*1 nationals, foreign are both litigation selec- only invalidates a forum COGSA not tribunal foreign appointing

tion clause application foreign designating

law, suggest preference appears fact that the case

an American forum. The law and under American

is to be decided English lading is written

that the bill equation. in the overall

is another factor defense that Hansa’s

Finally, appears packaging of

may be that General Electric’s inadequate for

the air conditioners defense, that is the voyage.

ocean Whether

and, so, identity, whereabouts having of the witnesses knowl-

availability facts are matters which should

edge of the before the district court on developed

remand. AND REMANDED.

REVERSED America, Appellee,

UNITED STATES SWAIM, Appellant.

David G.

No. 79-5202. Appeals, Court of

Fourth Circuit.

Argued Aug. 1980.

Decided March 29, 1981.

Rehearing April Denied *2 Smith, C. chased of the Tencarva Greensboro, postage N. on behalf Norman B. Curtis, Follin, James & Patterson, in the (Smith, Machinery Company with checks Greensboro, C., brief), for N. on 6, Harkavy, September on amounts of $206.00 appellant. 1, and on December $390.00 White, Jr., Atty., Asst. U. S. Benjamin H. garnered Through use of information Jr., Michaux, U. S. Greensboro, (H. N. C. M. employ- and deposit from the bank records Strickland, Durham, C., M. Atty., Becky N. for ees, the 1412-A 1412-CX forms brief), appellee. for on Paralegal Specialist, court inter- days question, and out of than with the six clerks other views RUSSELL, WIDENER Before at the employed the defendant Sta- Hilltop PHILLIPS, Judges. Circuit tion, Inspector prepared Postal Goodwin on summarizing reported the funds WIDENER, Judge: deposit by for the 1412-A form as remitted defendant, station mana- acting duty on and the the various window clerks Hilltop Station supervisor of ger daily receipts making up other the station’s Greensboro, Carolina, North Post Office that the defend- deposit. imply The charts filing of five counts of false convicted ant, window rather than one of the six with the United States Postal Ser- accounts clerks, exchange accepted the five checks 2073. The vice in violation of 18 U.S.C. § report he to postage for and that failed was occasioned defendant’s indictment his for the dates sales on 1412-A form 1412A, report, failure to on form alleged inference, course, of is that question. The 1978, 4, August September postage sales on equivalent he of cash stole amount 1,1978, 12,1978, 2,1978, December October unreported of checks. These the value 20, 1978, alleged it is and December when 39, charts, and the through five Exhibits 35 he in fact in the amounts of postage sold $390.00, testimony explaining his method $210.00, $206.00, $210.00, Inspector’s preparing a of them form bulwark grant We new trial. $105.00. concerning counts three government’s proof accountability The defendant’s individual through The charts seven. and Goodwin’s forms, 1412-A, postage did not indicate six win- testimony implicitly exonerate the is charged sales on the dates which it by unequivo- wrongdoing dow clerks of reports. false employees filed Postal are veracity of of the clerks’ acceptance cal required report 1412-A all file a form statements, leaving out of the defend- receipts day and disbursements for each any shortage.1 for responsible ant as postage. have made sales of The information on the 1412-A form is nor 1412-CX ana- Neither form 1412-A single included in the form 1412-CX which components lyzes reported receipts into reports the entire business station for Goodwin had Inspector cash and checks. day. particular depos- bank daily that the five establish among contained an additional check its

On five are in each clerks’ receipts reported on window seven in counts three prove that form 1412-A in order to indictment, sta- daily deposit omitting filed his 1412-A form tion’s account National at North Carolina exchange postage. for checks received in larger Bank contains a check in a than testimony came in objectionable Goodwin’s ordinary amount received a customer amounts ascertaining respective payment Edgar C. Butler postage. receipts in the represented cash and checks purchased Hilltop at the postage Station form of each indi- recorded on the 1412-A August 4 and October 1978 with $210.00 on the 1412-CX duty vidual clerk on checks and December so whole pur- receipts as a Henry V. Cashwell for the station’s $105.00 incompletely shortage proven except by at trial con- 1. No the out of Two of the clerks did cerning court statements of the checks. the window clerks. present circumstantial evidence that on the failure of the window clerks in out checks, unreported additional of court interviews Inspector form, 1412-A were included in the bank checks, to identify particular cop- Goodwin obtained microfilm same interviews identifying their own. ies of the Hilltop checks in the Station *3 Certain trial testimony refutes the accu- deposits for the five days question from racy of the government conclusion the seeks the North Carolina National Bank. Stan- to draw. With regard to the customers dard required an employee to presented who alleged the five checks to be initial the back of a check as he received it unreported, Edgar C. Butler remembered in paymént Therefore, for postage. all the that he had been served the defendant cheeky the bank deposits, including the over a year period, three but he could not five checks subject that are the of these recall, given time, length whether it charges, should have borne someone’s ini- was the defendant who had taken the tials on (See id.). the back. Inspector The question. checks in Henry V. Cashwell showed the copies microfilm of the checks could not recall that the defendant had ever to employees of the station. Each clerk waited on him. identified which checks bore his initials and therefore had been received him. More importantly, sample of the de-

