United States v. Glen McCullah Willard Petrey, James Tankersley, and Ewell Scott
745 F.2d 350
6th Cir.
1984
Check Treatment

*1 foreseeable, if fore- reasonably it was happen and Lou-

seen, that accidents would injuries a conse- sustain would

isianians

quence of tortious conduct em-

ployees equipment. perceive We no un- placed

fairness or undue burden on Astro-

park by requiring the defense of the Pedel-

ahore suit in Astropark Louisiana. does suggest otherwise.

We conclude and hold that the constitu- requirements

tional satisfied, long-arm

Louisiana statute reaches Astro-

park setting presented, here and that personal jurisdiction district court has Astropark.

over

REVERSED and REMANDED for fur-

ther proceedings consistent herewith. America,

UNITED STATES of

Plaintiff-Appellee, McCULLAH,

Glen Willard James

Tankersley, Scott, and Ewell

Defendants-Appellants. 82-5222, 82-5223,

Nos. 82-5235

and 82-5237. Appeals, Court of

Sixth Circuit

Argued Aug. 1983. Sept.

Decided *2 Alliman, Harber, argued, K.

Peter John Priest, Pryor, Flynn & Richard R. Baum- gartner, argued, Ray, Kerr Robert & C. Knoxville, Edwards, argued, Tenn., for de- fendants-appellants. Gill, Atty., Simp- E.

John W. Robert son, Atty., argued, Knoxville, Asst. U.S. Tenn., plaintiff-appellee. WELLFORD, Before Circuit JONES RUBIN, Judge.* Judges, and District WELLFORD, Judge. appeal Defendants their convictions De- this case stolen vehicles. objec- McCullah raises one set of fendant below; proceedings defendants tions to the Petrey, Tankersley, and Scott raise anoth- er; challenge the admis- and all hearsay statements. We sion of certain affirm convictions.

I. McCullah, North, Willard Pe- Bruce Glen Scott, Jr., Tankersley, trey, James Ewell charged in a four- and James Veach were in the Eastern District count indictment The in- on November Tennessee in stolen charged a scheme to deal dictment originally All defendants were vehicles. I, conspir- alleged a in count which named transport vehicles violation acy to stolen and to receive or sell of 18 U.S.C. in violation of 18 U.S.C. vehicles stolen * foreign Rubin, transports in interstate or Judge, Whoever Chief Carl B. Honorable aircraft, Ohio, Court, know- a motor vehicle commerce Southern District District stolen, ing shall be been the same have sitting by designation. imprisoned not than fined not more years, than five or both. more provides 1. 18 U.S.C. § 2313;2 trial, however, disputes propriety government he prosequi moved that a nolle agent Cloninger’s testimony. describing prejudice be entered without on the con- the location of July the stolen tractor on spiracy charge as to all defendants but 1981, Cloninger testified that the tractor McCullah, Veach and and the motion was was “hidden” under some trees. McCullah granted. defendant, II Count each objects that this constituted the forbidden others, *3 aided and abetted all trans- expression opinion. of an But Fed.R.Evid. porting Caterpillar a stolen D8H tractor permits nonexpert testimony opinion Kentucky from in to Tennessee violation of opinion, here, when the “rationally § charged 18 U.S.C. 2312. III Count each perception based on the of the witness” aiding defendant but McCullah with and “helpful and to a understanding clear of his abetting the sale of the tractor in violation testimony.” Skeet, See United States v. § charged U.S.C. 2313. Count IV (9th Cir.1982); Stone v. concealing defendant McCullah with the States, Cir. in tractor violation of 18 U.S.C. 1967), 391 U.S. 88 S.Ct. jury The acquitted defendant Veach on 2038, (1968). 20 L.Ed.2d 880 testimony The all counts in which he was named. Defend- proper. Second, was therefore McCullah guilty ant found McCullah was on counts I objects to the trial court’s statement IV, acquitted but was on count II. response question to a from the North, Petrey, Scott, Defendants and Tank- However, objection he made no at the time ersley guilty were found on counts II and statement, to the court’s and the statement III. Each of the ap- convicted defendants plain was not error. pre McCullah is thus pealed, appeal but North’s voluntarily was cluded raising from appeal. this issue on McCullah, appeals dismissed. The Pe- 30; Hamling See Fed.R.Crim.P. v. United Scott, trey, Tankersley have been con- States, 87, 135, solidated and are now court. trial, government At sought prove relatively simple a scheme a Cat- erpillar pertained tractor. itAs to the de- B. currently court, fendants before the The bill of sale delivered to McCullah government’s theory was to the with the stolen tractor listed the seller as Scott, effect that Ray Garland. McCullah’s defense at trial

