General - Miscellaneous Research Vol. 3 of 3

    942 647 FEDERAL REPORTER, 2d SERIES 

bud incipient antitrust violations by remoy. 
ing opportunity or temptation for such vi. 
lations and this purpose would not be wel]. 

TRW, INC., and Horace A. 

Shepard, Petitioners,   Coa   

              
            

Vv. 

The FEDERAL TRADE COMMISSION, 

Respondent. 

No. 79-7209. 

Court of Appeals, 
Ninth | Circuit. 

Argued and Submitted Feb. 9, 1981. 
Decided June 8, 1981. 

Corporation and its director petitioned 
for review of final order of Federal Trade 
Commission requiring them to cease and 
desist from violating section of the Clayton 
Act proscribing interlocking directorates 
among competing corporations. The Court 
of Appeals, Sneed, Circuit Judge, held that: 
(1) FTC, which viewed “competitors” as 

companies that vie for business of same 

prospective purchasers, employed proper le- 

gal standard for determining competition; 

(2) substantial evidence supported FTC's 

finding that corporation and another corpo- 

ration were “competitors” for purposes of 

Clayton Act section proscribing interlocking 
directorates; (3) de minimis exception is not 

contemplated by such section; (4) section 

proscribing interlocking directorates prohib- 

its both corporations from choosing and 

natural persons from serving as directors in 

violation of its substantive requirements; 

but (5) where both corporation and director 

had provided assurances of future compli- 
ance and their sincerity and good faith were 

not questioned, and where corporation had 

implemented compliance program, FTC 

abused its discretion in issuing cease and 
desist orders. 

Affirmed in part and reversed in part. 

1. Monopolies 20.5 

Purpose of Clayton Act section which 

prohibits interlocking directorates among 

competing corporations was to nip in the 

served by requiring proof of high cross elas. 
ticity of demand between competing prod- 
ucts or low-friction interchangeability of 
use in determining whether requisite corpo- 
rate competition exists. Clayton Act, § 8, 
15 U.S.C.A. § 19. 

2. Monopolies 20.5 

To further purpose of Clayton Act sec- 
tion which prohibits interlocking director- 
ates when corporations involved are com- 
petitors, there should be reliance not only 
on degree of actual interchangeability of 
use between products of alleged competi- 
tors, but also on evidence concerning extent 
to which industry and its customers recog- 
nize products as separate or competing, ex- 

tent to which production techniques for 

products are similar, and extent to which 

products can be said to have distinctive 

customers. Clayton Act, §§ 8, 1l(c), 15 

U.S.C.A. §§ 19, 21(c). 

3. Monopolies ¢=20.5 

Federal Trade Commission, which 

viewed “competitors” as companies that vie 

for business of same prospective purchasers, 

even if products they offer are sufficiently 

dissimilar to preclude buyer from having to 

chose a suitable product from each, em- 

ployed proper legal standard in determining 

competition for purposes of Clayton Act 

section which proscribes interlocking di- 

rectorates between corporations that are 

competitors. Clayton Act, § 8, 15 U.S.C.A. 
§ 19. 

4. Monopolies =24(4) 

Substantial evidence supported Federal 

Trade Commission’s finding that two corpo- 
rations were “competitors” for purposes of 
Clayton Act section which proscribes inter- 
locking directorates in competing corpora- 

tions, even though in almost all cases only 

one of the corporations was able to meet 

customer’s requirements. Clayton Act, § 8, 
15 U.S.C.A. § 19.   

  

 



  

  

TRW, INC. v. F. T. C. 943 
Cite as 647 F.2d 942 (1981) 

5. Monopolies 20.5 

Congress, by prohibiting interlocks be- 

tween companies as to which elimination of 

competition would constitute a violation of 
any of the provisions of any of the antitrust 

laws, meant to reach interlocks between 

competitors without regard to amount of 

commerce that might be restrained, and 

thus a de minimus exception is not contem- 

plated by Clayton Act section which pro- 

scribes interlocutory directorates between 
corporations that are competitors. Clayton 

Act, § 8,15 U.S.C.A. § 19. 

6. Monopolies ¢=20.5 

Clayton Act, which states that no per- 
son at the same time shall be a director in 

corporations that are competitors, when 
read in conjunction with another section 

which requires the Federal Trade Commis- 

sion, upon finding a violation, to issue an 

order requiring “such person” to cease and 

desist from such violations and rid itself of 

director, prohibits both corporations from 

choosing and natural persons from serving 

as directors in violation of Clayton Act's 
prohibition against interlocking director- 

ates. Clayton Act, §§ 8, 11, 11(b), 15 U.S. 

C.A. §§ 19, 21, 21(b). 

7. Monopolies &=20.5 

Although most instances of competition 
between corporations for patronage of par- 

ticular purchasers occurred between No- 
vember 7, 1974 and November 1975, Federal 

Trade Commission’s finding that director 
was ineligible to serve prior to November 7, 
1974, was supported by substantial evi- 
dence, which indicated that both companies 

involved had competed in at least one in- 
stance for business of same prospective pur- 

chaser, and thus grace period provided by 

Clayton Act section which prohibits certain 

interlocking directorates among competing 

companies expired before director’s depar- 

ture from board of competing corporation. 

Clayton Act, § 8, 15 U.S.C.A. § 19. 

8. Estoppel &=62.1 

Before equitable estoppel may be ap- 

plied against the government, party to be 

estopped must know the facts, party must 

intend that his conduct be acted on, or must 

so act that party asserting estoppel has 

right to believe it is so intended, party 
asserting estoppel must have been ignorant 

of facts, and party asserting estoppel must 

reasonably rely on other’s conduct to his 
substantial injury. 

9. Estoppel ¢=62.1 

Government action upon which equita- 
ble estoppel is to be based must amount to 

affirmative misconduct, which is something 

more than mere negligence. 

10. Estoppel ¢=62.2(4) 

Even assuming that Federal Trade 

Commission staff’s assurance to corporation 

and its director that they would be notified 
before proposed complaint concerning inter- 

locking directorates was forwarded to FTC 

was unwise and unauthorized, case was not 

appropriate one in which to apply estoppel 

against government where there was no 

indication that corporation and director suf- 
fered substantial prejudice, and where cor- 

poration and director had no right in any 

event to precomplaint presentation. Clay- 

ton Act, § 8, 15 US.C.A. § 19. 

11. Monopolies &=24(3) 

Corporation and its director, who had 

no right to present argument after Federal 

Trade Commission voted to issue cornplaint 
but before service of complaint even prior 

to FTC’s adoption of its interpretation of 

“issuance,” were not “adversely affected” 

under Freedom of Information Act by al- 

leged new interpretation, which precluded 

their attempt to contact FTC Chairman, 

and thus court did not have to decide 

whether FTC's interpretation of “issuance” 
was matter that had to be published before 
it could be lawfully applied to corporation 
and director. Rules of Practice for Federal 

Trade Commission, Pt. 3, § 3.11(a), 15 U.S. 

C.A. foll. § 45; 5 US.C.A. § 552(a)1). 

12. Constitutional Law &=240(1), 296(1) 

Monopolies &24(3) 

Whether to grant opportunity for in- 

formal disposition of complaint is matter 

within Federal Trade Commission's discre- 

tion, and thus FTC’s new interpretation of 

its rule of practice forbidding ex parte con- 

  

                            
  

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944 

tacts with Commissioners following “is- 
suance” of the complaint as precluding cor- 
poration and director’s contact with FTC 
Chairman after vote directing issuance was 

taken did not deny corporation and director 
due process or equal protection since prior 
practice was not a “rule” to which FTC was 

constitutionally compelled to adhere. U.S. 
C.A.Const. Amend. 5; Clayton Act, § 8, 15 

US.C.A. § 19. 

13. Monopolies &=24(17) 

Even if Federal Trade Commission vio- 

lated one of its own rules in denying corpo- 
ration and director opportunity for a pre- 

complaint presentation concerning com- 

plaint that they had violated Clayton Act 
section prohibiting certain interlocking di- 

rectorates, corporation and director, who re- 

ceived full and procedurally correct adjudi- 
cative hearing, and who were not preju- 

diced, were not entitled to have FTC's order 

vacated. Clayton Act, § 8, 15 U.S.C.A. § 19. 

14. Monopolies &=24(4) 

Where director continued to serve on 

board of corporation, which had interests in 

wide variety of commercial fields, and 

where in past director had been popular 

target of other corporations seeking outside 
directors, corporation and director failed to 
satisfy their heavy burden of proof that 
case charging violations of Clayton Act sec- 
tion prohibiting certain interlocking di- 
rectorates was moot even though director 

had left his post as director of outside cor- 
poration before complaint was issued, other 
corporation was no longer competitor, and 

corporation and director had both provided 
sworn assurances that they would avoid of- 
fensive directorships in the future. Clayton 

Act, § 8,15 U.S.C.A. § 19. 

15. Monopolies ¢=24(7) 

To" be entitled to prospective relief for 

violation of Clayton Act section proscribing 

certain interlocking directorates, FTC com- 

+ plaint counsel must show existence of some 

cognizable danger of recurrent violation 

and bears burden of showing need for in- 

* Honorable Bruce R. Thompson, Senior United 
States District Judge for the District of Nevada, 
sitting by designation. 

647 FEDERAL REPORTER, 2d SERIES 

junctive relief. Clayton Act, § 8, 15 U.S. 
C.A. § 19. 

16. Monopolies &=24(15) 

Where violation of Clayton Act section 

proscribing interlocking directors between 
competing corporations was not egregious, 

director discontinued outside directorship 
before being apprised of FTC investigation, 

both director and corporation had provided 

assurances of future compliance and their 

sincerity and good faith were not in ques- 

tion, and corporation had implemented so- 

phisticated director review procedures to 

ensure compliance, Federal Trade Commis- 

sion abused its discretion in issuing cease 

and desist orders against corporation and 
director. Clayton Act, § 8, 15 U.S.C.A. 
§ 19. 

Robert H. Rawson, Jr., Jones, Day, Reav- 

is & Pogue, Cleveland, Ohio, for petitioners. 

Charles David Nelson, Washington, D. C., 

for respondent. 

On Petition for Review of an Order of 

the Federal Trade Commission. 

Before TRASK and SNEED, Circuit 

Judges, and THOMPSON *, District Judge. 

SNEED, Circuit Judge: 

TRW, Inc., and Horace A. Shepard peti- 

tion for review of a final order of the 

Federal Trade Commission requiring them 
to cease and desist from violating section 8 
of the Clayton Act, 15 U.S.C. § 19, proscrib- 

ing interlocking directorates. Our jurisdic- 
tion is authorized by section 11(c) of the 

Clayton Act, 15 U.S.C. § 21(c). We affirm 

the Commission’s finding of a section 8 vio- 

lation as to both petitioners and reject the 
various defenses of ‘the petitioners. How- 

- ever, because the Commission erred in as- 

sessing the need for prospective relief, we 
set aside the cease and desist orders.   

    

 



  

  

TRW, INC. v. F. T. C. | 945 
Cite as 647 F.2d 942 (1981) 

I 

STATEMENT OF THE CASE 

Horace Shepard has been associated with 

TRW since 1951 and served as chief execu- 

tive officer from 1969 to 1977. He joined 

TRW'’s board in 1957 and is eligible to re- 

main on the board until 1984 on the date of 

his seventy-second birthday. On March 20, 

1971, Shepard also was elected to the board 

of the Addressograph-Multigraph Corp. (A— 

M). He served on the A-M board until 

November 6, 1975. During this period 

Shepard maintained his position as a TRW 

director. 

On June 17, 1976, the Federal Trade 

Commission voted to issue a complaint 

against TRW, Shepard, and A-M, charging 

them with violations of section 8 of the 

Clayton Act and section 5(a)(1) of the Fed- 

eral Trade Commission Act, 156 U.S.C. § 45 

(a)(1).! Section 8 provides, in relevant part: 

No person at the same time shall be a 

director in any two or more corporations, 

any one of which has capital, surplus, and 

undivided profits aggregating more than 

$1,000,000, engaged in whole or in part in 

commerce, . . . if such corporations are or 

shall have been theretofore, by virtue of 

their business and location of operation, 

competitors, so that the elimination of 

competition by agreement between them 

would constitute a violation of any of the 

provisions of any of the antitrust laws. 

The complaint was referred to an adminis- 

trative law judge (ALJ), who found that 

1. The Commission affirmed the finding of the 

administrative law judge that petitioners’ viola- 

tion of section 8 of the Clayton Act also consti- 

tuted a violation of section 5 of the FTC Act. 

In re TRW, Inc., 93 F.T.C. 325, 386 n.22 (1979). 

Because we affirm the Commission’s finding of 

a section 8 violation as to both petitioners, we 

need not decide whether an interlock that does 

not violate section 8 may nonetheless violate 

section 5. .... 

2. The Initial Decision of the ALJ appears at 93 

F.T.C. 326-72 (1979). 

3. Section 8 establishes three other precondi- 

tions to its bar against interlocking director- 

ates. First, at least one of the corporations 

must have “capital, surplus, and undivided as- 

sets aggregating more than $1,000,000.” 

Second, the corporations must be “engaged in 

Shepard's simultaneous membership on the 

boards of TRW and A-M during the period 

January 1, 1973, to November 6, 1975, vio- 

lated section 8. Prior to the ALJ's decision, 

A-M had removed itself from the case by 

entering into a consent order with the Com- 

mission. The ALJ issued a cease and desist 

order against Shepard, but declined to issue 

one against TRW, principally on the ground 

that the company had taken no active role 

in sanctioning Shepard’s assumption of the 

A-M directorship.2 On appeal the Commis- 

sion affirmed the issuance of an order 

against Shepard, but reversed the ALJ and 

also issued an order against TRW, enjoining 

- it from further violations of section 8 and 

requiring it to file annual compliance re- 

ports. In re TRW, Inc, 93 F.T.C. 325 

(1979). Both Shepard and TRW have peti- 

tioned this court for review. The central 

issue, and the one to which we turn initial- 

ly, is whether the Commission’s finding that 

TRW and A-M were “competitors” for pur- 

poses of section 8 is correct. 

IL. 

THE MEANING Of “COMPETITORS” 

Section 8 of the Clayton Act proscribes 

interlocking directorates only between cor- 

porations that are “competitors”? Petition- 

ers argue that TRW and A-M have never 

been actual competitors and that the Com- 

mission at best found the companies to be 

potential competitors, a finding the peti- 

tioners argue is insufficient to support a 

whole or in part in commerce.” Third, it must 

be possible for an agreement between the cor- 

porations eliminating competition between 

them to violate “any of the provisions of any of 

the antitrust laws.” None of these require- 

ments is at issue on appeal. 

The FTC’s complaint counsel argued before 

both the ALJ and the Commission that the 

proviso of section 8, which reads “so that the 

elimination of competition by agreement be- 

tween them would constitute a violation of any 

of the provisions of any of the antitrust laws,” 

is not really a separate requirement. Instead, it 

was argued that this proviso defines what is 

meant by “competitors.” Both the ALJ and the 

Commission rejected this interpretation, and it 

has not been argued by either party on appeal. 

  
    

            
  

  

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946 

section 8 violation. The respondent main- 

tains that “the Commission made no finding 
concerning potential competition but rather 

based its decision upon record evidence 
showing actual competition between TRW 

and A-M.” We believe that the respondent 

correctly characterizes the Commission’s 

opinion. Therefore, we confront two ques- 

tions: (1) did the Commission apply the 

correct legal standard for determining actu- 
al competition; and (2) if so, is the Com- 

mission’s finding of actual competition sup- 

ported by substantial evidence® See 15 
U.S.C. § 21(c). We hold that both questions 

should be answered affirmatively. TRW 
and A-M were actual competitors for pur- 
poses of section 8. 

A. The Standard for Determining Com- 
petition 

The meaning of “competitors” for pur- 

poses of section 8 is a question of first 

impression in this court.® No reported deci- 
sion of which we are aware has directly 

addressed the question, primarily because 

competition has been stipulated in the few 

reported cases. In its opinion the Commis- 

sion never expressly formulated a “test” for 

determining whether two corporations are 
competitors. However, it did emphasize the 
following factors: (1) the products market- 

ed by TRW and A-M performed the same 
generic functions (point-of-sale credit au- 
thorization and electronic funds transfer), 

93 F.T.C. at 380-81; (2) the two companies 

“vied for the business of the same purchas- 

ers,” id. at 381; (3) they “attempt[ed] to 

4. Accordingly, we express no opinion about 

whether section 8 encompasses interlocking di- 

rectorates between corporations that are mere- 

ly potential competitors. 

5. Substantial evidence is “such relevant evi- 

dence as a reasonable mind might accept as 
adequate to support a conclusion.” Consolo v. 

Federal Maritime Commission, 383 U:S. 607, 

620, 86 S.Ct. 1018,1026, 16 L.Ed.2d 131 (1966). 
See Equifax, Inc. v. FTC, 618 F.2d 63, 64 (Sth 

Cir. 1980). ‘ ‘This is something less than the 

weight of the evidence, and the possibility of 

drawing two inconsistent conclusions from the 

evidence does not prevent an administrative 
agency's finding from being supported by sub- 

stantial evidence.”” United States v. Wharton, 

514 F.2d 406, 409 n.3 (9th Cir. 1975) (quoting 

647 FEDERAL REPORTER, 2d SERIES 

convince” the same purchasers that their 

products best suited the purchasers’ specific 

needs, id. at 381-82; and (4) they attempted 

or offered to modify their existing equip- 
ment to meet purchaser needs, id. at 383. 
The Commission acknowledged, however, 

that TRW and A-M did not make common 
sales to the same purchasers. Thus, in the 

eyes of the Commission, “competitors” are 
companies that vie for the business of the 

same prospective purchasers, even if the 

products they offer, unless modified, are 
sufficiently dissimilar to preclude a single 

purchaser from having a choice of a‘ suit- 

able product from each. 

The petitioners argue that substantially 
greater similarity between the competing 

products is required. “Competitors” make 
common sales to the same purchaser or 

class of purchasers; their products general- 

ly meet similar needs and principally differ 

only in price or quality. Accordingly, they 

argue that the question should be judged by 

the standards of cross-elasticity of demand 
and reasonable interchangeability of use 

commonly employed in defining markets for 

purposes of the Sherman Act and Section 7 

of the Clayton Act. See, e. g., Brown Shoe 
Co. v. United States, 370 U.S. 294, 325, 82 

S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962); Twin 
City SportService, Inc. v. Charles O. Finley 
& Co., 512 F.2d 1264, 1271 (9th Cir. 1975). 

[1] Statutory language should be con- 

strued in accordance with its underlying 
purpose. The purpose of section 8 was “to 

nip in the bud incipient antitrust violations 

Consolo, supra, 383 U.S. at 620, 86 S.Ct. at 

1026). 

6. In Las Vegas Sun v. Summa Corp., 610 F.2d 
614 (9th Cir. 1979), cert. denied, 447 U.S. 906, 
100 S.Ct. 2988, 64 L.Ed.2d 854 (1980), we held 
that corporations were not competitors for pur- 

poses of section 8 when they were all owned or 

controlled by the same man. However, there 

was no need to develop legal standards for 

defining “competitors” for section 8 purposes. 

Instead, reliance was placed on an earlier hold- 

ing to the effect that the corporations were not 

competitors for purposes of applying the in- 
traenterprise conspiracy doctrine of § 1 of the 
Sherman Act, 15 U.S.C. § 1 (1976). See 610 

F.2d at 617-18.  



   

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TRW, INC. v. F. T. C. 947 

  

Cite as 647 F.2d 942 (1981) 

by removing the opportunity or temptation 

for such violations through interlocking di- 
rectorates.” United States v. Crocker Na- 

tional Corp., 422 F.Supp. 686, 703 (N.D.Cal. 
1976), appeal docketed, No. 76-3614 (9th 

Cir. Dec. 10, 1976). See United States v. 
Sears, Roebuck & Co., 111 F.Supp. 614, 616 

(S.D.N.Y.1953). The Commission is right in 

asserting that this purpose would not be 

well served by requiring proof of high 

cross-elasticity of demand between compet- 

ing products or low-friction interchangea- 

bility of use. Two reasons support this 

conclusion. 

First, market definition for Sherman Act 

and Clayton Act, section 7, purposes, for 

which these tests were designed, is used to 

establish “the locus of competition, within 

which the anticompetitive effects” of a 

merger or practice are to be judged. 

Brown Shoe Co., supra, 370 U.S. at 324, 82 

S.Ct. at 1523. See Kaplan v. Burroughs 
Corp., 611 F.2d 286, 291-92 (9th Cir. 1979), 
cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 

L.Ed.2d 1116 (1980). Section 8, on the other 

hand, does not require that such a “locus” 

be established. Only two alleged “competi- 
tors” are involved and proof that the inter- 
lock has an actual anticompetitive effect is 

not required. Accord, Protectoseal Co. v. 

Barancik, 484 F.2d 585, 589 (7th Cir. 1973). 

[2] Second, the petitioner's recom- 

mended standard is too restrictive. To fur- 

ther the purpose of Section 8 there should 
be reliance not only on the degree of actual 

interchangeability of use between the prod- 

ucts of alleged competitors, but also on 
evidence concerning (1) the extent to which 

the industry and its customers recognize the 

products as separate or competing; (2) the 

extent to which production techniques for 

the products are similar; and (3) the extent 

to which the products can be said to have 

distinctive customers. E. g., Equifax, Inc. 

7. Cross-elasticity of demand measures the re- 

sponsiveness of demand for one product to 

changes in the price of another product. Al- 

though measuring cross-elasticities of demand 

is always difficult, it must be particularly so in 

a developing industry such as the one involved 

here where the market is still small, where 

product variation among firms is just begin- 

ning, and where customer needs are far from 

v. FTC, 618 F.2d 63, 66-67 (9th Cir. 1980); 

Kaplan, supra, 611 F.2d at 292; Greyhound 

Computer Corp. v. IBM, 559 F.2d 488, 493 
(9th Cir. 1977), cert. denied, 434 U.S. 1040, 

98 S.Ct. 782, 54 L.Ed.2d 790 (1978); Twin 

City SportService, supra, 512 F.2d at 1271. 

Only by doing so can we be sure our criteria 

“are not to be used to obscure competition 

but to ‘recognize competition where, in fact, 

competition exists.” United States v. Con- 

tinental Can Co., 378 U.S. 441, 453, 84 S.Ct. 

1738, 1745, 12 L.Ed.2d 953 (1964) (quoting 

Brown Shoe, supra, 370 U.S. at 326, 82 S.Ct. 

at 1524). 

" [3] Our approach may render more dif- 

ficult the process of screening potential di- 

rectors for compliance with section 8. The 

alternative, however, entails infidelity to 

the purposes of the statute. Moreover, 

while the tests of cross-elasticity of demand 

and interchangeability of use may yield re- 

alistic results in well-established industries, 

they are much less useful in situations such 

as this case presents.” The Commission, we 
conclude, employed the proper legal stan- 

dard for determining competition. 

B. The Evidence 

[4] Turning to whether there is substan- 
tial evidence to support the Commission’s 

findings, the products and services of TRW 

and A-M relevant to this litigation are set 

forth in the Appendix to this opinion. The 

Commission found that TRW and A-M 

were competitors in the business of manu- 

facturing and selling equipment used for 

point-of-sale credit authorization and elec- 

tronic funds transfer (EFT) between finan- 

cial institutions. 

During the complaint period the market- 
place for this type of equipment was in its 

infancy. Most of the technology was exper- 

standardized. Cross-elasticity of demand in 

such industries may be immeasurable, but this 

does not mean that competitors are non- 

existent. In addition, we have not been provid- 

ed with a means of determining when cross- 

elasticity of demand between two products be- 

comes so small that they cannot be characteriz- 

ed as competitive. The problem, again, is par- 

ticularly acute in developing industries. 

  

   
  

  

        
    

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948 

imental or in a developing state. Although 
potential customers had reasonably firm 

ideas about their needs, they were not 

aware of what equipment or which compa- 

nies might best satisfy them. Accordingly, 

in most instances both TRW and A-M were 

solicited as two of many companies investi- 

gated by prospective purchasers. General- 

ly, both TRW and A-M responded with 

presentations, and in some cases representa- 

tives from the companies suggested that 

modifications to satisfy specific customer 
needs might be possible. 

It is true, as petitioners repeatedly em- 
phasize, that in almost all cases, only one of 

-the companies was able to meet the custom- 

er’s requirements. This is not dispositive, 
however. In a developing industry in 

which product variation is just beginning 

and customer needs are not yet standard- 

ized, it is unlikely that two companies will 
produce products nearly equivalent in their 

ability to satisfy the needs of a range of 

customers. Nonetheless, these companies 

compete. Their competition consists of the 

struggle to obtain the patronage of the 

same prospective customers, accompanied 

by representations of a willingness to modi- 

fy their respective products. Competition 

also consists of efforts to make a sale, even 

if neither succeeds in persuading the buyer 

to purchase. It was in this manner that 

TRW and A-M competed. Their willing- 
ness to respond to requests regarding credit 

verification and EFT systems, and in many 

instances aggressively to pursue the same 

prospective purchaser, indicates that nei- 

ther company perceived the range of com- 
petitive possibilities in terms as narrow as 
those advanced by petitioners. 

[5] Petitioners argue that even if TRW 
and A-M can be considered competitors, the 

amount of actual competition between them 
was de minimis, either in absolute dollar 

amounts or as a percentage of total sales 

revenue for each company, and thus outside 

the proscription of section 8.8 The statute 

contains nothing that suggests a require- 

8. The Commission did not decide whether the 
statute permits a de minimis defense. Instead, 

it concluded that the companies’ competitive 

647 FEDERAL REPORTER, 2d SERIES 

ment of some substantial quantum of com- 

petition. Because there exist per se viola- 

tions of the antitrust laws, see, e. g., United 

States v. Socony-Vacuum Oil Co., 310 U.S. 
150, 221-23, 60 S.Ct. 811, 843-44, 84 L.Ed. 
1129 (1940), Congress, by prohibiting inter- 

locks between companies as to which “elimi- 
nation of competition between them would 

constitute a violation of any of the provi- 
sions of any of the antitrust laws” (empha- 
sis added), plainly meant to reach interlocks 
between competitors without regard to the 

amount of commerce that might be re- 

strained. See United States v. Crocker Na- 

~ tional Corp., supra, 422 F.Supp. at 703; 

United States v. Sears, Roebuck & Co., su- 

pra, 111 F.Supp. at 619-21. Section 8 was 
designed to prevent restraints on competi- 

tion before they materialized by outlawing 

a particular practice thought to facilitate 

such restraints. Congress undoubtedly was 

as concerned with restraints that stop the 

growth of competition at a low level as it 

was with restraints affecting substantial 

segments of commerce. 

Therefore, on the facts of this case we 

hold that there was substantial evidence to 

support the Commission’s finding that TRW 
and A-M were “competitors” for the pur- 
poses of section 8. We also hold that a de 

minimis exception is not contemplated by 

that section. 

III. 

THE PETITIONERS’ DEFENSES 

Shepard and TRW, either individually or 
jointly, raise four additional objections to 

the Commission’s finding of a violation of 

section 8. We find none of them per- 
suasive. We shall address each separately. 

A. Applicability of Section 8 to Corpora- 
tions 

[6] Section 8 states, in pertinent part, 

that “[n]o person at the same time shall be 

a director in any two or more corporations 

..” TRW argues from this language 

sales were not de minimis in amount. 93 

F.T.C. at 385-86.   

  

 



  

"TRW, INC. v. F. T. C. 949. 
Cite as 647 F.2d 942 (1981) 

that section 8 only proscribes conduct by 
the individual director and not by the corpo- 
rations on whose boards the director 

serves.” The Commission maintains that 

section 8 must be read in pari materia with 

section 11 of the Act, 15 U.S.C. § 21(b), 

which requires the Commission, upon find- 

ing a violation, to issue “an order requiring 

such person to cease and desist from such 

violations, and . .. rid itself of the director 

chosen contrary to the provisions of” section 
8. (Emphasis added.) TRW explains this 

language by pointing out that section 8, as 

originally enacted, explicitly prohibited 

banking corporations from having interlock- 

ing directors. See 38 Stat. 733 (1914). This - 

language was subsequently eliminated, 

Banking Act of 1935, Pub. L. No. 305, § 329, 

49 Stat. 717-18, and the language of section 

11 is merely a remainder of that original 
provision covering banking corporations. 

We find persuasive the reasoning of the 
only other court of appeals to decide this 

question. In SCM Corp. v. FTC, 565 F.2d 

807, 810-11 (2d Cir. 1977), cert. denied, — 

U.S. , 101 S.Ct. 80, 66 L.Ed.2d 23 
(1980), the Second Circuit rejected argu- 

ments identical to those presented by TRW 
and held that section 8 properly applies to 

corporations. Accord, Jicarilla Apache 
Tribe v. Supron Energy Corp., 479 F.Supp. 
536, 544 (D.N.M.1979); United States v. 