Informed by the window clerks’ handwriting out of fendant’s taken initials, court identification of their Good- inspectors. But the win allocated among the checks the clerks present any expert handwriting testi- on duty on the days five By mony concerning the initials on the five simple subtraction he determined the re- unallocated checks. inspectors Postal also spective values of the elements of cash and took a fingerprint sample from the defend- checks composing receipts reported on ant; nonetheless, prosecution offered the 1412-A of each clerk on duty no testimony identifying defendant’s Therefore, five at issue. he also deter- fingerprints on any of the five checks. mined the elements of cash and checks in The trial testimony uncovered confusion the receipts of given the entire station for a regarding whether presence of a clerk’s day. The compare amounts, these the back of a check meant that denominated deposit,” “available for the particular clerk who had initialed the the amount actually deposited. Such was check had filled the customer’s order or the method employed by showing received the check. If a window clerk picture financial Hilltop Station lacked the necessary stock to fill a custom- for the five days that became the order, er’s he might exchange the eheck for counts three through seven of the indict- stock fill sufficient to the order. The result ment in this case. of this practice is that a report- sale be Since in the instance each of the ed on the form 1412-A of a clerk different deposits bank none of the six window clerks from the one whose initials are on the particular identified the check in issue as Two the clerks said that it was received by else, himself anyone or possible filled some of the orders amount of checks deposit available for paid for with the five unallocated checks. less than the amount of cheeks actually in might Clerk Ruff testified that she confuse the bank deposit for day by the exact the initials of the defendant and clerk W. G. unidentified, amount of unallocated (no relation). Swaim checks. Because government’s proof accepts Testimony as a further indicated that others verity that the 1412-A forms of the six as well as the order, window clerks defendant had an apparent are in it can suggest no other conclusion to remove cash from the bank than that defendant deposit. received and failed to report testimony of both the defend- five checks. The government seeks to sus- ant and Goodwin showed that on three of tain the conviction of the defendant solely five days either of two argued, al- of those checks. be mailed than the clerks other occasions, decide, we that such testimo- the other two do On deposit. bank clerk one other Stephens made the the defendant of W. G. ny either Swaim Finally, as the deposit. mailed the bank critical evidence inspector’s out, clerk W. G. points brief harmless, it might while be said them clerks six testified that Swaim depended conviction the drawer where could have had access shaky, we do testimony alone it would for the were remitted and checks the cash our this or base not decide daily deposit. testimony in order re- default clerks, W. G. uncertainty opinion. window from this There were six move Matthews, Keaton, Stephens, Dal- Swaim, contentions of defend The three at the trial. ton, All testified and Ruff. *4 First, as follows. be summarized question may ant that the five checks