Tankersley arranged to steal the tractor was that he had not conducted business Kentucky. They purportedly then trans- with the other individuals in this ported Tennessee, the tractor to where it conspiracy, but had instead dealt with purchased by defendant McCullah. using someone the name “Garland” con- cerning purchase of the

II. tractor. Prior to requested McCullah information from challenges Defendant McCullah the na- prosecution; request could be con- testimony him, ture of certain against request any strued as a information judge’s response jury question, to a regarding an individual who had met with government’s regarding conduct the identi- McCullah in witness, the circumstances ty potential of a described. and the sufficien- cy government The support of the evidence to revealed no information. his conviction. trial, however, At government called

A. Draughn Draughn, Bob to the stand. who description given McCullah raises two issues matched the for the man First, require do not extended allegedly discussion. who had Ray used the name Gar- provides 2. 18 U.S.C. 2313 foreign which constitutes interstate or com- merce, receives, stolen, conceals, stores, barters, knowing the same to have been Whoever sells, disposes impris- shall be fined any not more than or or motor vehicle or aircraft, as, of, moving years, part oned not more or which is a than five or both. information land, met with only testified that he had indeed when prosecution possession prosecutor’s is-favorable to prior delivery of the trac- McCullah See, e.g., Agurs, the defendant. Draughn agreed While tor in this casé. 20; Brady, at 112 n. at 2401 n. story that the two had met with McCullah’s at at 1196. The Corbin, machinery parts concern a possessed by information part of Decem- Kentucky, during the latter concerning Draughn, to trial while January 1981 and dis- early ber 1980 McCullah, largely detrimental to neverthe- truck, Draughn denied the sale of a cussed arguably less did include favorable infor- selling McCullah that he had ever discussed Draughn, mation. The existence of who Draughn further Caterpillar tractor. meeting admitted McCullah at the time and the name he had never used stated that place McCullah had claimed and who argues that Ray McCullah Garland. description giv- matched McCullah had to inform McCullah government’s failure en, perhaps support lends some to McCul- identity prior to trial violated Draughn’s story. But lah’s McCullah has identified *4 right Amendment to cross-exam- his Sixth prosecutor’s no other information in the process rights Draughn and his due ine possession that would have benefitted 83, Brady Maryland, v. 373 U.S. 83 under case; McCullah’s and the corroborative as- (1963) 1194, (imposing 215 10 L.Ed.2d S.Ct. pects previously fully mentioned were dis- evidence obligation prosecutor to reveal on government closed when called in some circum- to defendants favorable Draughn testify.3 to to the stand This is stances). testimony a case in which the at trial not Draughn’s By failing to reveal exculpatory complicated was so that its trial, argues, the identity prior McCullah to aspects readily not identified could be handicapped impermissibly counsel, explored on cross-exami- defense ability to cross-examine McCullah’s nation, argued to the Nor was court, however, firmly has Draughn. This present prosecutor’s decision to counsel is not enti established that defense Draughn’s testimony justified solely by a know in advance of trial who will tled to delay defendant’s access to its desire to See United government. testify for the aspects; exculpatory rather decision Dark, 597 F.2d 1097, v. 1099 damag- substantially supported by the was Cir.1979) curiam) (citing United States (per Draughn’s testimony. ing nature cert, Conder, 423 F.2d 904, (6th Cir.), v. 910 prosecution’s characterizes McCullah denied, 357, 958, 91 27 400 U.S. amounting to in this case as bad conduct cert, denied, (1970)), 444 U.S. L.Ed.2d 267 vagueness of defendant’s faith. Given the (1979). 927, 267, 62 L.Ed.2d 183 100 S.Ct. material, say request for one cannot discovery argues if that Even one broader contention assurance that the defendant’s desirable, the “might in this area be rules not, is true. True or the contention that surely does not demand Constitution See, e.g., Agurs, at irrelevant. U.S. Agurs, v. much.” United States 110, 2400; Brady, 373 U.S. at 96 S.Ct. at 2392, 2400, 97, 109, 49 L.Ed.2d 342 96 S.Ct. 87, do the cases cited 83 S.Ct. at 1196. Nor (1976). support arguments here. by defendant his Brady claim must also fail. Esposito, v. F.2d 242 United States McCullah’s cert, denied, 916, (7th Cir.1975), “the dis- Brady concerns The doctrine 1517, (1976), Unit- which of information 47 L.Ed.2d 768 covery, after (D.C.Cir. Bryant, ed States v. prosecution but 439 F.2d known to the had been Armigo-Martinez, v. 1971), Agurs, United States U.S. unknown to the defense.” (6th Cir.), vacated, added). (emphasis U.S. 103, at 669 F.2d 97 S.Ct. at (1982), on disclosure 74 L.Ed.2d 47 obligation of 103 S.Ct. Brady imposes regarding Draughn fully testified those upon had not decide whether We not called to obligated aspects dis- at trial. prosecutor would have been case if exculpatory in this evidence close the Caldwell, 306; (cross-examina- see also id. United States 543 F.2d 1333 at cert, denied, (D.C.Cir.1974), revealing plea that of Jones Jones’ (1976), arrangement required testify him 96 S.Ct. did not re- exculpatory proceedings), material that dis- lated involve conviction here entirely testimony. closed at trial. MeCullah therefore was could rest on Jones’ Brady. deprived rights his under supports Other evidence also the conclu- sion that MeCullah knew the tractor was C. paid stolen. MeCullah for the vehi- evaluating that the In a claim evi $46,- cle. Given that the tractor was worth support is insufficient a convic dence 000 and that used-equip- was a MeCullah tion, weigh the the court must evidence in specialist, ment person might reasonable light prosecution to the most favorable conclude that MeCullah knew the vehicle a reasonable mind and determine whether addition, taking pos- was stolen. after fairly guilt beyond a reasonable might find tractor, session of the MeCullah learned Gibson, doubt. repairs acquire were needed. To Cir.1982), 459 proper parts, MeCullah needed to document 305, 74 L.Ed.2d tractor; ownership his but the docu- The evidence to be considered accompanied ments that the tractor were include circumstantial and reasonable acting surprised order. Rather than Unit from the evidence. inferences drawn possession the tractor in his did not Flaherty, ed States v. description papers, match the McCul- (1st Cir.1981). argues MeCullah plate lah set out to obtain both a serial *5 evidence was insufficient his establish tractor, a new for the bill sale and knowledge Caterpillar that the tractor was removing McCullah’s father admitted to a stolen. He therefore contends that his con serial in number from the tractor further- may victions not stand. A of the review plan. ance of the evidence, however, demonstrates the futili ty regard. of McCullah’s claim in this III. Petrey, Tankersley, Defendants co-conspirator Unindicted Elmon argue Scott their convictions are