Sears, Roebuck & Co., 165 F.Supp. 356 (S.D. 

N.Y.1958). The Second Circuit's reading of 

the legislative history convinced it that the 
language of section 11 was not merely “a 

meaningless vestige of an earlier version of 

the statute.” 565 F.2d at 811. We agree. 

Read in conjunction with section 11, section 

8 prohibits corporations from choosing, and 

natural persons from serving as, directors in 

violation of section 8's substantive require- 

ments}? 

9. In United States v. W. T. Grant Co., 345 U.S. 

629, 634 n. 9, 73 S.Ct. 894, 898, n.9, 97 L.Ed. 
1303 (1953), the Supreme Court expressly re- 

served judgment on the question “whether cor- 

porations may violate Section 8 or, for other 

reasons, be enjoined under the statute.” 

10. TRW maintains that if § 11 is given “sub- 
stantive,” as opposed to “procedural,” weight 

B. The Statutory Grace Period 

[7] Petitioners fare no better with re- 

spect to their second objection. The last 

paragraph of section 8 provides that if a 

person is eligible to become a director at the 
time he is elected, 

his eligibility to act in such capacity shall 
not be affected and he shall not become 

or be deemed amenable to any of the 

provisions hereof by reason of any change 

in the affairs of ... [the] corporation . .. 
until the expiration of one year from the 

date of his election or employment. 

The Commission interpreted this provision 

to establish a “grace” period consisting of 

one year following the date of the director’s 

lawful election next preceding the date lia- 

bility first attaches. 93 F.T.C. at 383-85. 

The Commission at oral argument before 

this court reasoned that TRW and A-M 

became competitors in May 1973 when A-M 

announced the marketing of its AMCAT 

product. See Paragraph 2.a., Appendix. 

Shepard was thereafter ineligible to serve 

simultaneously on both boards. Liability 
first attached on that date. Therefore, the 

next preceding election of Shepard to either 

board was the November 1972 A-M elec- 

tion. The grace period thus extended from 

that date until November 1973. Since the 

violation continued beyond November 1973, 
the allowance of a grace period does not aid 

the petitioners. : 

The petitioners appear not to challenge 

the Commission’s interpretation of the 

grace period. Rather they contend that the 

Commission did not establish that Shepard 

was ineligible to serve as an A-M director 

on November 7, 1974, the date of his last 

election to the A-M board and one year 

prior to his departure from that board. As 

a result, the petitioners insist no violation 

occurred beyond the grace period. We ac- 

it permits only an order requiring the corpora- 

tion to “rid itself” of the offending director. It 
does not authorize an injunction of future vio- 

lations. This argument ignores the language of 

section 11 also authorizing “an order requiring 
such person to cease and desist from such 

violations.” 15 U.S.C. § 21(b) (1976).   
    

              
  

                    
   



  

    

    
  

950 

knowledge that under our view of the rec- 

ord most instances of competition for the 

patronage of particular purchasers occurred 

between November 7, 1974, and November 

7, 1975. However, we conclude that the 

Commissions finding that Shepard was in- 

eligible to serve prior to November 7, 1974, 

is supported by substantial evidence. Prior 

to that date, both companies offered for 

sale the products described in the Appendix 

and, in at least one instance, competed for 

the business of the same prospective pur- 

chaser! Therefore, the next preceding 

election to the A-M board was on Novem- 

ber 6, 1973, with the result that the grace 

period expired before Shepard’s departure 

from the A—M board. 

C. Denial of an Opportunity for Pre- 

complaint Presentations 

The petitioners next argue that the Com- 

mission and its staff abused the administra- 

tive process, denied petitioners equal pro- 

tection and due process of law, and violated 

federal law by denying petitioners an op- 

portunity to oppose issuance of a complaint 

by the Commission before it was actually 

served on them. Although the petitioners 

have not directly addressed the issue of 

relief, we assume they seek to have the 

Commission’s order vacated. 

The relevant facts are as follows. On 

August 8, 1975, petitioners were first in- 

formed, by letter, of the FTC staff’s inves- 

tigation. In December 1975 counsel for pe- 

titioners met with FTC staff personnel in 

Washington and were told that petitioners 

would be informed as soon as the staff had 

decided to recommend that the Commission 

issue a complaint. This did not happen. 

The Commission voted to issue a complaint 

on June 17, 1976, and the petitioners were 

not informed until June 25. In a memoran- 

dum dated July 7 the FTC's general counsel 

11. A representative of Glendale Federal Sav- 

ings & Loan Association contacted TRW and 

three other companies in late June or early July 

1974 about purchasing equipment for Glen- 

dale's proposed EFT program. A-M ap- 

proached Glendale Federal in late July or early 

August and provided a demonstration of the 

AMCAT terminal in late August. The AMCAT 

647 FEDERAL REPORTER, 2d SERIES 

advised the Commission to take the position 

that a complaint “issues,” for purposes of 

various Commission rules, when the vote to 

direct issuance occurs. The principal effect 

“of this interpretation would be to bar ex 

parte contacts with Commissioners follow- 

ing a vote to issue a complaint. Two days 

later, July 9, the petitioners filed a motion 

for reconsideration with the Commission. 

Apparently following the general counsel's 

advice, the Commission refused to consider 

the motion and instead referred it to an 

ALJ on July 13. On July 22, the petitioners 

were actually served with the complaint 

and the ALJ in charge of the case was 

identified for the first time. In September 

‘the ALJ certified petitioners’ motion for 

reconsideration to the Commission, who de- 

nied the motion on October 13. 

On these facts petitioners base two objec- 

tions. First, they contend the Commission 

is equitably estopped from failing to give 

effect to the staff’s promise that petitioners 

would be notified when the proposed com- 

plaint was forwarded to the Commission. 

Second, they maintain that the Commission 

violated the Constitution and federal law by 

“changing the rules” in order to deny peti- 

tioners an opportunity to present argument 

to the Commissioners before the complaint 

was actually served. We shall address each 

objection separately. We conclude neither 

is persuasive. 

1. Equitable Estoppel : 

[8,9] Turning first to petitioners’ estop- 

pel contention, we find that our decisions 

establish four requirements that must be 

satisfied before equitable estoppel may. be 

applied against the government. First, the 

party to be estopped must know the facts. 

Second, this party must intend that his con- 

duct shall be acted on, or must so act that 

the party asserting estoppel has a right to 

was found wanting, but A-M persisted in at- 

tempting to sell to Glendale Federal. TRW 

eventually began developmental work on a ter- 

minal specially designed for Glendale Federal’s 

needs, the TT-115, in the fall of 1974, although 

a formal purchase contract was not signed until 

March 1975. See 93 F.T.C. at 340-41.  



     

  

  

  
til 

   

5 

  

G
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TRW, INC. v. F. T. C. 951 
Cite as 647 F.2d 942 (1981) 

believe it is so intended. Third, the party 

asserting estoppel must have been ignorant 

of the facts. Finally, the party asserting 

estoppel must reasonably rely on the other’s 

conduct to his substantial injury. United 

States v. Ruby Co., 588 F.2d 697, 703 (9th 
Cir. 1978), cert. denied, 442 U.S. 917, 99 

S.Ct. 2838, 61 L.Ed.2d 284 (1979); United 
States v. Wharton, 514 F.2d 406, 412 (9th 

Cir. 1975); United States v. Georgia-Pacific 

Co., 421 F.2d 92, 96 (9th Cir. 1970). In 
addition, the government action upon which 

estoppel is to be based must amount to 
affirmative misconduct.  Vickars-Henry 

Corp. v. Board of Governors, 629 F.2d 629, 
635 (9th Cir. 1980); United States v. Ruby 

Co., supra, 588 F.2d at 703; Santiago v. 

INS, 526 F.2d 488, 491 (9th Cir. 1975) (en 
banc), cert. denied, 425 U.S. 971, 96 S.Ct. 

2167, 48 L.Ed.2d 794 (1976). _Affirmative 
misconduct, moreover, is something more 

than mere negligence. Simon v. Califano, 
593°F.2d 121, 123 (9th Cir. 1979); Santiago 
v. INS, supra, 526 F.2d at 493.12 

[10] We will assume that the staff’s as- 

surance to petitioners that they would be 
notified prior to its forwarding of a pro- 

posed complaint to the Commission was un- 

wise and unauthorized. Nevertheless, this 

case is an inappropriate one in which to 
apply estoppel against the government. 

There is no indication that petitioners relied 

on this assurance in a way that caused them 

to suffer substantial prejudice. As we ex- 
plain later, petitioners had no right to a 

precomplaint presentation, and there is no 

guarantee one would have been available 

even if the staff had kept its word. We do 

12. See Villena v. INS, 622 F.2d 1352, 1360-61 

(9th Cir. 1980) (en banc); United States Vv. 

Ruby Co., supra, 588 F.2d at 704. 

  

13. Rule 4.7, as it read at the time, prohibited ex 
parte communications between Commissioners 

and persons not employed by the Commission 
or employees performing any investigative or 
prosecuting function. The rule was stated to 
apply “in arr adjudicative proceeding.” 32 Fed. 

Reg. 8449, 8458 (1967). Rule 3.11(a) provided 

that “an adjudicative proceeding is commenced 
by the issuance of a complaint by the Commis- 

sion.” 40 Fed.Reg. 60043 (1975). 

14. Rule 3.11(a), as originally promulgated, pro- 

vided that “an adjudicative proceeding is com- 

menced by the issuance and service of a com- 

not condone the staff’s conduct in this case, 

but we are unable to find that each of the 

prerequisites of estoppel have been satis- 
fied. 

2. Constitutional and Statutory Argu- 

ments 

[11] On becoming aware that the Com- 

mission had voted to direct issuance of a 

complaint, petitioners attempted to contact 

the Chairman of the Commission to discuss 

redress for the staff’s violation of its prom- 

ise. Petitioners also filed a motion for re- 

consideration of the vote. Both attempts 

were rejected. The Commission relied on 

its Rule of Practice forbidding ex parte 

contacts with Commissioners following “is- 

suance” of a complaint.’ “Issuance” was 

interpreted, as we have seen, as occurring 

when the vote to direct issuance was taken. 

Petitioners were so informed by letter of 

July 15, 1976, and a Rule of Practice con- 

firming it was formally promulgated on 
March 23, 1978. 43 Fed.Reg. 11978 (codi- 

fied in 16 C.F.R. § 3.11(a) (1980)). Petition- 

ers contend that “issuance” did not occur 

until actual service of the complaint, al- 
though they concede that no Rule of Prac- 
tice defined the term. Petitioners also 
subject the Commission's new interpreta- 

tion to several challenges. 

First, they maintain that they were “ad- 
versely affected” by the new interpretation 

which was applied to them without prior 

publication as required by the Freedom of 

Information Act, 5 U.S.C. § 552(a)(1). By 

the terms of section 552(a)(1), “a person 

plaint by the Commission.” 32 Fed.Reg. 8449 
(1967). The rule was amended on December 3, 

1975, to provide that “an adjudicative proceed- 

ing is commenced by the issuance of a com- 
plaint by the Commission.” The history of the 

rule does not favor the position advanced by 
petitioners. In any event, the Rules as amend- 

ed did not further define “issuance.” In its 

present form, Rule 3.11(a) establishes that “an 
adjudicative proceeding is commenced when an 
affirmative vote is taken by the Commission to 

issue a complaint.” 16 C.F.R. § 3.11(a) (1980). 

The rule prohibiting ex parte contacts has also 

been amended explicitly to recognize this 

change. See id. § 4.7(e). 

  
    
   

   

   

    

   

  

   

    

   

  

   

   

    

   

   

  

   
   

  

   
    

  

  

  

  

  

    

    

     
   

    

      
     

    
  
   



    
  

    
  

  

952 

may not in any manner ... be adversely 
affected” by matter required to be publish- 
ed under the Act but which was not pub- 
lished prior to the offending action. Aec- 
cordingly, the petitioners assert that the 
Commission’s new interpretation, not hav- 
ing been published finally until 1978, could 
not lawfully be applied to them in July 
1976. 

We need not decide whether the Commis- 
sion’s interpretation was a matter required 
to be published by the Act.’® We conclude 
that petitioners were not “adversely affect- 
ed” within the meaning of section 552(a)(1). 
Even before the Commission adopted its 
interpretation of “issuance,” neither the 
Commission’s Rules of Practice nor its in- 
formal practice provided for precomplaint 
presentations to the Commissioners. Under 
these circumstances, petitioners had no 
right to present argument after the vote 
but before service of the complaint. The 
Commission had the power in its discretion 
to reject any contact with petitioners prior 
to service of the complaint. This power 
was not dependent on the issuance of the 
new interpretation. Therefore, the new in- 
terpretation did not adversely affect the 
petitioners and section 552(a)(1) accordingly 
was not violated. 

[12] For similar reasons we reject peti- 
tioners’ protest that the new interpretation 
amounts to a denial of due process and 
equal protection of the law. The Commis- 
sion’s prior practice was not a “rule” to 
which the Commission is constitutionally 
compelled to adhere. Even if the Commis- 

15. The publication requirements of Rule 
552(a)(1) apply to (1) organization descriptions 
and sources of public information; (2) “state- 
ments of the general course and method by 
which [the agency’s] functions are channeled 
and determined”; (3) rules of procedure and 
forms; (4) “substantive rules of general appli- 
cability ... and statements of general policy or 
interpretations of general applicability”; and 
(5) amendments, revisions, or repeals of the 
foregoing. 5 U.S.C. § 552(a)(1)(A)—~(E) (1976). 

16. In Caceres the Supreme Court held that evi- 
dence obtained in violation of Internal Revenue 
Service regulations may be admitted to the 
criminal trial of a taxpayer accused of bribing 
an IRS agent. The regulation at issue required 
Justice Department approval prior to use of 

647 FEDERAL REPORTER, 2d SERIES 

sion’s prior treatment of such requests had 
amounted to an agency “practice,” its fail- 
ure to follow that practice would have af- 
forded petitioners no defense to the under- 
lying complaint. United States v. Wilbur, 
427 F.2d 947, 949 (9th Cir.), cert. denied, 400 
U.S. 945, 91 S.Ct. 250, 27 L.Ed.2d 250 (1970). 
Whether to grant an opportunity for infor- 
mal disposition of a complaint is, to repeat, 
within the Commission’s discretion. FTC v. 
Jantzen, Inc., 383 F.2d 981, 983 (9th Cir. 
989, 

[13] Finally, even if the Commission had 
violated one of its own rules in denying 
petitioners an opportunity for precomplaint 
presentations, the result would be the same. 
No precise standard exists which describes 
the circumstances in which an agency’s vio- 
lation of its own rules will bar enforcement 
of its otherwise proper orders. See 2 K. 
Davis, Administrative Law Treatise § 7:21 
(2d ed. 1979). There is no need to attempt 
to devise one in this case, however, because 
we are convinced that the petitioners have 
not been prejudiced. See Carnation Co. v. 
Secretary of Labor, 641 F.2d 801, 804 & n. 4 
(9th Cir. 1981); United States v. Calderon- 
Medina, 591 F.2d 529, 531-32 (9th Cir. 
1979). This is certainly not an instance in 
which “an individual has reasonably relied 
on agency regulations promulgated for his 
guidance or benefit and has suffered sub- 
stantially because of their violation by the 
agency.” United States v. Caceres, 440 
U.S. 741, 743, 99 S.Ct. 1465, 1467, 59 L.Ed.2d 
733 (1979).1¢ The petitioners received a full 

wiretaps by IRS agents. The Court found no 
equal protection problem because the taxpayer 

had failed to demonstrate that the Justice De- 
partment would have denied permission to 
wiretap. 440 U.S. at 752, 99 S.Ct. at 1472. 
Nor was the case one “in which the Due Proc- 
ess Clause is implicated because an individual 
has reasonably relied on agency regulations 
promulgated for his guidance or benefit and 
has suffered substantially because of their vio- 
lation by the agency.” Id. at 753, 99 S.Ct. at 
1472. Having disposed of the constitutional 
arguments, the Court noted, in dictum: “Even 
as a matter of administrative law ... it seems 
clear that agencies are not required, at the risk 
of invalidation of their action, to follow all their 

rules, even those properly classified as ‘inter- 

nal.’ Id. at 754 n. 18, 99 S.Ct. at 1473 n. 18.  



  

TRW, INC. v. F. T. C. 953 
Cite as 647 F.2d 942 (1981) 

and procedurally correct adjudicative hear- 

ing. At most, any error of which petition- 
ers complain “is purely one of form, with no 

discernible effect in this case on the action 
taken by the agency and its treatment” of 
petitioners. Id. at 752, 99 S.Ct. at 1472. 

D. Mootness 

[14] Petitioners also argue that this case 

is moot. Four reasons are given. First, 

Shepard left his post as an A-M director 
before the complaint was issued and, in 

fact, had decided not to stand for reelection 

before receiving notice of the FTC investi- 

gation. Second, A-M sold its AMCAT line 
in January 1977 and is no longer a competi- 

tor of TRW in any sense of the word. 

Third, TRW and Shepard have both provid- 
ed sworn assurances that they will avoid 

offensive directorships in the future. Fi- 
nally, TRW now maintains sophisticated di- 

rector review procedures to ensure compli- 

ance with section 8. We hold that this case 

is not moot. 

In its only decision discussing section 8, 

the Supreme Court rejected the argument 

that mere cessation of illegal conduct ren- 

ders a case moot: 

[Voluntary cessation of allegedly illegal 

conduct does not deprive the tribunal of 

power to hear and determine the case, i. 

e., does not make the case moot.... A 

controversy may remain to be settled in 
such circumstances, ... e. g., a dispute 

over the legality of the challenged prac- 

tices. ... The defendant is free to re- 

turn to his old ways. This, together with 

a public interest in having the legality of 
the practices settled militates against a 

mootness conclusion. ... For to say that 

the case has become moot means that the 

defendant is entitled to a dismissal as a 

matter of right . The courts have 

rightly refused to grant defendants such 

17. Accord, County of Los Angeles v. Davis, 440 

U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 
642 (1979); St. Paul Fire & Marine Ins. Co. v. 

Barry, 438 U.S. 531, 537-38, 08.8.Ct. 2923, 
2927, 57 L.Ed.2d 932 (1978); United States v. 
Concentrated Phosphate Export Ass'n, 393 U.S. 

199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 
(1968); DeJong Packing Co. v. United States 

a powerful weapon against public law 

enforcement. 

United States v. W. T. Grant Co., 345 U.S. 

629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 

(1953). 

Nevertheless, the Court held, a case may 

be moot “if the defendant can demonstrate 

that ‘there is no reasonable expectation that 

the wrong will be repeated.” The burden is 

a heavy one.” Id. at 633, 73 S.Ct. at 897; 

(quoting United States v. Aluminum Co. of 
America, 148 F.2d 416, 448 (2d Cir. 1945)).17 
Stated somewhat differently, it must be 

“absolutely clear that the allegedly wrong- 

ful behavior could not reasonably be expect- 

ed to recur.” United States v. Concentrat- 

ed Phosphate Export Ass’n, 393 U.S. 199, 
203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). 

These cases indicate that the concern is 

with repeated violations of the same law, 

and not merely with repetition of the same 

offensive conduct—here, another interlock 

between TRW and A-M involving Shepard. 

In addition, it is clear that promises to 

refrain from future violations, no matter 

how well meant, are not sufficient to estab- 

lish mootness. Quern v. Mandley, 436 U.S. 

725, 733-34 n. 7, 98 S.Ct. 2068, 2074, n. 7, 56 

L.Ed.2d 658 (1978); Concentrated Phos- 

phate, supra, 393 U.S. at 203, 89 S.Ct. at 

364; W. T. Grant, supra, 345 U.S. at 633, 73 

S.Ct. at 898; see Treves v. Servel, Inc., 244 

F.Supp. 773, 776 (S.D.N.Y.1965). 

Shepard continues to serve on the board 

of TRW, a company with interests in a wide 
variety of commercial fields. In the past 
Shepard has been a popular target of corpo- 

rations seeking outside directors. Although 

we do not question the good faith of peti- 

tioners’ assurances of future compliance 

with the law, we hold that the heavy bur- 

den of proof regarding mootness has not 

been satisfied. 

Dep’t of Agriculture, 618 F.2d 1329, 1337-38 

(9th Cir. 1980); Lyons v. City of Los Angeles, 

615 F.2d 1243, 1248 (9th Cir.); cert. denied, — 

LL.S. , 101 S.Ct. 333, 66 L.Ed.2d 158 (1980); 
SCM Corp. v. FIC, 565 F.2d 807, 812 (2d Cir: 
1977), cert. denied, — U.S. ——, 101 S.Ct. 80, 
66 L.Ed.2d 23 (1980). 

  

        
  

              
          

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647 FEDERAL REPORTER, 2d SERIES 

IV. 

THE VALIDITY OF THE 
COMMISSION’S ORDER 

[15] Although we have found substan- 
tial evidence to support the Commission’s 
finding that petitioners violated section 8, 
and although we have determined that the 

case is not moot, we conclude that the Com- 

mission erred in issuing cease and desist 

orders against Shepard and TRW. The le- 
gal standard governing our review of the 

need for prospective relief is whether 

“there exists some cognizable danger of re- 

current violation, something more than the 

mere possibility which serves to keep the 
case-alive.” W. T. Grant, supra, 345 U.S. at 

633, 73 S.Ct., at 898. The difference be- 

tween the standard governing mootness 

and that regarding the need for prospective 

relief thus is one between a “mere possibili- 
ty” and a “cognizable danger” of recurrent 

violation. More significantly, the Commis- 

sion complaint counsel bears the burden of 

showing the need for injunctive relief while 

the burden of proving mootness rests on the 

respondent. E. g., SCM Corp. v. FTC, 565 

F.2d 807, 812, 813 (2d Cir. 1977), cert. de- 
nied, — U.S. ——, 101 S.Ct. 80, 66 
L.Ed.2d 23 (1980). 

[16] The Commission’s finding of a cog- 

nizable danger of recurrent violation by 

Shepard depended on (1) the frequency of 

Shepard’s service on corporate boards in the 
past and (2) the variety of TRW’s commer- 

cial interests. 93 F.T.C. at 386-87. These 

factors, at best, demonstrate that it is more 

feasible for Shepard to violate the law than 
for another less popular director serving on 

the board of a less diversified company.1® 

There is little else in the record to justify a 

cease and desist order and it is not enough. 

As the Commission itself recognized, Shep- 

ard sought legal counsel before accepting 

18. As the Commission recognized, however, 

Shepard’s popularity as a prospective outside 

director will be reduced by his advancing age 

(65 at the time appeal was taken to the Com- 

mission) and the prevalence of mandatory 

retirement policies applicable to corporate 

board members. See 93 F.T.C. at 387. 

the A-M directorship, the violation was not 
egregious,!® and the evidence suggests that 
Shepard discontinued the A-M directorship 
before being apprised of the FTC investiga- 

tion. Thus, while we cannot say that it is 

“absolutely clear” that repetition will not 

occur, we can and must say there is simply 

nothing to suggest a “cognizable danger” of 
repetition by Shepard. 

The situation is little different with re- 

spect to TRW. The Commission’s finding 
of a “cognizable danger” apparently was 

based solely on TRW'’s failure to recognize a 
section 8 violation and prevent Shepard’s 

service on the A-M board. Id. at 388. By 

this reasoning, however, the mere existence 

of a section 8 violation would justify pro- 

spective relief, regardless of the circum- 

stances. To reach this conclusion would 

amount to ignoring the “cognizable danger” 

requirement in the hope of forging a more 

effective regulatory statute. That is the 

task of Congress. Petitioners’ violation of 

the law was not a blatant one, nor have 

they demonstrated a tendency to run afoul 

of section 8. The decision to terminate the 

offensive conduct was made before issuance 

of the complaint and arguably before notice 

of the FTC's investigation. Both parties 
have provided assurances of future compli- 
ance and their sincerity and good faith are 

not questioned. TRW has implemented a 

compliance program whose current efficacy 
has not been attacked. On this record the 

Commission abused its discretion in issuing 

cease and desist orders and those orders, as 

to both petitioners, are hereby set aside. 

Affirmed in part and Reversed in part. 

APPENDIX 

1 “TRW 

TRW is a diversified, publicly held eom- 

pany engaged in the design and manufac- 

19. By contrast, for example, the respondent in 

W.T. Grant served on the boards of three sepa- 

rate pairs of corporations; he failed to termi- 

nate the directorships until after suit was filed, 

despite five years of administrative attempts to 

persuade him of their illegality; and he failed to 

make any assurance that he would not commit 

similar violations in the future. 345 U.S. at 

633-34, 73 S.Ct. at 898-99.  



TRW, INC. v. F. T. C. 955 
Cite as 647 F.2d 942 (1981) 

ture of a wide variety of products as well as 
the performance of advanced electronics 

and computer-based services. Three of its 

products or services are relevant. 

a. System 4000/5000. This product was 
a credit authorization system designed for 

use by and sold mainly to department stores 

(4000) and financial and thrift institutions 

(5000). The two systems were identical, 

although marketed separately. They con- 

sisted of a small computer terminal with a 
keyboard and display, and a “controller” 
through which the terminals communicated 

with a central computer. When used in a 

department store, for example, the system 

consisted of a number of small terminals 
located at points of sale throughout the 

store. The terminals were connected to the 

controller, also located in the store. The 

controller communicated with a central 

computer, not located in the store, which 

stored customer credit information devel- 

oped by the user. As designed, the System 

4000/5000 was used only to request and 
receive credit information at the point of 

sale. It had no ability to print or imprint 

information,! although additional equip- 

ment could be added to perform these func- 

tions.? 

b. Validata System. Validata was a 

service sold primarily to airlines and car 
rental agencies. Through Validata, TRW 

provided a list of credit accounts not to be 

honored, based on information compiled by 

TRW from major credit card companies and 

financial institutions. Purchasers of this 

“loss protection” service were not required 
to purchase TRW equipment, although such 

equipment was available.’ 

¢. FDSI Terminals. TRW acquired Fi- 
nancial Data Services, Inc., (FDSI) on April 

23, 1974. Through FDSI, EFT systems 

were developed and marketed. Although 
the Commission’s opinion refers to three 

1. A printer is a device “applying text or num- 
bers to a page in response to an electronic 

impulse” and an imprinter “transfer[s] raised 

characters to an inked piece of paper.” In re 

TRW, Inc., supra, 93 F.T.C. at 335. 

2. The ALJ found that the terminal “could be 

upgraded to include an imprinter, card reader 

EFT concepts developed by FDSI, only one, 

the TT-115, was actually sold by TRW dur- 
ing the complaint period. The TT-115 was 
designed at the request of and sold to Glen- 

dale Federal Savings & Loan for use in a 

supermarket chain. Similar in design to 

the System 4000, the TT-115 consisted of 

terminals located at supermarket check 

stands through which customers could make 

deposits to and withdrawals from savings 

and checking accounts. 

2. A-M 

A-M is also a publicly held company. 

During the complaint period its primary 

business was the manufacture and sale of 

office equipment and duplicating machines. 

a. AMCAT I. The AMCAT I was an- 

nounced by A-M as a new product in May 

1973 and was first sold in October 1973. It 

performed a function similar to that of 

TRW'’s System 4000/5000, enabling retailers 

to request and receive credit authorization 

information at the point of sale. In design, 

however, the systems differed significantly. 

Unlike the System 4000/5000, the AMCAT I 

terminal contained equipment enabling it to 

communicate directly with a central com- 

puter without the aid of an external con- 

troller. As a result, the AMCAT I terminal 

was larger than the terminal used in the 

System 4000/5000 and was purchased large- 

ly by small retail establishments. It was 

. designed for use in gasoline service stations, 

although few were ever sold for that use. 

The AMCAT 1 also was able to perform 

printing and imprinting functions and could 

“read” credit cards, relaying the informa- 

tion directly to the computer. 

b. Other A-M Products. The AMCAT 
IC was used in the First National Bank of 

Atlanta’s EFT program and featured a con- 

sumer-operated means of verifying checks 

at points of sale. Otherwise, AMCAT IC 

and customer identification pads. However, 

these items would be included alongside and 

not in the terminal housing.” Id. at 336. 

3. System 4000/5000 equipment was available 

in connection with the Validata service.   
      
        

              

   



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956 647 FEDERAL REPORTER, 2d SERIES 

resembled the AMCAT I and was used pri- 
marily in small retail establishments. Al- 

though A-M developed other AMCAT vari- 
ants, few were ever sold during the com- 
plaint period. In January 1977, A-M decid- 

ed to abandon the AMCAT business and sell 

the assets which had been used to produce 

the AMCAT line. : 

W 
o £ KEY NUMBER SYSTEM 

T 

Patrick James CAMPBELL, 

Petitioner-Appellant, 

Vv. 

Roger W. CRIST, Warden of Montana 

State Prison and Mike Greely, Montana 

State Attorney General, Respondents- 
Appellees. 

No. 80-3285. 

United States Court of Appeals, 
Ninth Circuit. 

