward J. Kiley, Washington, D.C., for intervenor Carrier Conference-Irregular Route. Robert E. Born, Atlanta, Ga., for intervenor National Ass’n of Specialized Carriers, Inc. Kenneth P. Kolson, John J. Powers, III, Dept, of Justice, Kathleen V. Gunning, I.C.C., Washington, D.C., for respondents. Keith G. O’Brien, Washington, D.C., for intervenor Intern. Broth, of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Donelan, Cleary, Wood & Maser, P.C., Frederic L. Wood, Washington, D.C., for intervenor American Frozen Food Institute. Robert J. Bray, Jr., James J. Wankmiller, John J. McAleese, Jr., Bala Cynwyd, Pa., for amici curiae Southern Tank Line Carriers and Eastern Labor Advisory Ass’n. John F. Wickes, Jr., Indianapolis, Ind., for amicus curiae Ferree Furniture Exp., Inc. David E. Driggers, Denver, Colo., for amicus curiae Transystems, Inc., et al. James D. Porterfield, Pittsburgh, Pa., for amicus curiae Pittsburgh & New England Trucking Co. Paul D. Angenend, Austin, Tex., for amicus curiae Acme Truck Line, Inc. Jerry Prestridge, Austin, Tex., for amicus curiae Oil Field Haulers Ass’n, Inc. Daniel J. Sweeney, Washington, D.C., for petitioners in No. 82-4019. Before GARZA, REAVLEY and GAR-WOOD, Circuit Judges. REAVLEY, Circuit Judge: These consolidated appeals challenge an Interstate Commerce Commission regulation requiring carriers to reimburse owner-operators for a portion of their fuel costs. Having concluded that the Commission exceeded its statutory authority, we set aside the regulation, suspending the effectiveness of our decision for 60 days following the date of issuance of the mandate, and remand to the Commission in order that the parties may accordingly seek leasing agreements and adjustment of rates. Although our ultimate holding is a narrow one, constrained by particular circumstances, we reach it through a broad inquiry into the rulemaking authority of the Interstate Commerce Commission, and agency rule-making in general. We write with an awareness of the importance of the case to the parties in this and future disputes. I. BACKGROUND The regulation in question is Ex Parte No. 311 (Sub-No. 4), Modification of The Motor Carrier Fuel Surcharge Program, 46 Fed.Reg. 50070, 365 I.C.C. 311 (served October 8, 1981) (“the regulation”). Understanding its purpose and effects requires some knowledge of industry practices and the recent history of regulation in the motor carrier field. A. The Parties The private parties to this suit represent the three principal segments of the regulated motor carrier industry: carriers, owner-operators, and shippers. Under existing federal law, most forms of interstate for-hire motor transportation require operating authority from the Interstate Commerce Commission (“ICC” or “Commission”). The Commission extends operating authority through licenses known as contract carrier permits or common carrier certificates of public convenience and necessity. Carriers, as that term is used here, are parties possessing such a license. Owner-operators are the “independent truckers” of song and legend. They are persons owning one or a few trucks who lack ICC operating authority. Since they cannot transport regulated commodities in interstate commerce in their own right, they rely on two sources of business: (1) they lease their services and equipment to a carrier in order to utilize the carrier’s operating authority, or (2) they make hauls exempt from ICC regulation by transporting agricultural products (49 U.S.C. § 10526), working for a private fleet (49 U.S.C. § 10524), transporting goods intrastate (49 U.S.C. § 10525), etc. Shippers, finally, are the customers of the industry — retailers, manufacturers and others — who have goods to be transported. In order to haul regulated commodities an owner-operator leases his truck to a carrier, who then hires the owner-operator to drive the truck. These lease arrangements are common, as independent owner-operators account for approximately 40 percent of all intercity truck traffic in this country. H. R.Rep. No. 1812, 95th Cong., 2d Sess. 5 (1978). Typically, in exchange for extending his operating authority and providing a few other services such as advertising, the carrier takes 25 percent of the gross revenue from the haul, leaving 75 percent to the owner-operator, who bears all of the costs of carrying the freight, including fuel, repairs, tolls and the like. Id. at 5-6. The lease terms vary, but the 75-25 split is very common in industry practice. The ordinary duration of the lease is from three months to one year. D. Wyckoff & D. Maister, The Owner-Operator: Independent Trucker 85 (1975). While most owner-operators are independent contractors, some are classified as employees under the national labor laws and are represented by unions. B. Genesis of the Regulation The current regulation is the latest in a series of actions taken by the ICC related to fuel costs. The dizzying increase in fuel prices associated with the OPEC oil embargo of 1973 had a severe impact on the trucking industry, and was in part responsible for owner-operator shutdowns in 1973-74. The Commission took a number of actions in response to the new pace of fuel-price inflation. In Ex Parte No. 311, Expedited Procedures for Recovery of Fuel Costs, 350 I.C.C. 563 (1975), it established an expedited procedure for regulated carriers to reflect rapidly rising fuel costs in their rates in the event of a future fuel crisis. The Commission entered Special Permission No. 76-350, allowing carriers to increase rates on 10 days’ notice instead of the usual 30 days’ notice. In the meantime, congressional hearings were initiated at various locations around the country to learn more about owner-operators and their problems. Some of the hearings are published in Regulatory Problems of the Independent Owner-Operator in the Nation's Trucking Industry: Hearings Before the Subcomm. on Activities of Regulatory Agencies of the House Comm, on Small Business: Parts I, II, III, 95th Cong., 2d Sess. (1976-78). The Commission in this case relies on a passage from the House report summarizing the findings of these hearings: From the monies actually received (75 percent or less of the shipping rate) the owner-operator must pay for his own licensing, operation and gas tax permits which vary widely from state to state. They must also pay for the full cost of regular maintenance plus the monthly payment on his tractor and trailer which runs, on the average, of 12 to 18y2 percent interest on a 4-year plan which often is the only credit term available to him. When one recalls that the owner-operator is unable to pass on these expenses to his customer, the gravity of this problem is apparent. The owner-operator cannot increase his income since it is fixed first by the rate charged for shipping by the carrier and secondly by his 75/25 leasing agreement with the carrier. There is little incentive for the carrier to raise rates because of the competition between licensed carriers. This is especially true, it is remembered, since the carrier gets 25 percent off the top for granting the privilege to work to the independent owner-operator. This added income provides additional income to the carrier. A carrier can lessen the cost squeeze on his rates by giving to a leased operator the same load for 75 percent of the rate and forcing the leasor [sic] to assume all costs. The owner-operator is caught in a continuing cost crunch. His costs — fuel, lubricants, tires, overnight accommodations, etc. — continue to rise while his income remains inflexible. He is trapped by the regulatory system. If he were able to carry the same load for the full rate, he would be able to compete successfully within the system. H.R.Rep. No. 1812, 95th Cong., 2d Sess. 6-7 (1978). The spring of 1979 saw another dramatic rise in fuel prices that cut heavily into owner-operator incomes, resulting in more shutdowns that summer. Since most owner-operators paid their own fuel costs, their expenses were rising rapidly, while their revenue was fixed by previous lease agreements and by rates that could only be changed if carriers sought rate increases. The Commission adopted temporary measures to cope with the problems facing carriers and owner-operators. On June 1, 1979, Special Permission No. 2620 was issued, allowing carriers to file for fuel-related rate increases in surcharge form on ten days’ notice, but requiring the full amount of the surcharge to be passed through to owner-operators that actually paid for the fuel. This measure proved inadequate because many carriers chose not to file for the surcharge or did not file quickly enough to satisfy owner-operators. On June 15, 1979, the Commission adopted Special Permission No. 79-2800, establishing an average fuel rate increase for the nation, and allowing carriers to file for this average increase in surcharge form on one day’s notice. The surcharge was based in part on a national average of the ratio of the owner-operator’s fuel expenses to total operating revenue, and became known as the “revenue-based” surcharge. It was in effect until the latest regulation replaced it. One key element of this procedure was that regardless of whether the carrier took the full surcharge, it was required to pass through the maximum allowed surcharge to owner-operators. By its own language Special Permission No. 79-2800 was a response to a situation of “extreme urgency” in which “fuel prices are increasing at an alarming rate.” It went on to note that “[bjecause of the extreme nature of the emergency, the Commission finds that it must order that all regulated carriers, whether or not they have taken an X-311 increase, must from this date forward compensate owner-operators fully for all additional fuel expenses incurred by these operators.” Thereafter, on a weekly basis, the Commission continued to prescribe successively higher fuel surcharges, relating them to a weekly fuel price index using the January 1, 1979 diesel fuel price of 63.5 cents per gallon as a base. The surcharge program, an emergency scheme enacted in a time of rapidly escalating fuel prices and labor strikes, ultimately created distortions in the rate structure and did not accurately reflect fuel costs. Recognizing that “[t]he surcharge program is intended to be temporary,” the Commission initiated Ex Parte No. 311 (Sub-No. 4), Review of the Motor Carrier Fuel Surcharge Program, in a notice of proposed rulemaking served on April 11, 1980. The Commission proposed four modifications in the program and requested comments. After reviewing comments and holding hearings, it proposed a fifth modification in a notice served on July 31, 1981. After receiving several hundred comments and hearing oral argument on the five options, the Commission adopted the current regulation, which replaces the revenue-based surcharge with a plan requiring carriers to compensate owner-operators based on a cents-per-mile formula. The regulation froze the percentage of revenue surcharge and allowed carriers to fold the amount of the surcharge into their rate structure. Unlike its predecessors, the current regulation cannot be described as an emergency measure. It was adopted some eighteen months after the initial notice of proposed rulemaking, and was not adopted in a time of national labor unrest. Fuel prices were relatively stable as well, for the July 31 notice indicated that “[sjurcharges have been employed only in exigent circumstances such as the fuel crisis which began in the spring of 1979. The circumstances which led to the adoption of the surcharge program no longer exist. Petroleum supplies are ample at present and the price of fuel is now relatively stable.” Furthermore, the regulatory pressures contributing to the plight of the owner-operator had eased since the time they were recognized by Congress in the hearings that ended in 1978. The Motor Carrier Act of 1980 made it much easier for an owner-operator to become a carrier himself and avoid having to pay carriers for license privileges. Section 5 of the Act substantially lessens the burden on would-be applicants for certificates of public convenience and necessity under 49 U.S.C. § 10922. See H.Rep. No. 1069, 96th Cong., 2d Sess. 12-17, reprinted in 1980 U.S.Code Cong. & Ad. News 2283, 2294-99. The new standard has been applied very liberally in favor of applicants. “During the first year of implementing the Motor Carrier Act of 1980, some 27,000 opposed motor carrier operating rights cases were decided by the ICC. In not a single case did the Commission conclude that the protestant had satisfied its statutory burden of proving that the proposed operations were inconsistent with the public convenience and necessity.” Dempsey, Congressional Intent and Agency Discretion — Never the Twain Shall Meet: The Motor Carrier Act of 1980, 58 Chi.Kent L.Rev. 1, 40 (1981). C. The Regulation The regulation, served on October 8,1981, phased out the existing surcharge program and replaced it with a reimbursement plan requiring carriers to reimburse owner-operators on a mileage basis. The rate of reimbursement, initially set at 14 cents per mile, is designed to assure that owner-operators are compensated for all fuel costs above 63.5 cents a gallon incurred while on carrier business. As an option, carriers can avoid the mileage compensation system by providing owner-operators with fuel or credit cards, so that the carrier absorbs all actual costs for fuel above 63.5 cents per gallon. Carriers are provided a means of obtaining a rate increase to offset increased fuel expenses. Language from the regulation itself best explains its effect. “In establishing current standards for the recovery of fuel increases, the Commission has, in essence, affected one distinct element of the owner-operator’s compensation.” The Commission has overridden privately negotiated payment arrangements between carriers and owner-operators. “The fuel reimbursement plan delineated in this decision in effect separates owner-operator compensation for fuel costs in excess of 63.5 cents a gallon from the lease agreement.” The mileage reimbursement must be paid regardless of the terms of the lease. Furthermore, although the regulation allows changes in the base rate on which the revenue split is made under the lease to prevent double compensation, it forbids change's in leases designed to counteract the effects of the reimbursement plan. “We admonish carriers not to adjust the revenue split in the lease agreement to deprive owner-operators of payments required pursuant to the Commission’s compensation method.” Because of a perceived lack of bargaining power, the Commission concluded “that owner-operators require a measure of protection in this area and that separate agreements will not accomplish this goal.” The regulation contemplates an ongoing reimbursement plan. For the indefinite future the mandated mileage compensation will be adjusted up or down as fuel prices dictate. The Commission has placed no limits on its power to rethink or recalculate its fuel reimbursement formula in the future, and has thus empowered itself to control compensation in the industry as it wishes. D. Summary of Factual Circumstances We decide this case based on the particular circumstances before us. Two key conclusions emerge from the background discussion given above. First, the stated purpose and actual effect of Ex Parte No. 311 (Sub-No. 4) is to regulate directly compensation paid by carriers to owner-operators. The Commission is not satisfied with leaving compensation in the trucking industry to the private or collective bargaining that reigns throughout most of the American economy, because it believes that owner-operators are victims of inadequate bargaining power and inflexible leases. The fact that the compensation formula is keyed to fuel costs is of little moment, for if this regulation is valid, we fail to see how any other compensation requirement would not also be valid. Second, this regulation cannot be described as an emergency or stop-gap measure designed to respond to a national or industry-wide crisis. It was adopted after lengthy rulemaking proceedings. There were no fuel or regulatory emergencies facing owner-operators in October of 1981, nor can the agency’s action be attributed to the immediate threat of a strike or other labor unrest. The regulation is not a temporary measure, but instead purports to regulate compensation on a permanent basis. The authority of the Commission and the validity of this regulation must be determined with these factual circumstances in mind. E. Issues on Appeal The appeals come to us under 28 U.S.C. §§ 2342(5) (circuit court review of ICC regulation) and 2112(a) (transfer from other circuits). The regulation is the product of informal rulemaking under section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, and is subject to review under section 10 of the Act, 5 U.S.C. § 706(2)(A)-(D): The reviewing court shall... hold unlawful and set aside agency action... found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law.... Not surprisingly, the twenty-seven original parties, intervenors and amici curiae have managed to find fault with and defend the regulation under each of these subsections. Those opposing the action taken by the ICC claim, for reasons too numerous to mention here, that the regulation is arbitrary and capricious, that it unconstitutionally impairs existing contracts, that it impermissibly intrudes on the jurisdiction of the National Labor Relations Board in conflict with Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and that inadequate notice of the agency’s action was given. Without reaching these arguments, we find that under subsection (C) the regulation is beyond the statutory authority granted to the Commission by Congress. II. COMMISSION AUTHORITY No one can doubt that Congress could regulate compensation levels in the trucking industry under its sweeping power to regulate interstate commerce. Nor is there doubt that Congress could delegate that power to the Commission. The question before us is not whether Congress can delegate such authority, but whether it has chosen to do so — a matter of statutory construction by and large. In answering this ultimate question we find it helpful to ask a number of subsidiary questions, all of which shed light on the bounds of an agency’s authority: (1) how broadly has Congress granted rulemaking authority to the agency; (2) how closely related to specific delegations of power is the regulation in question; (3) how dramatically does the regulation affect the private parties at which it is aimed? These three subsidiary questions are not etched in stone, and are not intended to serve as an exhaustive list of factors that courts are obliged to examine in all disputes concerning rulemaking authority. They do, however, offer some clues of congressional intent if fairly answered. The first two questions are self-evident in their aim. Obviously, if an agency has been granted sweeping powers, and if the regulation at issue clearly falls within the rule-making prerogatives expressly granted by statute, the court should not hesitate to conclude that Congress has authorized the regulation. On the other hand, if Congress has granted only limited powers to the agency, and the regulation bears little kinship to the rulemaking authority expressed by statute, the validity of the regulation is suspect. These two questions are easier to ask than to answer, and we address them concurrently in the remaining parts of this opinion. The third question is not so obvious in its aim and we address it here. An inquiry into how dramatically a regulation affects the parties at which it is directed can rarely be answered precisely, and the parties themselves will usually disagree on the regulation’s impact. The reviewing court can do little more than give a gestalt reaction to the question. Nevertheless, we are convinced that the more profoundly an agency’s actions affect private parties, the more likely it is that Congress would disapprove of the action absent a clear and specific authorization by statute. By any standard Ex Parte No. 311 (Sub-No. 4), despite its unpretentious name, asserts an awesome power over the motor carrier industry. It cannot be described as a mere procedural or housekeeping rule, nor is it a measure aimed at simply promoting or policing fair dealings among private parties. Instead it removes from the control of these parties their private determination of.one aspect of their leasing arrangements, and in effect rewrites each private agreement, to the benefit of one party and the chagrin of the other. The regulation affects tens of thousands of private parties by requiring out-of-pocket reimbursements of hundreds of millions of dollars. By directly regulating private sector compensation, the Commission has taken upon itself a task that Congress does not frequently delegate. The Government suggests that the Commission’s regulations governing fuel cost reimbursements have been promulgated in response to congressional concern about the “cost crunch” that owner-operators have experienced in recent years. As explained above, the current regulation was promulgated several years after this concern was stated, and the regulatory constraints and fuel-price inflation that prompted the concern had subsided. Regardless, we cannot accept any suggestion that the regulation is valid because it is aimed at an evil perceived by Congress, for here the argument cuts both ways. Nothing in the legislative history suggests that Congress thought the Commission had the power to act directly on owner-operator compensation. If it be asked why, then, Congress did not itself attack the problem by specific legislation, the response is that the fact that Congress recognized a problem but chose not to act directly suggests that it would as likely disapprove as approve of the Commission’s frontal attack on the problem. In this instance Congress has expressed considerable concern about the plight of owner-operators, and has not hesitated to enact legislation in their favor. However, Congress has never specifically authorized the Commission to require fuel reimbursements to owner-operators or to otherwise directly regulate compensation paid to owner-operators. If the Commission has this authority, it does not exist by virtue of congressional hearings and reports alone. If such power exists it is to be found by examining enacted statutes, a task to which we now turn. The petitioners would have us strike down any regulation of leasing practices between carriers and owner-operators that is not specifically authorized by statute. The respondents would have us uphold any agency action that has a rational basis, that does not contravene any express statutory mandate, and that does not impermissibly interfere with the jurisdiction of another agency. The truth, we think, lies somewhere in between. A. General Rulemaking Authority The Commission contends that it had authority to promulgate the regulation under the general rulemaking authority found in 49 U.S.C. § 10321(a), which provides: The Interstate Commerce Commission shall carry out this subtitle. Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle. The Commission may prescribe regulations in carrying out this subtitle. Removed from its statutory and historical context, this provision is practically devoid of meaning, and offers little help in determining whether the Commission is authorized to regulate compensation paid in motor transportation leasing agreements. As a preliminary approach to construing the scope of this provision, we note that it is the product of the Revised Interstate Commerce Act of 1978. The purpose of this Act was to rewrite the Interstate Commerce Act in modern prose without effecting any substantive changes in the law. The Act succeeds admirably at simplifying the stodgy language of the previous Interstate Commerce Act, but the previous statutes, perhaps because of their baroque prose, give a better feel for the scope of ICC authority than their terse replacement. We have examined these earlier statutes, reproduced in the margin for the avid reader, and find that they give no mention of ICC authority to regulate owner-operator compensation. Our inquiry does not end simply by noting that the general rulemaking provision does not single out owner-operator leasing and compensation arrangements as subjects for ICC regulation. In the leading case of American Trucking Associations v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953) (“ATA”), the Supreme Court held that the ICC could regulate certain leasing practices between carriers and owner-operators despite the lack of any express delegation of power under the Interstate Commerce Act (“Act”). The respondents rely on language from the case where the Court found that “[o]ur function, however, does not stop with a section-by-section search for the phrase ‘regulation of leasing practices’ among the literal words of the statutory provisions.” 344 U.S. at 309, 73 S.Ct. at 314, 97 L.Ed. at 355. Despite this language, we do not read the case as granting carte blanche to the Commission over leasing practices. The Commission rules reviewed in ATA required that contracts between owner-operators and carriers be reduced to writing, vest control of the equipment in the carrier, exceed thirty days in length, and fix the compensation of the owner-operator by a manner other than a percentage of the gross revenue. The rules also required inspection of the non-owned equipment by the carrier, testing of the driver’s familiarity with Motor Carrier Safety Regulations, and records on the use of equipment. The effect of the rules was to abolish a practice known as “trip leasing.” The rules were justified as necessary to preserve the express statutory mandates of the Act. Trip leasing was found to encourage violation of statutory safety requirements and limitations on certified authority, and the statutory mandate to provide nondiscriminatory service. The Court also found that the use of leased equipment tended to obstruct normal rate regulation. It found that numerous statutory provisions of the Act were in jeopardy, including sections 216(b) and 218(a) (rate regulation), 204(a)(2) (safety requirements), 204(a)(1) (continuous service), 208(a) and 209(b) (observance of authorized routes and termini), and 216(d), 217(b), 218(a) and 222(c) (prohibition of rebates), and concluded that “practically the entire regulatory scheme is affected by trip leasing.” 344 U.S. at 310-12, 73 S.Ct. at 315, 97 L.Ed. at 355-57. Under such circumstances, the Commission was held to have the authority to enforce the provisions of the Act under its general rulemaking authority found in section 204(a)(6). However, we read ATA as interpreting the general rulemaking provision to be a limited grant of authority to the Commission to carry out and enforce the express mandates of the Act. The Court did not find the provision to be a grant of power to regulate all aspects of the motor carrier industry, but instead found that “as exercised, the power under § 204(a)(6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements.” 344 U.S. at 313, 73 S.Ct. at 316, 97 L.Ed. at 357. Other Supreme Court precedents are consistent with this view. In Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court upheld the authority of the Federal Reserve Board to promulgate the “Four Installment Rule” found in Regulation Z. Such authority was found to exist under the general rulemaking provision of the Truth in Lending Act, 15 U.S.C. § 1604(a) which provides: The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain... provisions... as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. In broad language the Court states: Where the empowering provision of a statute states simply that the agency may “make... such rules and regulations as may be necessary to carry out the provisions of this Act,” we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.” 411 U.S. at 369, 93 S.Ct. at 1660-61, 36 L.Ed.2d at 329-30. The opinion is clear, however, in recognizing that the regulation was aimed at carrying out specific statutory mandates requiring merchants to indicate the amount and rate of finance charges, 15 U.S.C. § 1638, and aimed at avoiding the uninformed use of credit by consumers, 15 U.S.C. § 1601. As in ATA, the Court found the regulation to be designed to enforce these express mandates: Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board’s authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware. 411 U.S. at 371, 93 S.Ct. at 1661, 36 L.Ed.2d at 330. Similarly, the Court in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) found that the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 1938 to prohibit companies from allowing or requiring their employees to do industrial homework. Speaking of the Gemsco case, the Mourning Court said: The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, § 8(f) stated that the Administrator’s orders “shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.” [52 Stat. 1065 (1938)]. After hearings, the Administrator determined that homework furnished “a ready means” of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable. 411 U.S. at 370, 93 S.Ct. at 1661, 36 L.Ed.2d at 330. None of these cases suggests that general rulemaking authority empowers an agency — established to enforce and carry out a congressional act — to promulgate regulations which run far afield from the specific substantive provisions of the act. Our reading of ATA and related cases is that a general rulemaking provision should be read as a kind of necessary and proper clause. It grants considerable powers to enforce the substantive mandates of federal law governing interstate motor transportation, but is tied to and limited by those specific substantive provisions. It does not open whole new horizons on the regulatory landscape. Congress has not delegated wholesale control of all affairs of motor carriers to the Commission, and it would require more than the language of 49 U.S.C. § 10321(a) to warrant a construction of the Act to that effect. Statutory pronouncements subsequent to ATA strongly enforce a state of the law in accord with our reading of ATA. The Motor Carrier Act of 1980 enacts numerous and important changes in the law regulating interstate motor transportation, and represents a shift in attitude on the role of government, and particularly the ICC, in regulating that industry. Section 2 of the Act, 49 U.S.C. § 10101 note, 94 Stat. 793 (1980) gives its purpose: “This Act is part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government.” Section 3(a) of the Act, id., gives the congressional findings prompting the legislation: The Congress hereby finds that a safe, sound, competitive, and fuel efficient motor carrier system is vital to the maintenance of a strong national economy and a strong national defense; that the statutes governing Federal regulation of the motor carrier industry are outdated and must be revised to reflect the transportation needs and realities of the 1980’s; that historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry; that protective regulation has resulted in some operating inefficiencies and some anticompetitive pricing; that in order to reduce the uncertainty felt by the Nation’s transportation industry, the Interstate Commerce Commission should be given explicit Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) 1987 MERCURY MARQUIS and $4,789.00 in United States Currency, Defendant, Appeal of Robert H. MICK, Intervenor. No. 89-3902. United States Court of Appeals, Sixth Circuit. Argued May 10, 1990. Decided July 23, 1990. Kathleen A. Sutula, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee. Kenneth J. Cardinal (argued), Sebring, Ohio, for intervenor. Before KENNEDY and RYAN, Circuit Judges, and COOK, Chief District Judge. . The Honorable Julian Abele Cook, Jr., Chief United States District Judge for the Eastern District of Michigan, sitting by designation. KENNEDY, Circuit Judge. This in rem forfeiture action was initiated by the government against a 1987 Mercury Marquis and $4,789.00 in cash. The government alleges that both items were used or intended to be used in violation of the internal revenue laws regarding wagering. Robert Mick, who intervened to claim an ownership interest in the defendant property, and the government both filed motions for summary judgment. The District Court granted the government’s motion. We AFFIRM. On November 23, 1987, members of the Canton and Sebring Police Departments and two Special Agents of the Internal Revenue Service’s Criminal Investigation Division (IRS) detained and searched Robert Mick and his car pursuant to a search warrant. The search revealed numerous articles in the car, including line score sheets, computerized carryover sheets, parlay sheets, parlay stubs, bank receipts, and $2,648.00 in cash. In Mick’s pants pocket, the investigators found $2,141.00. Based on this evidence, the State charged Mick with bookmaking and illegal gambling. In the ensuing criminal proceedings, however, the state trial court determined that the search warrant had been issued without probable cause. The court found that the supporting affidavit primarily cited evidence and observations derived from several searches of a garbage dumpster, located behind I & J Printing, a print shop suspected of printing parlay sheets for illegal sports gambling. Because those dumpster searches were conducted without a warrant, the court disregarded the majority of the affidavit’s allegations and concluded that'the remaining sections did not establish probable cause for the issuance of a search warrant. Accordingly, the court dismissed the search warrant and suppressed all of the evidence obtained from Mick and his car. Shortly thereafter, the prosecutor dismissed the state charges against Mick for lack of evidence. Meanwhile, the IRS agents seized Mick’s car as forfeited to the government on the day of the search, November 23, 1987. On February 2, 1988, the IRS adopted the police seizure and took possession of the money. Finally, on October 19, 1988, the government filed a Complaint in Forfeiture and thus commenced this action. The District Court found that all of the government’s evidence obtained from the dismissed search warrant was inadmissible in the forfeiture action. The court noted, however, that “[i]t is settled that where property declared by a federal statute to be forfeited because used in violation of federal law is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized.” United States v. One Ford Coupe Automobile, 272 U.S. 321, 325, 47 S.Ct. 154, 155, 71 L.Ed. 279 (1926). After noting that “the forfeiture can proceed if the government can show probable cause with untainted evidence,” United States v. United States Currency $31,828, 760 F.2d 228, 230 (8th Cir.1985) (emphasis in original), the court found that the government’s untainted evidence established probable cause to maintain the forfeiture. The District Court stated that the government’s untainted evidence included, the affidavits of two individuals who accepted parlay sheets from Mick, the transcripts of phone conversations between Mick and an undercover officer of the Canton Police Department, and the transcripts of surveillance work on the case. The court noted: The first affidavit contains the testimony of one George Wilson, who states that for two or three years, he received approximately five to six hundred parlays from Mick each week during the football season, which he would distribute to five or six other people. Wilson also states that he gave Mick about $600 to $700 in bets each week, that Mick would provide payoffs for the bets the following week, and that Mick paid him for this work. Finally Wilson states that Mick usually put the parlay stubs and the money in his pockets, and usually drove “a white Mercury” to Wilson’s house. The other affidavit contains the testimony of Paul Viz-zuso, who states that Mick delivered parlays to him on Monday night for •’pproxi-mately three to four years. Vizzuso says that the parlays were for his personal use, and that Mick drove a white Ford. The District Court found that the affidavits established probable cause to maintain a forfeiture. The intervenor, Robert Mick, argues that the District Court erred in granting the government’s motion for summary judgment because Mick had asserted his fourth and fifth amendment rights. Mick, relying on United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), argues that the Supreme Court has held that the government may not conduct forfeiture proceedings where one asserts fifth amendment privileges. United States Coin and Currency extended the fifth amendment privilege against self-incrimination to in rem forfeiture proceedings. The Court’s rationale was that although forfeitures are civil in form, they are criminal in nature for fifth amendment purposes. Id. at 718, 91 S.Ct. at 1043. As the government notes, however, Congress responded to the cases upon which United States Coin and Currency relied by amending the statutory provisions that were found to have offended the fifth amendment privilege. In 1968, Congress repealed 26 U.S.C. § 6107 so that IRS agents were no longer required to provide wagering tax information to local law enforcement agencies. Congress also amended 26 U.S.C. § 6806 in 1968 by deleting the requirement that registrants conspicuously display their tax stamp or produce it on demand. Furthermore, in 1974 Congress responded to United States Coin and Currency by enacting 26 U.S.C. § 4424, which forbids Treasury Department officials and employees from disclosing information taken from registrations under the wagering and coin-operated, gaming device statutes. This Court, like the Fifth and Second Circuits, has found that the amendments are constitutionally valid in the face of a fifth amendment challenge. United States v. Merlo, 704 F.2d 331, 332 (6th Cir.1983); United States v. Jeffers, 621 F.2d 221, 225-26 (5th Cir.1980) (‘‘[T]he 1974 revisions and the concomitant change in Treasury Department practices have eliminated the ‘real and appreciable’ hazards of self-incrimination that existed under the prior law since Section 4244 makes the tax disclosures unavailable to law enforcement authorities.”); United States v. Sahadi, 555 F.2d 23 (2d Cir.1977). Further, Mick has not demonstrated how the forfeiture would affect his fifth amendment rights. Thus his fifth amendment challenge is not a defense to the government’s forfeiture action. Mick also argues that because the District Court excluded the property as evidence in the forfeiture proceeding, nothing remained actionable before the court. The District Court, however, quoting United States Currency $31,828, 760 F.2d 228, stated “[T]he forfeiture can proceed if the government can show probable cause with untainted evidence.” Id. at 230 (emphasis in original). See also United States v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d 1297, 1303 (5th Cir.1983); United States v. $22,287, United States Currency, 709 F.2d 442, 446 (6th Cir.1983); United States v. One 1975 Pontiac Lemans, 621 F.2d 444, 451 (1st Cir.1980); United States v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351, 352 (9th Cir.1974). This holding by the District Court is not inconsistent with the Supreme Court case of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), as Mick contends. One 1958 Plymouth Sedan merely held that evidence derived from an illegal search is inadmissible in a forfeiture proceeding. Id. at 702, 85 S.Ct. at 1251. Mick argues that the affidavits relied upon by the District Court as evidence of probable cause cannot be used to establish probable cause because they were made eight months after the seizure occurred. Although the affidavits were written after the seizure, they were used to demonstrate that probable cause to maintain a forfeiture existed at the time of the seizure. Therefore we find that the District Court did not err in finding that the government, through the use of untainted evidence, has shown that probable cause to maintain a forfeiture existed. The affidavits, together with police surveillance, were sufficient to establish probable cause for the forfeiture. Thus we agree with the District Court that there is no genuine issue of material fact and that the United States is entitled to judgment as a matter of law. Accordingly, we AFFIRM the judgment of the District Court. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_respond1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AIR FLOW SHEET METAL, INC., and Local Union No. 156, Sheet Metal Workers’ International Association, AFL-CIO, Respondents. No. 16522. United States Court of Appeals Seventh Circuit. May 20, 1968. Marcel Mallet-Prevost, Asst. General Counsel, William H. Carder, Attorney, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Nancy M. Sherman, Attorney, N.L.R.B., for petitioner. Max E. Hobbs, Larry T. Miller, Frank A. Higgins, Fort Wayne, Ind., Dale, Duemling & Miller, Fort Wayne, Ind., of counsel, for respondent Air Flow Sheet Metal, Inc. Before CASTLE, KILEY and CUMMINGS, Circuit Judges. KILEY, Circuit Judge. The National Labor Relations Board found that respondent Union violated Secs. 8(b) (2) and (1) (A) of the National Labor Relations Act by causing Air Flow Sheet Metal, Inc., to discharge its employee Milligan for a reason other than non-payment of dues or initiation fees; and that Air Flow violated Secs. 8(a) (3) and (1) of the Act by discharging Milligan. The Board ordered, inter alia, that the Union cease and desist from its unlawful conduct and that Air Flow offer Milligan reemployment and make him whole for loss of pay. We agree with the Board that its order should be enforced. Air Flow, of Fort Wayne, Indiana, is in the business of installing sheet metal products in building construction. As a member of a contractor’s association, it is party to a collective bargaining agreement with the Union. The security clause of the agreement requires as a condition of employment that an employee join the Union within eight days after employment. Milligan was employed by Air Flow on September 1, 1965, and began work in Kokomo, Indiana. He applied for Union membership about September 15 and made a down payment on the initiation fee. On November 1 he was transferred to “the RCA job” at Marion, Indiana. On January 19, 1966, he was transferred to “the Corning Glass Works job” at Bluff ton, Indiana. His work on behalf of Air Flow terminated “on or about” January 20, 1966, and four days later he filed the unfair labor practice charges in this record. The complaint alleges that the Union “on or about January 19 and 20, 1966,” caused Air Flow to Discharge Milligan at Air Flow’s Marion and Bluffton, Indiana, job sites and that the Union continues to prevent Air Flow from reinstating Milligan in his job. It is further alleged that the Union’s conduct was based on Milligan’s non-membership in the Union, his criticism of the Union, his failure to take a Union examination and his failure to obtain Union clearance for his employment. Air Flow and the Union denied substantially all the charges. The Board adopted, in substance, the decision and recommendation of the Trial Examiner, in entering the order. The Examiner found that the Union caused Air Flow to discharge Milligan because he was not a Union member, and had not taken and passed an examination for journeymen sheet metal workers. The issues raised by the Union and Air Flow are; whether the record supports the finding that there was a discharge; whether, if there was a discharge, it was for good cause; whether in suspending Milligan on January 20, 1966, the Union was within its right to enforce its Union rules; whether the Examiner’s credibility findings, favoring Milligan, are justified on the record; and whether the Union and Air Flow were denied a fair hearing because of the Examiner’s conduct. The respondents contend they were denied a fair adversary hearing because the Examiner assumed the role of Board advocate. We have read the Trial Examiner’s questioning of General Counsel witnesses Ehrman, Krock and Milligan, and of respondents’ witnesses Quarles, Shaw and Ehrman. We think that the Trial Examiner went beyond his function of Examiner in certain instances by taking over the questioning of witnesses of both parties. An examiner is not required to assume a wholly passive role and should participate in the proceeding whenever necessary to the end that the hearing proceed in an orderly, expeditious fashion. On the other hand, he should permit the attorneys for the parties to question the witnesses in their own way to develop their own cases. We do not find, as the court did in Tele-Trip Co. v. NLRB, 4 Cir., 340 F.2d 575, that the Examiner’s questioning was “argumentative” or displayed “a critical approach, obvious disbelief,” or an attitude “closely bordering on partisanship or even hostility.” The court in TeleTrip, although it did make the above findings and although it was highly critical of the examiner, p. 581, did not order a new hearing. The record here merely shows an impatience on the Examiner’s part to allow the attorneys to evoke the testimony their own way. We disapprove, because we think this practice if approved might lead to implications of partiality and might lessen respect for the administrative process under the NLRA. We conclude, however, that the Examiner’s conduct here did not deny respondents a fair hearing, and did not lead to a distorted result. We see no merit in the contention of respondents that the Examiner contributed to an unfair hearing because he permitted testimony outside the issues. The Examiner did make findings, not adopted by the Board, with respect to violations which had not been put in issue by the unfair labor practice charges. The testimony which related to these findings was introduced by respondents, as well as the General Counsel, and related to events the day before the January 20 discharge as well as events subsequent to the discharge. The testimony is not'unrelated to the charges actually made since the allegation of the charge was that the discharge took place on or about January 19 and 20 and since the testimony was relevant to the issue of the employer’s reason for discharging Milligan. We cannot find any prejudice to respondents because of the testimony on which the findings of additional violations were based. We hold the testimony amply supports the Board’s conclusion that the Union violated Secs. 8(b) (1) (A) and 8(b) (2) by causing Air Flow to discharge Milligan because he had not taken the Union examination; and that Air Flow violated 8(a) (1) and (3) by discharging Milligan and refusing to reinstate him for reasons other than nonpayment of initation fees and dues. The Examiner could, with substantial support find the following; Union Steward Beatty at a Union meeting January 17 reported that Milligan had stated to Union members on the RCA job that he did not have to, and would not, join the Union; that Union business agent Krock was informed the men would walk off the job unless the matter was straightened out and that Krock promised to go to the RCA job and straighten “it” out. On the morning of January 19, 1966, Krock and Beatty and Air Flow’s Project Manager Thomas and Superintendent Quarles met with Milligan. Thomas and Quarles heard Krock tell Milligan he could not work until he took the Union examination. Krock “suggested” Thomas and Quarles lay Milligan off until he took the examination. Thomas and Quarles, faced with a “slow down” on the job because of Milligan’s Union trouble, readily accepted the suggestion and ■told Milligan he had to be laid off. He was paid up to the end of the day. Milligan then reported what happened to Ehrman, Air Flow’s Operations Manager. An hour later Ehrman told him he had not been “fired,” but had been transferred and to report the next morning at the Bluffton Corning Glass job. He reported January 20 to Shaw, superintendent of Air Flow’s subcontractor, who directed the sheet metal workers at Bluffton. Krock came to the job in the morning, told Milligan in Shaw’s presence that he had been suspended by the Union and could not work until he had taken the examination and been admitted to membership in the Union. Shaw told Milligan he could not work in view of the suspension. Milligan told Shaw to inform Ehrman of what happened and to say Milligan was on his way to get his check. When Milligan arrived at Ehrman’s office, his check had been prepared. Ehrman told him he could return to work when he had straightened out his trouble with the Union. It is true that under the Union security clause Milligan was required to be a member of the Union for continued employment. But Milligan’s Sec. 7 rights and the restraints upon the Union in 8(b) (2) and upon Air Flow in 8(a) (3) are as much a part of the bargaining agreement as if they had been expressly stated. The Union could not cause the discharge of Milligan for non-membership in the Union unless he had failed to tender his initiation fee and dues, nor could Air Flow discharge him for non-membership if it knew, or should reasonably have known, that he was being denied membership for not taking an examination. Respondent argues that if Milligan was fired it was for causing disturbances among the other men, and not for failure to take the Union examination. While it is probably true that Milligan was an abrasive element on the job, the Board could well infer that when Milligan was told by Thomas that Air Flow would have to “let him go,” it was not because of unsatisfactory performance but because of Milligan’s Union trouble and its effect on the work progress. Milligan had been on the RCA job for more than two months and there is no evidence that Thomas and Quarles had thought, before January 19, of discharging Milligan for unsatisfactory work or causing dissension. Moreover, Shaw’s statement on the 20th that Milligan could not work with a Union suspension and Ehrman’s statement on the 20th that Milligan could return to work after he was straightened out with the Union leave no doubt about the reason for Milligan’s discharge on January 20. We conclude that Milligan’s discharge was not justified here, as was that of Gonzalez in NLRB v. V. C. Britton Co., 9 Cir., 352 F.2d 797, 799; and he did not voluntarily leave his job, as Ram did in NLRB v. Brown, 9 Cir., 310 F.2d 539, 546, 547. What the Sixth Circuit said in NLRB v. Leece-Neville Co., 330 F.2d 242, about burdening the employer with the duty of investigating whether dues had been paid is not pertinent here, since there is substantial support in the record for the conclusion that the Company knew the reason for Milligan’s Union trouble was not failure to pay dues or fees. Moreover, there was no conflicting evidence before the employer as to the reason why the Union sought Milligan’s discharge as there was in the Leece-Nevitte case. There is no merit in arguments that we should decide that Milligan was not discharged because he could not testify the word “fired” was used. The claim that he “quit” work on either day is ridiculous on this record. Nor is there merit in the claim that he was not believable because he is a “convicted liar” or because of his “record” of arrests, convictions and imprisonment. We think the testimony for Air Flow carries its own weaknesses because of the conflict between the testimony of Krock, and that of Thomas and Quarles, with regard to what transpired at the January 19 meeting with Milligan; because of the incredibility of Shaw’s testimony that he was present, but did not hear, what Krock said to Milligan on January 20; and because of the incredibility of the testimony of Ehrman that he had Milligan’s check prepared in advance on January 20 for the reason that he had decided the day before to fire Milligan for reasons not related to the Union. No case cited justifies our setting aside the Board’s credibility determinations on the record before us. We accept the credibility findings of the Examiner, adopted by the Board, as substantially supported by the record. The order will be enforced. . Local No. 156, Sheet Metal Workers’ International Association, AFL-CIO. . The Board did not adopt the Examiner’s findings with respect to violations in the January 19 transfer of Milligan or in the denial of Union membership and reinstatement in employment because of his filing of charges with the Board. The reason is that these “violations” were neither charged in the complaint nor presented at the hearing. . (b) It shall be an unfair labor practice for a labor organization or its agents— (2) * * * to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_adminrev	N	What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable". ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents. Nos. 74-1381, 74-1382. United States Court of Appeals, Seventh Circuit. Argued Feb. 19, 1975. Decided May 27, 1975. John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner. McNeill Stokes, Atlanta, Ga., for amicus curiae. Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents. Before STEVENS, SPRECHER and TONE, Circuit Judges. SPRECHER, Circuit Judge. The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties. I Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work. On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164. It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level. The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors. Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors. On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement. Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed. It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these, were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job. The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a). II The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with... standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish... his employees. a place of employment... free from recognized hazards... likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause. Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both. The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said: [T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication. Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination. Id. at 1060-61. The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said: Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working. Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative. Id. at 7-8. Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge: In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units. Id. at 938. The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case. Ill In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.” The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position. It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike. We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death. IV If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject. The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources... 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference. Legislative History, supra, note 15 at 435 (Remarks of Senator Williams). The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors. V It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties. We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion. We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive. In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself. Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended. In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards. In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards. Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution. On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards. To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act. For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained. VI In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers. It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382. . No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection. . Wright did not contest the citations issued to it. . 29 C.F.R. § 1926.500 provides in relevant part: Guardrails, handrails, and covers. (a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways. (b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways. ****** (d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard. * * * * * * (e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails: (i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending; (ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side; (iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side; (iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side; (v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width. . Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced. . The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i). . The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result..” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973). . The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part: The safety and health standards promulgated under... Public Law 91-54, Act of August 9, 1969... are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph... shall be deemed to be occupational safety and health standards issued under this chapter The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra. . Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666. . If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a). . For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge). . See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered). . See note 6, supra and accompanying text. . There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that: [N]o contractor or subcontractor... shall require any laborer.. employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms. The standards adopted pursuant to the Contract Work Hours and Safety Act included the following: (b) By contracting for full performance of a contract.. the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work. (c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to.have joint responsibility. (d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act. 29 C.F.R. § 1926.16 (emphasis added). This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable. While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b). . As Commission Chairman Moran has stated: In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site — hazards which may or may not have been created by thejr own employer — or someone else’s — or by some other employees of a totally unrelated and unknown employer. Address by OSHRC Chairman Moran, National Construction Industry Conference of the American Arbitration Association, Boston, Massachusetts, April 24, 1974. . It was observed during debate in the Congress that the more than 14,500 workers killed by work-related accidents each year represented an annual death toll exceeding that of the Vietnam war. Subcomm. on Labor of Senate Comm, on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 411 (Comm.Print 1971) (remarks of Senator Williams). . The contract in this case between Wright and Workinger Electric provided that the latter in accordance with the plans and specifications of the architect do the “Electrical Work Complete.” Similarly, Anning-Johnson was “To furnish and install the Sprayed on Fireproofing” in accordance with the architect’s plans. In both contracts the only reference to OSHA was the following: Sub-contractor agrees to comply with all requirements of the Occupational Safety and Health Act (Current Edition) and to save harmless and indemnify General Contractor from and against any and all liabilities imposed on the contractor for violations of said act arising out of the work covered by this sub-contractor. No reference is made to correcting safety hazards beyond the scope of the subcontractor’s primary duties. . See, e. g., Armor Elevator Company, Inc., 5 OSAHRC 260, 278-79 (1973) (Review Commission); Skil-Craft Builders, Inc., 3 OSAHRC 622, 627-28 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414, 419 (1973) (Review Commission Judge). . One commentator has suggested that this represents an adequate solution to the problem created by multi-employer construction sites. It not only encourages the general contractor and the subcontractor to consider in advance the allocation of safety responsibilities, but also would not involve the government in determining which of a number of parties was at fault. Comment, OSHA: Developing Outlines of Liability in Multi-Employer Situations, 62 Geo.L.J. 1483, 1496-98 (1974) [hereinafter OSHA Comment], Question: What federal agency's decision was reviewed by the court of appeals? A. Benefits Review Board B. Civil Aeronautics Board C. Civil Service Commission D. Federal Communications Commission E. Federal Energy Regulatory Commission F. Federal Power Commission G. Federal Maritime Commission H. Federal Trade Commission I. Interstate Commerce Commission J. National Labor Relations Board K. Atomic Energy Commission L. Nuclear Regulatory Commission M. Securities & Exchange Commission N. Other federal agency O. Not ascertained or not applicable Answer:
songer_const2	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. UNITED STATES v. JOHNSON (two cases). SAME v. MEMOLO. SAME v. GREENES. Nos. 9377-9380. Circuit Court of Appeals, Third Circuit. Argued June 16, 1947. Decided Aug. 21, 1947. Rehearing Denied Sept. 29, 1947. Writ of Certiorari Denied Jan. 12, 1948. See 68 S.Ct. 355. Chas. J. Margiotti, of Pittsburgh, Pa. (Raymond P. Campbell, of Scranton, Pa., and Samuel Goldstein, and V. J. Rich, both of Pittsburgh, Pa., on the brief), for appellants Miller A. Johnson and Donald M. Johnson. John Memolo and Stanley F. Coar, both of Scranton, Pa., for appellant John Memolo. Thomas D. Caldwell of Harrisburg, Pa., and J. M. Gronfine, of Scranton, Pa. (Caldwell, Fox & Stoner, of Harrisburg, Pa., on the brief), for appellant Greenes. Max H. Goldschein, Val Hammack, and John J. O’Brien, Sp. Assts. to Atty. Gen. (Theron L. Caudle, Asst. Atty. Gen., and William L. Caraway, Atty., Department of Justice, on the brief), for the United States. Before MARIS, GOODRICH, and KALODNER, Circuit Judges. GOODRICH, Circuit Judge. Ten defendants were indicted on the charge of a conspiracy to obstruct the administration of justice. .The indictment was dismissed as to two of the defendants; one died prior to trial; one was granted a severance because of illness; two were found not guilty; the remaining four were convicted, sentenced, and-have appealed to this Court. While a separate appeal is docketed for each appellant • the majority oí the points raised are common to the cases of all and this opinion will dispose of all four appeals. The theory of the Government’s case was that all the defendants were engaged in a continuing general conspiracy to debase the administration of justice. The conspiracy allegedly operated over a number of years and the prosecution sought to prove that the conspiracy existed by a showing of misconduct by the defendants with reference to specific pieces of litigation in the Middle District of Pennsylvania. The prosecution is not against any defendant for misconduct in a particular case however, nor is it for conspiring to do something illegal in an individual case. The theory is that a general conspiracy existed, which lasted over a period of time, and which is shown by what the parties did regarding the individual lawsuits. In some instances more than one of these cases was in the Court at one time. In others, only one such case was pending and sometimes there was a period during which the record is silent as to activities of the alleged conspirators. We think there was sufficient evidence to support the Government’s contention of a continuing conspiracy. The statute of limitations, therefore, runs only from the time of the last overt act. United States v. Kissel, 1910, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; Brown v. Elliott, 1912, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; Culp v. United States, 8 Cir., 1942, 131 F.2d 93. The period of limitations for the prosecution on a conspiracy charge is three years. The indictment in this case was returned on September 11, 1945. The conspiracy existed over a period of fourteen years. Some of the acts necessarily occurred earlier than September 11, 1942, but these acts could be proved to show the existence and continuance of the conspiracy even though there could have been no prosecution for any substantive offense charged as an overt act. Shaw v. United States, 5 Cir., 1930, 41 F 2d 26. Appellants concede that this is correct