Jones testified that MeCullah had been told jeopardy barred double clause. of the scheme to steal the tractor They further contend the district court attempts act. While MeCullah to avoid attorneys’ requests mishandled their for testimony by stressing the force of that Act, fees under the Criminal Justice 18 possibility alleged accomplice that an will § U.S.C. 3006A.4 perjure hopes himself in favorable treatment, firm this court has A. ly stated that a conviction be valid supported only by accomplice Petrey, Tankersley, previ- even if testi and Scott were mony provided jury properly ously prosecuted that the in and convicted U.S. Dis- See, London, concerning testimony. Kentucky, cautioned in trict Court for con- § McGallie, e.g., United States v. spiring in violation of 18 371 to U.S.C. 770, (6th Cir.1977). by transporting 772 Because the dis violate 18 U.S.C. 2314 in judge jury goods having trict here warned interstate commerce stolen a see testimony, $5,000. accomplice app. exceeding They hazards of value were also Petrey, Tankersley, supra p. complain plain See and Scott also error is shown. 352. That judge’s showing about the district to the has not been made here. Nor have instruction reading jury, prejudice resulting In count I of the indictment to the demonstrated Tankersley, jury referred to from the district court’s action: did not though they dropped against Scott even had been from return a verdict these defendants on however, I, Defendants, jury the count before trial. count and defense counsel told the objection charge jury opening argument made no to the before the these defendants had retired; dropped the issue is therefore waived unless been count from I. the crime is listed as an proceeding convicted in the same of several commission of see id. conspiracy charge, violations of substantive overt act in the heavy machinery. pieces 644, various stolen at 1182. at S.Ct. piece equip- Although the theft of the Nor does defendants’ observation that charged ment case was not at issue this they charged aiding abetting were prosecution, in- Kentucky in the the theft preclude in the substantive counts convic- general in the same