Submitted April 6, 1980. 

Decided June 8, 1981. 

In habeas corpus proceedings, the Unit- 

ed States District Court for the District of 
Montana, Russell E. Smith, J., denied the 

writ. 491 F.Supp. 586. Petitioner appeal- 

ed. The Court of Appeals, Skopil, Circuit 

Judge, held that in the interest of comity it 
would not consider the merits of the peti- 

tion where there was no indication in the 

record that petitioner had exhausted availa- 
ble state judicial remedies.” 

Judgment affirmed. 

- 

1. Habeas Corpus &=45.3(1) 

Normally, federal court will not enter- 
tain state prisoner’s petition for writ of 
habeas corpus unless petitioner has exhaust- 

* Honorable David V. Kenyon, United States Dis- 

trict Judge for the Central District of Califor- 

ed available state judicial remedies. 28 
U.S.C.A. § 2254(b). 

2. Habeas Corpus &=45.3(3) 

If habeas corpus petitioner's claim was 

not presented to state courts on direct ap- 

peal, state collateral remedies must be ex- 
hausted. 28 U.S.C.A. § 2254(c). 

3. Habeas Corpus ¢=113(12) 

On appeal from denial of writ of habe- 

as corpus, Court of Appeals could consider 

whether state remedies had been exhausted 

even if state did not raise issue. 28 U.S. 

C.A. § 2254(b, c). 

4. Habeas Corpus ¢=45.3(1) 

On appeal from denial of writ of habe- 

as corpus, Court of Appeals would not con- 

sider merits of petition where there was no 

indication that petitioner had exhausted 

available state judicial remedies. 28 U.S. 
C.A. § 2254(b, c). 

Patrick James Campbell, for petitioner- 
appellant. 

Mark J. Murphy, Asst. Atty. Gen., Hele- 
na, Mont., for respondents-appellees. 

Appeal from the United States District 
Court for the District of Montana. 

Before SKOPIL and POOLE, Circuit 

Judges, and KENYON,* District Judge. 

SKOPIL, Circuit Judge: 

Campbell appeals the denial of a writ of 

habeas corpus. Campbell v. Crist, 491 
F.Supp. 586 (D.Mont.1980). He contends 

that the state court lacked jurisdiction to 

try him for a robbery committed on the 
Flathead Indian Reservation. He raises nu- 

merous other objections regarding the ade- 

quacy of the state proceedings, and of his 

representation by counsel. We affirm. 

[1,2] Normally, a federal court will not 

entertain a state prisoner’s petition for writ 

of habeas corpus unless the petitioner has 

nia, sitting by designation.   

 



  
  

    

    

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428 500 FEDERAL SUPPLEMENT 

both, see United States v. DeMarco, 401 

F.Supp. 505 (C.D.Calif.1975), United States 

v. Roberts, 481 F.Supp. 1385 (C.D.Calif. 

1980). 

While the Supreme Court has not yet 

announced a general rule regarding applica- 

tion of the Court’s inherent supervisory au- 

thority, “Numerous rationales have been 

advanced to explain the nature and scope of 

the somewhat sparingly used supervisory 

authority, but it is generally conceded ‘. .. 

that the court’s are primarily concerned 

with protecting the judicial process from 

the stigma of illegal or unfair government 

conduct.” United States v. Narciso, 446 

F.Supp. 252, 302 (E.D.Mich.1976). 

[3] It is also important to note that the 

drastic nature of the harsh remedy provided 

by the Court’s exercise of its supervisory 

powers in dismissal of an indictment based 

on prosecutorial misconduct “. .. renders it 

essential that they not be applied indiscrim- 

inately to remedy every prosecutorial mis- 

step.” United States v. Dondich, 460 

F.Supp. 849 (N.D.Calif.1978). As such, the 

policy of the federal courts is that of reluc- 

tance to interfere in the orderly functioning 

of grand jury proceedings and the rule in 

the Ninth Circuit as found in United States 

v. Chanen, 549 F.2d 1306 (9th Cir. 1977), is 

that: 

Nevertheless, given the constitutionally— 

based independence of each of the three 

actors—court, prosecutor and grand jury— 

we believe a court may not exercise its 

‘supervisory power’ in a way which en- 

croaches on the prerogatives of the other 

two unless there is a clear basis in law 

and fact for doing so. Id, at 1313. 

In United States v. Kennedy, 564 F.2d 

1329 (9th Cir. 1977), the court in further 

elaborating upon the circumstances under 

which the court may exercise its inherent 

supervisory power in situations similar to 

the case at bar stated that: 

We_believe that the rule to be distilled 

from the authorities discussed must be 

that only in a flagrant case, and perhaps 

only where knowing perjury, relating to a 

material matter, has been presented to 

the grand jury should the trial judge 

dismiss an otherwise valid indictment re. 

turned by an apparently unbiased grand 

jury. Id. at 1338. : 

[4] The movant here has conceded that 
“... this case does not involve the fla- 

grantly abusive prosecutorial tactics that 

have fostered judicial intervention in some 

instances.” While prosecutorial misconduct 

occurring before a grand jury which is suf- 

ficiently egregious to support dismissal on 

an indictment need not be intentional, Unit- 

ed States v. Samango, supra, it is clear that 

the alleged improprieties occurring before 

the indicting grand jury in this case were 

not of such a serious and flagrant nature as 

to justify the court’s exercise of its inherent 

supervisory power at this time. There is 

simply not a sufficient basis either in law or 

fact for doing so. 

IT IS HEREBY ORDERED that defend- 

ant’s motions to dismiss as filed July 11, 

1980, be DENIED. 

O & KEYNUMBERSYSTEM 

Richard J. BEACOM, Plaintiff, 

Vv. 

The EQUAL EMPLOYMENT OPPORTU- 

NITY COMMISSION, an agency of the 

United States Government, Defendant. 

No. CIV 80-307 PHX CAM. 

United States District Court, 

D. Arizona. 

Aug. 15, 1980. 

Attorney sought an injunction to force 

the Equal Employment Opportunity Com- 

mission to employ him in the capacity of 

trial attorney. The District Court, Muecke, 

Chief Judge, held that: (1) attorney, who 

applied for the position of trial attorney 

with the Commission and received a tele- 

phone call from a supervisory trial attorney   
  

 



   
    
       

  

    
  

    

      
informing him that he had been selected for 

the position and a follow-up letter confirm- 

ing his selection and who called the supervi- 

sory trial attorney to inquire whether hir- 

ing freeze would affect his job and was told - 

that it would not, was appointed as of the 

date of his call to the supervisory trial 

attorney, the Commission having thereby 

represented that the final act necessary to 

his appointment had been completed and 

the attorney having acted to his irreversible 

detriment in reliance thereon, and (2) the 

Commission was estopped from asserting 

that the appointment had not occurred and 

from applying the hiring freeze to the at- 

torney, who had terminated his legal prac- 

tice of 16 years in reliance on the appoint- 

ment. 

Injunction granted. 

1. Constitutional Law &=277(2) 

To have a property interest in govern- 

ment employment, an applicant needs more 

than an abstract desire or the ability to 

perform; he must have a “legitimate claim 

of entitlement.” 

2. United States &=39(2) 

Government employee is not entitled to 

higher pay merely by performing the duties 

normally performed by a higher level offi- 

cial; there must be an appointment. 

3. Civil Rights 12.4 

Attorney, who applied for position of 

trial attorney with the Equal Opportunity 

Commission and received a telephone call 

from a supervisory trial attorney informing 

him that he had been selected for the posi- 

tion and a follow=up letter confirming his 

selection and who called the supervisory 

trial attorney to inquire whether hiring 

freeze would affect his jeb and was told it 

would not, was appointed as of the date of 

his call to the supervisory trial attorney, the 
Commission having thereby represented 

that the final act necessary to his appoint- 

ment had been completed and the attorney 

having acted to his irreversible detriment in 

reliance thereon. 

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’N 429 

: Cite as 500 F.Supp. 428 (1980) 

4. Estoppel &=52.15 

Generally, the appropriate test of es- 

toppel is as follows: the party to be es- 

topped must know the facts; he must in- 

tend that his conduct shall be acted on or 

must so act that the party asserting the 

estoppel has a right to believe it is so in- 

tended; the latter must be ignorant of the 

true facts; and he must rely on the for- 

mer’s conduct to his injury. 

5. Estoppel 62.1 

Where the government is the party 

against whom estoppel is being asserted, 

not only must the private litigant make a 

threshold showing that the government has 

engaged in “affirmative misconduct,” but 

he also faces the further burden of demon- 

strating that the injustice caused by the 

government's misconduct is sufficiently se- 

vere to outweigh the countervailing interest 

of the public not to be unduly damaged by 

the imposition of estoppel. 

6. Estoppel ¢=62.1 

Whether nonfeasance by the govern- 

ment is simply inaffirmative, or amounts to 

“affirmative inaction” so as to allow estop- 

pel to be asserted against the government 

should be viewed with reference to the cir- 

cumstances of each case. 

7. Civil Rights =12.4 

Equal Employment Opportunity Com- 

mission’s failure to inform attorney, who 

applied for the position of trial attorney 

‘with the Commission and was told that he 

had been selected for the position, that he 

was not operating under the protection of 

an appointment, its written confirmation, 

which suggested that he had been appoint- 

ed, and its delay in informing him that he 

would not be hired due to hiring freeze, 

each constituted “affirmative misconduct” 

which estopped the Commission from as- 

serting the appointment had not occurred 

and from applying the hiring freeze to the 

attorney, who had terminated his legal 

practice of 16 years in reliance upon the 

appointment. 

Thomas C. Horne, Lewis & Roca, Phoe- 

nix, Ariz., for plaintiff. 

  

      

    

    

                        

  

  

  

                              

   

        

   

  

   
   
   

          

   

        

    

   

                          

  
  

  

        

  

     



  
      

  

              

430 

Richard L. Green, E. E. O. C., Phoenix, 

Ariz., Nicholas Inzeo, Supervisory Atty., E. 

E. 0. C., Washington, D. C., for defendant. 

OPINION and ORDER 

MUECKE, Chief Judge. 

FACTS 

Plaintiff, Richard Beacom, moves for a 

permanent injunction to force defendant, 

tig" Equal Employment Opportunity Com- 

mission, to employ him_in the capacity of 

trial attorney. The material facts of this 

case are not in dispute. 

Plaintiff is a licensed attorney who has 

been engaged in the practice of law in 

Adams County, Colorado, for the past six- 

teen years. In early February, 1980, plain- 

tiff applied for a position as Trial Attorney 

with the Equal Employment Opportunity 

Commission in Phoenix, Arizona. 

On March 11, 1980, plaintiff received a 

telephone call from Ismael Alverez, a super- 

visory trial attorney for the Commission. 

Mr. Alverez informed plaintiff that he had 

been selected to fill the above position, and 

should report to work in Phoenix on April 7, 

1980. Plaintiff explained that he would 

have to “wind down” his private practice, 

and asked for more time in which to do so. 

Mr. Alverez refused, and plaintiff agreed to 

report as requested. 

On March 13, 1980, plaintiff received a 

letter from the Regional Attorney for the 

Phoenix District Office of the EEOC con- 

firming his selection and instructing plain- 

tifT to report to work in Phoenix on April 7, 

1980. 

In reliance on the above conversation, 

and the written confirmation thereof, plain- 

tiff commenced winding down his legal 

1. On April 24, 1980, plaintiff filed an action in 

this Court in which he requested, among other 

things, a preliminary injunction and a tempo- 

rary restraining order compelling the Commis- 

sion to put him to work. This Court held a 

hearing on May 2, 1980, at which time it re- 

quested the parties to file supplemental memo- 

randa on the issue of irreparable harm. On 

May 20, 1980, the Court entered an Order di- 

recting the parties to inform the Court why it 

should not make a determination as to whether 

500 FEDERAL SUPPLEMENT 

practice. His efforts included terminating 

relationships with long-time clients, trans- 

ferring fee agreements and files, and pub- 

lishing an announcement in a local newspa- 

per. By the time plaintiff left Colorado, he 

had completely terminated his legal practice 

of sixteen years. 

On March 14, 1980, after hearing a speech 

during which President Carter announced 

an immediate freeze _on hiring by federal 

agencies, plaintiff telephoned Mr. Alverez 

to inquire whether the freeze would affect 

plaintiff’s job. Plaintiff was informed that 

it would not and that plaintiff should con- 

tinue to wind down his practice. 

On March 21, 1980, plaintiff received a 

telephone call from Inez Alverez, the Per- 

sonnel Manager of the Phoenix District Of- 

fice. Ms. Alverez informed plaintiff that, 

because of the freeze, plaintiff's appoint- 

ment was “on hold.” Plaintiff asked Ms. 

Alverez what it meant to be “on hold;” she 

replied that it did not mean that plaintiff 

was not hired. Plaintiff informed Ms. Al- 

verez that he would continue to wind down 

his practice. 

On April 3, 1980, only four days before 

plaintiff was to report to work in Phoenix, 

MS. Alverez telephoned plaintiff in Colora- 

do~for the purpose of informing him that 

his position could not be filled. There was 

fo ansSwer. 

Plaintiff reported for work on April 7, 

1980, and was instructed that he was not 

hired. 

As a result of the above occurrences, 

plaintiff finds himself in an unenviable po- 

sition. He has a license to practice law in 

Colorado, but his Colorado practice is in 

shambles. He has moved to Arizona, but 

has no license to practice here.! 

a permanent injunction should issue in this 

matter upon the present state of the record. 

Upon being permitted to supplement the record 

with additional facts, the parties stipulated to 

‘the above procedure. Since May 20, 1980, the 

parties have been given every opportunity to 

submit legal memoranda regarding the proprie- 

ty of a permanent injunction under the above 

facts. See this Court's Orders of May 30, 1980, 

and June 25, 1980.  



luded terminating 
ime clients, trans- 

nd files, and pub- 

in a local newspa- 

f left Colorado, he 

H his legal practice 

r hearing a speech 

arter announced 

hiring by federal 

oned Mr. Alverez 

eeze would affect 

as informed that 

intiff should con- 
ractice. 

hintiff received a 

Alverez, the Per- 

oenix District Of- 

ed plaintiff that, 

laintiff’s appoint- 

aintiff asked Ms. 

be “on hold;” she 

ban that plaintiff 

informed Ms. Al- 

ue to wind down 

four days before 

work in Phoenix, 

aintiff in Colora- 

orming him that 

illed. There was 

ork on April 7, 

that he was not 

ove occurrences, 

n unenviable po- 

pb practice law in 

0 practice is in 

to Arizona, but 

ere.! 

ould issue in this 

ate of the record. 

plement the record 

rties stipulated to 

May 20, 1980, the 

ery opportunity to 

arding the proprie- 

n under the above 

s of May 30, 1980, 

    

  

  

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’N 431 Cite as 500 F.Supp. 428 (1980) 
OMB BULLETIN 80-7 

The Government justifies its failure to 
honor its offer of employment citing Office 
of Management and Budget Bulletin No. 
80—7. That bulletin, received by the EEOC 
on March 17, 1980, provides as follows: 

3. Limitation on hiring. The President 
has directed that each agency in the Ex- 
ecutive Branch . .. immediately establish 
controls to limit the number of appoint- 
ments to full-time permanent positions 
to not more than 50% of the number of 
vacancies occurring after February 29, 
1980. For the duration of this limitation, 
the full-time permanent employment 
base for each agency is the level of em- 
ployment that existed on February 29, 
1980. Thereafter, that base will decrease 
by 50% of the number of vacancies oceur- 
ring after that date. A vacancy in exist- 
ence as of February 29, 1980 (planned 
positions that were then vacant) may be 
filled only by use of one of the permitted 
appointments resulting from new vacan- 
cies, i. e., from among the 50% of the 
number of vacancies occurring after Feb- 
ruary 29, 1980. 

* * * * * * 

  

  

4. Exemptions. The following exemp- 
tions to the limitation are permitted: 

* * EJ * *® * 

d. hiring _in accordance with firm 
written commitments by agency person- 
nel officers, made prior to March 1, 1980.2 
The Government claims that OMB Bulle- 

tin 80-7 eliminated all vacancies that exist- 
ed on February 29, 1980 (where written 
commitments had not been made by that 
date) and that the Commission was limited 
to filling only one vacancy for every two 
that occurred thereafter. The Government 
estimates that between March 1, 1980, and 

2. In Mr. Beacom’s case, a firm written commit- 
ment was not made until March 11, 1980. 

3. Mr. Beacom’s first argument is that he was 
“appointed” as of February 28, 1980, and there- 
fore, OMB Bulletin 80-7, which eliminated only 
those vacancies existing on February 29, 1980, 
should not be read to apply to him. This posi- 
tion cannot be sustained. Goutos v. United 
States, 552 F.2d 922 (Ct.CL.1976), discussed in- 

September 80, 1980, (the end of the current 
fiscal year) 75 positions can be filled pursu- 
ant to this limitation. 

APPOINTMENT 

[1] Generally speaking, there is no right 
to work for the public. To have a property 
Interest in Government employment, an ap- 
plicant needs more than an abstract desire 
or the ability to perform. See Coleman v. 
Darden, 595 F.2d 533 (10th Cir. 1979); Love 
v. United States, 108 F.2d 43 (8th Cir. 1939). 
He must have a “legitimate claim of en- 
titlement. ...” Coleman v. Darden, supra, 
at 539, quoting Board of Regents v. Roth, 
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 
L.Ed.2d 548 (1972). 

Whether Mr. Beacom was “appointed” at 
OMB 80-7 went into effect plays a 

key role in his ability to challenge the Com- 
mission’s decision not to honor its employ- 
ment agreement.’ In the first place, it is 
entirely unclear whether OMB Bulletin 80- 
7, which was issued March 17, 1980, was 
intended to remove persons who had been 
appointed prior to that date from their posi- 
tions in government employment. More- 
over, there is much authority to the affect 
that, once appointed, a public employee may 
not be removed without being accorded the 

  

  

  
  

  

  

procedural protections set forth in his agen- 
  

cy's own regulations.” See Vitarelli v. Sea- 
ton, 359 U.S. 535, 539-540, 79 S.Ct. 968, 
972-73, 3 L.Ed.2d 1012 (1959); Settle v. 
Brown, 345 F.Supp. 405 (S.D.Tex.1972). 
See also Toohey v. Nitze, 429 F.2d 1332 (9th 
Cir. 1970), cert. denied, Thomas v. Nitze, 
400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 
(1970). See generally, 2 Davis, Administra- 
‘tive Law Treatise, (2d ed. 1979) § 7:21. 

At oral argument, the Court questioned 
the Government as to the availability of 

fra, arguably stands for the proposition that a 
completed Standard Form 52 is the final act 
required for an appointment. Although an SF 
52 has been approved in the present case as of 
February 28, 1980, it is undisputed that Mr. 
Beacom’s name had not been placed on that 
form. This Court is aware of no authority that 
would find an appointment under these circum- 
stances, and can find no rationale for doing so.  



  

      
  
                  

    

432 

administrative review! The Government 
responded, stating the general rule that an 

applicant for federal employment has no 

rights until his appointment. It went on to 

assert that Mr. Beacom was never formally 

“appointed,” and therefore that he is com- 

pletely without remedy. 

Throughout these proceedings, the Com- 

mission has tended to ignore its own role in 

Mr. Beacom’s troubles. Moreover, it has 

cited no case involving truly similar circum- 

stances. 

In support of its contention that the 

EEOC could, without recourse, withdraw its 

offer of employment at any time prior to 

formal appointment, the Government cites 

cases that deal with promotion and trans- 

fer? See e. g., Vukonich v. Civil Service 
Com’n, 589 F.2d 494 (10th Cir. 1978); Gou- 

tos v. United States, 552 F.2d 922 (Ct.CL 

1976); Doggett v. United States, 207 Ct.Cl. 

478 (1975); Urbina v. United States, 428 

F.2d 1280 (Ct.C1.1970). 

Vukonich v. Civil Service Com’n, supra, is 

illustrative. In that case, plaintiff was em- 

ployed by the Environmental Protection 

Agency at a GS-7 level when she was in- 

formed that she had been selected to fill a 

GS-9 opening with the Department of 

Health, Education and Welfare. Four days 

before she was to commence her new posi- 

tion, plaintiff was informed that the Civil 

Service Commission questioned her qualifi- 

cations for a GS-9 rating, and that her 

4. See Settle v. Brown, 345 F.Supp. 405 (S.D. 

Tex.1972). The Government in the hearing and 

arguments held before this Court conceded that 

“if [Mr. Beacom] has been appointed as an 

employee, then he has a right to go to the 

protection board.” Transcript, May 2, 1980. 

5. The decisions cited which do involve original : 

appointment, are not helpful to the present 

case. In Gorman v. United States, 102 Ct.Cl. 

_260 (1944), it was the plaintiff -employee who 

requested a finding that he had not been em- 

ployed (reemployment would have prevented a 

retirement annuity). The court agreed with 

plaintiff, primarily because of its finding that 

the supervisor offering plaintiff his job had 

“knowingly and purposely withheld" important 

information regarding what plaintiff's actual 

salary would be, or at the very least, that there 

was a “mutual misunderstanding” which had 

the effect of vitiating the “supposed [reemploy- 

500 FEDERAL SUPPLEMENT 

transfer and promotion would not occur. 

Plaintiff never began work for HEW, and 

no Standard Form 50, which is entitled 

“Notice of Personnel Action,” was ever 

filed. The Court held that plaintiff had not 

been effectively “appointed” to the GS-9 

position, and thus was not entitled to the 

procedural rights of one facing removal: 

In the paper—laden world of Civil Service, 

an appointment becomes effective only 

after a Standard Form 50 ... has been 

completed. ... The reason for the re- 

liance of CSC on Form 50 is set out in the 

Federal Personnel Manual It provides: 

The Commission requires the prepara- 

tion of notifications of personnel ac- 

tions primarily to provide basic docu- 

mentation of a person’s Federal em- 

ployment, to notify the employee of the 

personnel action, and to provide basic 

records which permit agencies and the 

Commission: 

(1) To determine the status and rights 

of employees as well as their eligibili- 

ties for promotion, transfer, reemploy- 

ment, and other personnel actions. 

(2) To show whether personnel actions 

authorized or ordered have been effect- 

ed and whether actions effected have 

been authorized. 

. . . . 

The notifications of personnel actions 

constitute the employee's official rec- 

ord of Federal employment. They are 

ment] agreement.” Id. at 267. While the court 

also found that plaintiff's confirmed appoint- 

ment was not final until approval by the Chief 

of Engineers and the Secretary of War, which 

was not done at the time plaintiff rejected his 

position, there is no indication that the court 

would have used this to prevent plaintiff from 

being employed, had the circumstances been 

different. 

The government also cites 18 Comp.Gen. 907 

(1939) in which the Comptroller General refus- 

ed to permit a deputy of a member of the 

Federal Home Loan Bank Board to receive pay- 

ment for the two days he served prior to formal 

approval by the Board. In that case, agency 

regulations explicitly prohibited entrance on 

duty prior to Board approval. Moreover, it 

was not the employee’s job that was at stake -it 

was two days pay.   
  

 



would not occur, 

ork for HEW, and 

which is entitled 

Action,” was ever 

hat plaintiff had not 

nted” to the GS-9 

not entitled to the 

e facing removal: 

brid of Civil Service, 

mes effective only 
m 50 ... has been 

reason for the re- 

1 50 is set out in the 

hnual. It provides: 

quires the prepara- 

s of personnel ac- 

provide basic docu- 

rson’s Federal em- 

the employee of the 
hd to provide basic 

it agencies and the 

le status and rights 

ll as their eligibili- 

transfer, reemploy- 

sonnel actions. 

or personnel actions 

>d have been effect- 

tions effected have 

f personnel actions 

loyee’s official rec- 

loyment. They are 

t 267. While the court 

's confirmed appoint- 

approval by the Chief 

cretary of War, which 

e plaintiff rejected his 

ication that the court 

prevent plaintifr from 

e circumstances been 

ites 18 Comp.Gen. 907 

ptroller General refus- 

of a member of the 

Board to receive pay- 

served prior to formal 

In that case, agency 

ohibited entrance on 

proval. Moreover, it 

ob that was at stake -it 

  

  

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’N 433 
Cite as 500 F.Supp. 428 (1980) 

the basic source documents by which 

“his rights and benefits under the laws 

and regulations pertaining to Federal 

service are determined.... United 

States Civil Service Commission, Feder- 
al Personnel Manual, at 296-5 (1969) 
(emphasis added). 

589 F.2d at 496-97. 

[2] To a similar effect is Goutos v. Unit- 

ed States, 552 F.2d 922 (Ct.ClL.1976). In 

Goutos, however, the Court found that ap- 
proval of a SF 52, “Request for Personnel 

Action” was the last act necessary to ap- 
pointment. Plaintiff was a Civil Service 

employee of the Department of the Army. 
In 1969, while serving as Deputy Chief, 

plaintiff was officially detailed to Acting 
Chief. Although plaintiff’s director recom- 

mended him for appointment to Chief, the 

Civilian Personnel Office (CPO) never acted 

on that recommendation. Plaintiff was 
eventually redetailed to his former position, 

and brought suit for retroactive appoint- 
ment to Chief, and for back pay. The 

Court saw the issue as “whether plaintiff 
can claim a valid appointment to ... Chief 

. absent the CPO’s execution of Form 52, 

officially appointing plaintiff to the posi- 
tion,” id. at 924, and held that “under the 

facts of this case, execution of the form is 
the sine qua non to plaintiff's appointment 

Id. According to the Court, 
it is settled law that a Government em- 
ployee is entitled only to the rights and 

salary of the position to which he has 
been appointed by one having the proper 
authority to do so. 

Id. The Court went on to observe that 

it has long been the law that an appoint- 
ment is not made until the last act re- 

6. The Court's holding in the present case 
makes it unnecessary to resolve the issue 
Whether the Form 50 or the Form 52 is the last 
act necessary to promotion. 

On occasion, the Comptroller General has 
taken the position that even the Form 50 is not 
enough; that for a promotion to be effective, 
there must be “acceptance and entrance upon 
duty after notice of appointment.” 45 Comp. 
Gen. 99 (1965). See also, 54 Comp.Gen. 1028 
(1975) (dicta). The Court is aware of no judi- 
cial decisions that require actual entrance upon 
duty and finds such a rule is unnecessarily 
restrictive. Not only is such a requirement 

quired by the person or body vested with 

the appointment power is performed. . .". 

Here the final act required was the signa- 

ture of the CPO on the form. The CPO 

never signed, so plaintiff was never ap- 
pointed. 

To infer appointment under these facts 

could easily bring about chaos in govern- 

ment personnel management. Appoint- 

ments could take effect automatically, 

even upon the knowing failure of an ap- 

pointing official to act. The result would 

be that the person with the power to 

recommend would also obtain the power 

to appoint in direct contradiction of offi- 

cial regulations. 

Id. at 924-255 

Mr. Beacom’s situation differs from the 

cases cited by the Government in two major 
respects: first, this case involves original 
appointment, not promotion; second, while 

there was never an SF 50 completed in the 

present case, and while Mr. Beacom’s name 

had never been placed on an SF 52, an SF 

52 had been approved by the District Di- 

rector, Jesus Estrada—Melendez. 

  

  

  

  

Several differences between promotion 

and original appointment militate against 

applying the same standards in both situa- 
tions. 

Appointment is more likely to involve 

negotiation than promotion. Promotions 

are“generally offered and accepted; they 

require no persuasion. As demonstrated in 

the Present case, appointment may well in- 
volve circumstances where the Government 

will want the services of an individual who 
is happily employed, and who is willing to 

    

  

  

  

unnecessary to Government personnel manage- 

ment, see Vukonich v. Civil Service Comm'n, 

supra; Goutos v. United States, supra, it can 

work an unfair burden on the prospective 

Government employee. 

It is, however, clear that a Government em- 

ployee is not entitled to higher pay merely by 

performing the duties normally performed by a 

higher -level official; there must be an appoint- 

ment. See Peters v. United States, 534 F.2d 

232 (Ct.CL.1976); Goutos v. United States, su- 

pra; Coleman v. United States, 100 Ct.Cl. 41 
(1943).  



  
  

        

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434 500 FEDERAL SUPPLEMENT 

give up his employment only if certain con- 

ditions are met.” 

Perhaps the most significant difference 
between promotion and appointment con- 
cerns the potential impact upon the private 
individual if the Government—employer 
fails to live up to its end of the bargain. In 

the cases cited by the Government, the pro- 
motee lost only an expectation; when the 
dust settled his old job was still available. 

The applicant, as suggested by Mr. Bea- 
com’s experience, is not always so lucky. 
At the time the Government notifies him of 

its intention to breach, he may well have 
irreversibly committed himself. He loses 

not only an expectation, but his old job as 
well. : 

Finally, it should be observed that the 
promotion cases involve present govern- 
ment employees—persons who are more like- 
ly to be aware of SF 50's and 52’s for the 

reason that they've been through it before. 

