*1 Pоrta-King also claims 29, Union, August dated to the letter
Shulte’s willing to Porta-King was stating that Union, layoffs with the
meet and discuss bargain good-faith offer
constituted a Porta-King’s operated to toll
the Union agree the Board liability.
backpay not toll 1991 offer did August observed, liability. As the Board
backpay lay bargain about the
Porta-King’s “offer to insufficient to [was] occurred
offs after violation] of the [the ‘undo the effects ” Systems, slip Porta-King Building
Act.’ Seven-Up v. Bot (quoting NLRB
op. at 3 287, 288, Co., 344, 346,
tling 344 U.S. (1953)). employer’s offer to An
bargain after
occurred, practice an unfair labor and after filed, satisfy its
charge been does has NLRB v.
duty bargain good faith. Div., Corp., Eltec
Plymouth Stamping Cir.1989). If Porta
F.2d unilaterally alter mate
King were allowed to employment and conditions of
rial terms and afterwards, power bargain “[t]his
offer to bargaining process ab ini
would subvert the
tio.” Id. deny petition for re-
Accordingly, we of the Board. and enforce the order
view America, Appellee,
UNITED STATES BEHLER, Appellant. D.
John
No. 92-3956. Appeals,
United States Court
Eighth Circuit. 16,
Submitted June 24, 1994.
Decided Jan. *2 confession, improp- suppress
failed to his erly question from the dur- answered deliberations; ing that there was insufficient on two his convictions *3 counts; that his should be vacated sentences him un- the district court sentenced because wrong version of the United States der Guidelines; Sentencing and that the district quantity determining in court erred offense, methamphetamine and his role justice, and that he obstructed pro- relying parte information from a on ex affirm his convictions but bation officer. We I, III, on Counts and IV vacate his sentences resentencing on and remand for those counts.
I. an From 1984 to Behler lived on Dunbar, acreage in Nebraska. Linda Wie- gert acreage him from 1984 lived on the with to 1987. at trial that She testified trips made numerous that time Behler purchase methamphetamine Colorado to person a Tom McRea. from named She always kept .44 further testified that he a magnum handgun him at home and on trips. Lysenko in with Nora Houston moved Wiegert sometime in after Ms. Behler out. Ms. Houston also testified at moved trips trial that Behler made numerous buy methamphetamine from Colorado to that Behler Tom McRea. She too testified Lincoln, NE, Mowbray, argued James R. always handgun him. carried a appellant. for began In Patrol the Nebraska State Boeshart, Lincoln, NE, argued Paul D. telephone May monitoring Behler’s calls. On appellee. 15, 1989, they intercepted Joseph a call from MeMILLIAN, Judge, Before Circuit Hiykel drug about a transaction that was GIBSON, Judge, FLOYD R. Senior Circuit day. that going to occur at Behler’s residence . HANSEN, Judge. and Circuit They surveillance on Behler’s maintained acreage acreage. Hiykel drove to Behler’s HANSEN, Judge. Circuit stayed 30 minutes. Law enforce- and about stopped Hiykel arrested appeals D. his convictions and ment officers John violations; acreage. They found a drug trafficking He after he left the sentences Hiykel’s package methamphetamine the district court1 mishandled Hiykel trial that allegations jury tampering, improperly possession. testified at he Urbom, Honorable Warren K. Senior Unit- Nebraska. Judge ed States District for the District of methamphetamine from someone had purchased the Beh- knocked on his window late аt night couple days a earlier. ler. questioned The court and counsel both of officers arrested Behler Law enforcement jurors individually in judge’s the district they acreage minutes after arrested
at his
jurors
chambers. Both
they
indicated that
acreage
Hiykel. They
pursuant
searched the
believed the incidents were related to their
they
a
warrant
had obtained earlier
to search
service,
but both stated that
could
found, among
things, plastic
other
bot-
keep
open
continue to
an
mind and reach a
inositol,-
containing
magnum
.44
tle
loaded
jurors
fair verdict. One of the
told the court
handgun, and a small amount of metham-
other members of the
were
phetamine.
placed
county
Behler was
in the
many
aware of the incidents and
of them also
jail.
evening,
Later
law enforcement
*4
were concerned.