volved here occurred tion. during conspiracy span time which Aiding, abetting, counseling Kentucky prosecution took charged in the presuppose terms which existence Indeed, relationship place.5 between agreement. an terms Those have a previously charged conspiracy and application, making broader the defend- sufficiently that the present case was close principal ant a consciously when he prose-- as to was dubious district court act, regardless shares a criminal Petrey, Tankersley, charge right to cution’s conspiracy. Nye & Nissen existence of a here; conspiracy count and Scott States, 613, 620, v. United U.S. [336 the count the court dismissed 770, 766, (1949)]. S.Ct. L.Ed. prosecution’s on the as to these defendants Pereira, 364; at see motion. 74 S.Ct. at Blockburger States, argue that appeal, defendants On (1932) (no S.Ct. L.Ed. 306 principles bar their convic jeopardy double jeopardy prosecuting double violation in alleged here. counts tion on the substantive stemming two offenses from same transac assuming overlap Even between requires proof tion when each offense of a charged conspiracy Kentucky not). fact that the other does however, here, substantive counts Defendants’ reliance on given gen crime is conspiracy to commit Austin, 529 F.2d 559 (6th Cir.1976), is mis- erally from commission a distinct offense Austin, States, placed. the court overturned a see v. United crime, Pereira of that 11-12, 364-365, conviction with two sub- linked (1954); proof of v. United stantive counts the sub- Pinkerton L.Ed. 435 "[s]ince States, 643-44, proved every es- stantive offenses ... also Id. 1181-1182, (1946), conspiracy.”6 if even sential element 90 L.Ed. *6 528, Cir.1979) (5th Kentucky (appropriate prosecutor in 603 F.2d 534 5. The case knew sought machinery at issue here and looks adduced at theft test "not to the evidence trial concerning even evidence theft introduce on the elements of the offense but focuse[s] charged though Circuit, were the defendants there charged”), United States and the Ninth circuit, 1371, But States (9th Cir.1980) with the theft. this United Wylie, 14 v. 625 F.2d 1381 n. cert, Garner, 962, (6th Cir.), F.2d 1358, v. denied, 529 971-72 (citing Kearney, v. 560 United States F.2d 922, 2630, cert, L.Ed.2d 96 49 Cir.), denied, 971, (9th U.S. 1367 434 98 (1976), double-jeopardy explicitly rejected cert, a 376 522, (1977)), denied, 54 460 L.Ed.2d preclude would trial on a crime doctrine that 1080, 863, U.S. 66 449 101 S.Ct. L.Ed.2d 804 simply because it out of same transac- arose (1981). purported The First to distin- for which defendant as another crime guish grounds so Austin but did on that would already had been tried. generate a different in Austin itself. result See DeVincent, 155, n. United States v. 159 Austin, defendant, government em- 6. In (1st Cir.1980) (noting conspiracy, 8 that unlike accepted ployee, in re- solicited and bribes had count, requires proof agree- - substantive an turn contracts. The indictment crime, conspir- substantive unlike ment charged aiding abetting the offer- him with count, requires proof acy commission or 201(f), ing of 18 § a bribe in violation U.S.C. cert, S.Ct, 984, denied, attempt), U.S. 101 450 accepting 18 U.S.C. a bribe in violation of 1523, (1981); 67 820 see also United 201(f)- L.Ed.2d 201(g), conspiring §§ to violate § ' 391, Land, (6th Cir.) States v. (g). approach well in has not fared The Austin cert, 1134, denied, (same), by 102 S.Ct. flatly rejected circuits. It has been the other 2960, (1982). Circuit, Pearson, The Second Cir- v. States the Fifth United Sperling, 569, Cir.1981) curiam) (citing (per cuit cited Austin in United States F.2d 1050, (2d Cir.1977), Cowart, but adhered to 1032-34 F.2d F.2d United States v. Bankston, 1979)); requiring elements authorities attention see United States v. Cir. 564. But dicta Pereira, this has not been conspiracy. followed. volve a Cf. Foster, This court in United 566 at 74 S.Ct. at 364 (recognizing impor- (6th Cir.1977), F.2d agreement tance of required whether offense). U.S. 98 S.Ct. 55 L.Ed.2d 509 commit the substantive We find (1978), inapplicable held Austin when the inapplicable Austin therefore to be here. conspiracy charged proved “could be with- B. proof charged out of the offenses in the counts under consideration.”7 [substantive] Tankersley, and rep- Scott were Kentucky Examination of the indictment by appointed resented at trial counsel. Af- makes Kentucky clear that ter attorneys sought reimburse- require proof did not Act, ment under the CriminalJustice which counts here. substantive establishes the through mechanism which appointed counsel is reimbursed in criminal Moreover, Austin arose under the feder- matters in the federal courts. The act sets bribery al supra laws. note See hourly maximum appointed rates at which multiple punishment Whether for two fed- reimbursed; counsel