Unless he is instructed differently, the ap- 
plicant may react much the same as Mr. 
Beacom: when the Government assures 

him, both orally and in writing, that he’s 

employed, he may react as though he has a 

job. 

On March 11, 1980, the Commission, 

through a supervisory trial attorney, orally 
informed Mr. Beacom that he had a job. 
Three days later, the Commission sent him 

a form letter, signed by the Regional Attor- 

ney, with a copy to the District Director. 

That letter provided, in part: 

we are pleased to confirm your selection 

to the position of Trial Attorney ... in 
our Phoenix District Office. The effec- 
tive date of your appointment is April 6, 

1980. 

The bargaining that can occur in the employ- 

ment process is well-illustrated by the tele- 

phone exchange taking place between Ismael 

Alverez and Mr. Beacom on March 11, 1980. 

Mr. Alverez's refusal to permit plaintiff to re- 

port to work after April 7, 1980, after plaintiff 

had requested additional time to wind down his 

private practice, could be interpreted as an 

implied promise to put Mr. Beacom to work if 

he showed up on the date requested. The 

Court's holding in the present case makes it 

unnecessary to address whether Mr. Beacom 

would have a cause of action for breach of an 

implied contract to employ, which would be a 

Please report ... on Monday, April 7, 

1980 at 8:30 a. m. to complete the neces- 

sary appointment papers ... 

We welcome you to our staff and hope 

- that you will find your assignment both 

challenging and rewarding. 

This language does not represent that Mr. 

Beacom stood a mere chance of being ap- 

pointed to the position of Trial Attorney. 

It clearly suggests that an “appointment” 

had taken place, and that the appointment 

would become “effective” on April 6th. 

The reference to “appointment papers,” 

which were not to be filled out until after 

the “effective date” of the “appointment” 

reinforces this. It suggests that the ap- 

pointment papers have nothing to do with 

the effectiveness of the appointment, and 

that the “last act” necessary to appoint- 

ment had been completed. See Goutos v. 

United States, 552 F.2d 922 (Ct.Cl.1976). 

The Government now argues that such 

papers were the “sine qua non” to Mr. 

Beacom’s appointment. 

The Commission's act in sending the 

above letter is not alleged to have been the 

unauthorized act of a single individual. 

The letter itself appears to be of the form 

variety, regularly used by the Commission 

in notifying applicants of their selection? 
The District Director, to whom the copy 

was sent, was the same person who ap- 

proved the SF 52 involved here. The Court 

concludes that the appointing authority was 

not only aware that such letters were being 

used, but was aware that one was sent to 

Mr. Beacom. 

difficult question considering the nature of 

Government employment. See text accompa- 

nying note 3, supra. The Court notes, how- 

ever, that the Supreme Court has indicated that 

Government is not immune from the concept of 

implied contract in employment situations. 

See Perry v. Sinderman, 408 U.S. 593, 601-602, 

92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 

(1972). See also United States v. Hopkins, 427 

U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976). 

8. The record reveals that a virtually identical 

letter was sent to Mr. George W. Reyes, anoth- 

er applicant, on March 3, 1980.   

  

  

 



n Monday, April 7, 

complete the neces- 

pers . 

our staff and hope 

bur assignment both 

birding. 

represent that Mr. 

hance of being ap- 

of Trial Attorney. 

t an “appointment” 

at the appointment 

ive” on April 6th. 
pointment papers,” 

illed out until after 

the “appointment” 

gests that the ap- 

nothing to do with 

e appointment, and 

cessary to appoint- 

ted. See Goutos v. 

2d 922 (Ct.CL.1976). 

argues that such 

qua non” to Mr. 

ct in sending the 

ed to have been the 

single individual. 

s to be of the form 

by the Commission 

of their selection? 
to whom the copy 

e person who ap- 

ed here. The Court 

Inting authority was 

h letters were being 

at one was sent to 

dering the nature of 

t. See text accompa- 

he Court notes, how- 

ourt has indicated that 

ne from the concept of 

nployment situations. 

408 U.S. 593, 601-602, 

00, 33: 1L.Ed.2d 370 

States v. Hopkins, 427 

9 L.Ed.2d 361 (1976). 

t a virtually identical 

orge W. Reyes, anoth- 

, 1980. 

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’'N 435 
Cite as 500 F.Supp. 428 (1980) 

[3] Under these circumstances, the 
Court feels justified in finding that Mr. 

acom was appointed as of March. 14 1980. 

The Commission, following general proce- 
dure, represented that the final act neces- 
sary to appointment had been completed. 
See Goutos v. United States, supra. Mr. 
Beacom, in reasonable reliance thereon, act- 
ed to his irreversible detriment. 

  

  

This holding applies only to the narrow 
facts before the Court. In the cases cited 
by the Government, the concern has been 
that unless the “last act” test were fol- 
lowed, the People might be forced to em- 
ploy personnel that had not been authoriz- 
ed, see Vukonich v. Civil Service Com’n, 
supra, or that “chaos in government person- 
nel management” would result. See Goutos 
v. United States, supra. These problems 
are not present here. The only administra- 
tive burden that this ruling places on the 
government is to require agencies to use 
procedures that fairly appraise an applicant 
of his standing. 

ESTOPPEL 

The Court need not base its holding en- 
tirely on the conclusion that Mr. Beacom 
was in-fact “appointed.” Under the cir- 
cumstances presented here, the Government 
should be estopped from asserting that Mr. 
Beacom has no rights to appointment. 

The Commission’s course of dealing with 
Mr. Beacom permits two estoppel argu- 
ments, either of which would provide a ba- 
sis for ‘relief. The most obvious argument | 

    

  

Mr. Beacom that he was not protected by a 
formal appointment, combined with its mis- 
leading confirmation, should estop the Com- 
mission from asserting that appointment 
had not occurred. In addition, it could be   "argtded that, under the circumstances, the 

9. The traditional view was simply that the fed- 
eral government could not be subjected to es- 
toppel. See Utah Power & Light Co. v. United 
States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 
L.Ed. 791 (1917). Recently, however, the Ninth 
Circuit has recognized that the Government 
should not be immune from estoppel under all 
circumstances. This retreat from traditional 
thought 

is premised in part on the belief that the 
maxim that every man is presumed to know 

at the Commission’s failure to inform 

Commission’s delay in informing Mr. Bea- 
com that the President’s freeze would af- 
fect his job should estop it from applying 
OMB Bulletin 80-7 to Mr. Beacom. 

[4] In general, the appropriate test of ) 

estoppel in this circuit is as follows: 

(1) The party to be estopped must know 

the facts; (2) he must intend that his 

conduct shall be acted on or must so act 

that the party asserting the estoppel has 

a right to believe it is so intended; (3) 

the latter must be ignorant of the true 

facts; and (4) he must rely on the for- 

mer’s conduct to his injury. 

United States v. Georgia Pacific, 421 F.2d 
92, 96 (9th.Cir..1970). See also Simon v. 
Califano, 593 F.2d 121, 123 (9th Cir. 1971); 

United States v. Ruby Co., 588 F.2d 697, 703 

(9th Cir. 1978); United States v. Wharton, 

514 F.2d 406, 412 (9th Cir. 1975). 

[5] Where the Government is the party 
against whom estoppel is being asserted? 
however, it is clear that the private litigant. 
must do more than meet the general test. 
Not only must the private litigant make a 
threshold showing that the Government has 
engaged in “affirmative misconduct,” see 
Oki v. Immigration and Naturalization Ser- 
vice, 598 F.2d 1160 (9th Cir. 1979); Simon v. 
Califano, supra; United States v. Ruby Co., 
supra; California Pacific Bank v. Small 
Business Administration, 557 F.2d 218 (9th 
Cir. 7);J Sun II Yoo v. Immigration and 
Naturalization Service, 534 F.2d 1325 (9th 
Cir. 1976); { Santiago v. Immigration an 

  

  

  

  

“Naturalization Service, 526 F.2d 488 (9th 
Cir. 1975), he faced the further burden o 

demonstrating t that the injustice caused by 

the Government's misconduct is s sufficiently 
severe to lo outweigh the countervailing 1 inter- 
est of the public not to be > unduly damaged Feeble 

the law ... has less force when one is de- 
pendent upon a governmental agency to in- 
terpret its own complex body of rules and 
regulations. Moreover, the increasing pres- 
ence of the Government in the marketplace 
has necessitated that on occasion it be treat- 
ed more like a proprietor and less like a 
sovereign. 

California Pacific Bank v. Small Business Ad- 
ministration, 557 F.2d 218, 224 (9th Cir. 1977). 

  

  

    

    

  
 



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436 500 FEDERAL SUPPLEMENT 

by the imposition of estoppel. United 

States v. Ruby Co., 588 F.2d at 703; United 

States v. Wharton, 514 F.2d at 411.1 

AFFIRMATIVE MISCONDUCT 

The question whether the Commission’s 

behavior in the present case amounts to 

“affirmative misconduct” is troublesome. 

While frequently voicing the need for af- 

firmative misconduct, the Ninth Circuit has 

avoided formulating a standard with which 

to determine its existence. The court has 

tended to look at the facts of each case and 

announce whether, under those circum- 

stances, the Government is sufficiently 

blameworthy. See e. g.; California Pacific 

Bank v. Small Business Administration, 557 

‘F.2d at 224-25; Sun Il Yoo v. Immigration 

and Naturalization Service, 534 F.2d at 

1329. 

The present fact situation gives rise to 

three possible sources of misconduct: 

First, the Commission failed to inform 

* plaintiff that its job offer, plaintiff's ac- 

ceptance thereof, and the Commission’s sub- 

sequent written confirmation would not, 

under the standards presently asserted by 

the Government, give rise to a firm ap- 

pointment until various Government forms 

had been signed and approved and plaintiff 

had actually commenced employment. The 

Commission’s failure in this regard kept 

plaintiff ignorant of the risk he was taking 

by winding down his practice. 

Second, as discussed previously, the Com- 

mission’s written confirmation of plaintiff’s 

employment gives the definite impression 

that a valid appointment had taken place, 

and that the “appointment papers” (pre- 

sumably those now relied upon by the Com- 

10. The Commission argues that the policy in 

favor of Government independence in person- 

nel decisions, see Sampson v. Murray, 415 U.S. 

61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), should 

preclude the availability of estoppel in all cases 

of this nature. The Court cannot agree. The 

Ninth Circuit has considered estoppel in vari- 

ous areas of government concern, see e. g., 

United States v. Wharton, supra, (acquisition 

of government land); Sun II Yoo v. Immigra- 

tion and Naturalization Service, supra (immi- 

gration); California Pacific Bank v. Small Busi- 

ness Administration, supra (government con- 

mission as conditions precedent to appoint- 

ment) could be taken care of after the 

effective date of the appointment. 

The final source of possible misconduct 

concerns the Commission's delay in inform- 

ing plaintiff that he would not be hired. 

There were 19 days between the President’s 

speech and the Commissions attempted call 

on April 3, 1980. The call wasn’t attempted 

until 16 days after the Commission’s receipt 

of OMB Bulletin 80-7 and 12 days after the 

Commission knew enough to place plaintiff 

“on hold.” The foregoing delay should be 

examined in light of the Commission’s 

awareness of plaintiff's reliance and its 

awareness of the extent of damage that 

would result from not honoring its employ- 

ment commitment. 

a) Nonfeasance 

The Ninth Circuit's recent decision in Oki 

v. Immigration and Naturalization Service, 

598 F.2d 1160 (9th Cir. 1979), suggests that 

the private litigant who wishes to subject 

the Government to estoppel must do more 

than prove misconduct; he must also prove 

that the Government's misbehavior was 

“affirmative.” While it is clear that the 

Commission's written confirmation was af- 

firmative conduct, the same is not true of 

its other behavior. 

In Oki, the Government sought to deport 

an alien for the reason that he had com- 

menced employment in this country without 

receiving permission. Petitioner argued 

that the Government should be estopped 

from asserting lack of permission because 

the Government had failed to advise peti- 

tioner of this requirement. The Court, re- 

lying on United States v. Ruby Co., 588 

F.2d at 703-04 and Santiago v. Immigration 
. 

tracts), but has never found a particular 

Government interest so overriding as to com- 

pletely bar the application of estoppel in a 

meritorious case. The interests of the people 

have been, and can be, adequately protected on 

a case-by-case basis by balancing the equities 

alleged by the private litigant against the inter- 

ests asserted by the Government. See United 

States v. Ruby Co., supra. It is unnecessary to 

ignore the interests of the private litigant and 

the behavior of the Government and to decide 

the issue simply on the basis of the subject 

matter involved.  



precedent to appoint- 

n care of after the 

hppointment. 

possible misconduct 

ion’s delay in inform- 

would not be hired. 

tween the President's 

ssion’s attempted call 

call wasn't attempted 

Commission’s receipt 

and 12 days after the 

ugh to place plaintiff 

Foing delay should be 

pf the Commissions 

ff’s reliance and its 

tent of damage that 

honoring its employ- 

easance 

recent decision in Oki 

‘aturalization Service, 

. 1979), suggests that 

ho wishes to subject 

ktoppel must do more 

t: he must also prove 

t's misbehavior was 

bit is clear that the 

confirmation was af- 

same is not true of 

ent sought to deport 

on that he had com- 

n this country without 

Petitioner argued 

should be estopped 

f permission because 

failed to advise peti- 

ment. The Court, re- 

tes v. Ruby Co., 588 

bntiago v. Immigration 

ver found a particular 

50 overriding as to com- 

cation of estoppel in a 

> interests of the people 

|, adequately protected on 

by balancing the equities 

litigant against the inter- 

overnment. See United 
pra. It is unnecessary to 

the private litigant and 

vernment and to decide 

the basis of the subject 

  

  

  

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’N 437 
Cite as 500 F.Supp. 428 (1980) 

and Naturalization Service, 526 F.2d at 491, 

found an absence of affirmativeness: 

But it is not the failure to do something 

which may lead to estoppel against a 

government agency; the conduct com- 

plained about must be an affirmative 

act.... The failure to advise Mr. Oki 

that he could not work until permission 

was received subsequent to filing the nec- 

essary forms was clearly not affirmative 

conduct. We need not reach the question 

of whether such conduct could be con- 

sidered misconduct as required for an es- 

toppel against the government. 

598 F.2d at 1162 (Citations omitted). 

Upon review of the cases relied upon by 

Oki, as well as other Ninth Circuit decisions 

in this area, this Court concludes that the 

Oki decision did not intend to preclude es- 

toppel in all cases where the misconduct of 

the Government could be cast in terms of 

nonfeasance. 

~ One of the first Ninth Circuit decisions to 

discuss the Supreme Court’s use of there 

term “affirmative misconduct” in Immigra- 

tion and Naturalization Service v. Hi 

U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), was 

antiago v. Immigration and Naturalization 

Service, supra. In Santiago, aliens argued 

that Immigration’s failure to inform them 

of certain statutory requirements for entry, 

after learning the relevant facts, should 

estop the Government from asserting ineli- 

gibility at a subsequent deportation hear- 

ing. The court rejected the alien's argu- 

ment, but specifically declined to elaborate 

on the meaning of “affirmative miscon- 

duct” or to speculate as to why the Su- 

preme Court chose the modifier “affirma- 

tive.” While the court detected a sugges- 

tion that “a distinction might be drawn 

between nonfeasance and misfeasance,” 526 

F.2d at 493, it announced that such terms 

are “slippery.” Id! 

11. The Court noted that the Government's fail- 
ures can become misfeasance simply by char- 

acterizing them as ‘‘deliberate efforts,” 526 

F.2d at 493, and that the problem can become 
“semantic.” Id. 

The Santiago decision is not particularly 
helpful for the reason that it declined to explain 

United States v. Ruby Co., supra, the 

second decision relied on by Oki, involved a 

land dispute between the federal govern- 

ment and the successors in title to a land 

patent holder. In that case, the court held 

that the Government's failure to resurvey 

certain land upon learning of an investiga- 

tion by the Bureau of Land Management 

which concluded that the survey pursuant 

to which the patent was issued was fraudu- 

lent should not estop the Government from 

asserting the incorrectness of the survey 

some 35 years later. While the court reaf- 

firmed the position of Santiago, supra, that 

the misconduct of the Government must be 

“affirmative,” 588 F.2d at 703, the court’s 

ruling had little to do with affirmativeness. 

The fraudulent nature of the original sur- 

vey was insufficient for lack of evidence 

that the Government, after becoming aware 

of the inaccuracies, ever sought to conceal 

or to misrepresent the true facts. The 

Government's decision not to resurvey was 

termed “affirmative conduct,” 588 F.2d 704, 

but the court found “it is clear that it was 

not misconduct.” Id. (Emphasis in origi- 

nal). 
ig, 

The Ninth Circuit's most extensive exam- 

ination in this area suggests that under 

appropriate circumstances Government in 

action can meet the affirmativeness re- 

quirement. In Sun II Yoo v. Immigration 

and Naturalization Service, 534 F.2d 1325 
(9th_Cir, 1976), the court held that a ten-— 
month delay by the Government in as- 

certaining the veracity of information al- 

leged in an alien’s application for a visa was 

sufficient to estop the Government from 

asserting that eligibility regulations had 

changed in the interim. In making its de- 

termination, the court looked to the sur- 

rounding circumstances and found “no ap- 

parent justification” for the delay. Id. at 

1328. The court distinguished Santiago, su- 

pra on two levels. First, that case involved 

  

    

why the Government's behavior did not 

amount to affirmative misconduct. The court 

simply compared the “misconduct” involved in 

INS v. Hibi, supra, with the behavior before it 

and found the latter to be ‘less blameworthy.” 

526 F.2d at 493.  



  

    

        
            

438 

a failure to inform which “may have been 

due to simple negligence resulting from the 

hectic atmosphere surrounding the process- 

ing and admitting of large numbers of 

aliens ” Id. Secondly, the injury in 
Sun II Yoo was more severe: 

When such serious injury may be caused 

by INS decisions, its officials must be 

held to the highest standards in the dili- 

gent performance of their duties. Here, 

their duty was clear. Unlike the immi- 

grants in Santiago, who had no right to 

enter the United States when they did, 

Yoo had an absolute right to a labor 

certification under the INS’s own regula- 

tion. INS officials, by their affirmative 

inaction, deprived petitioner of that right 
without justification. : 

Id. at 1329. (Emphasis supplied).!? 

[6] This Court feels that whether non- 

feasance by the Government is simply inaf- 

firmative, or amounts to “affirmative inac- 

tion” should be viewed with reference to 

the circumstances of each case. Since Oki 

v. Immigration and Naturalization Service, 

supra, failed to mention Sun II Yoo, it 

seems reasonable to assume that the court 

did not intend to detract from that decision. 

12. Since Sun Il Yoo, the court has consistently 

looked to surrounding circumstances to deter- 

mine whether arguably nonfeasant government 
behavior amounted to affirmative misconduct. 

In California Pacific Bank v. Small Business 

Administration, 557 F.2d 218 (9th Cir. 1977), 

the court held that the Government's failure to 

assert the illegality of certain loan arrange- 

ments was insufficient to estop it from assert- 
ing illegality of contract. The court noted that 

the Bank's allegations, “viewed in isolation . . . 

[came] very close to satisfying the required 

showing,” 557 F.2d at 224, but that these alle- 
gations did not reveal the entire picture. The 
court reasoned that in view of the fact that the 

disputed provisions were clearly illegal 

the Bank had a responsibility to obtain from 

the SBA an equally forceful renunciation of 

them ... Implications drawn from silences 

--and failures to respond will not, in this situa- 
tion, suffice. 

Id. at 225. (Emphasis added). 

In Simon v. Califano, 593 F.2d 121 (9th Cir. 

1979), the court was dealing with a combina- 
tion of misfeasant and arguably nonfeasant be- 
havior. In that case, the negligence of a train- 
ee claims representative in failing to ask a 
retirement insurance claimant whether she had 
children, and in writing “none” in response to a 

500 FEDERAL SUPPLEMENT 

b) Misconduct 

In determining whether a given set of 

circumstances amounts to affirmative mis- 

conduct, the Ninth Circuit has tended to 

emphasize three factors: 

First, the Government's justification for 

its alleged misbehavior, see Sun II Yoo v. 

INS, supra, at 1328; United States v. Ruby 

Co., supra at 704; 

Second, the magnitude of injury possible 

from breech of duty, see Sun II Yoo v. INS, 

supra at 1329. Cf. Simon v. Califano, 593 

F.2d at 123; and 

Third, the harm to the public from per- 

mitting estoppel. See California Pacific 

Bank v. SBA, supra at 225; United States 

v. Ruby Co., supra at 700, 704; Sun Il Yoo 

v. INS, supra at 1329. 

In the present case, the Court can find 

little justification for the Government's 

failure to inform Mr. Beacom that his ap- 

pointment would not be considered until his 

paperwork was approved and he had com- 

menced his duties,” or for its delay in in- 
forming Mr. Beacom that the President's 

freeze would affect his job." This is espe- 

question on the claim application concerning 

eligible children was held not to estop the 

Government from arguing that a substantive 

condition to benefits is an application there- 

fore. The court found that the trainee was 

guilty of negligence, but that “mere neglect of 

duty” does not amount to affirmative miscon- 

duct. As a further reason for its decision, the 

court found that plaintiff's loss was “not of 

such magnitude and so serious” as to warrant 

estoppel under the circumstances. 593 F.2d at 
123. 

13. In Sun Il Yoo v. INS, supra, the court distin- 

guished failures to act which “may have been 

due to simple negligence resulting from [a] hec- 

tic atmosphere,” 534 F.2d at 1328, from those 

where the Government had time to think. In 

the present case, the Government's failure to 

inform appears to have been a matter of stan- 

dard procedure, thereby placing it in the latter 
category. 

14. In Sun Il Yoo v. INS, supra, the court found 
that under appropriate circumstances, the 
Government's failure to act could amount to 
“oppressive delay,” constituting “affirmative 
inaction.” 534 F.2d at 1328-29. While the 
delay in Sun Il Yoo was more substantial than    



    
onduct 

  

        
    
    

ether a given set of 

to affirmative mis- 

ircuit has tended to 

S: 

    

         

   

  

   

ent’s justification for 

r, see Sun II Yoo v. 

nited States v. Ruby 

    

     
   

  

   

de of injury possible 

ee Sun II Yoo v. INS, 

on v. Califano, 593 

  

   

    

the public from per- 

e California Pacific 

225; United States 

100, 704; Sun Il Yoo 

   
     

    

  

the Court can find 

the Government's 

Beacom that his ap- 

b considered until his 

ed and he had com- 

for its delay in in- 

hat the President's 

job.™ This is espe- 

    
   
   
   

   

   

     

   
   

    

    

   

  

    

  

    

    

    

   
   

pplication concerning 

eld not to estop the 

ing that a substantive 

an application there- 

that the trainee was 

that “mere neglect of 

to affirmative miscon- 

on for its decision, the 

iff's loss was “not of 

serious’ as to warrant 

stances. 593 F.2d at 

upra, the court distin- 

hich “may have been 

resulting from [a] hec- 

d at 1328, from those 

ad time to think. In 

bvernment’s failure to 

een a matter of stan- 

placing it in the latter 

upra, the court found 

circumstances, the 

act could amount to 

stituting ‘‘affirmative 

1328-29. While the 

more substantial than      

      

  

    

  

  

cially so in light of the Commission’s knowl- 

edge that Mr. Beacom was dismantling 16 
years of private practice in reliance on his 

appointment, and Mr. Beacom’s phone call 

requesting information on whether his ap- 
pointment was in jeopardy. It is notewor- 
thy that EEOC hires many lawyers, and 
must be presumed to know the harm that a 

breach of duty would visit on Mr. Beacom’s 
life and profession. 

In addition to the above, the Court finds 
little harm to the public in permitting es- 
toppel in the present case. This is not a 
case where the people stand to lose thou- 
sands of acres of land, see United States v. 
Ruby Co., supra at 700, or where estoppel 
will tolerate the Government’s participation 
in a clearly illegal contract, see California 
Pacific Bank v. SBA, supra. In the present 
case, the plaintiff is asking the Government 
to accept an experienced trial lawyer who 
the Commission had chosen of its own free 
will. Moreover, the Government cannot 
claim that estoppel will require it to violate 
the Presidential freeze. The Government 
admits that, even under OMB Bulletin 80-17, 
the Commission would be able to hire 75 
persons between March 1, 1980, and Sep- 
tember 30, 1980. 

Under the present circumstances, the 
only harm that can be asserted by the 
Government is that estoppel will force the 
Commission to fill a position that, under its 
priority schedules, the Commission might 

here, the Government's knowledge of Mr. Bea- 
com’s predicament and the irreparable nature 
of resulting harm renders the situation “‘op- 
pressive.” 

15. Plaintiff is not alone in his disappointment. 
The Government alleges that between March ¥; 
1980, and March 17, 1980, (the date the EEOC 
received OMB Bulletin 80-7), the Commission 
had made 116 written commitments of employ- 
ment. The Commission's solution was to re- 
scind all outstanding offers; to establish a Va- 
cancy Control Board, composed of high Com- 
mission officials; and to hire only after the 
Board had reviewed a position in light of pro- 
gram priorities, 

16. The issue of whether plaintiff would suffer 
sufficient irreparable harm to warrant a Tem- 
porary Restraining Order was argued on May 
2, 1980. At that time, the Court noted that 
Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 

  

BEACOM v. EQUAL EMPLOYMENT OPPORTUNITY COM’N 439 
Cite as 500 F.Supp. 428 (1980) 

otherwise choose to leave open.’ It should 
be noted that, to the Court's knowledge, the 
Government has not even attempted to 
avoid this injury by offering Mr. Beacom 
the opportunity to fill any of the openings 
that have occurred regardless of where they 
are located even though the Court suggest- 
ed such a procedure in an attempt to 
achieve a settlement of this case. 

[7] The Court finds that the Commis- 
sion’s failure to inform plaintiff that he was 
not operating under the protection of an 
appointment, its written confirmation, 
which suggested that plaintiff had in fact 
been appointed, and its delay in informing 
plaintiff that he would not be hired, each 
constitute sufficient “affirmative miscon- 
duct” to permit the Court to proceed to the 
balancing stage of the analysis. 

CONCLUSION 

This Court is fully aware that estoppel 
against the federal government is still the 
exception rather than the rule. See Cali- 
fornia Pacific Bank v. SBA, 557 F.2d at 224. 
The present facts, however, demand relief. 
Not only should the Commission be es- 
topped from asserting that appointment 
had not occurred, it should be estopped 
from applying OMB Bulletin 80-7 to Mr. 
Beacom. The Court reaches this conclusion 
only after carefully balancing the injus- 
tice 1° caused by the Government's miscon- 

39 L.Ed.2d 166 (1974), weighed heavily against 
plaintiff's position, although it did not preclude 
such a finding entirely. Id. at 92, 94 S.Ct. at 
953, n. 68. The question was not decided, how- 
ever, because the parties agreed to the Court's 
suggestion, pursuant to Rule 65(a)(2), to an 
expedited review of the merits of the case. See 
this Court’s Order of May 20, 1980, and the 
Statement as to Agreement of the Parties Re- 
garding the Court’s Order Dated May 20, 1980, 
filed May 27, 1980. On June 2, 1980, the Court 
ordered that the parties submit “legal memo- 
randa as to the appropriateness of a permanent 
injunction under the facts of this case (memo- 
randa previously submitted have been limited 
to the issue whether preliminary relief was 
appropriate and are thus not directly applicable 
to the question now before the Court).” The 
Commission did not thereafter address the is- 
sue of irreparable harm even though plaintiff's 
Response to Defendant's Legal Memorandum   



                      

              

440 

duct against the countervailing interests of 
the public not to be unduly damaged by the 
imposition of estoppel. See United States 
v. Ruby Co., 588 F.2d at 703; United States 
v. Wharton, 514 F.2d at 411. 

Throughout this matter, the Court has 
encouraged the Government to find a place 
for Mr. Beacom, but the Government has 
refused to do so. Such action would have 
made this difficult decision unnecessary. 

In accordance with the foregoing, this 
Court finds that Mr. Beacom was employed 
by the Commission in the position of Trial 
Attorney on April 7, 1980. 

Therefore, 

IT IS ORDERED that plaintiff be given 
all the perquisites of said employment, in- 
cluding accrued pay, seniority, and other 
benefits, from April 7, 1980. 

W 
o £ KEY NUMBER SYSTEM 

T 

In the Matter of OIL AND GAS PRODUC- 
ERS HAVING PROCESSING AGREE- 
MENTS WITH KERR-McGEE CORPO- 
RATION. 

No. CIV-80-897-T. 

United States District Court, 
W. D. Oklahoma. 

Aug. 15, 1980. 