Behler,
being
interviewed
officers
after
of his Miranda
rights,
he confessed
advised
parties
sugges-
The court asked the
drug
to his involvement in substantial
traf-
proceedings.
tions on further
Behler’s coun-
activity.
ficking
suggested
judge
sel
that the district
talk to
jury
being
the entire
without either side
grand jury
A federal
indicted Behler on
present
report
back to counsel if he
drug-trafficking
I
four
counts. Count
any problem
prej-
determined there was
charged
conspiracy
Behler with
to distribute
thought
udice or bias. Behler’s counsel
methamphetamine in
of 21
violation
U.S.C.
jurors might
open
be more
about their feel-
§
charged
846. Count II
Behler
with use
ings
parties present.
without the
The court
drug trafficking
a firearm
relation to a
government agreed.
and the
Behler’s coun-
924(c)(1).
§
offense
violation of 18 U.S.C.
judge
any
that if
sel stated
did not detect
charged
III
Count
Behler with use of a tele-
prejudice,
bias or
then Behler would “let it
phone
drug felony
in furtherance of a
(Tr.
568).
inquiry.”
be at that and end the
at
843(b).
violation of
U.S.C.
Count IV
judge’s
The district
convеrsation with the'
charged Behler with distribution of metham-
jury
reported by
reporter.
was
the court
phetamine
in violation of 21 U.S.C.
judge
jury
The district
told the
that he was
841(a)(1).
He stood trial on all counts
virtually
personal-
certain that Behler did not
12-18,
August
jury
1992. The
returned a
ly
telephone
make the
call or knock on the
guilty
August 19,
verdict
on all counts
judge
window. The
then asked the
they
anything
whether
were fearful
The district court sentenced Behler on
happen
would
to them
if
or their families and
I, III,
impris-
Counts
and IV to 168 months’
they
by
would
these
be influenced
incidents.
count,
onment for each
to
served concur-
be
jurors responded
they
Two
were not
rently. The district court sentenced Behler worried,
juror
but one
voiced concern that
imprisonment,
on
II
Count
to 60 months’
defendant and defense counsel had access to
consecutively
be served
to the sentence on
jurors responded.
their names. No other
appeal.
the other counts. Behler filed this
juror
judge agreed
The
all
informa-
collect
parties
tion sheets from both
and to refer to
II.
jurors by
number instead of name for the
judge
trial. The
remainder
then
Behler first contends that his convictions
asked the
a final time whether
should be reversed because the district court
“ability
were
that their
concerned
decide
potential jury
mishandled incidents of
tam-
way
this case uninfluenced one
or the other
trial,
pering.
day
On the fourth
the dis-
jeopardized?”
jurors
had been
All
indicated
judge
parties
trict
informed counsel for both
(Tr.
569-79).
they were not concerned.
at
jurors
reported
that two
had
such incidents.
juror reported receiving telephone
judge
reported to
One
call
The district
then
previous evening
parties
could
from an unidentified
that he was confident the trial
asking
jury,
proceed
caller
her if she
on
there was no indication the
because
jurors’
responded
which she
in this case would
affect-
she was not and
decisions
be
judge
juror reported
by
call.
the incidents. The district
then
terminated the
Another
ed
jurors
candid if the court
juror
be more
to return all
informa-
would
parties
asked
inquiry
The district
performed
without further ob-
alone.
The trial resumed
tion.
substantially complied with the Rem-
jection.
if there was
requirements
mer
to determine
inci-
appeal
on
that these
asserts
any
permitted
Behler to
prejudice because
extrajudicial
prejudicial
contact were
dents of
participate, but Behler declined. While
In
a new trial.
and that he should rеceive
any
judge generally should not conduct
trial
227, 229,
States, 347 U.S.
Remmer v. United
hearing
parte,
part of the
ex
United States
(1954),
450, 451,
98 L.Ed.
74 S.Ct.
(D.C.Cir.1987)
Butler,
Supreme
stated:
Court
Remmer,
229-30,
(citing
at
347 U.S.
case, any private
In a criminal
communi-
450-51),
up
parte hearings have been
ex
cation, contact,
tampering, directly or
the circumstances warrant and
held where
juror
indirectly,
trial
about
See,
not sacrificed.
fundamental fairness is
is,
pending
the matter
before the
e.g., Gagnon, 470
105 S.Ct. at
reasons,
presumptively
obvious
deemed
only
(approving procedure where
one of
presumption
prejudicial....
is
present at еxamination of
four defendants
conclusive,
heavily
but the burden rests
request
juror
other three did not
to be
when
establish,
upon the Government to
after
Aiello, 771 F.2d
present); United States v.
defendant,
hearing
notice to and
*5
(2d Cir.1985)
621,
(approving
630
court’s ex
juror was harm-
that such contact with the
jurors
parte interview of
without court re
to the defendant.
less
immediately
porter present where the court
prejudice “may
presumption
The
be rebut
questioning);
informed
after
the
counsel
ted,
proper
where ...
reaction of the
Buchanan,
423,
States v.