can be it also sets precluded by eral crimes is jeop- double maximum total fees attorney that an can ardy Congressional clause turns on intent. paid regardless be for trials spent of hours States, Iannelli v. unless the trial certifies that excess 782-86, 1284, 1292-1294, payment by is warranted the facts of the L.Ed.2d 616 While the federal brib- particular case. Initial responsibility for ery conspir- laws can be violated without a awarding fees rests with the district court acy Austin, taking place, 529 F.2d at 563 judge. (offering accepted bribe a crime whether or not), paradigmatic bribery case, transaction appointed this attorneys Congress sought to frustrate sought involves reimbursement expenses of their an offer acceptance. and an payment The Austin of fees calculated at the stat- approach may justified therefore be utorily twenty set maximum of per dollars bribery context of by recognition laws hour for thirty out-of-court time and dollars Congress may penalties per have set the hour for in-court time. See 18 U.S.C. bribery under the eye 3006A(d)(l).9 statutes with an All of the bills for the toward the “successful” eight-day bribe.8 Such a trial statutorily pre- exceeded the justified, however, rule is not in a case like scribed maximum total fee of avail- this in paradigm which the underly- able without certification the district ing substantive crime does not itself in- 3006A(d)(2)-(3).10 court. id. See Not thereof, of the offense representation any segment rather than to the evidence be presented determining trial when compensated exceeding double per at a rate not $30 jeopardy questions. expended for time hour in court or before a magistrate per $20 hour for Fife, 7. See also United States v. F.2d court, reasonably expended time out of *7 (6th Cir.1976) (distinguishing Austin as a case in rate, hourly by such other fixed the Judicial way which the indictment was drawn in such a Circuit, Council of the not to exceed the mini- that the substantive offenses "in effect hourly by mum scale established a bar associ- agreement the same charged 933, or concert of action” as ation for similar services rendered in the dis- cert, denied, conspiracy), the trict. L.Ed.2d 777 3006A(d)(2)-(3) provides 10. 18 U.S.C. § say always 8. This is precludes not to that Austin (2) representa- Maximum amounts. —For bribery conviction for to bribe. tion of a defendant before the United States Foster, supra. See United States v. court, magistrate both, or the district or 3006A(d)(l) provides 9. 18 U.S.C. § compensation paid attorney to be to an or to a (1) Hourly Any attorney appointed legal agency bar association or aid or commu- Rate.— pursuant nity organization to this section or a bar defender association shall not exceed $1,000 legal agency community attorney or organization aid or defender for each in a case in which provided appoint- charged, which has shall, one or more felonies are and $400 attorney attorney ed at the conclusion of the for each only in a case in which said certify peal on the merits but has not whether court refuse only did the district appealed compensation may be otherwise. necessity of excess fee awards Todd, attorney case; each States v. it also awarded 475 F.2d See United this $800, amount, regard to without Cir.1973) curiam); United (5th (per the same 759 n. 3 hours that each varying number of Sullivan, 456 F.2d 1273, 1275 (5th v. States attor- As to one worked.11 claimed to have Cir.1972) curiam). (per As to the existence on hours of work claimed 119.5 ney who act, remedy an administrative under the of to a fee of case, amounted that award Circuit and the D.C. Cir both Second per hour. dollars seven under provision cuit have held that act argues judge that the award chief of requiring approval The States United the act is attorney’s fees under payment of excess com the circuit before appeals have The courts appealable. judge13 pensation by authorized a district of fee awards appealability on divided judge chief to review a permit does not and Ninth act. The Seventh under the judge’s decision not to authorize district awards are held that such have Circuits Gross, In re See compensation. excess United, v. Walton States appealable. See (2d Cir.1983) (opinion Feinberg, F.2d 670 (9th Cir.1982) Baker), (In 693 F.2d re Johnson, C.J.); States v. United Smith, v. United States curiam);12 (per (D.D.C.1982) (opinion of C.J. F.Supp. Cir.1980), (7th F.2d 739 on motion to Robinson of the D.C. Circuit 970, 101 compensation). certify excess ap permitted have (1981). Other circuits appeala- of this sort are Whether awards discussing jur the act without peals under decided in this case need not now be ble Turner, v. United States isdiction. See object to failure to of defendants’ because Cir.1978); see also Cam F.2d 1389 by district costs awarded the fees and States, 553 F.2d enisch v. United permit