All testified verdict; shortage did not bear the support does not up which make the the evidence six win- Of these respective second, their initials. is insufficient to the indictment who, with the defend- together dow clerks identify it did not charge a crime in that ant, to have had the ones shown only were report as an official re daily financial the only two the crimes to commit service; and, third, the postal the port of postal to identified the they were asked if inspector’s evi of the admissibility checks on the inspector their own initials contentions dence. The first two post office the credit deposited to is proper This a summarily disposed of. They testi- on the branch sufficiency to the pass upon us not case for their initials identify did so they fied that evidence, do not. United and we they but even did postal inspector, to the Mandel, 591 F.2d 1347 States identified for they many not how say 1979), grounds, banc on other overruled en any particular identify or inspector the indict (1979). think the We 602 F.2d 653 ques- ato responded W. Swaim G. sufficiently charges crime. ment checks,” and Ste- “various directed Moore, “a using the words question to a phens 1975). copies of checks.” of microfilm number in court their six identified None of the dissent, more dis is a Because there check, on a or even any single ques hearsay appropriate is cussion checks, except them and all of group of the evidence agreed that is panel tion. The not even were Stephens and W. G. Swaim other than a statement hearsay; is it was their they if had identified asked court testifying while the one made declarants postal inspector. to the initials on check prove the in evidence to at the trial offered two facts are foregoing, all of the From 801(c). FRE matter asserted. truth of the First, at all shortage no abundantly clear. argument. is not the That much hearsay statements proved was without objec attorney commenced defense Matthews, Dalton and Ruff. Keaton, trial court off he was cut tion when as the defendant The identification But, after that dissent. related shortage and the responsible one for the with the we issue respect, with take point, tenuously depends false records even more dissenting judge. hearsay. on the same attorney only intended Perhaps state- hearsay We base our respect with ground on some object Matthews, Keaton, Dalton and ments of with qualification Stephens because W. G. Ruff Swaim which the upon information respect to the “some” had identified did But this is conclusion. witness based checks for the or “a number of” record, apparent and it initials, even not shown bearing inspector could objection other record that this, of all was not sure as to W. G. Swaim any ground Equally If was fundamental forthcoming. have been reasons for con- all, sidering apparent it the more fundamen- Goodwin as approve order to ground hearsay. the evidence was the admission of tal his testi- mony government’s are found in the treated the brief true that the trial Nothing well as in the record. objection the information in the as one to record shows that Goodwin was offered as opinion, witness based his which an expert respect to which people it either from apparent but was not so post branch office initialed the checks incomplete objection or from evidence making up the bank In the only objection stated that this was the court, the brief filed in this have, have, might ought which could only concedes did have been made at that time. If a trial not testify respect as an to the interrupt and court wishes to rule on an here, argues crucial facts in incomplete objection while attorney he did not. it, stating think, then we grounds for objection there is more than apparent, one p. Brief 38. “The witness Goodwin appeal raise the ob- express his as to what apparent jections were at the time was, merely testified that interrupted by trial the government exhibits 35 court. of Evidence represented See Federal Rules Man- summary of the informa- *5 ual, (1975), Redden Saltzburg government Editorial tion found in exhibits 35-B Comment, 246, Explanatory p. through copies 1979 39-B and the microfilm Supplement, p. in de- deposited the station’s bank posits (Italics question.” for the dates in

The issue of whether Goodwin was added.) expert an witness was not raised at the case, p. (continuing). Brief 38 “In this Although trial. be that parts of (government exhibits Goodwin’s consisted of testimony conclu through 39) straightforward are sions properly by expert, drawn an those basis and the is are They evidence clear. here, parts are not in issue his critical testi replete with characterizations mony did require any expert knowledge they deceptive. conclusions nor are The only simple but by. arithmetic to come Re charts do complicated not contain calcula- fundamentals, duced its he testified that requiring expert testimony tions to show since six of people the seven with access to (Italics added.) their accuracy.” the money had told him handled cer Because Goodwin did not up tain checks which depos made the bank expert an ques to the facts in relation its the dates in question that the seventh here, hearsay testimony out his person must purloined be the one who of court statements the window clerks money and falsified his record. The proper was hearsay under FRE inadmissible rule as to when a witness testifies as an government exhibits 35 expert is Wigmore stated in VII on Evi were The government argues inadmissible. dence, (1978), 1917, Chadbourn Revision p. § admitting the evidence nevertheless 10, as follows: It harmless error. We do not think so. “... wherever inferences and conclusions went very to the heart of the can be drawn by jury as well as by case. say does not suffice to witness, superflu- window clerks were available for examina ” (Italics ous .... original.) in tion by the defendant on whether or not Because the critical conclusions which Good- making up the checks were on win asked the jury to draw were as well The burden was on him, drawn by them by this, he did not testify prove and it did not an expert respect. this testimony. admissible as an witness under Rule 702. That expert the district judgment of Accordingly, the witnesses, Rule, is remanded defining expert the case is vacated and crabbed adopt any for a trial.2 construction new narrow term, its but included within intend AND REMANDED. VACATED who, by training ment witness can, helpful experience, opinion, his RUSSELL, Judge, dis- DONALD resolving the issues. United jury senting: Johnson, 1978) F.2d v. Cir. majority concludes the conviction 1347; Collins, (9th United States admission because of the must be reversed 561; R. 1977) Soo Line Co. prepared by exhibits in evidence of certain 1977) 547 F.2d Corp., Fruehauf rec- reconstructing the postal inspector, met that test. He had 1365. This witness deposits of receipts and bank all ords of special train opinion requiring an prepared at the substation for employees postal That ing reconstructing bank records. days. this was five relevant When exhibit the defi bring was him within sufficient began an offered the defendant expert After qualify nition of an witness. Court, making a District without witness, inspec ing expert as an time, stated the defendant ruling at which, opinion, give tor was his entitled to cross-exam- would have an case, the chal represented by this effect, was fol- the District Court ine. In exhibits, this would be true even lenged by Rule practice suggested lowing have been part opinion may This Rule con- Federal Rules Evidence. not in evi which was based give witness templates that an dence, opinion provided only that which, assuming opinion, normally relied on based on information witness, permitted, will be an reaching witness in ruling admissibility a final reserving used such a case. The dur- after cross-examination exhibits, developing his inspector in expected which the defendant would be ing *6 nor expressive opinion, accords with of his opin- of develop his line of accounting practice in the context mal or, case, opinion expressed an ion as this expressly is the procedure this case. This was what in the form of an exhibit. This of 703, Federal Rules Rule authorized in case, assuming District did in this Court Genser, (3d v. Cir. Evidence. States United expert was an as it did that 292; v. Gold 1978) United States 582 F.2d contemplation of an ex- within the 1244; en, 1976) F.2d Cir. 532 Rule 702 of the pert witness as defined in Morrison, 1976) F.2d (1st v. is, course, of Federal Rules of Evidence. Brown, 1089; cf., however, v. United States procedure permits opinion true that this 1977) 1194. And this might it jury, to be before the even all the data particularly so when cross-examination, ruled, that later after based, be tested and opinion expert of was for some inquired on cross-examination. Scholz into This was reason inadmissible. understood Wallace, 1979) Homes, (10th Cir. Inc. but, of Rule drafters F.2d 860. Notes, was Advisory it stated following the regarded as a reason for not rules, the exhibits by these Measured contemplated under the new under the admissible manifestly here were Redden, Federal Saltzburg Rule. & See They repre- of Evidence. Federal Rules Manual, (2d Ed.1977). Rules of Evidence of an sented the ultimate said, by his then, who, we demonstrated question, view it have The critical as I ability to recon- inspector qualified training experience was whether the and respect testifying exposi- legal the facts 2. We not take issue with the do dissent; just we think the record reveals it when tion in the that dissent fact been based that Goodwin have otherwise. must inquiries His use of die bank accounts. to verify themselves his reconcili- clerks STATES of UNITED America Albert recognized pro- appropriate