633 F.2d
United
that the defendant has not
court establishes
(5th Cir.1980) (approving procedure
427
Rowley,
v.
prejudiced.”
been
United States
judge,
reporter,
court
and
where district
law
(8th Cir.1992)
1357,
(citing
F.2d
1363
975
jury
only parties present
clerks were
451).
229,
Remmer,
74
at
347 U.S.
S.Ct.
denied,
912,
questioning), cert.
451 U.S.
101
court
determine the cir
The district
“should
1984,
(1981);
S.Ct.
1269 ment, jurors intimate he must close observation of establish that the district Rowley, familiarity with the issues at trial.” in finding request- court erred that he never (quoting F.2d at 1363 United States ed counsel. (8th Cir.1988)). Cheyenne, F.2d We review court’s find nothing in
There is the record that indicates ing request that Behler failed to counsel finding the district court erred none clearly under a jurors prejudiced by erroneous standard. United were the inci- Capers, States v. dents.
Cir.1982). Law enforcement officers testi III. suppression fied at hearings both that Behler request did not counsel before he made his Behler next asserts that the district rejected confession. The district court Beh suppressed court should have his confession. ler’s version of the facts. district court’s counsel, party requests an After accused law findings clearly Hence, are not erroneous. interroga enforcement must cease officials. based on the district court’s tion efforts until counsel has been made requested attorney, Behler never an we find available the accused unless the accused no violation of Edwards and no reason to initiates further contact with the officers. suppress the confession. Arizona, 477, 484-86, Edwards v. 451 U.S. 1880, 1884-85, S.Ct.
(1981). Behler asserts that law enforcement IV. officials violated Edwards ob because requested tained his confession after he next the district responding question was denied He trial court erred in counsel. contends the from denying suppression court erred in his mo deliberation. The sub tions. mitted a written note to asking: the court *6 Stephen “Does Thomas McRea have to be a argument Behler’s is on based his asser- part conspiraсy guilty the to enable a requested tion that he counsel after he was verdict on # 1?” Count The court answered arrested. The district court on two different question argues the “no.” Behler found, however, occasions that he did not process rights court violated his due under request prior giving counsel to confession. his by answering the Fifth Amendment the First, suppression hearing prior a was held question as did. magistrate judge.2 to trial before a The magistrate judge report a issued and recom- charged indictment in 1 The Behler Count mendation that Behler did not re- conspiring Stephen “with Thomas quest during counsel after he was arrested or McRea and others” to distribute metham- interrogation. magistrate judge The also phetamine. The district court instructed the found that Behler was advised of and waived jury that one of the essential elements of the rights prior making his Miranda to his con- conspiracy charge under Count 1 was: object magis- fession. Behler did to the 1, 1984, That between on or about March judge’s findings, judge trate and the district 16, 1989, May and on or about the defen- adopted report and recommendation. Behler, dant, agreement John D. had an or Second, judge the district held another hear- understanding per- one or more other trial, ing during presence out of the sons, McRea, including Stephen Thomas jury, to determine whether Behler’s confes- distributing to commit the crimes of meth- voluntary sion was under 18 U.S.C. amphetamine possession of metham- ruling judge, The district that the confes- phetamine to it. with intent distribute voluntary, sion was found that added). rights (emphasis advised of his Miranda but did not Behler asserts that request changed counsel the interview when he district court’s answer the instruc- Hence, unfairly presenta- made his confession. order for tion and undermined his and, prevail particular, closing suppression argu- Behler to on his tion of the case his Piester, Judge Magistrаte 2. The Honorable David L. United States for the District of Nebraska. 1270 in no was removed from the case was process of his due “what
argument
in violation
way.
the offense on which the
essential to
rights.
”
(quoting
at 734
United
convicted.’
Id.
repeatedly
have
stated
disagree. We
We
Miller,
130, 145,
471
States v.
that:
(1985)).
1819-20,
1811,
We
supple-
response
request
a
The
argument
specifically
Lueth’s
addressed
instructions is a matter within
mental
supplemental instruction undermined the
A
district court.
discretion of the
sound
defense,
particular,
and in
effectiveness of his
painstakingly impartial
judge
trial
must be
closing argument.