but say that there are no overt acts proved which occurred within the period of the statute of limitations. If this is true, the point is of decisive importance. But an examination reveals certain acts which were committed after the crucial date. One was the sending of the $350.00 check by the defendant Greenes’ brother, at Greenes’ direction, to Donald Johnson. This occurred in October, 1942. Another was the filing by one Michael of the final account in the Central Forging case on July 9, 1943. In this connection it is to be borne in mind that it is not necessary that an overt act in furtherance of conspiracy necessarily be a criminal act. Indeed, an innocent act by a third party, if caused by previous act or contact on the part of one of the conspirators, would be enough. Therefore, the filing of the trustee’s report above referred to, while itself a perfectly legal act, may be an overt act in furtherance of a conspiracy if such filing is part of the general plan of the conspirators with regard to the subject-matter in which the report is filed. Since Donald Johnson is to have the benefit of the Trial Judge’s instruction that nothing which occurred that was connected in any way with the Central Forging case should be considered in determining his guilt, Michael’s filing in the Central Forging case cannot be used against Donald Johnson. But the $350.00 check transaction is certainly evidence admissible against Donald Johnson and it was within the jury’s province to believe that such transaction had as its purpose the covering up of an illegal transaction rather than a payment of an attorney’s fee as Johnson testified. The Koppleman and Kizis incidents were overt acts which also occurred after September 11, 1942. These incidents, proved only by the admissions of Greenes and Memolo before the Grand Jury, are, of course, limited to those two defendants. But as to them they tend to show that the conspiracy still existed and do constitute overt acts. The other major question involved in this appeal is whether there was sufficient evidence to sustain the verdict. The verdict necessarily involved a finding that the charge of a general continuing conspiracy was upheld and that the defendants found guilty were involved in it. The first point the appellants make in this connection is that the prosecution’s whole case falls to the ground because the person alleged to have been the most important figure in the conspiracy and to whom all the acts of the other defendants headed, was acquitted. This defendant was a former District Judge. At the trial the presiding Judge pointed out to the jury that “the heart and core of the indictment in this charge” is that this Judge entered into an understanding with others that he would be influenced in his administration of the law by other considerations than the law and the facts brought before him. Nevertheless, the jury, thus apprized of the importance of this one figure in the alleged conspiracy, acquitted him, but convicted others who are said by the defendants to be of lesser importance. There are two answers to the argument that the fact of this acquittal causes the whole case to collapse. One is that the jury could reasonably have found that persons around the Judge were conspiring to obtain illegal advantages, but that it did not necessarily follow that the Judge, himself, was concerned in the transactions. Cf. Joyce v. United States, 8 Cir., 1946, 153 F.2d 364. Appellants’ contention that only court officials are capable of corruptly administering justice and that, therefore, persons cannot be guilty of a conspiracy to procure its corrupt administration unless the court official is corrupt is untenable. Cf. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The second point is that the action of the jury in convicting some alleged conspirators and acquitting others is not required to be consistent in order to be legal. If the defendants had been tried separately and separate juries had convicted some and acquitted others, the argument the defendants make on this point would be deprived of practically all its force. We know that one jury does not have to reach a result consistent with what some other jury has reached. Nor is the same jury required to be consistent in order to be effective. As Judge Learned Hand pointed out; “ * * * the appellants have no vested right in the punishment of their fellows, however guilty. * * * we have nothing to do with the rational enmeshing of the two findings; * * * each need only bear its own defects.” United States v. Austin-Bagley Corporation, 2 Cir., 1929, 31 F.2d 229, 233, certiorari denied 1929, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002. The case as to each one of the convicted defendants, therefore, must stand or fall according to its own strength or weakness, not because of what the jury did to some other defendant. The case was complicated for the jury and for us by the fact that a great deal of important testimony, due to the various exclusionary rules of evidence, was not available against all of the defendants. Thus, some very damaging testimony of previous statements to a Grand Jury was available only as against defendants Memolo and Greenes. Again, defendant Donald Johnson had previously been acquitted of charges growing out of one of the particular incidents which was part of the Government’s case. He was entitled to such protection as the law gives him by the fact of that acquittal. His claim that he did not receive this protection will be considered later in the course of this opinion. The jury had to consider the testimony given in the course of a long trial and its different bearing upon different defendants. In this it was aided by the charge of the Trial Judge which, in this respect, was so clear that it has escaped criticism on the part of the appellants. No desirable function is served by reiteration of testimony with regard to those defendants as to whom we conclude the evidence was sufficient to bring them into the general conspiracy charge. As to the appellants, Memolo and Greenes, the evidence is not only clear, but overwhelming. There is sufficient evidence in the record to per-mit the introduction of their admissions made before thfe Grand Jury; once these admissions are considered we virtually have a confession of guilt. As to the defendant Donald Johnson, there is not so strong a case because the damaging Grand Jury admissions were available only against those who made them, that is, the defendants Memolo and Greenes. Nevertheless, we think there is sufficient testimony so that the jury could have found, as they did, that the defendant Donald Johnson was included in the conspiracy. With regard to the defendant Miller Johnson the case is much more difficult. There was testimony that indicated participation in one transaction among those charged to involve irregularities. It was to the effect that Miller Johnson approached one Townsend, who had been appointed co-receiver of the Williamsport Wire Rope Company and asked Townsend to pay half his monthly fees to Albert Johnson, Jr., and that the payments were so made. There are only two other incidents which appeared iii the evidence. One was told by Judge Johnson’s Secretary, to the effect that Miller Johnson came into the Judge’s office while the latter was examining a financial statement which the Secretary had prepared for the Judge. The latter is alleged to have said to his son that “We would have to account in some way for this money.” The third piece of testimony is to the effect that Miller Johnson and his .brother, Donald Johnson, had dinner with one Michael in May, 1944, On this occasion they were alleged to have told Michael that they had been subpoenaed and were being investigated and asked Michael whether he had been. This is all which a careful combing of the record by Government counsel has produced concerning Miller Johnson. We very much desire to refrain from invading the province of a jury, whose business it is to find facts. Nevertheless, in this case, it is our obligation to state that the conclusion of-guilty in Miller Johnson’s case is not warranted by the testimony taken in the most favorable light for the Government. The participtaion in the Williamsport Wire Rope case, if the allegations were believed, has substance. But Miller Johnson was not being prosecuted for anything irregular he may have done in that case. He was being prosecuted for participation in a continuing conspiracy to obstruct justice and the learned Trial Judge told the jury that the fact that a defendant participated in one incident was not enough to prove him an actor in the play as a whole. The second two incidents seem to us completely trivial and not to prove anything. This is a conclusion and not a reason. But if the conclusion is not supported by the recital of the incidents set out above, we do not think adding words as argument in support of our conclusion will give it any more weight. The result of the above discussion is that we decide that the evidence was insufficient to ■ establish Miller Johnson’s participation in the conspiracy charged. Therefore, as to him, there must be a reversal with directions to enter a judgment of acquittal in his favor. Other reasons alleged by him as grounds for a new trial need not, in his case, be considered. A number of other points have been raised as grounds for a new trial because the learned Trial Judge, it is argued, committed error. It is no criticism of counsel that we characterize some of them as trivial. It is counsel’s business to bring before the Court all points that can be made on behalf of his client and the Court’s business to consider them. We shall dispose of the various points briefly. 1. Several of the appellants complain about the charge of the Trial Judge concerning character evidence. On this point the Judge charged as follows: “The evidence of the good reputation of a defendant for honesty and being a law-abiding citizen is admissible in this case. It is substantive evidence and is entitled to weight in your determination. The Government is bound to prove the charge as against any defendant beyond a reasonable doubt, based on all the evidence. If you find that the charge has so been proved as against any defendant, giving weight to the substantive evidence of good reputation, you may find him guilty. “In this connection, you may consider that persons who may have the best reputations in their communities have heretofore been known to have committed crime. While, therefore, it is your duty to weigh and consider such evidence, you are not bound to find the defendant innocent simply because he possessed a good reputation before indictment. If after considering all the evidence, including the evidence of good reputation, there is reasonable doubt as to the guilt of the'defendant existing in your minds, you may acquit him.” We think this charge was correct and within the decision of this Court in United States v. Quick, 3 Cir., 1942, 128 F.2d 832 and the later reiteration of the doctrine of that case in United States v. Frischling, 3 Cir., 1947, 160 F.2d 370. 2. Complaint is made concerning the admission of certain parts of the Grand Jury testimony containing admissions by appellants Greenes and Memolo. It is said that all of the Grand Jury minutes should have been given to the jury if any were. No error was committed in this matter. What was given to the jury was consecutive testimony, not isolated excerpts of what someone said, pulled out of its context. There is no reason why the record should have been unduly cluttered with all the Grand Jury testimony. What was necessary and what the cases cited by the appellants require, is that statements made are given sufficiently in their context so that the jury may have an accurate notion of what was said and under what circumstances. Schoborg v. United States, 6 Cir., 1920, 264 F. 1; Jaquith v. Smith, 1942, 112 Vt. 353, 24 A.2d 341; Jones v. Krambeck, 1940, 228 Iowa 138, 290 N.W. 56. This principle was complied with. 3. Appellants maintain that the Trial Court erred in failing to declare a mistrial because of certain remarks made by attorney for the prosecution in his rebuttal. These remarks concerned a senior partner in a well-known New York law firm who had been a witness. The defense referred to this witness as a man of “fine qualities,” “an example of an honest man and good fellow,” and “a fine old gentleman.” The prosecution, on the other hand, referred to the witness as a man “who goes to Europe for his holidays,” and as “that conspirator,” and “criminal conspirator.” We make no comment for or against the witness. We do hold, however, that this interchange of evaluations concerning him was, at most, irrelevant entertainment for the jury and gives not the most remote basis for asking for a new trial. 4. Appellant Donald Johnson had been indicted and tried for alleged participation in one of the cases used by the prosecution in this case to help establish the general conspiracy. Donald Johnson was acquitted by the jury in that prosecution. He contended that he was entitled to the benefit of the rule of res judicata with regard to that acquittal and that the Trial Court ruled that the acquittal was of no consequence. We think that this characterization of the attitude of the Trial Judge on the matter does not accurately state his position. He not only had the significance of the acquittal in mind, but he told the jury about it clearly and forcefully. He said in part: “But the acquittal in that case, since it was of a different conspiracy, cannot be used to require that you acquit Donald Johnson in this case. However, in order to be sure that the Court protects the defendent in this regard, and that you as jurors protect him in this regard, and to be sure that we shall not do what might be done in this case, try him twice on the same set of facts, which is one of the things that can’t be done under the Constitution of the United States, the Court charges you that you do not retry as to Donald Johnson the charges in the indictment, which is in evidence and which I have outlined to you, and specifically, that you shall not consider in this case as to him the overt acts which are mentioned in that Central Forging Company indictment. You will find them listed, there are five of them, and it includes the receiving of two thousand five hundred dollars. As I say, I don’t think that fact was squarely an issue in that case, but I want to be perfectly sure that neither you nor this Court retry any defendant on the ground that he has been acquitted. In that regard you pay no attention to those specific acts in the Central Forging case as regards Donald Johnson. However, all of the other matters in evidence are also as to him.” Defendants have cited excerpts from decisions stating general principles of res judicata in the law. There is no dispute as to the correctness of the general propositions there stated. But we do not find them helpful in considering the bearing of the fact of the acquittal in the earlier case on the charge of the conspiracy here. We think what the Trial Court did was adequate to protect the rights of the defendant. 5. Appellants complain that the Judge did not charge in terms that the jury must find the date of the beginning of this conspiracy and the date of its end. Instead he said: “As to time, it is not necessary that the Government prove that the crime of conspiracy charged was committed exactly within the limits laid in the indictment, that is, February 1, 1934, to December 31, 1944. Nor is it necessary to prove that any of the overt acts were committed at the time in which they are specified in the indictment. It is sufficient if a conspiracy be found beyond a reasonable doubt that it continue in existence and force and validity for a period of time within three years of the finding of the indictment, which was the 11th day of September, 1945. If such a conspiracy be found and an overt act as charged in the indictment be found to have been done within three years of the finding of the indictment, that would be sufficient.” We think the complaint which the defendants make of the charge is predicated upon the notion that the agreement in a conspiracy is something that is formal, as a contract to buy and sell land. Of course, it is not. In most of these conspiracy cases the agreement is a tacit one and is shown by what the parties do together, not by formal promises interchanged among them. United States v. Direct Sales Co., D.C.S.C. 1942, 44 F.Supp. 623, affirmed 1943, 63 S.Ct. 1265, 87 L.Ed. 1674, 319 U.S. 703; United States v. Holt, 7 Cir., 1940, 108 F.2d 365, certiorari denied 1940, 309 U.S. 672, 60 S.Ct. 616, 84 L.Ed. 1018; Babb v. United States, 8 Cir., 1929, 27 F.2d 80. Its end is shown either by the fact that they no longer act together or that they are unable to do so because the law has caught up with them. We find nothing amiss with regard to the Trial Judge’s charge here. 6. The appellant Memolo urged, at some length, that he was deprived of his constitutional rights by the examination of certain papers and books. He submitted these books to a Grand Jury before which he was summoned under subpoena. He did not, at the time, point to anything in them which created personal privilege in his behalf against self-incrimination. The privilege is personal and it is clear that unless the party, himself, is being called upon to incriminate himself the fact that someone else may be incriminated is not sufficient to exclude evidence. From the examination of these records things were learned which were made the basis of evidence against Memolo later. We agree with the Trial Judge, however, that there was no invasion of his constitutional rights. 7. Various other complaints are made by the defendants about the conduct of the trial. We think they are not well taken. The Trial Judge was strict, it is true, but he was fair. Certain instructions asked for were refused. But the Judge’s charge was a most thorough one and covers over a hundred pages in the Appendix before us. It deals with every phase of the case. The fact that certain other requests on matters not strictly relevant to the case were refused is not, we think, reversible error. It is not our notion of the appellate process that the Trial Judge’s charge should be sifted through bolting cloth to find possible error. The argument that his instructions usurped fact finding functions of the jury we think is without foundation. Our conclusion is that as to three of the appellants there must be an affirmance. As to appellant, Miller Johnson, for reasons above stated, there must be a remand with directions to enter judgment of acquittal. “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” Act March 4, 1909, 35 Stat. 1096, 18 U.S.C.A. § 88. “Whoever corruptly * * * shall endeavor to influence * * * any * * * officer in of of any court of the United States * * * in the discharge of his duty, or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not' more than one year, or both.” Act March 4, 1909, 35 Stat. 1113, 18 U.S.C.A. § 241. United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42; United States v. Johnson et al., D.C.M.D.Pa. 1946, 65 F.Supp. 46. United States v. Johnson et al., D. C.M.D.Pa. Act Dee. 27, 1927, 45 Stat. 51, 18 U.S.O.A. § 582. Braverman v. United States, 1942, 817 U.S. 49, 68 S.Ct. 99, 87 L.Ed. 23; Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; United States v. Rabinowich, 1915, 238 U.S. 78, 85 S.Ct. 682, 59 L.Ed. 1211. Cf. Hyde v. United States, 1910, 35 App.D.C. 451, affirmed 1912, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann. Cas.l914A, 614; see 2 Wharton’s Evidence in Criminal Cases § 704 (1935). He did, however, point out in another part of the charge that it would be possible to acquit the Judge and yet find the others guilty. The jury apparently followed this instruction. The cases so holding are numerous. See e. g. United States v. Hare, 7 Cir., 1946, 153 F.2d 816, certiorari denied 1946, 328 U.S. 836, 66 S.Ct. 983, 90 L.Ed. 1612; Baxter v. United States, 6 Cir., 1930, 45 F.2d 487. Much of the evidence introduced could be used only against some of the defendants. The Grand Jury testimony w'hich could ■ not be used against the Judge nor his sons indicates the agreement among all the defendants to obstruct justice. The jury wa.s carefully instructed not to use evidence against all defendants when that evidence was accepted only as to certain ones. It is, therefore, possible that the Judge’s participation to the juiy’s satisfaction could be established only by evidence which was incompetent as to him. Yet when the jury was considering the issue of his participation as to other defendants this evidence could be used. Defense counsel repeatedly asked for such instructions and directions to the jury. The jury apparently followed the instruction and excluded from their mind the evidence which was incompetent only as to one particular defendant when considering his guilt or innocence. The Judge at the end of the series of questions which elicited the testimony limited its introduction to Donald Johnson on the ground that the meeting occurred after the investigation by the E.B.I. and therefore the admissions were binding solely on Donald Johnson. Thus we actually have only two occasions in which Miller Johnson’s name appears in the testimony. “If you find that anyone of the defendants charged in this case was really only connected with one or two of the ' subsidiary conspiracies which might be alleged in connection with some facts which are brought into this case, and which, it is true might involve some of the same conspirators alleged and named here, you would not on that account find such defendant guilty in this case upon such evidence and such circumstances alone.” The fact that the Government only alleged participation in only one of the eleven cases was the ground for dismissal of the indictment as to Hoyt A. Moore and Charles Korman. United States v. Johnson et al., D.C.Md.Pa.1946, 65 F.Supp. 46; United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42. The problem here involved is actually one of collateral estoppel rather th.ia res judicata. See Scott, Collateral Estoppel by Judgment, 56 Harv.LJtev. X (1942). Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Antranik MALAJALIAN, Plaintiff, Appellant, v. UNITED STATES of America, Appellee. No. 74-1128. United States Court of Appeals, First Circuit. Argued Sept. 10, 1974. Decided Oct. 22, 1974. Henry A. Folien, Jr., Watertown, Mass., for plaintiff, appellant. Alfred S. Lombardi, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William A. Brown, Asst. U. S. Atty., Meyer Rothwacks, and Michael L. Paup, Attys., Tax Div., Dept, of Justice, were on brief, for appellee. Before McENTEE and CAMPBELL, Circuit Judges, and MOORE, Senior Circuit Judge. Of the Second Circuit sitting by designation. McENTEE, Circuit Judge. Taxpayer appeals from an order of the district court dismissing his complaint for improper venue. We affirm. Taxpayer Malajalian, a resident of Beirut, Lebanon, entered the United States under a business visa on April 22, 1972, and remained as a non-resident alien until June 22, 1972, at which time he left this country. On June 20, as the taxpayer was preparing to depart for London from Logan Airport in Boston, a routine inspection of his baggage disclosed $147,595 in bills of small denomination. Notified of the discovery of this treasure-cache, the Internal Revenue Service terminated taxpayer’s tax year under § 6851 of the Internal Revenue Code and made two jeopardy assessments against him totaling $131,331. When this amount was levied upon and seized out of taxpayer’s funds, still in the possession of the Customs Bureau, he filed a tax return declaring that he had no taxable income for his truncated 1972 tax year and requested a refund of the amount seized. After more than six months had passed without action on the claim by the Commissioner, taxpayer instituted suit for refund in the United States District Court for the District of Massachusetts. The court granted the government’s motion to dismiss on grounds of improper venue, and this appeal followed. Section 1346 of the Judicial Code endows the district courts with jurisdiction, concurrent with the Court of Claims, over civil actions against the United States for the recovery of internal revenue taxes alleged to have been erroneously assessed and collected. Section 1402(a)(1) restricts venue in actions against the United States to the district where the plaintiff resides. Since taxpayer, an alien, concededly does not reside in Massachusetts, he cannot lay venue there if § 1402(a)(1) is read ■literally. Recently, in a patent infringement suit against an alien, Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 & n. 8, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428 (1972), the Supreme Court reiterated its longstanding view that “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” The Court reasoned that “venue provisions are designed, not to keep suits out of the federal courts, but merely to allocate suits to the most appropriate or convenient federal forum.” However, it was easier for the Court in Brunette to avoid a venue gap than it is in the instant case. First, Brunette involved construction of conflicting statutory provisions rather than the necessity to read language into a single governing provision. Second, the traditional judicial view that suits against aliens are outside the scope of venue laws does not generally carry over to suits by aliens. Taxpayer can derive little consolation from the holding of United States v. New York & O.S.S. Co., 216 F. 61 (2d Cir. 1914), an admirality suit under the Tucker Act in which a non-resident alien was permitted to sue upon an express finding that respondent had waived its venue objection. See also Choremi v. United States, 28 F.2d 913 (D.Mass. 1928). The court declined to venture an opinion as to the result that would obtain if, as in the instant case, there had been no waiver. Taxpayer next cites a series of cases decided under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1970), which has its own venue provision permitting suits against the United States in the district where libelants reside or have their principal place of business or in which the vessel or cargo charged with liability may be found. 46 U.S.C. § 742 (1970). Although there is at least one case to the contrary, The Elmac, 285 F. 665 (S.D.N.Y.1922), the courts construing this provision have generally allowed non-resident aliens to bring suit in any district on grounds that otherwise they would have no forum in which to sue. See McGhee v. United States, 154 F.2d 101 (2d Cir. 1946); Metaxas v. United States, 68 F.Supp. 667 (S.D.Cal.1946); Middleton & Co. v. United States, 273 F. 199 (E.D.S.C.1921); Kulukundis v. United States, 132 F.Supp. 477, 132 Ct.Cl. 644 (1955). Apart from the fact that these decisions are predicated upon a special statutory provision, they are in-apposite here because the taxpayer, unlike the claimants in the admiralty actions, may repair to the Court of Claims to press his suit, an alternative forum in which his alienage will pose no obstacle. Legislative history of relevant statutory provisions in fact provides some evidence that Congress was aware of the venue gap existing as to tax refund suits by aliens against the United States in the district courts. Prior to 1966, an alien individual had two possible avenues open for a tax refund suit, without regard to the forum at issue here. An alien before 1966 could sue for a tax refund in the Court of Claims if the country of which he was a citizen permitted itself to be sued by citizens of the United States having claims against it. 28 U.S.C. § 2502 (1970). But even without reciprocity an alien could sue the collecting director in the district court where the director resided, since suit against the collecting director is not, at least in form, a suit against the United States. See H.R.Rep. No. 1915, 89th Cong., 2d Sess. 6 (1966). In 1966 Congress abolished refund suits against collecting officers. Act of Nov. 2, 1966, Pub.L. 89-713, § 3(a), 80 Stat. 1108, codified at 26 U.S.C. § 7422(f) (1970). By thus restricting the taxpayer to his judicial district of residence (i. e., in suits against the United States), Congress sought to prevent forum-shopping by taxpayers looking to the district where the tax collector resided. H.R. Rep. 1915, 89th Cong., 2d Sess. 6 (1966). Congress apparently recognized the effect this abolition would have on aliens: “. . .in order to preserve the right of aliens and foreign corporations to bring tax refund suits, the bill also modifies present law by permitting aliens and foreign corporations to bring such suits directly against the United States irrespective of whether the foreign country of citizenship or incorporation allows itself to be sued by U. S. citizens or corporations.” Id. Implicit in this statement is the awareness and conclusion that an alien not “residing” in any judicial district could not sue the United States in any district court. In the view of the writers of the congressional reports, the 1966 legislation was enacted “only because other adequate remedies either are already available, or are being made available by this bill, for the recovery of illegal collections.” Id. See also S.Rep No. 1625, 89th Cong., 2d Sess. 6-7 (1966-2 Cum. Bull. 803, 807-08). The taxpayer also adverts to several statutory provisions to support his position. Section 1402(a) (2) of the Judicial Code accords non-resident alien corporate taxpayers the privilege of bringing suit in the district where the tax return was filed. Nowhere in the meager legislative history of this provision do we find the slightest hint that Congress intended its benefits to extend to individuals. S.Rep. No. 2445, 85th Cong., 2d Sess., in U.S. Code Cong. & Admin.News 5263, 5265. In fact it was adopted in response to conflicting decisions in the federal courts concerning the residence of corporations. The legislators did recognize that the bill would cover the apparent problem of lack of venue for foreign corporations. H.R.Rep. No. 1715, 85th Cong., 2d Sess. 2 (1958); S.Rep. No. 2445, supra, citing Argonaut Navigation Co. v. United States, 142 F.Supp. 489 (S.D.N.Y.1956). Nor is venue proper in the district court for an alien, individual or corporate, in any other of the various types of suits brought under the Tucker Act. 7B Moore, Federal Practice § 1402, at JC 598.1 (2d ed. 1974). Finally, the taxpayer cites language in the legislative history of an amendment to the Judicial Code eliminating the $10,000 ceiling on tax refund suits in the district courts, Act of July 30, 1954, Pub.L. No. 83-559, ch. 648, § 2(a), 68 Stat. 589, codified in 28 U.S.C. § 2402 (1970), to the effect that all taxpayers should have the benefit of a local remedy regardless of their financial status. H.R. Rep. No. 659, 83d Cong., 2d Sess., in U.S. Code Cong. & Admin.News 2716, 2717. Context indicates that the innocuous use of the word “all” in a committee report was not intended to effect the major revision of the law which taxpayer seeks; neither the amendment nor the report makes any reference to alienage. The district court’s order dismissing the complaint is affirmed. I. The taxpayer correctly asseverates that if forced to resort to his remedy in the Court of Claims he will no longer be entitled to a jury trial as he would in the district court under 28 U.S.C. § 2402 (1970). His contention that he must therefore be afforded access to the district court to assert his jury trial “right” overlooks the fact that the constitutional jury trial guarantee is inapplicable in tax refund suits. Wickwire v. Reinecke, 275 U.S. 101, 105-106, 48 S.Ct. 43, 71 L.Ed. 840 (1927). While an alien who must sue in the Gourt of Claims lacks the choice between forums available to a resident and may incur additional time and travel costs, this slight unequal treatment does not amount to a convincing Equal Protection claim in view of Congress’ apparent desire to have all alien suits brought in one court, the Court of Claims. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. In the Matter of the Arbitration Between LOCAL ONE AMALGAMATED LITHOGRAPHERS OF AMERICA affiliated with International Typographical Union AFL-CIO, Petitioner-Appellee, v. STEARNS & BEALE, INC., Respondent-Appellant. No. 1355, Docket 86-7072. United States Court of Appeals, Second Circuit. Argued May 21, 1986. Decided Feb. 23, 1987. Michael F. O’Toole, New York City (Robinson, Silverman, Pearce, Aronsohn & Berman) for petitioner-appellee. William G. O’Donnell, New York City (O’Donnell, Fox, Gartner & Sobolewski, P.C.) for respondent-appellant. Before OAKES, MESKILL and MAHONEY, Circuit Judges. MAHONEY, Circuit Judge: This appeal presents the question of what is required to bind a non-signatory company to a union contract signed by another company. In an arbitration proceeding between Stearns & Beale, Inc. (“S & B”) and Local One, Amalgamated Lithographers of America (“Local One”) the arbitrator decided that a non-signatory company which shared a common parent corporation with S & B, AAA International Printing Company (“AAA”), was bound by the S & B contract because the two companies were a “single employer.” The arbitrator accordingly directed (in effect) that neither S & B nor AAA assign any lithographic production work to nonunion AAA employees. Local One then brought this action against S & B in the Southern District of New York to confirm the arbitration award; upon motion of Local One, summary judgment was granted and the award confirmed, 632 F.Supp. 167 (1985). We reverse and remand. BACKGROUND Originally S & B and AAA were separate established companies. After a falling out between the two founders of AAA, Ronald Toler and John Racanelli, Toler bought out Racanelli’s interest in the firm. Toler then sought out another company with which to associate. At the same time, S & B was suffering business reversals, and its president and sole stockholder, Milton Kahn, was therefore receptive to Toler’s overtures. In 1981, S & B and AAA became wholly owned subsidiaries of a single parent holding company, Toler-Kahn, Inc. Toler and Kahn each received 50 percent of the Toler-Kahn stock; Toler-Kahn in turn owned S & B and AAA. At that time, AAA moved to the same location as S & B, at 150 Varick Street in New York, New York. Between April 1981 and February 1982, AAA and S & B shared work space on the fifth floor at 150 Varick Street. In February 1982, S & B sublet work space from an adjacent tenant and installed a wall between its space and the new space, into which AAA moved. Several common managerial offices are located between S & B and AAA, however, with a common telephone number for the two companies, and one AAA employee operates equipment in the S & B area because the machine’s operation requires a water supply, which is located near the men’s bathroom within the S & B area. S & B produces high quality color processed lithographic work such as glossy advertisements, catalogues and brochures. S & B has eight lithographic employees, who are employed in the job categories of pressmen, operators, and tenders. S & B’s preparatory work is done by outside companies. Preparatory work consists of photographically separating the original colors into the four primary colors, then plate-making. S & B then uses the plates for printing. In the printing process, the four primary colors are blended to reconstruct the colors of the original so that the finished product looks like a photograph. Making the press ready by blending the colors and producing the finished print is a long, involved process during which the customer generally checks the proofs and approves the final print. The S & B presses produce glossy prints of up to forty inches. AAA is a “letter shop,” which is a high output, low quality printing operation. AAA’s lithographic employees include three pressmen, two multi-lith operators, and one lithographic preparation employee. While the AAA presses can produce four color work, this work is done on uncoated stock and the colors of the output are not blended to appear like a photograph, but rather appear as blocks of colors. AAA does reproduction work on flat sheet or roll-fed paper. Its presses can produce output of up to seventeen inches. The output of AAA takes significantly less time to make ready and produce than the S & B output. The companies in operation have maintained their separate identities. For example, while S & B and AAA share some common customers, the work performed by AAA and S & B for these customers differs. Thus, one customer may have S & B produce a glossy fashion design handbook and AAA produce a mass mailing of a black and white letter. Because of the differences in the operations of the companies, the skills and conditions of employment of the two groups’ employees varies substantially. A four year apprenticeship is required to learn to operate the S & B presses. S & B employs “tenders” who assist the pressmen and learn the operations from the pressmen. While the apprenticeship is four years, it takes many more years for the pressman to perfect his craft. S & B employees work only on the S & B presses and do not perform any other work, like collating or binding. The S & B employees work 35 hours straight time per week. Their hours of work are from 8:30 a.m. to 3:30 p.m., punched on the S & B time clock. The wage for S & B pressmen ranges from $14 to over $17 per hour depending upon the size and type of press. Wages of tenders are between $8 and $9 per hour. The S & B employees are covered by the union’s benefit plan, which includes pension, welfare and unemployment funds. The amount of time necessary to learn to use the production equipment in AAA varies by the piece of equipment, ranging from one week to several months (for the multi-lith equipment). The AAA employees occasionally shift around among the various positions within the AAA operation, which includes among other things collating and binding. The AAA employees work 40 straight time hours per week. Their hours of work are from 8:30 a.m. to 5:00 p.m., punched on the AAA time clock. The AAA employees are covered by a profit-sharing retirement plan rather than a pension plan. The wage ranges of AAA employees appear to be substantially less than those of the S & B employees. AAA employees have never performed work for S & B, and conversely S & B employees have never performed work for AAA. On one occasion when there was no work for the S & B employees, the eight employees worked on the maintenance of their presses and played cards rather than moving into the AAA side to perform work for AAA. No employees have been transferred from S & B to AAA nor has anyone transferred from AAA to S & B. The foreman for S & B has never assigned work to, or in any other way supervised, AAA employees, nor has the AAA foreman assigned work to, or supervised, S & B employees. When an opening arose at 5 & B, the new employee was hired through Local One. With the exception of the AAA employee who worked on the equipment located in S 6 B’s work space, AAA employees only entered S & B’s work area to use the men’s bathroom located in a corner of S & B or to pick up the output of the AAA employee. S & B employees generally did not enter the AAA work space. When S & B’s output required binding or collating, it sometimes was contracted out to AAA and sometimes to outside companies. When it was given to AAA, S & B’s foreman would take the work to the office located between the two sides or would notify the office that it was ready to be bound or collated. An office employee would then notify AAA’s foreman who would have a laborer pick up the work for its completion. In April 1983, Local One initiated arbitration to declare four lithographic production employees of AAA covered by the union contract between S & B and Local One. The grievance stated that S & B had four employees working on its premises to whom the collective bargaining agreement was not being applied. The arbitrator, a joint committee of employer and labor representatives, decided in favor of the union, holding that the four AAA employees should be included in the collective bargaining unit of S & B employees. S & B then petitioned the N.L.R.B. for clarification of the collective bargaining unit. The N.L.R.B., through its regional director, ruled that the four AAA employees were not an accretion to the S & B bargaining unit. Specifically, the opinion stated that: “While AAA and S & B share common ownership and management sufficient to warrant a finding that AAA and S & B constitute a single employer, there are many other factors weighing in favor of a finding that the four AAA employees sought by the Union are not an accretion to the unit represented by the Union at S & B, and that AAA operates separately from S & B.” Rather than appeal this decision or follow the N.L.R.B.’s advice to hold an election by the AAA workers, the union asked the joint arbitration committee to amend its award. The committee then ruled that S & B and AAA constituted a single employer, and although the committee could not “require the Employer to apply the collective bargaining unit” to the four AAA employees in view of the N.L.R.B. ruling, “the Employer” was prohibited from “assigning lithographic production work to employees who are not covered by the collective bargaining agreement.” The committee further stated that “the Employer” could conform to the order by reassigning the AAA employees to the collective bargaining unit, “which it was required to do under the contract.” S & B petitioned the N.L.R.B. regional director, alleging that the union had violated the National Labor Relations. Act (“NLRA”) through the award. The director refused to issue a complaint.. The N.L.R.B. general counsel, on January 30, 1985, affirmed the director because the amended committee award did not directly conflict with the earlier N.L.R.B. ruling and the N.L.R.B. has a policy of non-interference in arbitration. The general counsel also stated that if the award later undermined the earlier N.L.R.B. ruling, charges at that time might be warranted. In January 1985, prior to the general counsel’s action, Local One brought suit in the Southern District of New York to confirm the amended arbitration award of the joint committee. The district court confirmed the award on Local One’s motion for summary judgment. On April 29, 1986, the regional director again refused to issue a complaint. He stated that the evidence established neither that the union violated sections 8(b)(1)(A), (2) and (3) by seeking to enforce the arbitration award, nor that the union was seeking to represent the AAA employees. DISCUSSION As an initial matter, appellee challenges this court’s jurisdiction. The only case cited for the proposition that we lack jurisdiction over an appeal from a district court’s order of enforcement is Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). That case held that a district court may not enjoin an N.L.R.B. proceeding, id. at 47, 58 5. Ct. at 461-62, and does not support appellee’s position. If, on the other hand, appellee means to argue that this court lacks jurisdiction over this appeal because of the prior N.L.R.B. proceedings, it misconstrues the nature of the action it has brought in the federal court. This action is to enforce the award of the arbitrator by final order of the district court, from which appeal properly lies under 28 U.S.C. § 1291 (1982). See Goodall-Sanford, Inc. v. United Textile Workers of America, 353 U.S. 550, 551-52, 77 S.Ct. 920, 921, 1 L.Ed.2d 1031 (1957) (district court order under § 301(a) directing arbitration is a final order appeal-able under 28 U.S.C. § 1291). This action does not question the result or findings of the N.L.R.B. unit clarification proceeding, and, as discussed immediately infra, is not affected by the N.L.R.B. regional director’s subsequent refusals to enforce the N.L. R.B. decree. Local One also argues that the regional director’s refusal to bring a charge eliminates the court’s jurisdiction over the issue. An N.L.R.B. regional director’s refusal to bring a charge of unfair labor practices does not rob the federal courts of jurisdiction over the contract in question, and has no collateral effects. See Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 334-35 (2d Cir.1974), cert. denied, 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 83 (1976); International Union of Electrical, Radio and Machine Workers v. General Electric Co., 407 F.2d 253, 264 (2d Cir.1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969); McConnell v. Chauffeurs, Teamsters and Helpers Local 445, 606 F.Supp. 460, 462 (S.D.N.Y.1985); see also Edna H. Pagel, Inc. v. Teamsters Local Union 595, 667 F.2d 1275, 1279-80 & nn. 10-12 (9th Cir.1982). S & B also makes several non-meritorious arguments which we now address, before turning to what we deem to be the deciding issue of law. S & B first argues that the joint committee exceeded its authority because the remedy went beyond the four corners of the collective bargaining agreement. The district court is authorized to vacate an arbitration award if the arbitrator exceeded its powers. 