the judge. Defendants should court (dicta unpub (D.C.Cir.1976) n. 1 respond opportunity an judge district to dis appendix as opinion reprinted lished concerning these awards objections their banc); rehearing en from denial of sent cf. Ap- basing appeal on this action. an Ketchem, F.2d may square- then be pealability of an order discussing ap Cir.1969) (without if defendants’ coun- for review ly presented court’s district pealability, court reverses after a reasonable unsatisfied sel remain act). The expenses under denial of recon- judge to for the district opportunity fee to consider Fifth has refused respect. in this his action ap sider brought along when appeals payment compensation provide and the representa- fair charged. For misdemeanors court, circuit. appellate approved the chief of a defendant in attorney paid or to a compensation to be to an attorney requested Excluding expenses, one legal agency commu- or aid bar association formula, $2,830; using re- organization exceed the same another nity shall not defender $1,490. attorney court. For the same quested in each The court awarded for each post-trial with a representation in connection to each. fee judgment entry after the motion made proceeding or for probation revocation in a (In re Derick United States v. Poland 12. But see (g) provided subsection representation under curiam) (9th Cir.1981) son), (per F.2d 946 $250 compensation shall not exceed (reversing determination to district court’s proceeding attorney in each in each each Baker, act), discussed award no fees under court. (distinguishing Derickson at 926 n. 1 Pay- (3) Waiving maximum amounts.— granted); no award case in which cf. pro- any amount maximum ment in excess Fields, (9th Cir.1983) (2) *8 paragraph of this subsection vided in challenge court’s denial of (permitting to district complex representa- for extended be made investigatory section of under a different funds repre- the court in which the tion whenever act). the rendered, sentation was representation was furnished magistrate if the 3006A(d)(3), supra quoted U.S.C. § 13. See 18 him, that exclusively certifies before note 10. necessary to payment is excess amount JONES, Judge, NATHANIEL R. IV. concurring part dissenting part. in and in that All defendants maintain by district court error committed reversible only majority’s I dissent from the deci- admitting statements of certain unindicted question sion to avoid resolution of the of co-conspirator pursuant Jones Fed.R. to attorney’s fees in this I believe case. de- 801(d)(2)(E), excep co-conspirator Evid. adequately fendant’s counsel notified the hearsay tion rule. The trav to the attacks they of district court the reasons believed a First, paths el to the same several end. larger Accordingly, award was necessary. Petrey, Tankersley, and Scott defendants question I appealability believe hearsay argue that the admission of the presented of awards squarely such against ex co-conspirator them under the should be decided. ception they because had been was error dropped conspiracy before from count trial commenced. The in the cases RUBIN, Judge, B. CARL concur- District stealing joint indicated a venture ring. Caterpillar selling tractor. testi Jones’ I reasoning concur conclusion mony would have been admissible by portions majority reached in all by engaged those statements made exception of Section III B. As to such conspiracy criminal even if no had venture Section, I agree with the conclusion and See United States v. been all. only write to indicate a belief Kendricks, 1168 n. 5 attorney award of fees under the Criminal Cir.1980). Second, argue defendants appealable. Justice Act is not hearsay

the court not consider the making preliminary itself determina necessary conspiracy trigger see

exception. But United States v. Cassi

ty, (6th Cir.1980) (can hearsay); Kendricks,

consider F.2d at (same). Third, argue

1168 n. 5 defendants requisite showing

that the preliminary of a not the ad made. Given

missibility hearsay of the contested itself issue, on this the claim is merit. without RETAIL, WHOLESALE AND DEPART- Fourth, defendants claim that the district UNION, AFL-CIO, MENT STORE findings court required did not make the 310, Plaintiff-Appellant, LOCAL permitting the hearsay go to the jury. by supported This is not assertion Fifth, argue the record. NATIONAL LABOR RELATIONS findings making erred Downs, Inc., BOARD Scioto But see Unit presence Defendants-Appellees. Vinson, ed States v. F.2d No. 83-3622. Cir.1979) (to prejudice, judge should avoid preliminary finding jury inform Appeals, United States Court of cert, denied, conspiracy), Sixth Circuit. De arguments against fendants’ admission Argued Aug. 1984. testimony per Jones’ are therefore not Decided Oct. suasive.

V.

Accordingly, the convictions defend- MeCullah, Petrey, Tankersley,

ants

Scott are Affirmed.