Government brought ex parte proceed- 
ing seeking order permitting service of 
John Doe summons on petroleum producer. 
The District Court, Ralph G. Thompson, J., 
held that: (1) government was not entitled 

“to serve John Doe summons seeking names 

and Proposed Findings. of Fact, filed June 17, 
1980, pointed out that “although the Court's 
Order appears to call for authorities as to the 
standards on permanent injunction, that ques- 
tion is not discussed.” On June 27, 1980, the 
Court entered an Order permitting the parties 
to reply. Still, the Commission did not address 
the issue of irreparable harm. This Court finds 

500 FEDERAL SUPPLEMENT 

and addresses of all parties with whom pro- 
ducer had processing agreements as well as 
copies of the agreements absent any show- 
ing of a reasonable basis for believing that 
any identifiable individual might have 
failed to comply with any internal revenue 
law, and (2) proceedings were not required 
to be conducted in secret. 

Relief denied. 

1. Internal Revenue &=1459 
Government was not entitled to serve 

John Doe summons on petroleum producer 
seeking names and addresses of parties 
with whom the producer had processing 
agreements and copies of such agreements 
where such relief was not based on a rea- 
sonable basis for believing that those oil 
and gas producers who did business with 
producer’s facility were failing to comply 
with the internal revenue laws but was 
seeking to use the summons as a discovery 
device for determining whether there was a 
reasonable basis for believing that some of 
those oil and gas producers may be so occu- 
pied. 26 U.S.C.A. §§ 7402(a), 7609, 7609(f, 
h). 

2. Internal Revenue <=1460 
Ex parte proceedings seeking issuance 

of John Doe summons directed to a third— 
party recordkeeper were not required to be 
conducted in secret, with proceedings sealed 
from public view. 26 U.S.C.A. §§ 7402(a), 
7609, 7609(f, h). 

Roger W. Griffith, Asst. U.S. Atty., Okla- 
homa City, OKI., for plaintiff. 

ORDER 

RALPH G. THOMPSON, District Judge. 

The government brings this ex parte pro- 
ceeding pursuant to 26 U.S.C. §§ 7402(a), 

that, under the circumstances, the Govern- 
ment’s failure to address this issue amounts to 
a concession that, if Mr. Beacom is denied an 
injunction, he will suffer irreparable damage. 
See Rule 11(g), Local Rules of Practice for the 
United States District Court, District of Arizo- 
na.    



341 U.S. 

e result if we con- 

We think it would 
b of the procedure, 

bowers granted the 
records” broadly 

fs. 

rovernment, reports 

hted in that depart- 
h, part of the record 

We conclude that 
eaning of § 302 (a). 

Reversed. 

sability Review Board 

> such a cramped con- 

ive additional evidence 

of [the disability]” 

ii). Indeed they em- 

nination of the retired 
81.1 (b) (2) (v). 

    
  

MOSER v. UNITED STATES. 

Syllabus. 

MOSER v. UNITED STATES. 

‘CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT. 

No. 301. Argued March 7, 1951.—Decided April 9, 1951. 

The Treaty of 1850 between the United States and Switzerland 

provides that citizens of one country residing in the other “shall 

be free from personal military service.” Section 3 (a) of the 

Selective Training and Service Act of 1940, as amended, provided 

for the exemption of neutral aliens from service in the land or 

naval forces of the United States, with the proviso that one who 

claimed exemption should thereafter be barred from becoming a 

citizen of the United States. Petitioner, a Swiss national, applied 

for and obtained exemption from service in the land or naval forces 

of the United States. Held: Under the circumstances detailed in 

the opinion, he was not debarred from United States citizenship. 

Pp. 4247. 

(a) As a matter of law, the Act imposed a valid condition on 

petitioner’s claim of exemption from military service. Pp. 45-46. 

(b) Petitioner did not knowingly and intentionally waive his 

rights to citizenship. Considering all the circumstances of the case, 

elementary fairness would require nothing less than an intelligent 

waiver to debar petitioner from citizenship. Pp. 46-47. 

182 F. 2d 734, reversed. 

An order of the District Court admitting petitioner to 

citizenship, 85 F. Supp. 683, was reversed by the Court 

of Appeals. 182 F. 2d 734. This Court granted certio- 

rari. 340 U. S. 910. Reversed, p. 47. 

Jack Wasserman and Morris E. Vogel argued the cause 
and filed a brief for petitioner. : 

Stanley M. Silverberg argued the cause for the United 
States. With him on the brief were Solicitor General 
Perlman, Assistant Attorney General McInerney and J. F. 
‘Bishop. 

  

    
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OCTOBER TERM, 1950. 

Opinion of the Court. 341 U.S. 

Mg. Justice MinToN delivered the opinion of the 

Court. : 

Petitioner, a native of Switzerland, was admitted to 

citizenship by the United States District Court for the 

Eastern District of New York on July 21, 1949. The 

Court of Appeals reversed,? holding that petitioner was 

debarred from citizenship because he had claimed exemp- 

tion from military service as a neutral alien during World 

War II. Important questions concerning the effect of 

treaty and statute upon the privilege of aliens to acquire 

citizenship are involved, and we granted certiorari.’ 

Petitioner first entered the United States in 1937. 

After a trip to Switzerland in 1940 for service in the Swiss 

Army, in which he held a commission, he returned to this 

country and married a United States citizen. He and his 

wife have three children, all born here. 

Article II of the Treaty of 1850 * between the United 

States and Switzerland provides that 

“The citizens of one of the two countries, residing 

or established in the other, shall be free from personal 

military service . ...” 

Petitioner registered under Selective Service in 1940 

and was classified III-A, based on dependency. When, 

on January 11, 1944, his Local Board in New York City 

reclassified him I-A, available for service, he sought the 

aid of the Legation of Switzerland in securing his defer- 

ment in accordance with the Treaty of 1850. At that 

time § 3 (a) of the Selective Training and Service Act of 

1940, as amended,’ provided for the exemption of neutral 

185 F. Supp. 683. 

2182 F.2d 734. 

8340 U.S. 910. 
411 Stat. 587, 589. 
5 Section 3 (a) of the Act, 54 Stat. 885, as amended, 55 Stat. 845, 

50 U.S. C. App. § 303 (a), provided in part: 
“Except as otherwise provided in this Act, every male citizen of      



   
M, 1950. 

  

red the opinion of the 

prland, was admitted to 
District Court for the 

in July 21, 1949. The 
ing that petitioner was 

t he had claimed exemp- 
tral alien during World 
oncerning the effect of 
lege of aliens to acquire 
rranted certiorari.? 4 

nited States in 1937. 
) for service in the Swiss 
sion, he returned to this 
tes citizen. He and his 
ere. : 

0* between the United 
hat 

two countries, residing 
11 be free from personal 

  

   
   

    

   

    

    

   
   

              

   

  

    
   
   

ective Service in 1940 
dependency. When, 

ard in New York City 
service, he sought the 

[ in securing his defer- 
aty of 1850. At that 
ing and Service Act of 
e exemption of neutral 

   

        

   

  

as amended, 55 Stat. 845, 
rt: 

Act, every male citizen of 

    

  

   

  

    

ourt. 341 U.S. 

    

      

  

    

      

» 

MOSER v. UNITED STATES. 43 
41 Opinion of the Court. 

aliens from military service, with the proviso that one who 
claimed exemption should thereafter be debarred from 
becoming a citizen of the United States. Petitioner, how- 
ever, advised the Local Board that he had taken steps with 
the Swiss Legation “to be released unconditionally” from 
service under the Treaty. 

Upon receiving petitioner’s request for assistance, the 
Swiss Legation in Washington requested the Department 
of State that he be given an “unconditional release” from 
liability for service, “in conformity with” the Treaty. 
The Department referred the request to the Selective Serv- 

‘1ce System, which replied that the Local Board had been 
instructed to inform petitioner that he might obtain a 
Revised Form 301 from the Swiss Legation to be used in 
claiming exemption. Selective Service Headquarters in 
Washington did so instruct the Director of Selective Servy- ice for New York City. On February 18, 1944, the Swiss 
Legation wrote petitioner that it had requested the De- partment of State to exempt him “in accordance with the provisions of Art. II, of the Treaty ..'. 0 The letter 
continued: 

“We are forwarding to you, herewith, two copies of 
DSS Form 301, revised, which kindly execute and file 
immediately with your Local Board. This action on 
your part is necessary in order to complete the exemp- tion procedure; your Local Board, in accordance with 

  

the United States, and every other male person residing in the United States . . . shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for train- ing and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States . . . .»    
  

  
      

    
 



  

OCTOBER TERM, 1950. 

Opinion of the Court. 341U.8. 

Selective Service regulations, as amended, will then 

classify you in Class IV-C. 
“Please note that, through filing of DSS Form 301, 

revised, you will not waive your right to apply for 

American citizenship papers. The final decision re- 
garding your naturalization will remain solely with 

the competent Naturalization Courts.” 

The Legation’s emphasis in referring to “Form 301, 

revised’ is not without significance. The pertinent regu- 

Form 301, which became known as DSS 301, “Application 

by Alien for Relief from Military Service.” Above the 
signature line on this form there appeared the statement, 

in obvious reference to the proviso of § 3 (a): “I under- 

stand that the making of this application to be relieved 

from such liability will debar me from becoming a citizen 

of the United States.” But shortly after § 3 (a) of the 

Act was amended to the content with which we here 
deal,” the Swiss Legation had protested to the Department 

of State that it was inconsistent with the treaty rights 

of Swiss citizens. And the Department had hastened to 
assure the Legation that the Government had no inten- 

tion of abrogating treaty rights or privileges of Swiss 

nationals. The State Department, in conjunction with 
Selective Service Headquarters and the Swiss Legation, 
had then negotiated agreement upon a Revised Form 301 

which omitted the waiver quoted above and stated sim- 
ply: “I hereby apply for relief from liability for training 

and service in the land or naval forces of the United 

States.” A footnote of the revised form quoted pertinent 
parts of § 3 (a). 

6 32 CFR, 1943 Cum. Supp., § 622.43. 
7 See 55 Stat. 845; note 5, supra.    



   
341T.S. 

   
   
    

   
   

   
   
    

   
     

    

    

   
     

  

   

  

    

    

   

    

5 amended, will then 

ng of DSS Form 301, 
ir right to apply for 

[he final decision re- 

| remain solely with 

ourts.” 

ring to “Form 301, 

The pertinent regu- 

t ¢ provided that to 
with his Local Board 

SS 301, “Application 

ervice.” Above the 

eared the statement, 

if § 3 (a): “I under- 

tation to be relieved 

h becoming a citizen 
after § 3 (a) of the 

vith which we here 

d to the Department 

h the treaty rights 

ent had hastened to 

ment had no inten- 
privileges of Swiss 
n conjunction with 

the Swiss Legation, 

a Revised Form 301 

pve and stated sim- 

lability for training 

rces of the United 
'm quoted pertinent 

  

    

    

MOSER v. UNITED STATES. 

41 Opinion of the Court. 

It was under these circumstances that petitioner signed 
a Revised Form 301 on February 26, 1944, and was classi- 
fied IV-C by his Local Board. The Court of Appeals 
has accepted, as do we, the finding of the District Court 
that petitioner signed the application for exemption be- 
lieving that he was not thereby precluded from citizenship, 
and that had he known claiming exemption would debar 
him from citizenship, he would not have claimed it, but 
would have elected to serve in the armed forces. 

Is petitioner debarred from citizenship by reason of the 
claimed exemption? 

The Treaty of 1850 with Switzerland was in full force 
in 1940 when the Selective Training and Service Act was 
passed. Standing alone, the Treaty provided for exemp- 
tion of Swiss citizens from military service of the United 
States, and if that were all, petitioner would have been 
entitled to unqualified exemption. Section 3 (a) of the 
Act, while recognizing the immunity of citizens of neutral 
countries from service in our armed forces? imposed the 
condition that neutral aliens residing here who claimed 
such immunity would be debarred from citizenship. That 
the statute unquestionably imposed a condition on ex- 
emption not found in the Treaty does not mean they 
are inconsistent. Not doubting that a treaty may be 
modified by a subsequent act of Congress,” it is not neces- 
sary to invoke such authority here, for we find in this 
congressionally imposed limitation on citizenship nothing 
inconsistent with the purposes and subject matter of the 
Treaty. The Treaty makes no provision respecting citi- 
zenship. On the contrary, it expressly provides that the 
privileges guaranteed by each country to resident citizens 
of the other “shall not extend to the exercise of political 

  

84 Moore International Law Digest 52-53, 61. 
® Clark v. Allen, 331 U. 8. 503, 508-509; Pigeon River Co. v. Coz, 

291 U. 8. 138, 160; Head Money Cases, 112 U. S. 580, 597-599. Cf. 
Cook v. United States, 228 U. S. 102, 120. 

  

    

     

   
   
    

    

   

     

  

   

   
   
   
   

   



    

46 OCTOBER TERM, 1950. 

Opinion of the Court. 341 U.S. 

rights.” ® The qualifications for and limitations on the 

acquisition of United States citizenship are a political 

matter * which the Treaty did not presume to cover. 

Thus, as a matter of law, the statute imposed a valid 

condition on the claim of a neutral alien for exemption; 

petitioner had a choice of exemption and no citizenship, 

or no exemption and citizenship. 

But as we have already indicated, before petitioner 

signed the aprlication for exemption, he had asserted a 

right to exemption without debarment from citizenship. 

In response to the claims of petitioner and others, and 

in apparent acquiescence, our Department of State had 

arranged for a revised procedure in claiming exemption. 

The express waiver of citizenship had been deleted. Peti- 

tioner had sought information and guidance from the 

highest authority to which he could turn, and was advised 

to sign Revised Form 301. He was led to believe that 

he would not thereby lose his rights to citizenship. If 

he had known otherwise he would not have claimed ex- 

emption. In justifiable reliance on this advice he signed 

the papers sent-to-him by the Legation. 

We do not overlook the fact that the Revised Form 301 

contained a footnote reference to the statutory provision, 

and that the Legation wrote petitioner, “you will not waive 

your right to apply for American citizenship papers.” 

The footnote might have given pause to a trained lawyer. 

A lawyer might have speculated on the possible innuen- 

does in the use of the phrase “right to apply,” as opposed 

to “right to obtain.” But these are minor distractions in 

a total setting which understandably lulled this petitioner 

into misconception of the legal consequences of applying 

for exemption. 

10 11 Stat. 587, 588. 

uy, S. Const., Art. I, §8, cl. 4; United States v. Macintosh, 283 

U. S. 605, 615; United States v. Schwimmer, 279 U. S. 644, 649; 

Zartarian v. Billings, 204 U. 8S. 170, 175.      



   [, 1950. 

   
ind limitations on the 
enship are a political 
presume to cover. 

atute imposed a valid 
[ alien for exemption; 
bn and no citizenship, 

   
    
    
    
   

    

    

   

     
   

   

    

ted, before petitioner 
pon, he had asserted a 
ent from citizenship. 
oner and others, and 
partment of State had 
claiming exemption. 

| been deleted. Peti- 
guidance from the 

furn, and was advised 
s led to believe that 
s to citizenship. If 
ot have claimed ex- 

this advice he signed 
tion. 

he Revised Form 301 
statutory provision, 

(, “you will not waive 
citizenship papers.” 

t to a trained lawyer. 
the possible innuen- 
apply,” as opposed 

ninor distractions in 
ulled this petitioner 
quences of applying 

      

  

    

  

    

    

tates v. Macintosh, 283 
r, 279 U. 8. 644, 649; 

urt. 341 U.S. 

  
    

  

    

MOSER v. UNITED STATES. 47 

41 Opinion of the Court. 

Nor did petitioner sign one thing and claim another, as 
in Savorgnan v. United States, 338 U. S. 491. Since the 
Revised Form 301 contained no waiver, what he signed 
was entirely consistent with what he believed and claimed. 

There is no need to evalulate these circumstances on the 
basis of any estoppel of the Government or the power of 
the Swiss Legation to bind the United States by its advice 
to petitioner. Petitioner did not knowingly and inten- 
tionally waive his rights to citizenship. In fact, because 
of the misleading circumstances of this case, he never had 
an opportunity to make an intelligent election between 
the diametrically opposed courses required as a matter of 
strict law. Considering all the circumstances of the case, 
we think that to bar petitioner, nothing less than an intel- 
ligent waiver is required by elementary fairness. John- 
son Vv. United States, 318 U. S. 189, 197. To hold other- 
wise would be to entrap petitioner. 

The judgment of the Court of Appeals is 

Reversed. 

MR. Justice DouGLAS concurs in the result, 

Mgr. Justice Brack and Mr. JusTIcE FRANKFURTER 
agree with the Court’s decision and opinion that Moser 
did not waive his rights of citizenship. Questions regard- 
ing the scope of the Treaty of 1850 and the bearing of 
the Selective Service Act of 1940 on the Treaty are there- 
fore not reached and should not be considered. 

      

      

    

    

   



      
  

    

1038 

Of course, the plaintiffs are not entitled 
to an exemption from the prohibition of 
headwear simply because their religious 
practice is burdened by the rule. As the 
Supreme Court has recently observed: 

The state may justify an inroad on reli- 
gious liberty by showing that it is the 
least restrictive means of achieving some 
compelling state interest. However, it is 
still true that ‘“[t]he essence of all that 
has been said and written on the subject 
is that only those interests of the highest 
order can overbalance legitimate 
claims to the free exercise of religion.” 
Wisconsin v. Yoder, [406 U.S. 205, 215, 92 
S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) 1. 

Thomas, supra, 450 U.S. at 7 18, 101 S.Ct. at 
1434. See also United States v. Lee, — 
U.S. y ——=, 102 8,Ct. 1051,-1085 71 
L.Ed.2d 127 (1982). Unfortunately, the ma- 
Jority seems to have overlooked these prin- 
ciples when it placed the burden of accom- 
modation on the plaintiffs rather than on 
IHSA. This may well be the more efficient 
solution but it does not in my view rep- 
resent the prevailing law. I thus see no 
point in remanding this case to require the 
plaintiffs to initiate the process of accom- 
modation which it is IHSA’s responsibility 
to pursue. 

In weighing THSA’s interest in refusing 
the plaintiffs an exemption from the no- 
headwear rule, I am not prepared to second- 
guess Judge Shadur’s thorough evaluation 
of the alleged safety hazards of yarmulkes 
and bobby pins, an evaluation based in part 
on a questionnaire broadly circulated na- 
tionally to high school athletic coaches and 
officials. I am certainly sympathetic to the 
majority’s observation that “[tlhe state 
need not await disaster to regulate safety 

> “Ante, at 1024. Bat prophylactic 
measures that burden the free exercise of 
religion must be justified by something 
more substantial than speculative assertions 
of potential injury. As the majority con- 
cedes, the record of this case after full trial 
discloses not even a single instance of a 
basketball player slipping on or being in- 
jured by either a yarmulke or its functional 
equivalent, a soft barrette (soft barrettes 
were until the commencement of this litiga- 

683 FEDERAL REPORTER, 2d SERIES 

tion permitted under the Federation's 
rules). In my opinion, this unsubstantiated 
concern for safety falls woefully short of 
justifying the rule’s burden on the religious 
practices of the plaintiffs. 

I also note that I am not as eager as the 
majority to condemn Judge Skadur’s quite 
realistic estimate that a narrowly based 
high school bureaucracy (even given its 
good intentions) might be less sensitive to 
religious liberty values than a popularly 
elected legislature. To the extent that he 
actually based his decision on this point, I 
think Judge Shadur has merely pointed out 
the political realities. 

It may of course be possible that a suit- 
able compromise of this dispute can be 
reached on the basis of the majority’s dispo- 
sition, and the plaintiffs’ clear right in the 
exercise of their religion may eventually be 
vindicated. Because I believe that remand- 
ing this case and requiring the plaintiffs to 
take additional affirmative action is both 
unnecessary and inappropriate, I respectful- 
ly dissent from today’s decision. 

w 

o £ KEY NUMBER SYSTEM 
T 

Lorraine PRATTE, Plaintiff-Appellee, 

Vv. 

NATIONAL LABOR RELATIONS 
BOARD, et al., 

Defendants-Appellants. 

No. 82-1064. 

United States Court of Appeals, 
Seventh Circuit. 

Argued May 13, 1982. 

Decided July 8, 1982. 

Plaintiff sought injunctive and declara- 
tory relief challenging National Labor Rela- 
tions Board’s revocation of her appointment   

  

 



   
as a law clerk-trainee. The United States 
District Court for the Northern District of 
Illinois, Milton I. Shadur, J., 530 F.Supp. 
461, granted preliminary injunction, and 
Board appealed. The Court of Appeals, 
Pell, Circuit Judge, held that Board was not 
estopped from revoking law school gradu- 
ate’s appointment as law clerk-trainee, 
since appointee received immediate notifi- 
cation from Board on both occasions when 
the agency believed that actual or threat- 
ened budget cuts might preclude her from 
being hired and the revocation was not 
made by unauthorized person and was not 
received after she commenced her duties 
with the agency. 

Vacated; case remanded with instruc- 
tions. 

1. Federal Courts e815 

The grant of a preliminary injunction 
is generally reviewable only for abuse of 
discretion. 

2. Estoppel <=62.1 
Estoppel is applicable if governmental 

actions amount to affirmative misconduct 
and if four other requirements are met: 
party to be estopped must know the facts; 
the party must intend that his conduct shall 
be acted upon, or must so act that party 
asserting estoppel had a right to believe it 
is so intended; party asserting estoppel 
must have been ignorant of the facts; and 
party asserting estoppel must reasonably 
rely on other's conduct to his substantial 
injury. 

3. Estoppel €=62.2(4) 
National Labor Relations Board was 

not estopped from revoking law school 
graduate’s appointment as law clerk-train- 
ee, since appointee received immediate notj- 
fication from Board on both occasions when 
the agency believed that actual or threat- 
ened budget cuts might preclude her being 
hired, and the revocation was not made by 
unauthorized person and was not received 
after she commenced her duties with agen- 
cy, so that inference of irrevocability made 
hy appointee was unjustified. 

“Oscar H. Davis, Judge of the United States 

  

   PRATTE v. N. L. R. B. 1039 Cite as 683 F.2d 1038 (1982) 
Richard F. Watt, Chicago, IIL, for plain- 

tiff-appellee. 

J. Paul McGrath, Asst. Atty. Gen, 
Dept. of Justice, Washington, D. C., for 
defendants-appellants. 

Before PELL, Circuit Judge, DAVIS, * 
Judge, and WOOD, Circuit Judge. 

PELL, Circuit Judge. 

The Government challenges the district 
court’s grant) of a preliminary injunction 
ordering the National Labor Relations 
Board (NLRB) to hire Lorraine Pratte as a 
law clerk-trainee in its Chicago Regional 
Office. The propriety of the injunction 
turns on whether the plaintiff showed a 
likelihood of success on the merits of her 
claim that the Government should be es- 
topped from revoking her appointment. 

I. FACTS 

Lorraine Pratte is a 1981 graduate of 
Harvard Law School. She decided to pur- 
sue a career in labor law and, in September, 
1980, sought a position with the NLRB. 
She believed that working for the agency 
would be the best way to gain experience 
and early responsibility in her chosen area 
of legal specialization. 

The plaintiff’s choice was to work for the 
NLRB in Washington, D. C. On January 
15, 1981, the NLRB offered Pratte 2_posi- 
tion In the Chicago Regional Office, assur- 
ing her that she might have the opportunity 
to transfer to the Appellate Division in 
Washington, D. C. after working two or 
three years in Chicago. Pratte was given 
one day to accept or reject the NLRB’s 
offer. She accepted, turning down another 
firm offer of employment and ceasing to 
pursue other job prospects. 

One week later, the NLRB informed 
Pratte that it could not honor its firm hir- 
ing commitment because of President Reag- 
an’s hiring freeze. Forty-seven persons 
other than Pratte received similar notifica- 

Court of Claims, is sitting by designation. 

  

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1040 

tion. The plaintiff resumed the job-hunt- 
ing process. Qn March 10, 1981, an NLRB 
official phoned Pratte and told her that the 
Office of Management and Budget had in- 
formed the agency that the money required 
to hire Pratte and others in her situation 
would be forthcoming. This conversation 
was confirmed by a letter dated March 17, 
1981, in which the NLRB again offered 
Pratte employment and indicated that she 
might be able to report for work before 
October 5, 1981 if the budget so permitted. 

Pratte subsequently took and passed the 
District of Columbia bar examination, be- 
lieving that this gave her maximum flexi- 
bility in working for the NLRB at any 
location and was consistent with her desire 
eventually to work in the Washington, D. C. 
area. The NLRB confirmed Pratte’s ap- 
pointment in two letters dated August 5 
and August 31, 1981. Neither letter made 
any reference to the NLRB'’s budget. On 
September 11, 1981, the plaintiff purchased 
an automobile and drove to Chicago. 

Several relevant events occurred on Sep- 
tember 29, 1981. First, the NLRB told 
Pratte to report for work on October 5, 
1981. Second, the plaintiff signed a lease 
for an apartment in Chicago. Third, that 
evening an NLRB official phoned the plain- 
tiff and told her that her appointment had 
again been revoked because of President 
Reagan’s announcement on September 24, 
1981, that he would seek new budget reduc- 
tions for selected federal agencies. The 
revocation was confirmed by a letter Pratte 
received the following day. 

Pratte found herself in Chicago with a 
lease and a car and no job. Because she 
had not taken the Illinois bar examination, 
her employment prospects in Chicago were 
limited. Pratte obtained temporary em- 
ployment as a legal assistant in October, 
1981, and_subsequently, a full-time job do- 
ing legal research. She filed the instant 
suit on November 10, 1981. Following the 
district court’s grant of a preliminary in- 
Junction, Pratte terminated her research 
job and reported to work at the NLRB. 

683 FEDERAL REPORTER, 2d SERIES 

II. DISCUSSION 
At the outset, we recognize with sympa- 

thy the situation in which Lorraine Pratte 
was placed as a result of the uncertainties 
of the federal budget and the attempts of 
the NLRB to anticipate and meet the pro- 
posed funding cuts even though the factors 
which caused the situation were brought 
about largely by events beyond the control 
of the hiring agency. 

[1] Turning to the legal issue before 
this court, we note that the grant of a 
preliminary injunction is generally reviewa- 
ble only for an abuse of discretion. Eg. 
Reinders Brothers, Inc. v. Rain Bird East- 
ern Sales Corp., 627 F.24 44, 49 (7th Cir. 
1980); Sangmeister v. Woodard, 565 F.2d 
460, 464-65 (7th Cir. 1977), cert. denied, 435 
U.S. 939, 98 S.Ct. 1516, 55 L.Ed.2d 535 
(1978). As Judge Aldisert stated in United 
States Steel Corp. v. Fraternal Association 
of Steelhaulers, 431 F.2d 1046 (3d Cir. 
1970): 

This limited review is necessitated be- 
cause the grant or denial of a preliminary 
injunction is almost always based on an 
abbreviated set of facts, requiring a deli- 
cate balancing of the probabilities of ulti- 
mate success at final hearing with the 
consequences of immediate irreparable 
injury which could possibly flow from the 
denial of preliminary relief. Weighing 
these considerations is the responsibility 
of the district judge; only a clear abuse 
of his discretion will justify appellate re- 
versal. 

Id. at 1048, quoted in 11 C. Wright & A. 
Miller, Federal Practice and Procedure 
§ 2962, at 636 (1973). Consistent with this 
reasoning is the rule, recognized by several 
courts, that when the availability of prelim- 
inary relief turns on interpretation of the 
law rather than on the facts, the appellate 
court is free to review de novo the district 
court’s judgment. Eg. California ex rel. 
Younger v. Tahoe Regional Planning Agen- 
cy, 516 F.2d 215 (9th Cir. 1975), cert. denied, 

423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 97; 
Delaware and Hudson Railway Co. v. Unit- 
ed Transportation Union, 450 F.2d 603, 620— 
21 (D.C.Cir.1971), cert. denied, 403 U.S. 911,   

  
  

   



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PRATTE v. N. L. R. B. 1041 
Cite as 683 F.2d 1038 (1982) 

91 S.Ct. 2209, 29 L.Ed.2d 689; Societe 
Comptoir De L’Industrie Cotonniere Eta- 
blissements Boussac v. Alexander’s Depart- 
ment Stores, Inc., 299 F.2d 383, 35-36 (2d 
Cir. 1962); see 11 C. Wright & A. Miller, 
supra, § 2962, at 637. : 

A preliminary injunction should be grant- 
ed only if the plaintiff shows that: (1) he or 
she had at least a reasonable likelihood of 
success on the merits; (2) there is no ade- 
quate remedy at law, and the plaintiff will 
otherwise be irreparably harmed; (3) the 
threatened injury to the plaintiff outweighs 
the threatened harm the preliminary in- 
junction may cause the defendants; and (4) 
granting the preliminary injunction is not 
contrary to the public interest. E.g., Ma- 
chlett Laboratories, Inc. v. Techny Indus- 
tries, Inc., 665 F.2d 795, 796-97 (7th Cir. 
1981). The dispositive criterion in this case 
is the first enumerated by the Machlett 
court: the likelihood of success on the mer- 
its. 