ation is Rodriguez, Jr., Plaintiffs-Appellees, prop- The District Court thus acted cedure. evidence, the exhibits erly receiving MEEKS, George W. As President of St. deferring action until the defend- any final George Company, Defendant-Appellant. ant had an to cross-exam- had to review ine. If the defendant wished No. 80-2370. witness the various Appeals, United States Court them, opportunity was avail- that Fifth Circuit. able him on It would cross-examination. Unit A

have been an matter for the defendant easy go through have had the witness each Feb. during the check received clerk fact he did days in that

pursue cross-examination is

compelling accepted verification accuracy expert witness’ Antonio, Tex., P. for Guyer, Ronald San of the checks which had been included in defendant-appellant. deposits days, clerks’ five critical wish to cross-examine the wit- Brookhart, L. Paup, Michael Charles E. Moreover, ness point. must be Bush, Attys., Ferguson, Richard N. M. Carr remembered that all the clerks were wit- Gen., Chief, Division, Atty. Asst. Tax U. S. nesses, available for cross-examination Justice, C., Dept, Washington, D. thus defendant. The exhibits carried plaintiffs-appellees. reliability clearest indicia of accura- CLARK, REAVLEY, Before CHARLES cy and were admissible in evidence. The WILLIAMS, Judges. defendant, cross-examination, developed slightest nothing detracted PER CURIAM: a finding of such accuracy reliability. The order adjudging appellant George W. The admission of the exhibits the Dis- Meeks in contempt of court for failure to trict plainly Court was authorized under the produce records of the George Corpora- St. Evidence, Federal Rules of as identified explain or to why produce he cannot above. *7 them, ordering his confinement until he Since there error was no in the admission purges himself of contempt is VACATED. into evidence of prepared by the exhibits Vacating this proceed- order does not bar inspector, judgment of con- ings undertaken appellant to determine if my opinion affirmed, viction in should be adjudged should be guilty of criminal con- and I dissent accordingly reversal tempt and confined a fixed term for of such conviction. obey failure to the order of the court

produce finding Any the records. of con- tempt, however, grounded upon cannot be an assertion of privilege against self-in- crimination Meeks when asked to ex- plain why produce cannot now such rec- ords.

Full opinion will be submitted later. Judge Reavley dissents.

ORDER VACATED. issued, Cir., 642 F.2d 733.

Opinion 5th