*1 conclude, Mcle’s final claim is that the on the basis cannot ants. We requiring lower court erred not the us, his decision that before record prosecution to introduce a statement clearly erroneous. was appellant made to the F.B.I. The however, argues, Appellant also apparently copy defense had its own are government witnesses if the that even F.B.I., Mcle’s statement to the and could believed, not sufficient was there to be prosecu have offered it. Failure of the charge prove the to introduced evidence tion to the statement is thus no that indictment in the contained for reversal. transported from Ohio was automobile Accordingly, appellee’s Septem Virginia or about “on to West granted; affirmance is Mcle’s evidence 19, 1971.” Uncontroverted ber appeal is dismissed. recovered proves was that the vehicle Testimony does September clearly pinpoint however, either the the automo theft or the date date of the state border. driven across a bile was merely these
The shows evidence week, probably within events occurred certainly within two
and almost preceding September con
weeks prejudice clude absence resulting govern appellant Roy Quality F. STOUGH and Merchandis inability prove ment’s the date of ers, Inc., Quality Services, d/b/a greater precision, Plaintiffs-Appellants, offense with the con viction will stand. “Time is not of the charge essence connection with the GEORGIA, MAY AND COMPANY OF for this crime of 18 [violation U.S.C. § INC., 2312], and an the date in indictment No. 72-3269. allega such as this was not a material United States Court tion inasmuch as the time of the theft is descriptive not of the offense and need precisely proven not be other than to prove it occurred within the limitation period.” States, Stewart v. United
Appellant’s argument that crimi proven
nal intent was is also without
merit. The lower court found that Mcle
participated in the theft of a vehicle in transportation Ohio and its into West
Virginia. alleged No facts are negate presumption would that he probable intended the natural and conse quences of his acts. intent to de
prive rights the owner of the of owner ship coupled knowledge that the ve
hicle was transported stolen when into Virginia West statutory fulfills the re quirements. Turley, United States v. L.Ed.2d 430 (1957). *2 strength
for the defendants. On the of depositions affidavits, and the court held geniune dispute there was no over any material issue of fact and that judgment defendants were entitled to as (1) a matter of law because the contest- ed transactions were “consummated therefore, sales” and were covered by 2(a), (2) and none of the contested § transactions occurred in interstate com- merce, required the Act. On plaintiffs’ reconsideration, light the court evaluated the claim in of panel opinion of this court in Little- john Company, v. Shell Oil 5 Cir. although and held that requisite may interstate involvement have been under the “underwrit- ing” theory of defendants summary judgment were still entitled to the contested transactions were not “consummated sales”. appeal, in
On assert error holding. “consummated sales” Henderson, Jr., John John C. Walton Meanwhile, this court has considered III, Ga., Grabbe, Atlanta, plaintiffs- for Littlejohn rejected the en banc and has appellants. underwriting method of as a Patrick, Jr., F. Griffin Charles jurisdictional meeting requirement Reeves, Point, Ga., East for defendants- one the dis- Act that at least of appellees. criminatory com- sales be interstate BELL, Before and Company, GOLDBERG merce. Shell Oil Judges. Banc). (En Cir., 1973, Circuit F.2d 1140 respect to the no “consum With BELL, Judge: undoubtedly issue, it is mated sales” supply Plaintiffs are wholesalers who true that there can no violation of be § hosiery toys and to various retail outlets 2(a) of there is discrimi the Act unless Georgia. They compete of State purchasers or nation and between “[I]n range sell defendants who a wide der for there to discrimination be be items, including hosiery of non-food purchasers, tween there must be actual toys, to some of same retail outlets. prices dif different to two sales at two sought damages from Plaintiffs defend- Metzger buyers”. ferent actual Jones ants on a claim of violation of Inc., Cir., 1964, Dairies, Clayton by the Act as amended Rob- Company Aluminum at 924. Cf. 13(a). inson-Patman Act. 15 U.S.C.A. § Tandet, D.Conn.1964, 235 F. America v. gist defend- of the claim was that Supp. 111. Here there were actual plaintiffs’ cus- ants obtained several including customers, defendants by promising these customers tomers plaintiffs, resultant customers of with a purchases. special their rebate on plaintiffs. specified customers to loss of alleged that the rebate was Plaintiffs paid However, the rebate was never employed in that it was promisees is a dis and there selected on basis. a selective puted it was as to whether issue of fact testimony paid. judg- is parties ever to be There All moved gave promised judgment conditioned rebate was ment. The district court being part dissenting part defendants assured that the rebate violating paid any could be without law. Bell’s for the of the en any event, may disputed Court, Littlejohn In it be that a banc presented banc, fact issue is the content over en promise and whether a rebate was prices. part fact a the defendants’ *3 because, posture In this of the case and seen, disposi- there is will be another question pretermit
tive we
ruling ap- on the “consummated sales”
proach of the district court. argu
Both in brief on oral ment, counsel for conceded Wayne JACOBS, Edward Plaintiff- the claimed Appellant, Georgia. only They were made relied entirely underwriting theory on the al., CITY OF NEW ORLEANS et 1954, Bread, Moore v. Fine Mead’s 115, 148, 145, U.S. 99 L.Ed. No. 73-1164 subject jurisdiction. establish matter Summary Calendar.* longer stated, As will no United States Court of subject suffice. There was thus no mat jurisdiction ter in the district court. 29, 1973. Littlejohn, supra, See en banc decision. Summary judgment for defendants on proper disposition.
this was a It ruling
was the basis of the first of the ruling was,
district court which ed, as stat opinion panel withdrawn after the
Littlejohn. grant therefore affirm
summary judgment for defendants.
Affirmed. Judge (concurring
specially): opinion
I concur in Bell’s solely
the Court in this I case institutionally
am bound views of the en banc Court
Littlejohn, 1973, F.2d 1140. Cir. so, If free to do I would to the adhere “underwriting” theory liability under Clayton Act,1 2of the ma original
jority panel in
Littlejohn.2 my separate further See joined by Judges Brown,
opinion, Wis
dom, Morgan, concurring in Godbold * Enterprises, upon Bread, 18, Cir.; Inc. Based Moore Fine Rule 5th see Isbell v. Mead’s 1964, Casualty 99 L.Ed. Co. of New York 75 S.Ct. Citizens I, Part Cir.