[2] In order to succeed on the merits, 
Pratte would have to prove a claim of equi- 
table estoppel against the Government. 
This court recently articulated the consider- 
ations relevant to such a claim in Po nn 
v. United States, 674 F.2d 1155 (7th Cir. 
1982). Judge Cudahy, writing for the 
court, adopted the standard for estoppel 
articulated by the Ninth Circuit in TRW, 
Inc=V:"Féderal Trade Commission, 647 F.2d 
942 (9th Cir. 1981).! Estoppel will be appli- 
cable if the Governmental actions amount 
to “affirmative misconduct” and if four 
other requirements are met: 

First, the party to be estopped must 

know the facts. Second, this party must 
intend that his conduct shall be acted 
upon, or must so act that the party as- 

serting estoppel has a right to believe it is 
so intended. Third, the party asserting 

  

  

Portmann stated that the factors enumerated 
in TRW, Inc. “should ... form the basis of the 
district court’s inquiry” regarding the applica- 
bility “of estoppel. 674 F.2d at 1167. Judge 
Cudahy then stated that “other factors identi- 
fied in this court's prior estoppel decisions, 
including the type of government activity being 
‘pursued, the reasonableness of plaintiff's re- 
liance, and the potential danger, posed by es- 
toppel, of undermining important federal inter- 

estoppel must have been ignorant of the 
facts. Finally, the party asserting estop- 
pel must reasonably rely on the other's 
conduct to his substantial injury. 

674 F.2d at 1167 (quoting TRW, Inc. v. 
Federal Trade Commission, 647 F.2d 042 
950-51 (9th Cir. 1981) (citations omitted)). 
The fourth requirement, that of reasonable 
reliance, is critical to this appeal. Two 
recent cases, which reached different con- 
clusions as to the appropriateness of estop- 
pel, are relevant to what constitutes justi- 
fied reliance. See National Treasury Em- 
ployees Union v. Reagan, 663 F.2d 239 (D.C. 
Cir.1981) (NTEU); Beacom v. EEOC, 500 
F.Supp. 428 (D.Ariz.1980). These two cases - 
also discuss “affirmative misconduct” which 
Pratte claims is present in the instant case. 

The district court in Beacom found that 
the Government had engaged in affirmative 
misconduct and, therefore, a claim of estop- 
pel was cognizable. Plaintiff Beacom had 
applied for a position as an EEOC staff 
attorney. He was offered the position, told 
by a letter received March 13, 1980, to con- 
clude his private practice in Colorado, and 
directed to report for work in Phoenix on 
April 7, 1980. On March 14, 1980, Beacom 
telephoned the EEOC Hiring Officer to in- 
quire whether President Carter’s freeze on 
hiring by federal agencies would affect his 
proffered employment. He was assured 
that it would not. One week later, the 
Personnel Manager of the Phoenix EEOC 
office informed Beacom that, as a result of 
the freeze, his appointment was “on hold.” 
She told him that this did not mean he was 
not hired. The agency then attempted to 
telephone Beacom on April 3, 1980, to tell 
him that his position with the agency could 
not be filled but was unable to reach him. 
Beacom reported for work on April 7th and 

ests or risking a severe depletion of the public 
fisc, may appropriately be weighed in the equi- 
table balance.” Id. Because each of the fac- 
tors previously relied on by the court would 
restrict the availability of estoppel, one might 
characterize the Portmann standard as adopt- 
ing the Ninth Circuit formulation as the mini- 
mum showing that a plaintiff is required to 
make.   

  

        
       



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1042 683 FEDERAL REPORTER, 2d SERIES 

was then informed that he did not have a 
job. 

The Beacom court found that the actions 
of the EEOC constituted affirmative mis- 
conduct? stating that there was “little jus- 
tification for the Government’s failure to 
inform Mr. Beacom that his appointment 
would not be considered until his paperwork 
was approved and he had commenced his 
duties, or for its delay in informing Mr. 
Beacom that the President’s freeze would 
affect his job.” 500 F.Supp. at 438 
(footnotes omitted). The Government was 
estopped from denying Beacom his position 
as staff attorney. 

In contrast to the result reached by the 
Béacom court, the District of Columbia Cir- 
cuif recently held in NTEU that estoppel 
woyld not lie against the Government pur- 
suant to a claim challenging the legality of 
the hiring freeze ordered by President 
Reagan on January 20, 1981. In NTEU, 
the plaintiff class was composed of persons 
who had received letters telling them to 
report for commencement of their federal 
jobs on specified dates. No class member 
had been told that his or her selection was 
subject either to budgetary constraints or 
to the discretion of the appointing officer. 
663 F.2d at 245. 

The NTEU court held, contrary to the 
conclusion reached by the district court,’ 
that the plaintiffs had been appointed to 
their jobs. The District of Columbia Circuit 
made clear, however, that such appoint- 
ments could be effectively revoked by a 
“properly authorized refusal to allow a class 
member to enter onto duty on the date 
previously selected.” Id. at 248 n.13. 

The court then turned to the estoppel 
argument urged by the class members. 
The panel stated that detrimental reliance, 
which is essential to a claim of estoppel, 
requires factfinding on an individual basis. 

2. The Beacom court relied on three factors in 
determining whether the actions of the EEOC 
constituted affirmative misconduct: (1) the 
Government's justification for its alleged mis- 
behavior; (2) the magnitude of injury possible 
from breach of duty, and (3) the harm to the 
public from permitting estoppel. 500 F.Supp. 
at 438. 

Id. at 249 & n.17. For the sake of discuss- 
ing this claim, the court assumed that detri- 
mental reliance had been proven. Id. The 
court stated that the classwide allegations 
of estoppel “amount[] to a contention that 
class members relied upon an express or 
implied government representation that 
their ‘selections’ were irrevocable; had they 
understood that the appointments were rev- 
ocable, they would have no grounds for 
complaint.” Id. at 249. 

The NTEU panel also referred to the 
“affirmative misconduct” requirement rec- 
ognized by the Ninth Circuit, stating: “We 
are confident that if an ‘affirmative mis- 
conduct’ exception exists ..., the conduct 
of the appointing authorities in these cases 
does not rise to an actionable level. Here, 
the problem was not misconduct by the 
responsible authorities, but the unjustified 
inference of irrevocability made by the class 
members.” Id. (citation omitted). 

The court then distinguished Beacom, 
noting that the facts of the two cases were 
“materially different,” id, because Beacom 
had been assured after announcement of 
the hiring freeze that his prospective em- 
ployment was not affected and because the 
EEOC had delayed in correcting this misin- 
formation. 

We read NTEU as holding that: (1) an 
appointment to a federal job is revocable by 
a properly authorized person up to the time 
the employee actually commences the duties 
of the position; (2) the Government is not 
required to advise appointees that such rev- 
ocation could occur; (3) a claim of estoppel 
will not lie if the appointment is so revoked 
because the appointee’s reliance thereon is 
unjustified. 

The judge below read the NTEU require- 
ment of “proper revocation” as one embod- 
ying good faith. In other words, as the 

3. The district court had held that the class 
members had not been appointed but had 
merely been given offers of jobs. National 
Treasury Employees Union v. Reagan, 509 
F.Supp. 1337, 1343-45 (D.D.C. 1981), remanded, 
National Treasury Employees Union v. Reagan, 
663 F.2d 239 (D.C.Cir.1981). 

  

  
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PRATTE v. N. L. R. B. 1043 
Cite as 683 F.2d 1038 (1982) 

appellee argues, if the Government engaged 
in “affirmative misconduct,” the revocation 
was not “proper,” and holding the Govern- 
ment estopped in the instant case would be 
wholly consistent with NTEU. We disa- 
gree with this reading of the District of 
Columbia Circuit’s opinion. We think that 
the NTEU court required no more than 
that the revocation be made by a duly au- 
thorized person and that it be made before 
the employee commenced the duties of his 
Government employment. Second, we 
think that the “affirmative misconduct” cri- 
terion is a separate and distinct require- 
ment from that of reasonable reliance. Un- 
less reasonable reliance is proven, there is 
no reason to reach the question of affirma- 
tive misconduct. The NTEU opinion is per- 
haps less clear than it might be on the 
relationship between reasonable reliance 
and affirmative misconduct. See NTEU, 
663 F.2d at 249. We do not think, however, 
that the NTEU dicta regarding affirmative 
misconduct was meant to imply that the 
existence of bad faith or similar misconduct 
would negate the requirement of reasonable 
reliance. Similarly, nothing in Beacom v. 
EEOC, 500 F.Supp. 428 (D.Ariz.1980), sug- 
gests that a showing of affirmative miscon- 
duct negates the necessity that a plaintiff 
demonstrate justified reliance. The Bea- 
com court found that the plaintiff's reliance 
was justified, largely because he talked to 
the EEOC after the hiring freeze was in 
effect and was assured, on two occasions, 
that his employment was not affected. As 
the NTEU court suggested, these facts dis- 
tinguish Beacom from NTEU, see NTEU, 

4. The action of the NTEU court, remanding the 
case for further development of certain claims, 
does not support the proposition that “proper 
revocation” requires a finding of good faith. 
The NTEU court stated: 

In some cases the appointments were 
properly revoked. For the reasons set forth 
in this opinion, those plaintiffs within this 
category are not entitled to relief on a class- 
wide basis: In other cases, class members 
were allowed to enter into duty as federal 
employees. Once they did so, their appoint- . 
ments could not be revoked. It is possible 
that there exists a third group of class mem- 
bers: those whose appointments were not 
properly revoked and who did not enter onto 
duty. The status of these individuals, even 

663 F.2d at 249-50, and allow reconciliation 
of the differing results reached by the two 
courts. 

[3] Lorraine Pratte was an appointee, | 
but not an employee, of the NLRB when | 
her appointment by the agency was re- 
voked. Unlike the plaintiff in Beacom, 
Pratte received immediate notification from 
the NLRB on both occasions when the 
agency believed that actual or threatened 
budget cuts might preclude her being hired. 
The instant case is, of course, distinguisha- 
ble from both NTEU and Beacom in that 
Pratte was affected by two separate in- 
stances of budgetary concern. Although 
this difference in facts necessarily empath- 
izes one’s attitude about the unhappy situa- 
tion in which the plaintiff found herself, we 
do not find it to be of legal significance. 
What is significant is that the NLRB con- 
sistently informed Pratte of her status in 
light of the budgetary information it then 
possessed; further, the agency furnished 
the plaintiff such notification without de- 
lay. 

Pratte does not contend that the revoca- 
tion of her appointment was made by an 
unauthorized person or that it was received 
after she commenced her duties with the 
agency. Under NTEU, therefore, the “in- 
ference of irrevocability made by [Pratte],” 
NTEU, 663 F.2d at 249, was unjustified. 
We believe that NTEU states the correct 
rule regarding what constitutes reasonable 
reliance in a case such as this. The NLRB 
and the plaintiff were both victims of tre- 

the fact of their existence, must be developed 
below and possibly through further litigation. 

663 F.2d at 253. The court’s reference to this 
possible “third group of class members,” a ref- 
erence on which the court below relied, sug- 
gests no more than that some persons might 
not have received timely revocation by a prop- 
erly authorized person. This conclusion is 
strengthened by the NTEU court’s earlier dis- 
cussion regarding “twenty-two appointees, for 
whom no authorized revocation was made pri- 
or to entrance on duty,” id. at 248. This lan- 
guage similarly suggests that the court was 
examining the authority of the person making 
the revocation and the timeliness thereof. 
There is no reference whatsoever to the “good 
faith” of the revocation.    

    

  
  

  
       

  

    

    
  

  

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1044 

mendous uncertainty regarding the federal 
budget in 1981. Although the situation is 
regrettable from any point of view, we see 
no legal basis for distinguishing this case 
from NTEU or for holding that Pratte’s 
reliance was justified. 

Because we conclude that the plaintiff 
failed to demonstrate reasonable reliance, it 
is not strictly necessary for this court to 
address the appellee's contentions that the 
Government engaged in affirmative mis- 
conduct. We do note, however, that these 
allegations rely on two factors: the NLRB'’s 
second revocation of her position in re- 
sponse to a budget reduction that was pro- 
posed but never enacted, and the current 
funding level of the agency, which is $4.3 
million higher than that requested by Presi- 
dent Reagan in September. We believe 
that the second factor relied on by Pratte is 
irrelevant to the actions of the NLRB 
which occurred before this funding level 
could be predicted let alone guaranteed. 
The first factor cited by Pratte, that the 
agency reacted only to a proposed cut in 
funding, could hardly be characterized as 
affirmative misconduct or bad faith in light 
of the on-going budgetary crisis. 

III. CONCLUSION 

Because Pratte’s reliance was not justi- 
fied, we conclude as a matter of law that no 
action for estoppel can lie. In a case such 
as this, where the availability of a prelimi- 
nary injunction turns on the interpretation 
of law, we need not reach the question 
whether the judge below abused his discre- 
tion in granting such equitable relief. See, 
e.g., California ex rel. Younger v. Tahoe 
Regional Planning Agency, 516 F.2d 215 
(9th Cir. 1975), cert. denied, 423 U.S. 868, 96 
S.Ct. 131, 46 L.Ed.2d 97. We do hold that 
the district judge erred in granting Pratte a 
preliminary injunction against the NLRB. 

The parties have presented fully the facts 
relevant to Pratte’s claim of estoppel. Be- 
cause we have concluded that no cause of 
action for estoppel can lie on these facts, 
little would be achieved by remanding the 

case to the district court for a full trial. 
See Deckert v. Independence Shares Corp. 

683 FEDERAL REPORTER, 2d SERIES 

311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 
189 (1940); Hurwitz v. Directors Guild of 
America, Inc., 364 F.2d 67, 70 (2d Cir. 1966), 
cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 
L.Ed.2d 435; Triumph Hosiery Mills, Inc. v. 
Triumph International Corp., 308 F.2d 196, 
200 (2d Cir. 1962); 11 C. Wright & A. 
Miller, Federal Practice and Procedure 
§ 2962, at 629-30 (1973). 

The judgment of the district court grant- 
ing the preliminary injunction is therefore 
vacated and the case is remanded to the 
court below with instructions to dismiss the 
cause. 

w 
o g KEY NUMBER SYSTEM 

T 

Alsansa X. CARUTH, Plaintiff-Appellant, 

Vv. 

Thaddeus E. PINKNEY, Warden, David 
Sandahl, Assistant Warden, and William 
O'Sullivan, Assistant Warden, Defend- 
ants-Appellees. 

No. 79-2166. 

United States Court of Appeals, 
Seventh Circuit. 

Argued May 21, 1982. 

Decided July 13, 1982. 

Rehearing and Rehearing En Banc 
Denied Sept. 8, 1982. 

Inmate commenced pro se action under 
section 1983 against various prison officials, 
alleging that prison authorities violated his 
constitutional right in disciplining him and 
taking away his job as law clerk at prison 
library. The United States District Court 
for the Southern District of Illinois, Peoria 
Division, Robert D. Morgan, J., entered 
judgment for defendants, and inmate ap- 
pealed. The Court of Appeals held that: 
(1) denying inmate appointment of counsel 
was not improper; (2) district court did not 
err when it neither decided nor recognized 
issue of constitutionality of prison photo-   

  

 



978 536 FEDERAL REPORTER, 2d SERIES 

56. Wiley required the employer to submit 

to arbitration, but did not require negotia- 

tion with the union, which is quite a differ- 

ent duty. Plaintiffs do not allege that they 

have instituted grievance proceedings 

which are outstanding or that Delta has 

refused to submit to a System Board of 

Adjustment resolution of particular dis- 

putes concerning the survival of rights un- 

der the Northeast collective bargaining 

agreements. Cf. Flight Engineers Int'l 

Ass'n, EAL Chapter v. Eastern Air Lines, 

Inc., 359 F.2d 303 (2d Cir. 1966). Therefore, 

the question whether Delta has a duty to 

submit to System Board of Adjustment pro- 

ceedings is not before us? and, in the 

present context, Wiley mandates no other 

obligations. 

The judgment is affirmed. 

ment pending against him. The Court of 

Appeals, Lumbard, Circuit Judge, held that 

district court’s refusal of motion to dismiss 

tax evasion indictment on alleged double 

jeopardy and due process grounds based 

upon prior plea-bargaining agreement in 

connection with narcotics charge, under cir- 

cumstances, was appealable; and that pros- 

ecution of defendant for tax evasion was 

not barred by terms of prior plea agree- 

ment pursuant to which defendant had 

pleaded guilty to narcotics conspiracy, since 

strike force attorney had not granted de- 

fendant immunity as to all past criminal 

conduct but rather had guaranteed only 

that defendant would not be reindicted for 

the narcotics conspiracy or any overt act 

contained in that conspiracy, notwithstand- 

ing that a significant percentage of income 

which defendant was accused of failing to 

y report was probably generated by its illegal 

3 narcotics operation. 
0 £ KEY NUMBER SYSTEM ; 

Affirmed.     
1. Criminal Law &=1023(3) 

In most instances, a district judge's re- 

fusal to dismiss an indictment is reviewable 

UNITED STATES of America, Appellee, only if and when a judgment of conviction 
v. is entered against the defendant, but an 

Til, exception to such rule exists when motion 

Vieghl ALESSI, Appellant, to dismiss is based upon a claim of double 
No. 961, Docket 76-1044. jeopardy. 28 U.S.C.AA. § 1291; US.CA. 

Const. Amend. 5. 

2. Criminal Law <=161 

Purpose of double jeopardy clause of 

Fifth Amendment is to insure that no indi- 

vidual will twice be held to answer for the 

same charge. U.S.C.A.Const. Amend. 5. 

  United States Court of Appeals, 
Second Circuit. 

Argued April 26, 1976. 

Decided May 26, 1976. 

  
Defendant appealed from a pretrial or- 3. Estoppel ¢=62.2(4) 

der entered in the Eastern District, Orrin G. Government, having negotiated plea 

Judd, J., which denied defendant's motion bargain with respect to narcotics charge, 

to dismiss, on alleged double jeopardy and was estopped from later presenting it as a 

due process grounds, a tax evasion indict- justification for preventing defendant, 

        
2. It would appear that such a determination 

would be within the jurisdiction of a federal 

court. 359 F.2d at 309. Should such a deter- 

mination become necessary, the extent of the 

duty, if any, would be determined by whether 

the Northeast collective bargaining agreements 

have in fact expired. Id. at 309-11. In general, 

the terms of a Railway Labor Act collective 

Cstop pt (rh China ra\ GORE 

bargaining agreement are not controlling after 

the collective bargaining agreement and any 

subsequent status quo period expire. Interna- 

tional Ass'n v. Machinists v. Reeve Aleutian 

Airways, Inc., 469 F.2d 990 (9th Cir.), cert. 

denied, 411 U.S. 982, 93 S.Ct. 2273, 36 L.Ed.2d 

958 (1972).            



ourt of 

eld that 

dismiss 

double 

5 based 

ent in 

der cir- 

at pros- 

on was 

agree- 

nt had 

y, since 

ted de- 

riminal 

bd only 

ted for 

ert act 

hstand- 

income 

ling to 

b illegal 

e's re- 

ewable 

viction 

but an 

motion 

double 

S.C.A. 

use of 

ho indi- 

for the 

d.' 5. 

plea 

harge, 

it as a 

ndant, 

ng after 

nd any 
nterna- 

Nleutian 

Yo: cert. 

L.Ed.24 

  

UNITED STATES v. ALESSI 979 
Cite as 536 F.2d 978 (1976) 

charged with tax evasion, from seeking dis- 

missal of tax evasion charge on grounds of 

double jeopardy. 

4. Criminal Law &=31 

If, in fact, Government represented to 

defendant that he would not later be indict- 

ed for crimes for which Government subse- 

quently sought to try him, defendant would 

be entitled to specific performance of such 

agreement. 

5. Criminal Law &=1023(3) 

District court’s refusal of motion to 

dismiss tax evasion indictment on alleged 

double jeopardy and due process grounds 

based upon prior plea-bargaining agree- 

ment in connection with narcotics charge, 

under circumstances was appealable. 

6. Criminal Law &=198 

Prosecution of defendant for tax eva- 

sion was not barred by terms of prior plea 

agreement pursuant to which defendant 

had pleaded guilty to narcotics conspiracy, 

since strike force attorney had not granted 

defendant immunity as to all past criminal 

conduct but rather had guaranteed only 

that defendant would not be reindicted for 

the narcotics conspiracy or any overt act 

contained in that conspiracy, notwithstand- 

ing that a significant percentage of income 

which defendant was accused of failing to 

report was probably generated by its illegal 

narcotics operation. Comprehensive Drug 

Abuse Prevention and Control Act of 1970, 

§ 408, 21 US.CA. § 848; 28 U.S.CA. 

§ 1291; U.S.C.A.Const. Amend. 5. 

Gary A. Woodfield, Asst. U.S. Atty, 

Brooklyn, N.Y. (David G. Trager, U.S. 

Atty, ED.N.Y.,, and Paul B. Bergman, 

Asst. U.S. Atty., Brooklyn, N.Y., on the 

brief), for appellee. 

Nancy Rosner, New York City, for appel- 

lant. 

1. The Strike Force is part of the Organized 

Crime and Racketeering Section of the Crimi- 

nal Division of the Department of Justice. 

Strike Force attorneys are assigned from 

Washington and operate independently from 

the United States Attorney for the district. 

Before LUMBARD, WATERMAN and 
FEINBERG, Circuit Judges. 

LUMBARD, Circuit Judge: 

Virgil Alessi challenges a pre-trial order, 

entered by Judge Judd in the Eastern Dis- 

trict on January 21, 1976, denying his mo- 

tion to dismiss on alleged "double jeopardy 

and due process grounds the tax evasion 
indictment now pending against him. On 

appeal, Alessi has restricted his argument 

to the contention that his present prosecu- 

tion for failure to file Tederal income tax 

returns for the years 1968 to 1971, inclusive, 

is barred by the terms of a prior plea bar- 

gain pursuant to which he pleaded guilty to 

narcotics conspiracy as detailed hereafter. 

The government maintains, and the district 

‘court held, that the earlier agreement “did 

not extend [so] far.” We affirm. 

On May 1, 1972, a grand jury sitting in 

the Bastern District returned a superseding 

indictment charging Alessi, Vincent Papa 

and numerous others™ with conspiracy to 

violate the federal narcotics laws _during a 

period from April 1, 1967 to December 18, 

1972. In addition, appellant was accused in 

Count Five of participation in a continuing 

criminal enterprise, 21 U.S.C. § 848. 

Protracted negotiations then ensued be- 

tween defense counsel and James Druker, 

Strike Force Attorney in charge of the 

case.! Apparently, the disappearance of 

the government's key witness in June 1972 

dramatically altered the tenor and direction 

of these discussions. In any event, on Sep- 

tember 5, 1972, Papa entered a plea of 

guilty to a single count of conspiracy as 

well as to one count of tax evasion. On 

October 2, 1972, Alessi, who was represent- 

ed by the same attorney as Papa? pleaded 

guilty to an equivalent conspiracy count 

contained, however, in a newly drawn infor- 

mation. Papa was sentenced to concurrent 

five year terms of imprisonment; Alessi 

2. No claim has been made at any stage of this 

. proceeding that appellant was prejudiced by 

this joint representation. See United States v. 

Mari, 526 F.2d 117 2d Cir. 1975).   

  

  
    

  
  

      
 



S
L
 

Es
 

A 
a 

C
R
E
 

RE
RR
ER
 

TC
 

SR 
SP

RO
PA

I 

        

    
  

980 536 FEDERAL REPORTER, 2d SERIES 

received a five year suspended sentence 
with a mandatory three year special parole. 

Ever since, there has been doubt as to 
precisely what Druker promised in ex- 
change for these pleas although the parties 
here do agree that Alessi was included in 
the “package deal” offered to Papa and 
that whatever promises were made to the 
latter were also extended to appellant. 
This ambiguity, and the distressing spate of 
litigation which it has produced, stem from 
the regrettable fact that the Strike Force, 
al that time, had no general practice of 
reducing to writing the terms of a plea 
arrangement. The record reveals that in 
the intervening years Papa has been indict- 
ed twice more and Alessi three times more 
and both have raised the 1972 agreement as 
a defense to each indictment. As detailed 
in the margin, this strategy has produced 
mixed results? In the instant case, Judge 
Judd rejected in a memorandum decision 
what he considered to be Alessi’s expansive 
interpretation of the 1972 plea bargaining. 
This appeal followed. 

[1] _The government urges at the outset 
that Judge Judd’s order is interlocutory and 
thus non-appealable under the well-settled 
doctrine limiting review to final orders, see 
28 U.S.C. § 1291. We disagree. While it is 
of course true, in most instances, that a 
district judge's refusal to dismiss an indict- 
ment 1s reviewable only *ff"and when a 
judgment of conviction is entered against 
the defendant, United States v. Garber, 413 
F.2d 284, 285 (2d Cir. 1969), this court has 
carved an exception to that general rule 
when the motion to dismiss is based upon a 
claim of double jeopardy. United States v. 
Beckerman, 516 F.2d 905 (2d Cir. 1975). 

[2] The purpose of the Double Jeopardy 
Clause of the Fifth Amendment is to insure 
that no individual will twice be held to 
answer for the same charge. See United 
States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 

3. On September 186, 1975, both Alessi and Papa 
were indicted in the Eastern District for narcot- 
ics conspiracy. Papa’s indictment was dis- 
missed by Judge Judd; Alessi’s was upheld but 
eventually nol prossed. Papa fared less well, 
however, in the Southern District where his 
indictment for violation of the narcotics laws 

547, 27 L.Ed.2d 543 (1971) (plurality opinion 
of Harlan, J.). “[It’s] prohibition is not 
against being twice punished, but against 
being twice put in jeopardy,” United States 
v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 
1194, 41 L.Ed. 300 (1896). A defendant who 
is required to await the completion of al- 
legedly duplicative proceedings against him 
before being allowed to vindicate his double 
jeopardy rights, has already and irreparably 
lost to a large degree the protection which 
the right was meant to afford him. It is in 
just such instances that the Supreme Court 
has recognized the propriety of interlocuto- 
ry review. Cohen v. Beneficial Industrial 
Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 
L.Ed. 1528 (1949). 

Although the present appeal is based on 
due process grounds—i. e., that the govern- 
ment has failed to fulfill an earlier promise 
not to prosecute—it is apparent that similar 
interests are at stake. We implicitly held 
so much when, in January of this year, we 
issued a writ of mandamus directing that 
Alessi’s identical contention, raised in the 
context of another criminal case in which 
he was involved, be resolved before trial 
was commenced. United States v. Alessi, 
Dkt. No. 76-1021 (2d Cir. Jan. 20, 1976). 

The government argues that Beckerman 
shOUld be restricted to those situations 
where the defendant has already undergone 
the trauma of a first trial and should be 
inapplicable_where, as here, Alessi pleaded 
guilty to the earlier indictment. Everfwere 
we to accept the debatable proposition that 
there is less stress involved in pleading 
guilty than in standing trial, we fail to see 
how the distinction bears any relevance to 
the purposes of the Double Jeopardy 
Clause, as outlined above. 

[3-5] More particularly, the government 
is estopped from placing its reliance upon 
the fact that Alessi pleaded guilty in 1972. 

was just recently sustained by this court. 
United States v. Papa, 533 F.2d 815 2d Cir. 
1976). Alessi’s appeal from an adverse deci- 
sion of Judge Bonsal, refusing to dismiss his 
indictment in the Southern District for narcot- 
ics offenses, is currently scheduled to be ready 
for argument at the end of June 1976.  



lity opinion 

ion is not 

put against 

hited States 

S.Ct. 1192, 

bndant who 

tion of al- 

gainst him 

his double 

rreparably 
tion which 

It is in 

eme Court 

terlocuto- 

Industrial 

. 1221, 93 

based on 

le govern- 

br promise 

at similar 

citly held 

year, we 

ting that 

bd in the 

in which 

ore trial 

v. Alessi, 

0, 1976). 

ckerman 

ituations 

dergone 

hould be 

pleaded 

en were 

ion that 

pleading 

il to see 

ance to 

eopardy 

brnment 

€ upon 

in 1972. 

court. 

{2d Cir. 

se deci- 

iss his 

narcot- ° 

pe ready 

  

UNITED STATES v. ALESSI 981 
Cite as 536 F.2d 978 (1976) 

The defendant’s consent to waive his consti- 
futional right to trial by jury is precisely 
the consideration which the prosecution de- 
mands in exchange for any plea bargain. 

  

  

    Having negotiated for this result, the 
government may not now present it as a 
justification for denying Alessi the timely 
relief which he requests. If, in fact, the 
government represented to appellant that 
he “Would not Tater be “indicted Tor the 
crimes for which they now seek to try him, 
he is entitled at this point to_specific en- 
forcement of that agreement. See Santo- 
ello v. New York, 404 U.S. 257, 262, 92 

S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). We 
note, moreover, that only the extent and 
not the existence of the 1972 agreement is 
here in question. Under the circumstances 

  

  

    

    

  

thus presented, we hold that the district 
court’s order is appealable. 