Id. at
n. 7. We
his
734
any
communicates with thе
time he
rejected
argument finding that the de-
He must insure that
during deliberation.
supplemen-
argued
had not
that “the
fendant
any supplemental
instructions are accu-
law,
mis-
tal instruction misstated the
or was
clear, neutral,
rate,
non-prejudicial.
jury”
closing
leading to the
and that his
679,
Suppenbach,
v.
F.3d
United States
conjunctive
a
argument did-not rise or fall on
(8th Cir.1993) (citations omitted); see also
reading
charge.
Id. We find the
Gibbons,
639,
v.
968 F.2d
United States
applicable
of Lueth
to this case and
rationale
Cir.1992).
(8th
Further,
judge
the trial
conclude the district court did not abuse its
accuracy,”
answer “with concrete
Gib
should
answering
jury’s question.
discretion
bons,
specif
F.2d at
and “within the
question presented.”
ic limits of the
United
V.
Arpan,
v.
887 F.2d
Cir.
States
1989) (en banc) (quoting
United States
government
Behler next
(8th Cir.1982)).
Neiss,
570, 572
produced
support
his
insufficient evidence
court’s answer to the
find that the district
I,
conspiracy
on
convictions
Count
jury question complied with our standards.
II,
methamphetamine, and
distribute
Count
short,
provided
district court
a
concrete
The
drug
in relation to a
traffick-
use of
firearm
clearly
ques
within the limits of the
answer
ing
disagree.
offense. We
jury posed.
tion the
reviewing
sufficiency
In
very
The issue in this case is
similar to an
conviction,
“we view
Lueth,
presented in
issue
United Stаtes v.
light
the evidence in the
most favorable to
(8th Cir.1986).
732-34
Nelson,
government.”
United States v.
charged
in Lueth was
in the indict-
defendant
—
*7
denied,
Cir.),
cert.
conspiracy
to distribute cocaine
ment
-,
S.Ct.
marijuana.
and
The court
instructed the
all
We draw
reasonable inferences
conspiracy
jury that one element of the
of-
government
from the evidence
favor of the
fense
that the defendant entered into the
was
all conflicts in the evidence in
and resolve
conspiracy
purpose
distributing
with the
of
government.
favor of the
Id. at 898-99.
marijuana. During
cocaine and
the third
perspective,
from that
there is more
Viewed
deliberation,
day
of
the
sent
note to
than sufficient evidence to
the ver
they
asking
whether
had to find
the
dict.
conspiracy
purpose
that
the
of the
was to
marijuana and
to find
distribute both
cocaine
Wiegert
testimony
The
of Linda
guilty
conspiracy
the defendant
on the
Houston,
Nora
and Behler’s own confes
by instructing
charge.
responded
The court
sion,
in
provide strong evidence of Behler’s
guilty
him
the
could find
of
conspiracy
volvement in a
to distribute meth
marijuana
conspiracy to distribute cocaine or
amphetamine
of a firearm
and his use
or both.
drug trafficking
Wiegert
crime.
and Hous
repeated
appeal,
argued
judge’s
ton both testified that Behler made
On
Lueth
trips
methamphetamine
him a
to
to obtain
answer allowed the
to convict
of
Colorado
by
brought the
charged
grand
which
the
from Tom McRea and that he
crime
was
affirmed,
“by
drugs
prepared them
jury.
reasoning that
back to Nebraska and
regular group
changing
language
prior
the
of the
instruc- with and delivered them to a
conjunctive
disjunctive,
Wiegert and Houston both
tion from the
to the
of customers.
always
testified that Behler
carried a .44
permitted
than one
the
under
Guidelines in
magnum handgun
trips
him
on the
effect at the time the crime is committed.”
everywhere
Colorado and
else he
Bell,
went with
United States v.
drugs. Wiegert
(8th Cir.1993).
the
stated
Behler called
gun
protection.”
the
“his
Here,
argues
that his sentence was
Behler confessed to law enforcement offi-
harsher under the 1992 Guidelines because
cials that
trips
he made numerous
to Colora-
the
determining
method for
methamphet-
Tom,
acquire methamphetamine
do to
from
quantity
amine
changed subsequent
was
regular
who was his
source. He admitted
the 1987 version of
Guidelines.
the
Under
drugs
group
that he sold the
people
to a
of
Guidelines,
the
quantity
of metham-
Many
people
Iowa and Nebraska.
of the
he
phetamine
by
weight
determined
of
selling
people
admitted
the same
were
the entire substance
containing
or mixture
Wiegert
whom
and Houston stated that he
methamphetamine.