9 U.S.C. § 10(d) (1982). The joint committee’s powers derive from section 40(a) of the contract, which provides: “In the event of any dispute with reference to the interpretation, application or breach of any terms contained in this contract,” the matter shall be arbitrated. Section 3(a) of the collective bargaining agreement, the section allegedly violated, provides: The Employers recognize the Union as the exclusive collective bargaining agent for all of the lithographic... production employees in the plants or departments of the employers within the Union’s territorial jurisdiction. Appellant argues that the arbitrator fashioned a work assignment remedy, but since the contract grants only representation rights and the award goes beyond representation, it is void and unenforceable. Where the parties have provided for interpretation of their collective bargaining agreement by arbitration, the courts will defer to the arbitrator’s interpretation. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Courts will vacate an award only if it is not based on a construction of the contract. Mere disagreement with the construction of the contract is not enough to disturb the award. See id. at 599, 80 S.Ct. at 1362. S & B is arguing with the interpretation of the contract, not the basis of the committee's decision or its power to make the decision. The committee clearly interpreted section 3(a) of the collective bargaining agreement, which it had the power to interpret under section 40(a) thereof. While S & B argues that the arbitrator’s interpretation of the contract was incorrect, the error cannot be remedied by the courts. The court is limited to deciding whether Local One is making a claim which on its face is governed by the contract____ The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (footnote omitted); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960) (“[T]he judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made____ Doubts should be resolved in favor of coverage.”). Appellant also argues that the amended award conflicts with the prior N.L.R.B. ruling on the appropriate collective bargaining unit. N.L.R.B. rulings take precedence over arbitrator’s rulings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); see Vidtronics Company, 269 N.L.R.B. 133, 141 (1984). The N.L.R.B. found that the AAA employees and the S & B employees were separate bargaining units. That finding “ ‘does not per se preclude the employer from adding to, or subtracting from, the employees’ work assignments.’ ” Carey, 375 U.S. at 269, 84 S.Ct. at 408 (quoting Plumbing Contractors Association, 93 N.L.R.B. 1081, 1087 (1951)). It does, however, indicate that the arbitrator’s amended award, while it might direct employer action legitimately falling within the category of work assignments, cannot grant relief that requires or presupposes the AAA and S & B employees to be within the same bargaining unit, a point that becomes important later. Appellant finally contends that the award is contrary to sections 8(b)(1)(A), (2), and (3). While S & B does not seem to have squarely presented the issue of legality to the lower court, this court, in the interests of justice, can consider the claim. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); LaBruna v. U.S. Marshall, 665 F.2d 439, 442 (2d Cir.1981); see also Davis v. Musler, 713 F.2d 907, 917 (2d Cir.1983) (Van Graafeiland, J., concurring) (collecting cases). We feel that the standard is met where, as here, the enforcement of the arbitration award could affect the rights of the nonunion employees, as well as AAA. When an arbitrator’s award is against a public policy which is well defined and dominant, the award is unenforceable. See W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). The NLRA represents such a public policy. See, e.g., Perma-Line Corporation of America v. Sign Pictorial and Display Union, Local 230, 639 F.2d 890, 894-95 (2d Cir.1981) (clause of collective bargaining agreement in violation of NLRA and arbitrator’s award based thereon would be vacated); General Warehousemen and Helpers Local 767 v. Standard Brands, Inc., 579 F.2d 1282, 1293 (5th Cir.1978) (in banc) (violation of § 9(a) rights), cert. dismissed, 441 U.S. 957, 99 S.Ct. 2420, 60 L.Ed.2d 1075 and 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979); Glendale Manufacturing Co. v. Local No. 520, Int’l Ladies’ Garment Workers’ Union, 283 F.2d 936 (4th Cir.1960) (arbitration award that would cause employer to violate employees’ § 7 rights was not enforceable), cert. denied, 366 U.S. 950, 81 S.Ct. 1902, 6 L.Ed.2d 1243 (1961); cf. Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63, 70 (2d Cir.) (union’s attempt to enforce arbitrator’s award which violated § 7 rights of employees was itself a failure to bargain collectively), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974). We start with the general proposition that “an employer commits the unfair labor practices of interfering with employees’ § 7 rights and supporting a union in violation of § 8(a)(1) and (a)(2) when it imposes on employees of one unit the contract and bargaining agent of another unit.” Sperry Systems Management Division, 492 F.2d at 69. Courts and the N.L.R.B. have held that to bind a non-signatory company to a collective bargaining agreement, both single employer and single bargaining unit status must be found. See South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (1976) (per curiam); Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985); Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 505 (5th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Frank N. Smith Associates, Inc., 194 N.L. R.B. 212, 218 (1971); see Gerace Construction, Inc., 193 N.L.R.B. 645, 646 (1971); Central New Mexico Chapter, 152 N.L. R.B. 1604, 1608 (1965). The single bargaining unit requirement protects the section 7 rights of the nonunion employees, since binding the employer necessarily affects its employees’ rights. Pratt-Farnsworth, Inc., 690 F.2d at 507. The Board therefore conducts a separate bargaining unit inquiry, which is guided by the principle of protecting the employees’ section 7 rights, see 29 U.S.C. § 159(b) (1982); 18C T. Kheel, Business Organizations: Labor Law § 14.01[1], at 14-2 (1982); id. § 14.-01[2], at 14-9, to assure that the asserted contractual rights of the union are consistent with the employees’ statutory rights, cf. Sperry Systems Management Division, 492 F.2d at 69 (imposing contract and bargaining agent of one unit on a different unit violates §§ 8(a)(1) and (2)); Cal-Fin, 217 N.L.R.B. 871, 874 (1975) (when nonmajority union and employer enter into a collective bargaining agreement, employer violates §§ 8(a)(1) and (2) and union violates § 8(b)(1)(A)). If, therefore, the collective bargaining agreement in this case requires that the AAA employees be covered by the agreement, under these precedents it is illegal under section 7 of the NLRA. The theory of Local One, on the other hand, is that a finding of single employer status suffices to force the non-union company, AAA, to recognize the contract. AAA having been bound to the contract, the case becomes merely a work assignment problem. However, work assignment cases are distinguishable because in those cases one company has in fact signed the contracts at issue, and the dispute involves only that company. See e.g., Carey v. Westinghouse Electric Corp., 375 U.S. 261, 262, 84 S.Ct. 401, 404, 11 L.Ed.2d 320 (1964); N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 574, 81 S.Ct. 330, 331-32, 5 L.Ed.2d 302 (1961); N.L.R.B. v. New York Lithographers and Photoengravers’ Union No. 1P, 600 F.2d 336, 338 (2d Cir.1979); In re Local 26, International Fur and Leather Workers Union of the United States and Canada, 90 N.L.R.B. 1379, 1380 (1950). Here a signature by a second company (AAA) is imputed. As the Fifth Circuit noted in Pratt-Famsworth, “[ojnly where the employees do constitute an appropriate unit will the non-signatory firm be bound to the collective bargaining agreement entered into between the signatory firm and the union.” 690 F.2d at 508. In Pratt-Farnsworth, the plaintiffs, two unions, sued two construction companies it claimed were operated as a “double-breasted” operation. A double-breasted operation is one in which one subcontractor operates a union company that bids on union contracts and a nonunion company that bids on nonunion contracts. Id. at 497 & n. I. The unions sought, inter alia, to apply their collective bargaining agreement with the union company to the nonunion company. The Fifth Circuit explained that: A finding of single employer status does not by itself mean that all the subentities comprising the single employer will be held bound by a contract signed only by one. Instead, having found that two employers constitute a single employer for purposes of the NLRA, the Board then goes on to make a further determination whether the employees of both constitute an appropriate bargaining unit____ [E]ven if two firms are a single employer, a union contract signed by one would not bind both unless the employees of both constituted a single bargaining unit. Id. at 505. The court noted that this dual requirement protects the section 7 rights of the nonunion employees. Id. at 507. The Fifth Circuit is not alone in its position. See, e.g., South Prairie Construction Co., 425 U.S. at 802-04, 96 S.Ct. at 1843-44 (affirming D.C. Circuit’s reversal of N.L.R.B. decision on single employer status, but vacating the circuit court’s findings on single bargaining unit as an invasion of the N.L.R.B.’s authority); N.L.R.B. v. Al Bryant, Inc., 711 F.2d 543, 550 (3d Cir.1983) (requiring both single employer and single bargaining unit to bind the nonunion company to the union contract), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984); Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., 676 F.2d 826, 830 (D.C.Cir.1982) (same); N.L. R.B. v. Don Burgess Construction Corp., 596 F.2d 378, 386 (9th Cir.) (same), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Similarly, we have previously enforced an order of the N.L.R.B. requiring four related companies to bargain with a single union because the companies were a single employer and their employees constituted a single bargaining unit. See N.L.R.B. v. A.K. Allen Co., 252 F.2d 37, 38 (2d Cir.1958). The N.L.R.B. here has found separate bargaining units. In the face of that finding, Pratt-Farnsworth would call for a determination that the joint committee had no contractual authority to hold AAA to the terms of the union agreement. Without a finding of both single employer and single collective bargaining unit, the joint committee exceeded its authority in purporting to affect the rights of the nonunion employees with respect to the nonunion employer. The Third Circuit has implied that the application of the single employer/single bargaining unit doctrine might be limited to the construction industry. See Al Bryant, Inc., 711 F.2d at 550. Other circuits however have applied the doctrine in nonconstruction cases, see, e.g., Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81, 82-83 (9th Cir.1982) (per curiam) (trucking), cert. denied, 469 U.S. 887, 105 S.Ct. 263, 83 L.Ed.2d 199 (1984); N.L.R.B. v. Royal Oak Tool & Machine Co., 320 F.2d 77, 79 (6th Cir.1963) (manufacturing), as has the N.L. R. B., see, e.g., Western Union Corp., 224 N.L.R.B. 274, 274 (1976) (installation, maintenance and operation of equipment), affirmed sub nom. United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S. Ct. 101, 58 L.Ed.2d 121 (1978); General Envelope Co., 222 N.L.R.B. 10, 10 (1976) (commercial printing); Dixie Belle Mills, Inc., 139 N.L.R.B. 629, 630 (1962) (manufacturing). Moreover, the policies underlying this doctrine apply with greater force in this case than in the usual double-breasted construction company case. In the construction industry, there exist two markets, union and nonunion. Companies therefore need both union and nonunion subsidiaries to bid on every available project, despite the fact that the work is otherwise identical. See Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1275 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). In this case, however, the work performed by AAA and S & B is substantially different. AAA performs low quality printing in mass quantities. S & B is a high quality printer. It may well be that low quality printing could not be done profitably on the terms of the Local One contract. In any event, the single employer doctrine is the justification asserted by the joint committee for applying the Local One contract to AAA. As a matter of law, however, it is against public policy to bind a non-signatory company where the employees of both companies do not constitute a single collective bargaining unit. Accordingly, the committee award cannot stand on the basis of the single employer doctrine in the face of an unchallenged N.L.R.B. determination that the lithographic production employees of S & B and AAA do not constitute a single bargaining unit. Prior cases in this circuit support our holding, and have consistently guarded against attempts by unions to gain representation of separate bargaining units through methods other than elections. In Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63 (2d Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), this court held that “covert attempts to subvert the Board’s orders regarding the proper bargaining unit” were illegal. Id. at 68-69. In that case, a union representing New York employees sought to extend its jurisdiction to include California nonunion employees. An arbitrator ruled that the contract applied to all company plants, but that its extension to the California employees would violate their section 7 rights. He ordered that the terms of employment provisions be applied to the California workers, but not the representation clauses. Id. at 65. At the same time, the union lost a representation election at the California plant. The union then sought to enforce the arbitration award. The court held that the attempt to enforce the arbitration award was “a sub rosa attempt to gain... de facto recognition as bargaining agent of the [California] employees,” id. at 68, because the parties had agreed that the California employees were a separate bargaining unit, and the union’s reason for insisting that the arbitration award be enforced, protecting the job security of its New York members, was not credible, id. Similarly, in Welch Scientific Company v. N.L.R.B., 340 F.2d 199 (2d Cir.1965), a company sought to apply an existing union contract to a new plant where the employees were not an accretion to the existing bargaining group and the new unit had chosen a different union representative. We held that the company had committed an unfair labor practice because it interfered with the employees’ right to choose their own representative. Id. at 202-03. Again, in N.L.R.B. v. Masters-Lake Success, Inc., 287 F.2d 35 (2d Cir. 1961) (per curiam), we enforced an N.L.R.B. order finding that an employer committed an unfair labor practice by applying an existing exclusive collective bargaining agreement to a new store’s employees because they were a separate bargaining unit that should be allowed to make its own free choice of representative. Id. at 36. Finally, looking past the plain language of the joint committee’s decision, the argument could be made that the arbitration award and district court enforcement order could be affirmed on the basis of the alter ego doctrine. We would and do reject any such argument. The alter ego doctrine is designed to defeat attempts to avoid a company’s union obligations through a sham transaction or technical change in operations. See Pratt-Farnsworth, Inc., 690 F.2d at 508. The key factors to be weighed in an alter ego analysis are “whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership.” Goodman Piping Products, Inc. v. N.L.R.B., 741 F.2d 10, 11 (2d Cir.1984) (per curiam); see Crawford Door Sales Co., 226 N.L.R.B. 1144, 1144 (1976). A number of facts require a holding that the arbitrator’s award cannot stand as an alter ego finding. Primarily, such a basis would be in direct conflict with the findings of the N.L.R.B. on the unit clarification proceeding, see supra note 4, as well as its conclusion that the companies operate separately. Though the inquiries are separate, the N.L.R.B. findings are highly relevant to the alter ego question. See United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665, 668 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 101, 58 L.Ed.2d 121 (1978). We also note that the two companies functioned as ongoing business entities prior to their acquisition by Toler-Kahn, and that both continue in business, performing substantially the same work as before the acquisition. While this may not necessarily preclude the use of the alter ego doctrine, in this case it weighs significantly against an alter ego finding. See Pratt-Farnsworth, Inc., 690 F.2d at Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party CARBON FUEL COMPANY, a corporation, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant. No. 74-1598. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1975. Decided June 19, 1975. James M. Haviland, Charleston, W. Va. (Joseph A. Yablonski, Washington, D. C., Lewis D. Sargentich, Cambridge, Mass., and Daniel B. Edelman, Washington, D. C., on brief), for appellant. Forrest H. Roles, Union, W. Va. (David D. Johnson, Jr., and Roger A. Woife, Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. RUSSELL, Circuit Judge: The appellant Union appeals from a conviction entered for contempt by reason of an alleged violation of a temporary restraining order theretofore issued by the District Court. The conflicting positions of the parties on appeal relate to the nature of the contempt adjudged by the District Court. It is conceded that whether the contempt be considered civil or criminal is largely the dispositive issue in the appeal. If the contempt be deemed civil, the appellee correctly takes the position that the order of the District Court would not be appealable. This is so, because, while the appellant Union does not entirely concede the non-appealability of a civil contempt by a party to the action, the rule is settled that, “[A] civil contempt proceeding is in effect a continuation of the main action and therefore a party to a suit may not review upon appeal an order fining or imprisoning him for civil contempt except in connection with appeal from a final judgment in the main action.” Wright, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167, 176 (1955). On the other hand, it is equally well established that criminal contempt proceedings are “independent of the main action” and any conviction therein is “a final order and appealable * * .” Wright, Civil and Criminal Contempt in the Federal Courts, supra, at 176; Duell v. Duell (1949), 178 F.2d 683, 688, 14 A.L.R.2d 560. And in that connection, the appellee concedes that, if the contempt proceedings be deemed criminal in nature, the judgment of the District Court must be reversed for failure to observe the procedural requirements mandated in such proceedings. We are of the opinion the contempt proceedings herein were criminal in character, that the judgment of contempt is therefore appealable, and, since there was a denial of due process in the proceedings as had, the judgment must be reversed. The true distinction between civil and criminal contempts lies in “what * * the court primarily seek[s] to accomplish by imposing sentence” in the proceedings. Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; International Business Machines Corp. v. United States (2d Cir. 1973), 493 F.2d 112, 114-5, cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774; Dobbs, Contempt of Court; A Survey, 56 Cornell L.Rev. 183, 235 (1971). Civil contempt, on the one hand, is “ ‘wholly remedial’ serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance.” Southern Railway Company v. Lanham (5th Cir. 1969), 403 F.2d 119, 124, 33 A.L.R.3d 427; Cromaglass Corporation v. Ferm (3d Cir. 1974), 500 F.2d 601, 604. Civil contempt is conditional or contingent in nature, terminable if the contemnor purges himself of the contempt. De Parcq v. United States Court for So. Dist. (8th Cir. 1956), 235 F.2d 692, 699. On the other hand, criminal contempt is punitive in nature, is intended to vindicate the authority of the court, and cannot be purged by any act of the contemnor. Nye v. United States (1941), 313 U.S. 33, 43, 61 S.Ct. 810, 85 L.Ed. 1172. It is “unconditional, since it penalizes yesterday’s defiance rather than seeking to coerce tomorrow’s compliance. It cannot be ended or shortened by any act by defendant.” Wright & Miller, supra, at 585. Measured by these standards, we think it obvious that, in essence, these contempt proceedings were criminal in nature. The fine imposed was unconditional and punitive in character; it ran to the clerk of the court and not to the appellee. It was not intended to be “compensatory” of any losses sustained by the appellee as a result of the contempt. Had the fine been intended for the benefit of the appellee by way of compensation for loss sustained, it would have been made “payable to the complainant” and would necessarily have been “based upon evidence of complainant's actual loss; ” moreover, the “right [of the appellee], as a civil litigant, to the compensatory fine [would have been] dependent upon the outcome of the basic controversy.” United States v. Mine Workers (1947), 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884. It is true the appellee stated it was prepared to prove losses of $21,000 per day but it actually offered no evidence “of complainant’s actual loss.” And the fine imposed bears no possible relation to the daily loss as claimed by the appellee. The fine was thus clearly punitive. We consider of no moment that the proceedings were begun and designated as a civil contempt proceeding. The nature of the fine imposed determines the character of the proceedings without regard to the characterization of the proceedings, either procedurally or substantively, as made by the parties themselves. See Shillitani, supra; Southern Railway Company v. Lanham, supra. After the District Court had made its oral ruling imposing a fine of $10,000 on the appellant Union, it requested the appellee to submit a formal order, embodying findings of fact and conclusions of law in conformity with its ruling. The appellee did that. In its findings of fact, as so submitted, it included no finding on the amount of loss, if any, sustained by the appellee on account of the alleged violation of the temporary restraining order. It did, however, describe the proceeding as one in “civil contempt” ánd provided that the fine imposed be paid to the appellee. The appellant, it is argued by the appellee, objected to this latter provision and, in the course of stating its objection, observed it made no difference to whom the fine was paid in determining whether the proceedings in contempt were civil or criminal. The appellant did, it is admitted, contend at all times that the proceedings were criminal. The Court, however, on its own, made its own decision, as evidenced by the final order entered, that the fine should be paid to the clerk of the court and not to the appellee and omitted the language describing the proceeding as for “civil contempt.” And this was in keeping with its earlier ruling, which was manifestly expressive of a criminal contempt rather than a civil contempt. The conviction for contempt is accordingly vacated and the cause is remanded for further proceedings not inconsistent herewith. . The appellee, with commendable candor, states in its brief “that if the conviction were determined to be criminal contempt (of which this Court would have jurisdiction) it could not be defended because the procedure was clearly inadequate for criminal contempt.” (Footnote omitted.) . See Wright & Miller, Federal Practice and Procedure, § 2960, vol. 11 at 584: “The relief granted in civil contempt proceedings, * * * is compensatory or coercive. This often takes the form of a fine in the amount of the damage sustained by plaintiff * * . In Lanham the Court imposed an unconditional fine, payable as in this case to the clerk of court, for contempt in wilfully failing to obey an order for production in a civil action. The contempt proceedings were described as civil by the District Court. The appellate court held, however, that the proceedings were criminal since it afforded no relief to the private suitor and did not permit purgation. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". David C. MEYERS, et al., Plaintiffs, Charles C. Deacy, Chief of the Receivership Division, Department of Insurance, State of Alabama, Plaintiff-Appellee, v. Shearn MOODY, Jr., Defendant-Appellant. No. 83-1332 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 23, 1984. W. Briscoe Swan, Houston, Tex., for defendant-appellant. Wright & Patton, William E. Wright, Houston, Tex., James W. Webb, Montgomery, Ala., for plaintiff-appellee. Robert L. Blumenthal, Mark S. Werbner, Jonathan Thalheimer, Dallas, Tex., for Ward. Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges. PER CURIAM: Shearn Moody, Jr. brings this interlocutory appeal challenging the district court’s issuance of a preliminary injunction restraining him from “secreting, moving, disposing of, hypothecating, wasting, dissipating or transferring” any assets pending efforts by the appellee to satisfy a judgment won against Moody more than three and a half years ago. Moody asserts that the preliminary injunction is not supported by the evidence before the district court and that the wording of the injunction is ambiguous and overly broad. The granting of a preliminary injunction rests in the sound discretion of the district court, and will be overturned only on a showing of abuse of that discretion. Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 303 (5th Cir.1982); Foley v. Alabama State Bar, 648 F.2d 355 (5th Cir.1981). The factual findings made here by the district court are amply supported by evidence advanced by the appellee. Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725, 728 (Tex.Civ.App.1974). Moody’s activities since the institution of this lawsuit must engender some suspicion that he is attempting to place assets beyond the reach of his judgment creditor. Under these circumstances, no abuse of discretion appears in the issuance of the preliminary injunction. Moody’s assertion that his financial transactions, though legitimate, are too complex to be understood by appellee and, implicitly, by the district court, requires no response. The preliminary injunction order issued by the district court meets the specificity requirements of Fed.R.Civ.P. 65(d). The judgment against Moody which appellee seeks to execute exceeds the aggregate value of Moody’s reported assets; consequently it is appropriate for the preliminary injunction to extend to all of Moody’s assets. Any waste, dissipation, or transfer of assets by Moody has a direct impact on appellee’s potential ultimate recovery. See Carter v. City of Houston, 255 S.W.2d 336, 338 (Tex.Civ.App.1953). A similar preliminary injunction was recently upheld by the Sixth Circuit in USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982). Moody complains that the preliminary injunction makes no exemption for living expenses and day-to-day business transactions. The trial judge orally assured Moody that ordinary living expenses were not a subject of the injunction, and we are satisfied that Moody faces no threat of contempt on this account. As to everyday business expenses, we must read the trial court’s failure to exempt them from the order to mean that Moody is prohibited from moving or expending any funds for business purposes. In light of the facts that Moody is evidently not engaged in any traditional business and that all of his reported assets are subject to the appellee’s execution of judgment, even so strict a preliminary injunction does not constitute an abuse of discretion. If Moody can establish that his normal business activities will effect no diminution of the assets available to satisfy the judgment, he is free to move the trial court for modification of the preliminary injunction, something he has not done thus far. AFFIRMED. Costs to be borne by Appellant. . This question was placed explicitly before the district court at the preliminary injunction hearing, and counsel for appellee urged the court not to exempt such expenses: THE COURT: All right. What about the exempting transactions in the ordinary course of business? MR. BLUMENTHAL: Your Honor, I think that there really ought not to be any ordinary course of business at this point except for living expenses. We have an eleven million dollar Judgment and execution ought — it’s a six million dollar Judgment with interest, it’s now in excess of eleven million dollars. In view of this exchange we cannot suppose that the failure to exempt business expenses was accidental. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_origin	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Tom MOULTON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 83-2263. United States Court of Appeals, Tenth Circuit. May 4, 1984. Tom Moulton, pro se. Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Carleton D. Powell, and Joan I. Oppenheimer, Attys., Tax Div., Dept. of Justice, Washington, D.C., for respondent-appellee. Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges. PER CURIAM. This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument. This is an appeal from an order of the United States Tax Court sustaining the Commissioner of Internal Revenue’s deficiency and additional tax assessments in the petitioner’s federal income taxes for the years 1975-1979. Upon being notified by the Commissioner that a deficiency existed, petitioner sought a redetermination in the United States Tax Court. In that petition he claimed that the wages and number of hours used to determine the deficiency, as shown by the Department of Labor statistics, were not correctly applied in his case. After a hearing before the tax court, where petitioner appeared pro se, the deficiency and additional taxes determined by the Commissioner were sustained. This appeal followed. On appeal, petitioner claims primarily that the tax court failed to recognize his Fifth Amendment privilege against self-incrimination. A review of the record of the proceedings in the tax court reveals that the petitioner was treated fairly by the court. He was given ample opportunity to argue his ease and submit any supporting evidence. Petitioner failed to overcome the presumption of correctness attributed to the Commissioner’s federal income tax deficiency and additional tax assessments. Ruidoso Racing Ass’n, Inc. v. Comm’r, 476 F.2d 502 (10th Cir.1973). The findings of fact made by the tax court were not clearly erroneous. See Merchants Nat’l Bank of Topeka v. Comm’r, 554 F.2d 412 (10th Cir.1977). The Fifth Amendment general objection has been repeatedly determined by this court not to be a valid claim of the constitutional privilege. United States v. Stillhammer, 706 F.2d 1072, 1076 (10th Cir.1983). The respondent requests on appeal that this court consider entering sanctions against the petitioner pursuant to Fed.R. App.P. 38. Petitioner did not raise any issue at any level of review that has not already been addressed by this court or other circuits numerous times. Petitioner made little, if any, attempt in the tax court to produce books and records of his income to rebut the presumption of correctness. The tax court judge found the petitioner’s arguments lacking in legal merit. We agree with that finding. This court has the inherent power to impose a variety of sanctions in order to regulate our docket, promote judicial efficiency, and deter frivolous filings. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980); Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962); Whitney v. Cook, 99 U.S. 607 (1878). We have imposed double costs and attorney’s fees for the taking of frivolous appeals in other contexts. See, e.g., United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir.1980). Accordingly, double costs and attorney’s fees are hereby imposed against petitioner for the taking of a frivolous appeal. The matter is REMANDED to the United States Tax Court to make the appropriate determinations. The judgment of the tax court is AFFIRMED. The mandate shall issue forthwith. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_casetyp1_7-3-3	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes". Howard B. PASHMAN, Plaintiff-Appellant, v. CHEMTEX, INC., Defendant-Appellee. No. 1265, Docket 87-7240. United States Court of Appeals, Second Circuit. Argued June 18, 1987. Decided July 17, 1987. Philip Esterman, New York City (Gideon J. Karlick, Esterman & Esterman, New York City, of counsel), for plaintiff-appellant. Wayne A. Cross, New York City (Karen J. Pordum, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for defendant-appellee. Before OAKES, MESKILL, and PRATT, Circuit Judges. GEORGE C. PRATT, Circuit Judge: This appeal from a grant of summary judgment against plaintiff Howard Pash-man requires us to assess the meaning of “pretax profits”, as used in Pashman’s employment agreement with defendant Chem-tex, Inc., 664 F.Supp. 701. This agreement called for Pashman to receive a “participation of ten [10] percent of the pretax profits on all sales made by” him. Because the meaning of this contract is clear, and as applied to the sale at issue entitled Pash-man to no more, and perhaps less, than he has already received, we agree with the district court that Pashman raises no “genuine issue of material fact”, Fed.R.Civ.P. 56, and therefore affirm. BACKGROUND Much of the factual background of this case is undisputed. In 1977 Pashman went to work for Chemtex as a salesman of paint plants. His compensation was established by a clause in his employment contract that provided: Your compensation for these services will be a participation of ten [10] percent of the pretax profits on all sales made by you. A draw against this participation in the amount of $3,500 per month will be paid to you monthly. Participation will be paid, net of draws, on the basis of 50% payable on contract effectuation and 50% payable on the acceptance of the plant by the customer. Under this agreement Pashman participated in the sale of only one plant, to Egyptian businessman Adel Khalil. The plant was to be constructed in Egypt. By the terms of the sale, Chemtex agreed to sell its “equipment, formulae, and technical services” to Khalil for $7.6 million. Khalil, Chemtex, and another party (Issa Nakleh) formed an Egyptian corporation, the Egyptian-American Paint Company, to facilitate the transaction and eventually purchase the plant from Khalil. Chemtex holds 36.67% of the equity in the company, Khalil holds 60%, and Nakleh the remaining 3.33%. In April 1981, three years after negotiating the Egyptian sale, Pashman quit his job at Chemtex. Based on his draw-against-commission, he had received a total of $162,752 from Chemtex. Later in 1981 the terms of the sales agreement between Chemtex and Khalil were altered. The sales price increased from $7.6 million to $10.1 million, and Chemtex formed an Austrian subsidiary, as a condition of obtaining Austrian financing, to export many of the materials and equipment to be used in the project. In 1985, Pashman filed suit against Chemtex alleging that he should receive 10% of the $10.1 million sale price received by Chemtex, less the $162,750 he had already drawn. While his prayer for relief asked for damages of $5 million, it appears that his actual claimed damages are $847,-250. Chemtex moved for summary judgment, submitting documents showing it had actually lost money on the transaction, approximately $722,000. Since the deal generated no profits for Chemtex, it argued that Pashman is entitled to no commission and thus that Pashman was in fact $162,750 ahead. In response, Pashman argued that the term “profits” in his contract actually meant “gross revenues”, and that Chem-tex’s accounting — which deducted costs from total revenues — was therefore inaccurate, creating an issue of fact as to actual profits. Judge Walker concluded that the term “pretax profits” was clear on its face, saying that “as a general rule, a court should not interpret the word 'profits’ as synono-mous with ‘revenues,’ but instead read the term ‘profits’ as referring to ‘revenues minus costs.’ * * * Plaintiff has provided no evidence to show that a different meaning was intended when the parties used the term ‘pretax profits’ in plaintiffs employment contract.” Pashman v. Chemtex, Inc., 664 F.Supp. 701, 704 (S.D.N.Y.1987). Pashman now appeals. DISCUSSION It is plain that the district court was correct in stating the general rule that profits are not equal to revenues. Indeed, we would have thought that no citation was necessary for the proposition. If citation is needed, the cases mentioned by the district court, Catalano v. J.C. MacElroy Co., 13 A.D.2d 914, 215 N.Y.S.2d 873 (1st Dep’t 1961), and Martin v. City of New York, 264 A.D. 234, 35 N.Y.S.2d 182 (1st Dep’t 1942), provide sufficient support. Perhaps the first rule of accounting is that the black ink of profit is not entered into the ledger until expenses are deducted from gross revenues. Chemtex’s gross revenues on the Khalil sale are agreed by the parties to be $10.1 million. Thus, the only dispute centers on how much Chemtex was entitled to deduct as expenses in calculating pretax profits. We begin by noting what is not at issue on this appeal. Since Pashman did not below challenge the propriety of each individual cost deducted by Chemtex, he cannot seek to create an issue of fact on appeal by claiming that this or that expense was not proved by Chemtex. See Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (per curiam); 6 Moore’s Federal Practice 11 56.27, at 56-1557 (2d ed. 1985) (“An appellant may not, as a general rule, overturn a summary judgment by raising in the appellate court an issue of fact that was not plainly disclosed to the trial court.”). Pash-man’s vague challenges below about the “audit trail” submitted by Chemtex in justification of its claimed expenses did not suffice to raise a genuine issue of fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968-69 (2d Cir.1983). Pashman must therefore stand or fall on his claim that each and every one of the “costs of sale” claimed by Chemtex is invalid simply by reason of Chemtex’s purchase of an equity share in the joint venture with Khalil. This step, according to Pashman, served to make Chemtex its own “customer”—in effect, the purchaser as well as the seller of the plant—and magically transformed the costs into “capital investments”, leaving the entirety of the gross revenues, $10.1 million, as “profits”. This is the issue of fact Pashman articulates in his brief on appeal as precluding summary judgment. We disagree. This means of financing the paint plant, far from making Chemtex the purchaser of the plant, instead was merely a means of bringing about the sale. It is undisputed that purchasing the equity share in the project was a necessary expense for Chemtex to close the deal and obtain financing for it. It is further undisputed that Pashman was well aware of this necessity when he negotiated the deal for Chemtex. Under these circumstances, it borders on the frivolous for Pashman to claim that the costs Chemtex incurred on this sale were really the company’s “capital expenses”. Indeed, under the circumstances of this transaction, the $1.9 million Chemtex spent toward purchasing its share in the paint company was itself a cost of the sale. While this is true only to the extent that the cost ($1.9 million) exceeds the value of what Chemtex received for it (the equity share in the project), Pashman does not dispute the statement of John M. Ryzewic, a Vice-President of Chemtex, in his affidavit that “[bjecause of the Project’s massive delay and cost overruns, the volatile nature of Egypt and Egypt’s foreign exchange problems, Chemtex currently treats its equity participation * * * as a 100 percent selling expense.” In other words, the value of Chemtex’s equity share is zero. In relying solely on the form of and label attached to the transaction, Pashman fails to raise any issue of fact. The mere fact of a purchase of equity will not blind us to the true nature of the underlying transaction; Chemtex sold a paint plant to Khalil, and incurred certain expenses in doing so-including having to purchase equity in the paint company. Pashman has not produced any evidence that the equity expenditure's usefulness extended beyond facilitating the Egyptian plant sale. Moreover, Pashman has not intelligibly argued that the purchase of equity in this case altered the character of other project expenses to make them "capital expenditures". Pashman has thus not shown that Chem-tex incorrectly calculated its net loss on the transaction. As of the date of the motion for summary judgment, Chemtex had lost some $722,000 on the deal, meaning that Pashman is entitled to no commission. Indeed, since he has already drawn $162,750 against his commission, he would not be entitled to further compensation until net profits pass $1.6 million. Thus, even if the $1.9 million in equity is not deducted from Chemtex’s revenues, there was still no issue of fact raised, since it would bring Chemtex into the black on the transaction only to the extent of $1.2 million. In fact, since Pashman is entitled to only half his commission until the project is actually completed, he would be ineligible for any further compensation (beyond the $160,000 he has already received) until profits exceed $3.2 million (when the 5% to which he is thus far entitled would be more than $160,000). In short, on any conceivable construction of the facts, Pashman is not entitled to any further compensation for the Egyptian sale. In order to succeed he would have to be able to show that costs are not costs, that a plant that is not now and likely never will be completed is complete, and that a necessary expense of completing a sale is in reality a “capital expenditure”. We decline to subject defendant and the judicial system to the burden of such a futile quest. Affirmed. Chemtex’s request for sanctions is denied. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LUNSFORD v. UNITED STATES. No. 4491. United States Court of Appeals Tenth Circuit. Oct. 30, 1952. A. W. Trice, Ada, Okl. (Busby, Harrell & Trice, Ada, Okl., on the brief), for appellant. Edwin- Langley, U. S. Atty., Muskogee, Okl. (Paul Gotcher, Asst. U. S. Atty., Muskogee, Okl., on the brief), for appellee. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges-. HUXMAN, Circuit Judge. An indictment containing three counts was returned against appellant, Gail Luns-ford, in the United States District Court for the Eastern District of Oklahoma. Counts One and Two charged that on July 27, 1951, he made two separate offers of a bribe of $50 to Bernard R. Holmes, Deputy Collector of Internal Revenue. Count Three charged that on August 8, 1951, he paid Holmes a bribe of $100 to induce him to violate his official oath with respect tó an audit of defendant’s income tax return. A jury trial resulted in a verdict of not guilty on Counts One and Two and of guilty on Count Three. Appellant contends that the acquittal on the counts charging the offering of a bribe conclusively established that issue of fact for all purposes of the trial. From this it is argued that since it is essential that an offer to pay a bribe must first be established to sustain the conviction of paying a bribe, the jury’s acquittal of charges of offering to pay a bribe precludes the finding that a bribe was paid. Assuming without deciding that this is correct, it does not apply to the facts of this case. Counts One and Two related to an alleged transaction on July 27, while Count Three charged giving a bribe on August 8. Here not only is there a difference in time but also a difference in the essential elements of the offenses charged. The jury may well have concluded that the evidence did not support the charge that appellant offered to bribe the officer on July 27, but evidently did conclude that on August 8 thereafter he did bribe the officer. It is, therefore, obvious that the acquittal on the first and second counts is not a bar to a prosecution of the offense charged in Count Three. Appellant further contends the evidence is insufficient to sustain the verdict on Count Three. There was a sharp conflict in the evidence offered by the Government and that given by Lunsford. Since our review is limited to a determination whether there is substantial evidence supporting the verdict, we review only that evidence and the inferences reasonably to be drawn therefrom, which tend to support the verdict. Mr. Holmes, the Collector, testified that he had an appointment with appellant on July 27, 1951, to review his income tax records; that after working on them for some time he stated that it appeared there was a shortage of approximately $7,000 to $8,000; that appellant remarked that since collectors only make “spinach” he would give him $50 to “make it as easy as possible on me.” Holmes further testified that later in the day appellant again insisted that he take $50, assuring him that he could be trusted; that no one would be the wiser and that the two had better feather their nest while the time was right. Holmes testified that he refused the offer and secretly notified his superior. He was advised to make another appointment with appellant. This he arranged for August 8. At that time the officers had wired the room where the meeting was to be held with a wire recorder, so the conversation could be recorded. There was also a Treasury Department agent sitting in front of the open door leading to the room where the interview was to be held. The results of the recording were poor and admittedly the recording had little probative value. So also the Treasury Department agent could hear too indistinctly to give evidence of much value. Holmes testified that at the meeting on August 8 appellant again offered him $50 as a bribe, to which he replied that that was a small amount “to be sticking my neck out for’’ but that for $100 he would close out Lunsford’s account; that Lunsford agreed and left the office to secure the sum in cash; that upon his return he paid Holmes the $100 cash, at which time the Collector gave him a properly signed form indicating that no additional tax was due. The testimony by Holmes, if believed, as it no doubt was, clearly established that the $100 was paid as a bribe and not as a settlement of any tax liab’hty due from appellant. Appellant raised the defense of illegal entrapment in the trial court, as he does here. He contends that since the jury found he was not guilty of offering a bribe on July 27 the Government officials had no lawful basis for entrapping him on August 8. To lawfully entrap one, it is not necessary to know that the suspect is violating the law or that there exists in his mind the intent so to do. It is only necessary to have reasonable grounds to believe that he is engaged in unlawful activities or intends to engage therein. In other words, officers may not initiate the intent and purpose to violate the law. Under the authorities in Footnote 2, it was not necessary to prove that appellant had the actual intent to bribe the collector in order to legally entrap him. It was enough if the officer had reasonable grounds to believe that he intended to do this. From the facts as outlined above, if believed, as they no doubt were by the jury, the officers certainly had reasonable grounds to believe that Lunsford was endeavoring to give'a bribe and were thus justified in laying a trap to catch him in the act of giving a bribe. It is further urged as a ground for reversal that the trial court erred in its instruction relating to entrapment and that a statement by the court to the jury, after their retirement, on that issue was prejudicial. We think the court’s instruction with respect to entrapment was proper and adequately advised the jury with respect to that issue. If subject to criticism, it is that it is too detailed and somewhat repetitious. The court instructed the jury that when the defense of unlawful entrapment was presented the Government 'had the burden of proving beyond a reasonable doubt that there was not “an illegal entrapment.” On the question of what constituted illegal entrapment, the court told the jury that “the United States may not initiate criminal acts, nor entice or'induce'defendant to commit a crime in order that they may thereafter prosecute them.” “In other words the government can’t go out to an innocent party and get him to commit a crime in order that he may prosecute him.” It further told the jury that if the idea of a bribe originated with a Government collector the subsequent entrapment would be unlawful but “On the. other hand, if the defendant, without suggestion from the government agent, voluntarily'proposed the payment of money to influence his action, the agent of the government’s action, could thereafter lawfully arrange a plan or a trap, ■ * * *.” These statements declare the law in plain, understándable language. Appellant took exception to a remark made by the trial court to an inquiry by a juror after the case had been submitted to the jury. The reporter' did not get the juror’s question but the court’s- answer' indicates that it related to the question of entrapment. In response to the question the court said: “It depends on whether he paid it with the intent .to invluence the agent. And on the third count you must determine entrapment I think on the third count before at least' you could find the defendant guilty. Now you could find the defendant not guilty without determining entrapment. I told you that this morning.” It is urged that the court’s remark in the charge that if Lunsford paid the money with the intent to influence Holmes “the question of entrapment wouldn’t be in it” and the above answers to the juror’s question were prejudicially erroneous. It is contended that entrapment when raised remains in the case and that the jury, therefore, might be misled that under stated conditions entrapment “wouldn’t be in it.” The instructions must be considered as a whole and particular statements must be considered in their proper setting. It is not proper to lift them out of context and consider them separately. What the court ■ told the jury was that if they believed that Lunsford initiated an intent to pay the money to influence the' 'collector then there could be no question of unlawful entrapment. As already pointed out, the court went to great length to instruct the jury as to the elements - of the offenses charged and under what conditions the officers could lawfully entrap appellant. These two remarks to which objection is made must be considered as a part of the whole charge and, when so considered, are not erroneous. A careful consideration of the entire record leads to the conclusion that no prejudicial error occurred. Affirmed. . Galatas v. United States, 8 Cir., 80 F.2d 15; Marx v. United States, 8 Cir., 86 F. 2d 245; Walker v. United States, 8 Cir., 93 F.2d 383; Carlson v. United States, 10 Cir., 187 F.2d 366. . Heath v. United States, 10 Cir., 169 F. 2d 1007; Mitchell v. United States, 10 Cir., 143 F.2d 953; Ryles v. United States, 10 Cir., 183 F.2d 944. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_state	45	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". MURRAY v. RIO GRANDE MOTORWAY, Inc. No. 3702. United States Court of Appeals Tenth Circuit. Nov. 19, 1948. Delbert M. Draper, of Salt Lake City, Utah (Edgar C. Jensen, of Salt Lake City, Utah, on the brief), for appellant. A. H. Nebeker, of Salt Lake City, Utah (S. J. Quinney and Paul H. Ray, both of Salt Lake City, Utah, on the brief), for appellee. Before, BRATTON, HUXMAN and MURRAH, Circuit Judges. MURRAH, Circuit Judge. Appellant brought this action against appellee, Rio Grande Motorway, seeking damages for personal injuries, alleging that one of the appellee’s buses, on which he was a standing passenger, “suddenly and violently lurched to one side” and hurled him against a seat with such “force and violence” that he was1 ruptured in his left groin. At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict on the ground that the movement complained of was no more than the normal jostling or movement of the bus as it traveled along the highway. The appellant appeals from a judgment for the appellee bus company on the directed verdict. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, and the only question presented here is whether the evidence was sufficient to take the case to the jury on the issue of negligence. Although the carrier owed the standing passenger the highest degree of care commensurate with the peculiar circumstances involved, the passenger assumed the usual and ordinary jerks and lurches incident to the movement of the bus over the public highways. Wichita Transportation Co. v. Braly, 10 Cir., 150 F.2d 315, 317; United States v. De Back, 9 Cir., 118 F.2d 208; McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P.2d 787; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 142 P.2d 929; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311; McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959; Morrisey v. Union Pacific Railroad Co., 68 Utah 323, 249 P. 1064. To parapharse the language of the Utah Supreme Court in the Morrisey case, supra, it is common knowledge and experience that passengers on trains and buses may be shaken and jostled by the ordinary lurches and jerks which are unavoidable in the operation of trains and buses over grades and around curves. A permissible inference of actionable negligence arises only when the lurches or jerks .are unusual and extraordinary — such as would not have happened in the ordinary .course of the operation of the bus upon the 'highway. In determining whether the movement of the bus was so unusual as to justify the inference of negligence, the nature of the accident and the effect of the :bus movement upon the passenger may be taken into consideration. McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959, 961; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311, 316. In support of his allegations appellant testified that at the time of the accident he was enroute to Salt Lake City as a passenger on appellee’s bus. Not being able to obtain a seat on the bus he was standing in the aisle holding with his left hand onto a %ths inch rope which ran through loops around the baggage shelf above the seats. “While so standing there was a violent motion of the bus. It changed direction or jumped. There was an unusual motion and I was propelled against the seat. I struck Miss Snow (a seated passenger) on the shoulder and feel across her lap,” and “as I fell my left groin struck the corner of -the seat.” After regaining his feet he stated to passenger Snow “that the bump 'hurt like everything,” but he did not complain to the driver or notice whether any .of the other passengers had been disturbed ;by the lurch, because “I didn’t even know I was hurt.” It was his impression that -the bus was traveling about 50 miles per hour because he was being “jostled considerably,” but that when the accident occurred he.could not say whether the speed ;.had “lessened or increased.” That there was just an “unusual motion,” but he did not know what caused it. Passenger Snow testified that she was seated near the aisle where appellant was standing; that somewhere along the trip “he fell against the seat and nearly fell into my lap.” That he apologized and remarked that the fall had hurt him. She did not testify however concerning any unusual motion of the bus. The driver did not recall any unusual or extraordinary incident. It is suggested, and the trial court was of the opinion, that there was nothing in the evidence to show that appellant’s fall was the result of a sudden and violent lurch; that it could have been the result of the passenger becoming unbalanced while holding onto the sliding baggage rope. The trial court took the view that the facts in this case were analogous to those in the Morrisey case supra, and required the same conclusion. In that case the descriptipn of the jolt or lurch and its consequences as detailed by the witnesses did not characterize it as unusual or extarordinary, but "rather affirmatively showed it to have been a usual or customary incident of railroad transportation. In our case, however, the motion of the bus was described as “unusual” and “violent,” propelling the standing passenger against the seat and across the lap of a seated passenger. True, appellant was unable to describe with particularity the place or cause of the motion, which he claimed caused his fall and injury. But, he was standing in the bus with his head above the windows, it was dark and he was unfamiliar with the surroundings; he cannot, therefore, be charged with the duty of describing the nature, the place or the cause of the movement which he testified was of sufficient force to propel him against the seat causing an immediately demonstrable injury. We think these circumstances were sufficient to generate a permissible inference of negligence and an issue of fact for the jury. It is suggested that the evidence conclusively shows contributory negligence, but we think at most it was a question for the jury. Cf. Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311. Reversed and remanded, with directions to grant the appellant a new trial in accordance with the views herein expressed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_immunity	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Benito CONCEPCION, Appellant, v. Menelio Cruz SOTO and Virgin Islands Water and Power Authority. No. 75-1155. United States Court of Appeals, Third Circuit. Argued April 22, 1975. Decided July 7, 1975. Leroy A. Mercer, Christiansted, St. Croix, V. L, for appellant. Verne A. Hodge, Atty. Gen. of the Virgin Islands, Emory W. Reisinger, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee. Before HASTIE, GIBBONS and HUNTER, Circuit Judges. OPINION OF THE COURT HASTIE, Senior Circuit Judge. This is an appeal from a judgment that denied the petition of a judgment creditor for an order “commanding the [Virgin Islands Water and Power Authority] to make payment of” a $20,000 money judgment, plus costs and an attorney’s fee, entered against the Authority in a tort action for personal injury and property damage. Failure of the Authority to respond to the original complaint had resulted in imposition of liability by default. Thereafter, damages had been determined by a jury. The Virgin Islands Water and Power Authority is an incorporated instrumentality of the Government of the Virgin Islands. In the Act of August 13, 1964, No. 1248, Sess.L.1964, 30 V.I.C. (1974 Supp.) § 103, the Legislature of the Virgin Islands created this corporate instrumentality, defined its functions and powers, authorized it to issue bonds and created and limited its amenability to judicial process. While the enumerated powers of the Authority included the capacity “to sue and be sued”, 30 V.I.C. § 105(4), its amenability to judicial process was restricted by the following provision: “All property including funds of the Authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the Authority be a charge or lien upon its property; Provided, however, That this subsection shall not apply to or limit the right of bondholders to pursue any remedies for the enforcement of any pledge or lien given by the Authority on its rates, fees, revenues, or other income or any other funds.” 30 V.I.C. (1974 Supp.) § 111(a). We think that the relief sought here, a judicial order that would compel the Authority to surrender its assets in payment of a money judgment for tortious personal injury, is within the meaning of the quoted prohibitory language, since the order sought would be “judicial process” designed to reach the property of the Authority. This does not make the right to sue the Authority or the obtaining of judgment against it meaningless. As a responsible agency the Authority can, and apparently does, carry liability insurance. Separately, the appellant contends that the quoted provision of Section 111(a) was in effect repealed by a subsequent comprehensive waiver of governmental immunity from tort liability that was enacted in the 1971 Virgin Islands Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3408. Whether this is a tenable argument depends upon the following provision of the Authority creating 1964 statute: “Insofar as the provisions of this chapter are inconsistent with the provisions of any other Act of the Legislature of the Virgin Islands, the provisions of this chapter shall be controlling and no law heretofore or hereafter passed governing the administration of the Government of the Virgin Islands or any parts, office, bureaus, departments, commissions, municipalities, branches, agents, officers, or employees thereof shall be construed to apply to the Authority unless so specifically provided . . . .” 30 V.I.C. (1974 Supp.) § 122. The Tort Claims Act does not expressly overrule the particular exemption from judicial process granted in Section 111(a) of Title 30 and now relied upon by the Authority. Indeed, the Tort Claims Act makes no mention whatever of the Authority. But Section 122 of Title 30, in terms and in legal effect, has precluded repeal of Section 111(a) by implication. Therefore, the Tort Claims Act cannot properly be read as having that effect. The judgment will be affirmed. . The briefs indicate that the Authority carries liability insurance but that the insurer has refused to entertain a claim in this case unless the default shall be set aside and opportunity provided to defend the action on its merits. . While we hold that the general waiver of governmental immunity in 33 V.I.C. § 3408 does not affect the special statutory provisions concerning the Water and Power Authority, we also observe that, even if the Tort Claims Act were applicable here, the plaintiff would be confronted with a statutory exclusion of default judgments from the benefits of the Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3411. The time and method of asserting such a claim also are restrictively prescribed. 33 V.I.C. (1974 Supp.) § 3409. • Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

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