[6] _On_the merits, however, we agree 
with Judge Judd that the present prosecu- 
tion for tax evasion is not barred by the 
1972 plea bargain. In United States v. 
Papa, 533 F.2d 815 at 824 (2d Cir. 1976), we 
recently had occasion to consider the terms 
of that agreement and noted specifically 
that Strike Force Attorney Druker had not 
granted Papa, nor, by extension, Alessi, 
“‘carte blanche’ immunity as to all 
past criminal conduct.” Rather, Papa and 
Alessi were guaranteed only that they 
would not be reindicted for the “[narcotics] 
conspiracy or any overt act contained in 
that conspiracy.” As alternatively phrased, 
they were promised that they would not 
subsequently be prosecuted for “another 
piece of the same conspiracy.” 4 

  

That promise has not been breached here. 
Although tax evasion may often be prac- 
ticed_by those who violate the narcotics 

4. These words are Druker’s own, as testified to 
during an evidentiary hearing conducted by 
Judge Brieant of the Southern District in con- 
nection with proceedings in United States v. 
Papa, supra. 

5. Druker revealed the pending tax investigation 
by the Internal Revenue Service to Papa’s at- 
torney after learning of it in June 1972 to cor- 

rect his earlier assertion that the narcotics con- 

spiracy was the only case against Papa in the 

Eastern District of which he was aware. Druk- 

laws, it is neither an element nor an inevi- 
table consequence of a narcotics conspiracy. 
Moreover, the evidence necessary to sustain 
a conviction for narcotics conspiracy is 
plainly not “the same” as that required to 
prove tax evasion. Cf. United States v. 
Mallah, 503 F.2d 971 (2d Cir. 1974), cert. 
denied, 420 U.S. 995, 95 S.Ct. 1425, 43 
L.Ed.2d 671 (1975). Indeed, the only credi- 
ble relationship that can be established be- 
tween the two offenses is that a significant 
percentage of the income which Alessi is 
now accused of failing to report in 1968, 
1969, 1970, and 1971, was probably generat- 
ed by his illegal narcotics operation. This 
connection is not enough to require dismiss- 
al of the instant indictment. One could as 
easily claim that any crime whose proceeds 
were used to purchase narcotics during 
those years was subsumed within and im- 
munized by the 1972 plea. Yet, throughout 
the negotiations, Druker repeatedly empha- 
sized that crimes such as hijacking—i. e., 
non-narcotics activities—were not covered 
by the agreement. 

Judge Judd was clearly correct in holding 
that tax evasion simply cannot in any rea- 
sonable manner be construed to be a “piece 
of” the narcotics conspiracy to which Alessi 
pleaded guilty on October 2, 1972. That 
Papa pleaded guilty to tax evasion as a 
result of the discussions with Druker in 
1972 does not, as appellant suggests, refute 
this contention or impliedly expand the 
scope of the agreement. It points merely to 
the desire of everyone involved to close the 
Papa file, as it then stood. Papa’s tax plea 
appears to have been ancillary to the discus- 
sions concerning his narcotics affairs, the 
latter being the only negotiations which 
affected Alessi.’ 

er testified that he felt an “ethical obligation” 
to clarify the record. The disclosure did not 
result from any feeling on his part that tax 
evasion represented a “piece of,” or an overt 
act in furtherance of, the narcotics conspiracy. 

This sequence of events is illuminating in 
another regard. Following his revelation and 
just prior to reaching an agreement with Papa, 
Druker reavowed that there were then no other 
investigations into Papa's affairs in the Eastern 
District. Alessi contends that this statement, 
which claimed our attention in United States v.   

  

  

   



    

    
  

982 

Appellant's attempt to demonstrate a 

nexus between the current claim of tax 

evasion and his 1972 indictment for partici- 

pation in a continuing criminal enterprise is 

equally unpersuasive. Alessi is correct 

that, had he not agreed to a bargain in 

1972, the government would have had to 

prove ‘as part of its case under 21 U.S.C. 
§ 848 that he derived substantial income . 

from his narcotics activities. The prosecu- 

tion would not, however, have been re- 

quired to establish that he failed to report 

his income. That allegation, the gravamen 

of the present indictment, did not constitute 

a “piece of” any crime with which Alessi 

was previously charged. Nor has he yet 

been placed in “jeopardy” with respect to it. 

There was thus no error in the district 

court’s denial of Alessi’s motion to dismiss 

the indictment for tax evasion. 

Affirmed. 

W 
o g KEY NUMBER SYSTEM 

Orlando RODRIGUEZ, 

Petitioner-Appellee, 

V. 

Harold BUTLER, Superintendent, Wallkill 

Correctional Facility, Wallkill, New 

York, Respondent-Appellant. 

No. 598, Docket 75-2139. 

United States Court of Appeals, 

Second Circuit. 

Argued Dec. 23, 1975. 

Decided June 16, 1976. 

State prisoner petitioned for writ of 

habeas corpus. The United States District 

Papa, supra, requires that we remand to the 

district court for a determination of whether, at 

the time of Alessi’s plea in 1972, there was 

already underway in the Eastern District an 

investigation into his alleged tax violations. 
We disagree. 

Our review of the record convinces us that 

Druker’s comment was intended as a represen- 

tation of fact directed to Papa alone. Certain- 

ly, Papa had a right to rely upon that represen- 

536 FEDERAL REPORTER, 2d SERIES 

Court for the Southern District of New 

York, Constance Baker Motley, J., granted 

the petition and state appealed. The Court 

of Appeals, Hays, Circuit Judge, held that 

where petitioner entered apartment build- 

ing in company of two men who officers 

believed had made a narcotics pickup and 

petitioner was observed carrying a package 

and no narcotics were found on the other 

two men, officers’ unannounced entry into 

petitioner’s apartment with pass key was 

not unreasonable under Fourth Amendment 

standards. 

Reversed. 

1. Courts ¢=100(1) 

Standards for search incident to arrest 

announced in United States Supreme Court 

decision of June 29, 1969 are not retroac- 

tive. U.S.C.A.Const. Amend. 4. 

2. Arrest &=711(7) 
An illegal entry to effect an otherwise 

lawful arrest taints a search incident to 

such arrest. U.S.C.A.Const. Amend. 4. 

3. Criminal Law ¢=394.4(11) 

If entry is found to have been accom- 

plished in a manner violating the Fourth 

Amendment, evidence seized as a result of 

the unlawful entry is inadmissible against 

one who has standing to complain. U.S.C. 

A.Const. Amend. 4. 

4. Courts &=359.1(1) 

The lawfulness of entry by state offi- 

cers to arrest for offenses against the state 

is determined by reference to state law 

subject to the protections set forth in the 

constitution. U.S.C.A.Const. Amend. 4. 

5. Arrest &=68 

Under New York law, the exigent cir- 

cumstances doctrine excuses noncompliance 

tation. But it was not meant to be a promise to 

Alessi as well. 

Nor do we deem this conclusion inconsistent 

with the district court’s finding that Alessi’s 

plea “was made in reliance on the same discus- 

sions” which produced an agreement with 

Papa. From the context in which the word 

“discussions” is used, we believe it clear that 

Judge Judd’s reference was limited to whatever 

promises were made by the government.   

 



the $500 spent 
e damage plea 

ich CNA must 

ough the lan- 

susceptible to 

h fines and oth- 

expressly ex- 

f reimbursable 
hmages them- 
or reasons of 

lic policy does 

ney’s fees in- 

plea for puni- 

where the de- 

A intended to 
Im the policy's 
more explicit- 
in the same 

aries, and in 

nection with” 
pee R. 11-12. 
istrict court’s 

h insurance 

ive damages 

“arguable or 

an insured’s 

veld of Mis- 

.2d 833, 841 

. Co. of In- 

, 248 (Miss. 

he able dis- 

fused to pay 

De no doubt 

This part of 
med. 

ERSED in 

D for modi- 

ward Stark- 

bf the School 

ental body) 
Is therefrom, 

hds, provided 

loss shall not 

or matters 

le under the 

icy shall be 

Cite as 772 F.2d 171 (1985) 

~~ \wl le 
Ze Nae HAMILTON v. McCOTTER | 171 

1 
A {USteven D. HAMILTON, 

Petitioner-Appellant, 

Vv. 
O.L. McCOTTER, Director, Texas 

Department of Corrections, 
Respondent-Appellee. 

4 No. 84-1319, 
nited States Court of Appeals, 

Fifth Circuit. 

Oct. 3, 1985. 
Rehearing and Rehearing En Bane 

Denied Nov. 15, 1985. 

A petition was filed seeking habeas 
corpus relief. The United States District 
Court for the Northern District of Texas, 
A. Joe Fish, J., dismissed the petition on 
the basis of abuse of the writ. Petitioner 
appealed. The Court of Appeals, Garwood, 
Circuit Judge, held that: (1) the dismissal 
of the claims raised in the petitioner’s first 
federal habeas petition for abuse of the 
writ was fully justified; (2) claims which 
could have been considered at a prior limit- 
ed evidentiary hearing on the issue of the 
effectiveness of the petitioner’s counsel 
were barred; (3) the petitioner's claim of 
ineffective assistance of appellate counsel 
was without merit; 4nd (4) the petitioner's 
claim that the indictment was forged and, 
thus, that the petitioner was never properly 
before the state trial court’s jurisdiction 
should not have been dismissed. 

Affirmed in part, reversed in part and 
remanded. 

1. Habeas Corpus ¢=7 
Petitioner may not, without legal ex- 

cuse, omit to raise on appeal claimed errors 
in denial of his habeas petition and then 
seek to relitigate same questions in subse- 
quent petition. 28 U.S.C.A. § 2254; Rules 
Governing § 2254 Cases, Rule 9(b), 28 US. 
C.A. foll. § 2254. 

2. Habeas Corpus &7 

Legal excuse may exist for failure to 
raise claim in prior habeas petition if, after 
previous proceeding, there is change in law 
which makes claim possible or petitioner 

pp 182-183 

first becomes aware or chargeable with 
knowledge of asserted facts on which new 
claim is based. 28 US.C.A. § 2254; Rules 
Governing § 2254 Cases, Rule 9(b), 28 U.S. 
C.A. foll. § 2254. 

3. Habeas Corpus &=7 

Claim that petitioner was denied access 
to state trial record which was sole subject 
of request presented in his first state habe- 
as application, could not be raised in third 
federal habeas petition where it was not 
raised in first federal petition and petition- 
er offered no legally cognizable excuse for 
not having raised claim previously. 28 U.S. 
C.A. § 2254; Rules Governing § 2254 
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

4. Habeas Corpus ¢=87 

Dismissal of petitioner's claim that he 
was denied counsel during allegedly im- 
properly suggestive pretrial photographic 
display on ground of abuse of the writ was 
fully justified where petitioner clearly al- 
leged, in response to motion to dismiss first 
federal habeas petition, both that pretrial 
photographic display was impermissibly 
suggestive and that it was conducted in 
denial of his Sixth Amendment right to 
counsel, and issue had been briefed in peti- 
tioner’s second state habeas application. 
28 US.CA. § 2254; Rules Governing 
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 
§ 2254; U:S.C.A. Const. Amend. 6. 

5. Habeas Corpus ¢=90.2(1) 
Petitioner must be afforded opportuni- 

ty to respond to allegation of abuse of writ, 
but hearing is not required if court deter- 
mines that petitioner has no chance of justi- 
fying successive petition for habeas corpus 
relief. 28 U.S.C.A. § 2254; Rules Govern- 
ing § 2254 Cases, Rule 9b), 28 US.CA. 
foll. § 2254. 

6. Habeas Corpus ¢=7 

If appointed counsel's representation 
of petitioner during evidentiary hearing in 
his first federal habeas petition was repre- 
sentation for all purposes therein, then pe-  



  

  

772 FEDERAL REPORTER, 2d SERIES 

titioner’s failure to have raised any claims 

in his first federal petition, essential facts 

supporting which were then known to him, 

would normally be sufficient to bar any 

attempt to raise those claims in subsequent 

petition, notwithstanding absence during 

prior proceeding of actual knowledge on 

part of petitioner personally of legal signif- 

jcance of those supporting facts. 28 U.S. 

C.A. § 2254; Rules Governing § 2254 

Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254. 

7. Habeas Corpus &7 

Although evidentiary hearing on peti- 

tioner’s first habeas petition was restricted 

to all claims of ineffective assistance of 

counsel, there was no admonition by court 

that ineffective assistance inquiry would 

necessarily be narrow one and, therefore, 

those claims which would also constitute 

basis for assertion of ineffective assistance 

of state trial counsel could not have been 

raised on third habeas petition by virtue of 

not having been presented in first federal 

petition in that petitioner was properly 

chargeable with knowledge of his compe- 

tent habeas counsel as to all issues neces- 

sarily implicated in that counsel's inquiry 

into petitioner’s claim of ineffective assist 

ance of trial counsel. 28 U.S.C.A. § 2254; 

Rules Governing § 2254 Cases} Rule 9(b), 

28 US.CA. foll. § 2254; U.S.C.A. Const. 

Amend. 6. 

8. Criminal Law ¢641.13(7) 

Accused is entitled to effective assist- 

ance of counsel on direct appeal as of right. 

U.S.C.A. Const. Amend. 6. 

9. Criminal Law ¢=641.13(7) 

Where petitioner's state appellate 

counsel duly perfected appeal and filed 

brief competently asserting error in allow- 

ing victim's in-court identification on 

ground that it resulted from impermissibly 

suggestive pretrial display and in allowing 

testimony by third persons of victim's pre- 

trial identification, claim of ineffective as- 

sistance of appellate counsel required par- 

ticularized showing of identifiable lapse in 

performance of attorney which when 

viewed under “highly deferential” standard 

nevertheless fell outside wide range of pro- 

fessionally competent assistance. U.S.C.A. 

Const.Amend. 6. 

10. Criminal Law €¢=641.13(1) 

In establishing claim of ineffective as- 

sistance of counsel, it is accused’s burden 

to establish that particular lapse in per- 

formance of attorney was prejudicial, that 

there was “a reasonable possibility” that 

but for the error the ultimate result would 

have been different. U.S.C.A. Const. 

Amend. 6. 

11. Criminal Law ¢=641.13(1) 

In establishing claim of ineffective as- 

sistance of counsel, accused must show 

how specific errors of counsel undermined 

reliability of finding of guilt. U.S.C.A. 

Const.Amend. 6. 

12. Criminal Law ¢=641.13(7) 

Petitioner's claim of ineffective assist- 

ance of counsel on direct appeal was with- 

out merit where petitioner merely alleged 

that counsel refused to raise issues that 

petitioner requested him to raise, but peti- 

tioner did not provide any specifics about 

what those issues might have been. U.S. 

C.A. Const.Amend. 6. 

13. Criminal Law &=641.13(7) 

Appellate counsel's omission to raise 

issue or issues requested by petitioner did 

not constitute ineffective assistance of 

counsel. U.S.C.A. Const.Amend. 6. 

14. Indictment and Information €=33(3) 

Under Texas law, mere absence of 

grand jury foreman’s signature on indict- 

ment otherwise actually properly returned 

by grand jury is not fatal to indictment’s 

validity. , 

15. Habeas Corpus &7 

Petitioner’s claim that his indictment 

was forged and thus never in fact returned 

by grand jury was not one of which peti- 

tioner or any of his lawyers could have 

been expected to have been aware at time 

of prior habeas petition and, therefore, rais- 

ing that claim in third habeas petition did 

not amount to abuse of writ. 28 U.S.C.A. 

§ 2254; Rules Governing § 2254 Cases, 

Rule 9(b), 28 U.S.C.A. foll. § 2254. 

   



ective as- 

’s burden 

be in per- 

ficial, that 

lity” that 

ult would 

A. Const. 

fective as- 

ust show 

ndermined 

U.S.C.A. 

tive assist 

1 was with- 

ely alleged 

issues that 

ke, but peti- 

ifics about 

been. U.S. 

on to raise 

etitioner did 

sistance of 

d. 6. 

ion ¢=33(3) 

absence of 

re on indict 

rly returned 

indictment’s 

is indictment 

fact returned 

f which peti- 

5 could have 

ware at time 

rerefore, rais- 

s petition did 

28 U.S.C.A. 

2254 Cases, 

2254. 

HAMILTON v. McCOTTER 173 
Cite as 772 F.2d 171 (1985) 

16. Indictment and Information 4 

There is no federal constitutional right 

to indictment before trial in state criminal 

action. 

17. Habeas Corpus 230(2) 

Sufficiency of state indictment is not 

ordinarily matter for federal habeas relief 

unless indictment is shown to be so funda- 

mentally defective as to have deprived con- 

victing court of jurisdiction to try cause. 

28 U.S.C.A. § 2254. 

Rolf G. Asphaug, Houston, Tex. (Court 

Appointed), for petitioner-appellant. 

Jim Mattox, Atty. Gen., Laurie A. Boor- 

as, Austin, Tex., for respondent-appellee. 

Appeal from the United States District 

Court for the Northern District of Texas. 

Before CLARK, Chief Judge, GAR- 

WOOD and JOLLY, Circuit Judges. 

GARWOOD, Circuit Judge: 

This appeal is from a dismissal for abuse 

of thewritof a Texas prisoner's successive 

pétition Tor habeas relief under 28 U.S.C. 

§ 2254. The district court determined that 

all appellant’s asserted grounds for relief 

in this his third federal petition had either 

been raised and disposed of in a previous 

section 2254 proceeding, or that they 

should have been previously raised, and 

consequently had been bypassed without 

legal excuse by the prior failure to assert 

them. The petition was dismissed pursu- 

ant to Rule 9(b) of the Ci 

§ 2754 cases, 28 U.S.C. foll. § 2254. We 

agree with the district court's dismissal as 

to all save one of the eleven grounds gs- 

serted Tn appellant's petition. Accordingly, 

we reverse the dismissal in part, and re- 

mand —tor—further—proceedings respecting 

the single viable issue raised in appellant’s 

petition. 

  

  
  

  

  

  

  

1. The grounds raised in this second state peti- 

tion included: (1) illegal search and seizure; (2) 

use at trial of evidence obtained from the illegal 

search: (3) indictment void for failure to allege 

ownership of items stolen, and for giving no 

FACTS AND PROCEEDINGS BELOW 

Appellant Steven D. Hamilton was indict- 

ed by a Dallas County, Texas grand jury in 

April 1975 on a charge of armed robbery. 

He was found guilty by a jury, and sen- 

tenced to life imprisonment following a tri- 

al in June of that year. The conviction was 

affirmed on appeal in an unpublished opin- 

ion. See Hamilton v. State, 542 S.w.2d 

427 (Tex.Crim.App.1976) (Table). 

On December 12, 1977, appellant filed his 

first habeas corpus petition in state court. 

Proceeding pro se, he requested a copy of 

his trial record. The convicting court rec- 

ommended denial, because the application 

did not contain the required verification by 

oath. The Texas Court of Criminal Ap- 

peals denied relief without written reasons 

on January 18, 1978. 

On April 17, 1978, appellant filed his 

second pro se state habeas petition, the 

first to actually collaterally attack his con- 

viction.! The convicting court recom- 

mended denial of this application on April 

25; the Texas Court of Criminal Appeals 

did so without opinion on May 10, 1978. 

On August 8, 1978, appellant, again pro- 

ceeding pro se, filed his first federal habe- 

as petition (C.A. 3-78-0974-G) in the 

Northern District of Texas, Dallas Division, 

attacking his state conviction, and alleging 

the following grounds for relief: (1) illegal 

search and seizure; (2) evidence obtained 

therefrom was improperly admitted at trial; 

(8) void indictment (insufficient allega- 

tions); (4) wrongfully admitted in-court 

identification; (5) ineffective assistance of 

counsel at trial; and (6) prosecutorial mis- 

conduct. By order dated August 24, 1979, 

the district court ‘dismissed appellant's 

claims numbered (1) and (2), finding that 

appellant had had a “full and fair opportu- 

nity to litigate those issues [previously] in 

the state courts of Texas.” See Stone v. 

Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 

description of the allegedly stolen property; (4) 

in-court identification wrongly admitted; (5) in- 

effective assistance of counsel at trial; and (6) 

prosecutorial misconduct at trial.   

     



772 FEDERAL REPORTER, 2d SERIES 

3046, 49 L.Ed.2d 1067 (1976); Caver v. 

State of Alabama, 577 F.2d 1188, 1191-92 

(5th Cir.1978); O’Berry v. Wainwright, 546 

F.2d 1204, 1213 (5th Cir.1977). Claims (3), 

(4), and (6) were dismissed, in accordance 

with the magistrate’s recommendations, for 

want of merit based upon appellant’s state 

trial record. The district court found, how- 

ever, that claim (5), asserting ineffective 

assistance of counsel, could not be resolved 

on its merits from the state record. An 

evidentiary hearing was set, and the court 

in its August 24 order appointed an attor- 

ney to represent appellant in that hearing. 

In a subsequent order, the court indicated 

that the hearing would comprehend “all 

claims of ineffective assistance of coun- 

sel’? 

Following some postponements, the evi- 

dentiary hearing was finally held on Janu- 

ary 25, 1980. Appellant, his common-law 

wife, mother-in-law, and sister-in-law testi- 

fied to the effect that, had the women been 

contacted by appellant's trial attorney, they 

2. The full text of the district court's order of 

October 31, 1979 is as follows: 

“The evidentiary hearing will encompass all 

claims of ineffective assistance of counsel. 

The court's order filed August 24, 1979, find- 

ing a necessity for a hearing did fogus upon 

claims by petitioner of failure by his counsel 

that were not revealed by the trial record. 

The court is persuaded that because a hearing 

is required, that all claims of ineffective assist- 

ance ought to be explored. This approach 

reflects a desire to maximize utilization of 

court time and the recognition that the line 

between trial and out of trial defaults may 

break down when the question of prejudice 

for any pretrial defaults is addressed. 

“The petitioner's request to expand the hear- 

ing to include Fourth Amendment search and 

seizure questions is DENIED for the reasons 

stated in this court's order filed August 24, 

1979. This does not preclude a claim of inef- 

fective assistance of counsel based on a failure 

of counsel to contest a search and seizure. 

That application of the opportunity to litigate 

standard Stone v. Powell is premised upon 

legally effective counsel ought also to be kept 

in‘ mind.” (Emphasis added.) 

3. This Court's opinion recited that “[o]n appeal 

Hamilton raises only his ineffective assistance 

of counsel claim. To support this claim, he 

relies exclusively on his attorney's failure to get 

in touch with three alibi witnesses and to call 

them in his defense at trial. He has abandoned 

would have offered to testify to an alibi. 

Appellant's trial counsel also testified, and 

directly contradicted the assertions by ap- 

pellant’s witnesses both that they had not 

been contacted and that their proferred 

testimony would have been competent and 

valuable to appellant’s cause at trial. The 

district court denied appellant's writ peti- 

tion on February 5, 1980. The court’s opin- 

ion indicated that it believed that trial coun- 

sel had exercised reasonable professional 

judgment regarding whether to utilize the 

alleged alibi testimony and whether to pur- 

sue a search and seizure question. Appel 

lant noticed appeal, and requested a certifi- 

cate of probable cause, which the district 

court denied on March 5, 1980. This Court 

affirmed the district court’s denial of appel- 

lant’s petition for habeas relief on June 24, 

1981. Hamilton v. Estelle, 651 F.2d 775 

(5th Cir.1981).2 

On April 16, 1981, appellant, again pro 

se, filed his third state habeas petition in 

the convicting court.! On May 22, 1981, 

on appeal the five other grounds raised in his 

federal petition.” 

4. This petition alleged ten grounds for relief, 

including: (1) improper pretrial photographic 

identification (i.e., no counsel present, and sug- 

gestive presentation); (2) illegal search and sei- 

zure of evidence (i.e, search without warrant 

and no effective consent); (3) denial of access 

to petitioner's state trial records; (4) convicting 

court's charge to the jury contained various the- 

ories of the offense; (5) the district attorney 

abused the grand jury system (including an alle- 

gation of a “forged” indictment which “has not 

and was not presented by a lawfully impaneled 

grand jury, nor was this case presented to the 

Grand Jury of Dallas County, Texas in the April 

Term, 1975,” and alleging practices of the Dallas 

County District Attorney in “the manufacture 

of” indictments); (6) invalid indictment (includ- 

ing absence of specification of locus of crime, 

improper and vague use of the word “unlawful- 

ly,” failure to describe stolen property, failure to 

list grand jury witnesses, failure to make allega- 

tions of ownership of allegedly stolen property, 

allegation that indictment failed to allege lack 

of effective consent by victim of alleged crime, 

failure to specify all elements of the crime, and 

failure of the district attorney to “officially 

sign[ ]” the indictment); (7) illegal search (no 

search warrant); (8) improper admission of an 

in-court identification of appellant by the al- 

leged victim of the crime; (9) ineffective assist- 

ance of counsel at trial; and (10) cruel and 

   



o an alibi. 

tified, and 

ons by ap- 

ey had not 

proferred 

petent and 

trial. The 

writ peti- 

purt’s opin- 

trial coun- 

rofessional 

utilize the 

her to pur- 

pn. Appel 

bd a certifi- 

he district 

This Court 

al of appel- 

bn June 24, 

1 F.2d 775 

again pro 

petition in 

ry 22, 198], 

raised in his 

ds for relief, 

photographic 
ent, and sug- 
arch and sei- 

out warrant 

ial of access 

4) convicting 

H various the- 

rict attorney 

ding an alle- 

hich “has not 

ly impaneled 
sented to the 

s in the April 
L of the Dallas 

manufacture 

ment (includ- 

cus of crime, 

rd “unlawful- 

rty, failure to 

make allega- 
len property, 

to allege lack 
alleged crime, 

he crime, and 

to “officially 
al search (no 

mission of an 

nt by the al- 
(fective assist- 

10) cruel and 

  

  

HAMILTON v. McCOTTER 175 
Cite as 772 F.2d 171 (1985) 

the state court recommended denying the 

writ application and appellant’s request for 

a hearing. Following response to the 

court’s findings, filed by appellant on June 

15, 1981, the Court of Criminal Appeals 
denied relief without opinion on June 17, 

1981. ; 

On January 27, 1982, appellant, acting 

pro se, filed his second federal habeas peti- 

tion (C.A.-3-82-0118-G), again in the 

Northern District of Texas. That court 

dismissed the petition without prejudice, 

for nonexhaustion of state remedies, on 

June 14, 1982. Concurrently, on March 10, 

1982, appellant filed a pro se application in 
state court (his fourth state petition) in the 

form of a “Petitioner's Amendment to His 

Application for the Writ of Habeas Cor- 

pus.” Reciting that, although no applica- 

tion was presently before that court, but 

that “an application that this Court has 

already had the opportunity to hear and 

determine; said application being denied by 

this Court,” was “before the Northern Dis- 

trict Court-Dallas Division,” appellant 

sought habeas relief, alleging four 

grounds.’ On September 22, 1982, the con- 

victing court recommended denying the re- 

quested hearing anll appellant's writ appli- 

cation. The Texas Court of Criminal Ap- 

peals denied relief and cited appellant for 

abuse of writ on November 10, 1982. 

inhuman punishment while appellant was incar- 
. cerated in the Texas Department of Corrections. 

5. Appellant submitted an “Answer” to the con- 
victing court's findings, again alleging that the 
Dallas County District Attorney's office had 
forged the indictment. This “Answer” was for- 
warded to the Court of Criminal Appeals, where 
it was filed on June 29, 1981. 

6. These grounds were: (1) The statute under 

which conviction had been obtained was uncon- 
stitutionally vague; (2) the state trial judge 
should have recused himself from petitioner's 
previous habeas corpus application, because ap- 
pellant had .at that time a civil suit pending 
against the judge and others; (3) the indictment 
was defective because it lacked an allegation of 
an act done “[r]ecklessly,” as allegedly required 
by the convicting statute; and (4) the indict- 

ment was defective, because it was “defective in 

substance and form,” for failure to particularize 
the term “[flirearm.” On April 23, 1982, appel- 

On October 13, 1983, having exhausted 

state remedies, appellant filed his third fed- 

eral habeas petition. This petition, the sub- 

ject of the present appeal, alleged the fol- 

lowing eleven grounds for relief: (A) con- 

viction obtained under an unconstitutional 

ly vague statute; (B) unconstitutional pre- 

trial photographic identification; (C) denial 

of access to trial records; (D) lack of effec- 

tive consent in (illegal) search and subse- 

quent seizure of evidence; (E) trial charge 

to the jury not based on the indictment, i.e, 

containing various theories for conviction 

not contained in the indictment; (F) indict- 

ment forged, and lack of real indictment; 

(G) indictment defective, i.e.,, fatal defects 

in allegations (and an indirect allegation 

that the indictment had not been returned 

by a grand jury); (H) illegal search, i.e., no 

search warrant; (I) prejudicial in-court 

identification improperly admitted into evi- 

dence; (J) ineffective assistance of counsel 

at trial (including pretrial); and (K) ineffec- 

tive assistance of counsel on appeal of the 

state conviction. The State moved for dis- 

missal on grounds of abuse of the writ 

pursuant to Rule 9(b) of the Rules Govern- 

ing § 2254, 28 U.S.C. foll. § 2254.” In re- 

sponse to this Rule 9(b) motion, appellant 

alleged that he was asserting new grounds 

for relief, and also asserted a conclusory 

claim of excusable neglect as to grounds 

previously unurged.® On March 12, 1984, 

lant filed an “Amended Application for the Writ 
of Habeas Corpus” with the state convicting 
court, apparently in anticipation of the dismis- 
sal without prejudice of his second federal peti- 
tion for want of exhaustion of state remedies, 
and for the first time raised as error the ques- 
tion of ineffective assistance of counsel on ap- 
peal of his state conviction. 