2Dl.l(c)(n.*)
U.S.S.G.
normally
drugs.
sold (1987). Under the 1992version of the Guide-
findWe
this evidence more than sufficient
linés,
quantity
of methamphetamine was
guilt
to establish Behler’s
I
on Count
by
determined either
weight of
the entire
Count II.
disregard
Behler asks us to
containing
substance or mixture
metham-
testimony Wiegert
“incredible”
of
and Hous-
phetamine
by
weight
the “actual”
of the
ton,
confession,
as
as
well
his
which he ar-
itself,
methamphetamine
which is contained
gues should
suppressed.
have been
findWe
in the substance or mixture. U.S.S.G.
disregard
no reason to
this evidence. The
2Dl.l(c)(n.*) (1992).
The 1992 Guidelines
credibility
determination
Wiegert
of the
assigned different
quantity
levels for
offense
testimony
and Houston and their
is for the
weight
based on “actual”
methamphet-
Nelson,
jury,
appellate
not the
court. See
amine
quantity
itself and
based on the entire
already
VI.
The
responsible
district court found Behler
Behler next
'grams
that the district
for 399
methamphetamine
sub-
court’s determination of his sentence consti
stance or mixture.
court com-
post
an
tuted
ex
violation.
puted
purity
facto
Behler ar
methamphetamine
gues
by
that the district
percent
court erred
sentenc
20-25
and found that
the “actual”
ing him under
weight
the Guidelines in effect at
pure methamphetamine
was be-
sentencing
time of his 1992
rather than thе
grams.
tween 79.8 and 99.75
The district
1987version of the Guidelines in
weight
sentencing
effect
court used the “actual”
*8
illegal
ending
30,
time of the
conduct
with his
because it carried an offense level of
15, 1989,
May
parties
After the
weight,
arrest.
sub
instead of the substance or mixture
briefs,
mitted
but before the case was ar which
an
carried
level of 26. See
offense
gued,
2Dl.l(c) (1992) (base
we found that
§
under the law in this U.S.S.G.
offense level
post
circuit an ex
“if
grams methamphetamine
facto violation occurs
of 30 for 70-100
of
(actual)
the defendant is sentenced under the Guide
and base offense level of 26 for 100-
lines in effect
sentenсing
grams
at the time of
methamphetamine
when
400
or
mixture
substance).
produce
those Guidelines
a sentence harsher
Behler’s
offense level un-
base
Williams,
trafficking
Behler
that the evidence at best demon-
offense. See
States v.
United
only "buyer-seller agreement”
1209,
strates
a
(8th Cir.1992)
multi-
(quoting
982 F.2d
1214
ple conspiracies
single conspiracy.
instead
aof
Watson,
406,
(8th
United
v.
953 F.2d
409
States
government presented strong
We find that the
Cir.1992)). We find that the
evidence
more
single conspiracy.
evidence of a
argues
also
Behler
than sufficient to demonstrate a "nexus” between
sufficiently
did not
es-
gun
drug trafficking activity.
and the
gun
drug
tablish а "nexus" between the
and the
365,
Townley,
v.
929 F.2d
369-
would have been United States
der the 1987 Guidelines
(8th Cir.1991)).
2Dl.l(c)
(1987).
Townley,
In
the relevant
§
26. See U.S.S.G.
level
finding
in an 18-level in-
conduct
resulted
Hence,
was harsher under
Behler’s sentence
in the defendant’s base offense level
crease
have been
than it would
the 1992 Guidelines
permissible
a
increase in the
seven-fold
under the 1987 Guidelines.
sentencing range. Behler asserts that
argu-
government conceded
oral
findings in
in-
relevant conduct
this case
this case and that we
ment that Bell controls
16 levels and
creased his base offense level
resentencing.
agree.
We
should remand
sentencing range six-and-one-
increased the
Hence,
vacate Behler’s sentence on
we
Hence, he contends that
half times.4
remand
counts for
Counts I and IV and
those
have used a clear and
should
in effect
resentencing under the Guidelines
proof in
convincing standard of
this ease.
committed his offenses.
at the time Behler
subject
disagree.
We
This case is
in
process
the due
concerns outlined
Cole
VIL
Townley.
Those cases addressed
man
already has decided a
The district court
findings
uncharged
conduct
under
relevant
of issues that will affect Behler’s
number
1B1.3,
significant
§
which added
U.S.S.G.
on remand. Behler asks us to re-
sentence
E.g.,
time to the defendant’s sentence.
findings many
the district court’s
on
verse
case,
Townley,
In
jury’s testimony spite assessment of the in the district court committed two violations of nothing jury’s the fact that in the verdict Fеderal Rule of Criminal Procedure 32. testimony indicates that it found the of Wie- First, Behler contends that the district court gert or Houston to be reliable. Behler’s by having parte erred an ex discussion in argument support finds no in the record. probation chambers with officer specifically sentencing hearing. The district court stated at the Behler knew about meeting object sentencing hearing accepted that it but failed to their tes- the sen and, thus, tencing hearing any has waived timony. This statement demonstrates that (if exist) appeal. such issue one were to on independently the district court assessed the Sеcond, complains Behler also that after he testimony and found that it contained suffi- sentenced, the district court filed the reliability. cient indicia of probation sentencing officer’s recommenda argues if also even the court tions under seal. We find no error in this independently testimony, assessed their 32(e)(3)(A) procedure. See Fed.R.Crim.P. testimony erred in to be reliable. (defendant and defendant’s counsel not enti arguments have noted that We about the probation tled to disclosure officer’s final reliability really aof witness down to “boil[ ] sentence). recommendation as to credibility an attack on the of that testimo- ny” credibility and “witness is an issue for VIII. sentencing judge virtually that is unre- convictions, affirm Behler’s we vacate Candle, appeal.” viewable on 974 F.2d at I, III, IV, his sentences on Counts and and 645. We find no reason to disturb the dis- resentencing we remand those counts for finding. trict court’s consistent with United States v. Bell and this opinion.6 respects, In all other we affirm the
C. judgment of the district court. Behler next there McMILLIAN, concurring Judge, Circuit was insufficient the dis specially. imposition trict court’s of both a three-level § enhancement under U.S.S.G. 3B1.1 for his my colleague’s I excellent concur role the offense and a two-level enhance thorough opinion specially and write to note only my § ment under U.S.S.G. 3C1.1 for obstruction reservations about the discussion 843(c). I, III, resentencing § 5. We remanded for on other 21 U.S.C. While Counts and IV Candie, grounds may grouped Sentencing F.2d at com- be Guidelines putation purposes U.S.S.G. 3D1.2— {see (1987)), grouped range 6. We note that the district court these when the Guideline 3D1.5 sentencing imposed group statutory counts for a 168-month exceeds the maximum for group, concurrent sentence on each count. Count III one of the counts within the that count (the count) telephone statutory statutory only carries a maxi- can sentenced at maximum. be its *10 5Gl.l(a) (48 months') 5G1.2(b); years’ imprisonment. mum of four See U.S.S.G. present in the ease agree I part IV. discretion abuse its court did not way that jury’s question in the answering the argue that the district
it did. Behler did the law or was response misstated court’s Instead, Behler ar- jury.
misleading to response under- court’s
gued the district theory of of his de-
mined the effectiveness essentially govern- fense, which was any prove the existence
ment faded all, understanding at much less agreement or Behler, McRea and others. one between significant dif- My involves the reservation of an offense between elements
ference conjunctive and those charged in are disjunctive. An instruction charged in the conjunc- jury to find requires disjunctive places in the tive rather than produc- persuasion and burden
far heavier because, government. This is upon the tion conjunctive, to find order exist, whereas find that both elements must disjunctive requires the finding in the two or more elements find that one only Moreover, evi- there must be exists. while findings in con- dence to both support only one junctive, the must findings in the dis- possible more of two or and, special spe-
junctive verdict absent say can which find- interrogatory, no one cial its verdict. ing the made to reach GROUP, doing
MDU RESOURCES as Montana-Dakota
business Co., Inc., Appellant, Utilities COMPANY, and GRACE AND
W.R. Company— Grace and W.R. Conn., Appellees.
No. 92-2794. Appeals, States Court of
United
Eighth Circuit. 11, 1993.
Submitted Oct.
Decided Jan. Rehearing
Rehearing Suggestion En Banc March 1994.* Denied * Beam, suggestion rehearing Judges, grant en banc. would Bowman and Circuit