7. Rule 9(b), 28 U.S.C. foll. § 2254, reads: 

“(b) Successive petitions. A second or suc- 

cessive petition may be dismissed if the judge 
finds that it fails to allege new or different 
grounds for relief and the prior determination 
was on the merits or, if new and different 
grounds are-alleged, the judge finds that the 

. failure of the petitioner to assert those 
grounds in a prior petition constituted an 
abuse of the writ.” 

Appellant alleged as excuses the following: 

“It asserts new grounds/ petitioner is not a 

licensed attorney and in the past has been  



  

  

176 

following the recommendation of the mag- 

istrate to whom the matter had been re- 

ferred, the district court dismissed appel- 

lant’s petition for abuse of the writ pursu- 

ant to Rule 9(b). On that same day, appel- 

lant gave notice of appeal, and sought a 

certificate of probable cause, which the dis- 

trict court declined to give. On June 18, 

1984, a panel of this Court granted a certif- 

icate of probable cause and leave to pro- 

ceed in forma pauperis, and appointed 

counsel for the purposes of this appeal. 

CLAIMS RAISED IN OR BEFORE 

FIRST FEDERAL HABEAS 

[11 Appellant concedes that five of the 

grounds (grounds (D), (G), (H), (I), and (J) 

raised in this, his third federal habeas peti- 

tion, were raised previously in his first 

federal petition and were decided on the 

merits.’ 

[2] “The purpose of [Rule 9(b)] is to 

avoid piecemeal litigation, with petitioners 

advancing claims one at a time.” Rudolph 

». Blackburn, 750 F.2d 302, 305 (5th Cir. 

1984) (citations omitted). We have said 

that the appropriate standard against 

which to determine abuse of the writ is not 

whether a successive petitioner intended to 

bypass an issue at the time of the previous 

petition, but “whether he withheld it with- 

out legal excuse when he filed his earlier 

petition.” Jones v. Estelle, 722 F.2d 159, 

163 (5th Cir.1983) (en banc), cert. denied, 

— 1.8. 104 S.Ct. 2356, 80 L.Ed.2d 

829 (1984); see also Daniels v. Blackburn, 

763 F.2d 705 (5th Cir.1985); Rudolph v. 

denied the adequate law libraries and access 

to the Courts/ petitioner was under a federal 

court order to exhaust all state remedies be- 

fore filing into federal court, and did was 

[sic] as ordered by this Court when abuse of 

the writ was filed against him.” 

9. Appellant does object that only ground (J) 

(ineffective assistance of counsel at trial) was 

previously accorded an evidentiary hearing. 

The other of these grounds, however, were re- 

solved on the merits from the trial record with- 

out a hearing, because there were no disputed 

material facts. See, e.g., Townsend v. Sain, 372 

U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 

(1963); Hicks v. Wainwright, 633 F.2d 1146, 

1150 (5th Cir.1981). Our affirmance of the de- 

772 FEDERAL REPORTER, 2d SERIES 

Blackburn, 750 F.2d at 305. Legal excuse 

may exist if, after the previous proceeding, 

there is a change in the law which makes 

the claim possible or the petitioner first 

becomes aware or chargeable with knowl- 

edge of the asserted facts on which the 

new claim is based. See Daniels, 763 F.2d 

at 707. 

[31 Appellant's alleged ground (Cy—de- 

nial of access to state trial records—was 

the sole subject of the request presented in 

appellant's first state habeas application, in 

which he sought a free copy of his trial 

record. It is therefore obvious that appel- 

lant was aware of this claim at the time of 

his- first federal petition, and that he by- 

passed this ground for relief by having 

failed to have raised it in that first federal 

petition. He has offered no legally cogni- 

zable excuse for not having raised the 

claim previously. 

[4] Appellant contends that ground (B) 

(denial of counsel during an alleged improp- 

erly suggestive pretrial photographic dis- 

play) was not previously raised in his 1978 

(first) federal petition. The State of Texas 

claims that this ground was presented in a 

brief in support of his first federal petition. 

In his pro se “Petitioner's Brief and An- 

swer to the Respondent’s Motion to Dis- 

miss and Answer,” which he filed in re- 

sponse to the State’s motion to dismiss the 

first federal petition, appellant did clearly 

allege both that the pretrial photographic 

display was impermissibly suggestive and 

that it was conducted in denial of his Sixth 

Amendment right to counsel.” The record 

nial of appellant's first federal petition also con- 

trols this complaint concerning the limited na- 

ture of the evidentiary hearing there. Appellant 

may not, without legal excuse, omit to raise on 

appeal claimed errors in the denial of his habe- 

as petition and then seek to relitigate the same 

questions in a subsequent petition. No legal 

excuse for such omission is advanced here. 

10. “Petitioner's Brief and Answer to the Respon- 

dent's Motion to Dismiss and Answer,” was filed 

by appellant, pro se, November 9, 1978. The 

magistrate’s findings and recommendations 

were filed July 31, 1979, and the district court's 

order for a limited evidentiary hearing was filed 

on August 24, 1979. In his referenced Novem- 

ber 9, 1978 filing, appellant addressed the issue  



Legal excuse 
us proceeding, 
which makes 

hetitioner first 

le with knowl- 

on which the 

niels, 763 F.2d 

bround (C)—de- 

1 records—was 

ost presented in 

s application, in 

bpy of his trial 

jous that appel- 

at the time of 

hnd that he by- 

elief by having 

hat first federal 

o legally cogni- 

ving raised the 

that ground (B) 

n alleged improp- 

hhotographic dis- 

aised in his 1978 

e State of Texas 

as presented in a 

it federal petition. 

's Brief and An- 

s Motion to Dis- 

h he filed in re- 

ion to dismiss the 

bellant did clearly 

trial photographic 

ly suggestive and 

denial of his Sixth 

hsel.® The record 

eral petition also con- 

brning the limited na- 

ring there. Appellant 

cuse, omit to raise on 

he denial of his habe- 

to relitigate the same 

ht petition. No legal 

is advanced here. 

Answer to the Respon- 

and Answer,” was filed 

vember 9, 1978. The 

ind recommendations 

and the district court's 

1tiary hearing was filed 

his referenced Novem- 

ant addressed the issue 

HAMILTON v. McCOTTER 177 
Cite as 772 F.2d 171 (1985) 

also reflects that appellant briefed the is- 

sue of lack of counsel at the pretrial dis- 

play (though not expressly the suggestive- 

ness of display claim) in his second state 

habeas application.!! This state application 

of the pretrial photographic identification as 

follows: : 

“The State has sought to prove that the 
pre-trial identification of the accused was le- 

gal, but ... a criminal suspect can not be 

subjected to a pre-trial identification process 
in the absence of counsel, without violating 
the Sixth Amendment. If he is, the prosecu- 

tion may not support or buttress a later in- 
court identification of the witness [sic] by 
any reference to the previous identification. 

“The in-court identification is not admissa- 
ble [sic] at all unless prosecution can estab- 

lish ‘by clear and convincing proof that the 

testimony is not the fruit of an earlier identifi- 
cation in the absence of the accused's counsel, 

citing U.S. -v- Wade, 388 U.S. 218, 87 S.Ct. 

1926, 18 L.Ed.2d 1149. 

“Petitioner's pictorial line-up was had, and 
defendnant [sic ] was without counsel, and the 

court will note the following argument and 

presentation; 
“The trial court erred in refusing to exclude 

the in-court identification testimony of Wes- 
ley Waldrop, the lone eye witness, as said 
testimony was tainted by the impermissably 
[sic] suggestive pre-trial photographic show 
up so as to give rise to a very substantial 

liklihood [sic] of irreparable misidentifica- 

tion.” (Emphasis is appellant's.) 
Appellant described the trial testimony of the 

witness and the conducting officer and the pic- 

tures which made up the display, and included 

an allegation, also pursued at the state trial, that 

the six displayed photographs did not match the 

description. given by Waldrop immediately after 

the robbery, to the effect that the robber had 

been a white male with shoulder-length hair 

and a prominent mustache. Appellant alleged 

that the six photos included two Mexican-Ameri- 

cans, and that “most of the photos depict indi- 

viduals with semi-long hair and four of the 

photos reflected either no mustache or a very 

light mustache.” Appellant went on to state: 
“In making the determination as to whether 

the in-court identification testimony of the 

lone eyewitness should have been excluded as 
a matter of law, the trial must first determine 
if the picture spread is impermissably [sic] 
suggestive, and if so, whether the picture 
spread gave rise to a liklihood [sic] of irrepa- 
rable misidentification. See: Stoval -v- Den- 
no, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 

1199]; Simmons -v- United States, 390 U.S. 

377 [88 S.Ct. 967, 19 L.Ed.2d 1247]." 

3 Petitioner submits that the picture 
spread shown to the complaintant [sic] in this 

was filed and resolved before appellant’s 

first federal petition for relief was filed. 

Thus, there can be no doubt that appellant 

was sufficiently aware of the nature and 

import of all his claims regarding the pre- 

case was impermissably [sic] suggestive ...." 
(Emphasis added.) 

“At this time the petitioner goes to the well 
picked case of (Stoval -v- Denno, 388 U.S. 293 
[87 S.Ct. 967, 19 L.Ed.2d 1247]), in which it 
was stated then that, ‘confrontation of ac- 
cused for L.D. is a critical stage of prosecution 
and the counsel for defense is a necessity and 
required at all such confrontations.” Notice 
also the cases of (U.S. -v- Wade, 388 U.S. 218, 
87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert -v- 

California, 388 U.S. 272, 263 [87 S.Ct. 1951, 
1956, 18 L.Ed.2d 1178] ). In these the Court 
stated, ‘Wade and Gilbert fashion exclusionary 
rules to deter law enforcement authorities 
from exhibiting the accused to the witness 
before trial for ID. purposes without notice to 
counsel for defense and in the absence of 
counsel. A conviction which rests on mistak- 
en LD. is a gross miscarriage of justice. 
These rules are aimed at minimizing the pos- 
sibility, by presenting the accused to unfair- 
ness of a pretrial identification, that experi- 
ence has proven can occur, and assuring, that 
meaningful examination of the plaintiff or 
witnesses testimony and identification at trial. 
It was further stated that, ‘testimony at guilt 
innocense [sic] stage of witness, that he LD. 
the accused at photographic lineup, which 
was illegal, in having been conducted without 
notice to counsel for defense, was per-se inad- 
missable [sic], and state was not entitled to 

show any different.’ Also note (Foster -v- Cal- 
ifornia, 394 U.S. 440 [89 S.Ct. 1127, 22 L.Ed.2d 

402], and Lucas -v- State, 444 S.W.2d 638, 

641). The (6) Sixth and (14) Fourteenth 

Amendments of the U.S. Constitution has 
been stated by the court saying, ‘A person 
accused of a crime requires the guiding hand 
of counsel at every stage of the prosecution 
against him[']; citing (Hamilton -v- Alabama, 
368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114]). 
The confrontation by cross examination of 
state's witnesses and no attorney for the peti- 
tioner at photo lineup, led to confinement till 
grand jury indictment. See: (U.S. -v- King, 
CADC- 7/18/73; Washington -v- Chemmer, 

339 F.2d 715; Griffin -v- California, 380 U.S. 

609 [85 S.Ct. 1229, 14 L.Ed.2d 106); Wilson -v- 

U.S., 149 U.S. 60; [13 S.Ct. 765, 37 L.Ed. 650] 

and 18 U.S.C.A., sec. 3481 (on 5th Amend- 

ment). Petitioner has shown the totality of 

the circumstances surrounding the identifica- 
tion by a photographic lineup, it being illegal 
and in violation of rights of this petitioner in 
accordance to the very laws this country is 
based on.”  



  

  

    

  

772 FEDERAL REPORTER, 2d SERIES 

trial display before the district court ruled 

on the first federal petition, so that dismis- 

sal of this claim for relief on grounds of 

abuse of the writ by the district court 

considering the third federal petition was 

fully justified. 

OTHER CLAIMS OF 
APPELLANT REJECTED 

[5] Appellant's remaining claims, name- 

ly, (A) that the Texas statutes under which 

his conviction is supported are duplicative 

and therefore unconstitutional; (E) that the 

convicting court's charge to the jury im- 

properly contained multiple theories; (F) 

that the indictment was a forgery; and (K) 

that he received ineffective assistance of 

counsel on his state conviction appeal, had 

not been raised in or prior to his first 
federal habeas. All these claims were also 

dismissed by the district court on grounds 

that appellant’s failure to raise them in his 

first federal petition constituted an abuse 

of the writ under Rule 9(b). Appellant was 

allowed to file a written response to the 

State’s allegation of abuse of writ, but was 

granted no evidentiary hearing on the mat- 

ter.) A petitioner must be afforded an 

opportunity to respond to an allegation of 

abuse, but a hearing is not required if the 

court determines that a petjtioner “has no 

chance of justifying the successive peti- 

12. Appellant also complains that his claims re- 
garding the pretrial display were not adequately 
addressed by the district court in his first feder- 
al habeas. The district court, in its August 24, 
1979 order, found no merit in, and denied with- 
out an evidentiary hearing, what it character- 
ized as appellant's claim that “[t]he admission of 

an in-court identification of Hamilton by the 
robbery victim violated Hamilton's constitution- 
al rights.” This would appear to embrace all of 
Hamilton's complaints about the in-court identi- 
fication, namely, that it was based on a pretrial 
display which was faulty as having been both 
overly suggestive and accomplished without the 
presence of any counsel for Hamilton, and that 

the in-court procedures were themselves im- 
properly suggestive. In any event, it is evident 

that Hamilton was aware of all these claims. If 
he did not seek relief on the basis of them in his 
first federal habeas, his failure to do so was 
without legal excuse. If he did seek relief there- 
on in that proceeding, then, absent some legal 
excuse, he was bound to assert that ground in 

his appeal from the denial of his habeas peti- 

tion.” Jones, 722 F.2d at 164; see also 

Daniels, 763 F.2d at 707-08. E 

The Previous Petition: Pro Se or Not Pro 

Se? : 

The State urges us to find that this ap- 

peal is controlled by our recent en banc 

opinion in Jones v. Estelle, supra. This 

Court there ruled that a pro se petitioner 

who had filed a successive federal habeas 

petition, and who had had the benefit of 

representation by counsel during the 

course of the prior petition, was to be held 

constructively to the same standard of 

knowledge of the law that could be attrib- 

uted to his counsel, at least if counsel's 

competency were not successfully chal 

lenged in the subsequent federal habeas. 

See Daniels, 763 F.2d at 707. 

[61 The State characterizes appointed 

counsel’s representation of appellant dur- 

ing the evidentiary hearing in his first fed- 
eral petition as having been representation 

for all purposes therein. If so, under 

Jones, appellant’s failure to have raised 

any claims in his first federal petition, the 

essential facts supporting which were then 

known to him, would normally be sufficient 

to bar under Rule 9(b) any attempt to raise 

such claims in a subsequent petition, not- 

withstanding the absence during the prior 

tion, rather than to seek to relitigate the same 
claims in a subsequent petition. No such 
claims were asserted in the appeal from the 
denial of the first federal habeas, and no legal 
excuse for such omission appears. 

13. In Vaughan v. Estelle, 671 F.2d 152 (5th Cir. 
1982), this Court indicated that, where a pro se 
habeas petitioner was ignorant of the legal sig- 
nificance of an issue about which he had factual 
knowledge, his failure to raise the issue in an 

initial habeas petition might be excusable. But 
this Court has also held that such a petitioner 
must allege, and prove by a preponderance of 
the evidence, satisfactory excuse for failure to 
raise an issue in a previous habeas. Daniels v. 
Blackburn, 763 F.2d at 707; Rudolph v. Black- 
burn, 750 F.2d at 305; Jones v. Estelle, 722 F.2d 

at 164 & n. 4, 169; see also Sockwell v. Maggio, 

709 F.2d 341, 344 (5th Cir.1983) (abuse of writ 

defined in terms of whether petitioner's lack of 
awareness of or failure to comprehend signifi- 
cance of known facts was excusable or justifi- 
able). 

    
   



4: see also 

{ 

or Not Pro 

hat this ap- 

ent en banc 

pra. This 

ke petitioner 

leral habeas 

e benefit of 

during the 

s to be held 

standard of 

ld be attrib- 

if counsel's 

sfully chal- 

eral habeas. 

s appointed 

pellant dur- 

is first fed- 

presentation 

so, under 

have raised 

petition, the 

h were then 

be sufficient 

mpt to raise 

petition, not- 

ng the prior 

gate the same 
bn. No such 
eal from the 

, and no legal 

H 152 (Sth Cir. 
vhere a pro se 

f the legal sig- 
he had factual 

1e issue in an 

xcusable. But 

h a petitioner 
ponderance of 

for failure to 

as. Daniels v. 

olph v. Black- 
ktelle, 722 F.2d 

vell v. Maggio, 
(abuse of writ 

ioner’s lack of 

rehend signifi- 
able or justifi- 

HAMILTON v. McCOTTER : 179 
Cite as 772 F.2d 171 (1985) . 

proceeding of actual knowledge on the part 

of appellant personally of the legal signifi- 

cance of those supporting facts. 

The question of what standard to apply 

to a petitioner wholly unrepresented by 

counsel at any time during the course of 

the relevant prior petition was not answer- 

ed by this Court in Jones. We said there 

only that “[wlhen a petitioner was repre- 

sented by competent counsel in a fully 

prosecuted writ he cannot by testimony of 

personal ignorance justify the omission of 

claims when awareness of those claims is 

chargeable to his competent counsel.” 

- Jones, 722 F.2d at 167 (emphasis added). 

We indicated in Jones that general princi- 

ples of equity in Rule 9(b) cases of abuse 

“boil down to the idea” that such a petition- 

er may excuse the omission of a claim in a 

prior federal petition if he proves, for in- 

stance, that he did not then know of the 

previously unraised claim because it has 

been made possible by a change in the law 

since the prior writ or by facts not then 

known or reasonably knowable. Id. at 165. 

But we cautioned also that “[i]Jt is more 

difficult when we review the efforts of a 

pro se petitioner to meet his burden of 

proving excusable weglect. That difficulty 

surfaces in pro se cases as a greater tol- 

erance for prisoner compliance with these 

described rules.” Jones, 722 F.2d at 165. 

Our opinion in Jones did not question our 

_ prior suggestion in Vaughan v. Estelle, 

671 F.2d 152 (5th Cir.1982), that a pro se 

petitioner’s ignorance of the legal signifi- 

cance of facts known to him at the time of 

an earlier petition might provide an excuse 

for failure to raise those issues in the prior 

proceeding. Id. at 153 & n. 5. 

In opposition to the State’s character- 

ization, appellant asserts that counsel was 

appointed to represent him in his first fed- 

eral habeas only for the single, narrowly 

circumscribed issue which was the express- 

ly designated subject of the evidentiary 

hearing there, namely, appellant's claim of 

ineffective assistance of trial counsel in his 

state trial. Appellant thus urges that the 

question presented here is whether he, as a 

pro se petitioner who had not received the 

benefit of representation by competent 

counsel throughout the course of his prior 

federal habeas proceeding, should be held, 

nonetheless, to the Jones v. Estelle con- 

structive knowledge standard in determin- 

ing whether his failure in that previous 

proceeding to raise other issues suffices to 

bar him under Rule 9(b) from raising those 

issues in this successive petition. 

Implicit Representation by Counsel 

[71 Appellant did have the benefit of 

counsel for at least some part of his prior 

federal habeas proceeding: Counsel was 

appointed to represent him at the evidentia- 

ry hearing held to consider appellant's 

claim of inadequate assistance of state trial 
counsel. It is therefore appropriate that 
we examine the actual scope of that hear- 

ing. 

The district court’s October 31, 1979 or- 

der with respect to that hearing was clear 

and unequivocal: “The evidentiary hearing 

will encompass all claims of ineffective 

assistance of counsel.” (Emphasis added.) 

In the same order, the district court denied 

a request (presumably by appellant’s coun- 

sel, who had been appointed several weeks 

earlier) to expand the evidentiary hearing 

to include appellant’s Fourth Amendment 

search and seizure claims. Appellant ar- 

gues that this indicates that the court re- 

stricted the scope of counsel's appoint- 

ment to representation on only the narrow 

single issue of ineffective assistance of 

counsel at trial, and that the court’s refusal 

to expand the scope of the hearing was 

tantamount to a refusal to allow counsel to 

represent appellant as to any other possible 

issues respecting that first petition. But 

we note that this search issue had already 

been decided by the court on the merits, 

and that, in the same breath as it declined 

to expand the subject matter of the sched- 

uled hearing, the court noted that its refus- 

al to expand the scope of the hearing 

“does not preclude a claim of ineffective 

assistance of counsel based on a failure of 

counsel to contest a search and seizure 

[i.e., at the convicting trial].” There is no 

admonition by the court that the ineffective 

assistance inquiry would necessarily be a  



  

180 

narrow one; to the contrary, there is in the 

court’s order an express indication (if not 

an invitation) that, within the context of 
examining “all claims of ineffective assist- 
ance of counsel,” other issues, including 
even ones which already had been dis- 
missed on their own individual merits, 
might nonetheless be raised as part of the 
process of determining whether appellant 
had received effective assistance of trial 
counsel. Appellant does not allege, and the 
record of the first federal habeas does not 

suggest, that appointed counsel actually 

was rebuffed by the court upon attempting 
to raise any issues—other than the search 
issue which the court had already decid- 
ed—that lay outside the ostensibly circum- 
scribed contours of the scheduled hearing, 

including any of the issues which appellant 
purports to raise for the first time in the 
present petition. Nor did the district court 
in any way instruct counsel that he could 
not raise other issues not already decided 
on the merits in some context other than 
that of the scheduled hearing; the court's 
order recites merely that the scheduled 
evidentiary hearing would encompass only 
the ineffective assistance of counsel claim. 

Moreover, we think that it clearly would 
be incumbent upon any competent counsel 
examining a claim of ineffective assistance 
of trial counsel to have read the state 
record of trial—and arguably of appeal—in 
order to search out examples of ways, both 
specific and cumulative, in which appellant 
might have been inadequately represented 

14. We note in this context that the statutes 
which appellant alleges to have been unconstitu- 
tional, Tex.Penal Code Ann. §§ 29.01 (defini- 
tions), 29.02 (robbery), 29.03 (aggravated rob- 
bery), have withstood similar assertions of un- 
constitutional vagueness. Honea v. State, 585 
S.W.2d 681 (Tex.Crim.App.1979); Wells v. State, 
576 S.W.2d 857 (Tex.Crim.App.1979). Appel- 
lant’s remaining argument that sections 29.02 
and 29.03 are duplicative overlooks the fact that 
section 29.02 is a lesser included offense of 
section 29.03. These contentions of appellant 
are meritless on their face.’ 

15. A similar conclusion is warranted also re- 
specting the previously considered claim of ap- 
pellant that the pretrial photographic display 
was impermissibly suggestive and without coun- 
sel. The facts in this respect were brought out 
at the state trial. This claim, too, is of the kind 

772 FEDERAL REPORTER, 2d SERIES 

in the pretrial and trial proceedings. Cer- 
tain types of potential claims thus should 
have been considered by counsel, including 
especially any questions of constitutional 
dimension presented by the trial record, 
even in such a narrowly drawn context as 
this single-issue hearing. 

In particular, appellant’s present chal- 
lenge to the penal statute under which he 
was convicted, on grounds of its alleged 
unconstitutionality, and his assertion that 
the jury charge contained multiple theories, 
are each based on matters appearing on the 
face of the state trial record which were 
necessarily obvious to both state trial coun- 
sel and to habeas counsel and, to the extent 

that they might have any validity as 
grounds for federal habeas relief on their 
own merits, would likewise constitute a 
basis for an assertion of ineffective assist- 
ance of state trial counsel. Counsel ap- 
pointed for the hearing on ineffective as- 
sistance would have been bound to raise 
these issues, if they had any merit.! 
Thus, regardless of how limited the repre- 
sentation implicated in the evidentiary 
hearing in appellant's first federal habeas 
proceedings may have been, it is inescap- 
able that at the least these issues were 
precisely the kind which would have been 
searched for and evaluated, and which, if 
meritorious, would have been raised by ap- 
pointed counsel.!? 

Thus, we cannot characterize appellant 
as a previously wholly pro se petitioner.16 

necessarily implicated in any ineffective assist- 
ance claim. In addition, appellant's pro se re- 
sponse to the State's motion to dismiss the first 
petition expressly recognizes this to be a viable 
independent ground for relief. This response 
was part of the record of the petition proceed- 
ings prior to the time counsel was appointed for 
the evidentiary hearing. 

16. We also note in this context that appointed 
habeas counsel did more than simply read the 
record and conduct appellant's case at the hear- 
ing. He also performed corollary functions re- 
lated to the hearing directly, such as answering 
the State's interrogatories and calling witnesses. 
In addition, he performed tasks not necessarily 
required by or consistent with what appellant 
characterizes as a very circumscribed role: Ap- 
pointed counsel noticed appellant's appeal from 

   



ceedings. Cer- 

ms thus should 

punsel, including 

pf constitutional 

he trial record, 

rawn context as 

s present chal 

under which he 

5 of its alleged 

5 assertion that 

ultiple theories, 

hppearing on the 

ord which were 

state trial coun- 

d, to the extent 

ny validity as 

5 relief on their 

se constitute a 

effective assist- 

bl. Counsel ap-' 
ineffective as- 

bound to raise 

d any merit." 

mited the repre- 

the evidentiary 

federal habeas 

n, it is inescap- 

pse issues were 

Fould have been 

d, and which, if 

en raised by ap- 

terize appellant 

hp se petitioner.1® 

ineffective assist- 
pellant’s pro se re- 
to dismiss the first 
this to be a viable 
ef. This response 
e petition proceed- 
was appointed for 

ext that appointed 
n simply read the 

’s case at the hear- 
lary functions re- 
such as answering 
calling witnesses. 

sks not necessarily 

ith what appellant 
imscribed role: Ap- 
llant’s appeal from 

  

HAMILTON v. McCOTTER 181 
Cite as 772 F.2d 171 (1985) 

Under the presumption of constructive at- 

tribution announced in Jones v. Estelle, we 

conclude that appellant is properly chargea- 

ble with the knowledge of his competent 

habeas counsel 17 as to all issues necessar- 

ily implicated in that counsel's inquiry into 

appellant’s claim of ineffective assistance 

of trial counsel. These include appellant’s 

present claims that the convicting statute 

was unconstitutional and that the jury 

charge was improper, as well as the previ- 

ously discussed claims concerning the pre- 

trial display. Appellant has, therefore, for- 

gone present consideration of these issues 

by virtue of not having presented them in 

his first federal petition.!® 

The Ineffective Assistance of Appellate 

Counsel Claim ; 

Appellant's claim of ineffective assist- 

ance of counsel on state appeal may 

present a somewhat different question in 

this respect. The first federal habeas 

court’s scope-of-hearing order would ap- 

pear on its face to comprehend such a 

claim, but appellant in that petition had 

the adverse result following the evidentiary 
hearing, sought a certificate of probable cause 
from the district court, and wrote and filed the 
appellate brief for that appeal. And while that 
appeal concerned only the ineffective assistance 
of counsel claim, we do not find the absence of 
other grounds for error in the appeal to indicate 
anything more than that other claims were 
without merit warranting appeal. Certainly 
competent counsel would have raised on appeal 
the question of any improper restriction of his 
representation by the district court, especially 
had he discovered and attempted to raise any 
new or additional significant grounds for habe- 
as relief. But no such allegation is anywhere 
contained in counsel's appeal brief, or else- 
where in the record of this case. In addition, 
we have examined the state trial and appeal 
record, and find nothing that would justify rais- 
ing in the federal habeas proceedings any issues 
not already raised and disposed of; nor any 
even arguably close calls respecting the federal 
district court's disposition of the issues raised 
that would have warranted an assertion of error 
regarding that disposition on appeal. 

17. Appellant does not assert on appeal, nor did 
he in his third federal petition, that appointed 
counsel at the prior federal habeas petition pro- 
ceeding was ineffective. 

18. We also note a further indication that appel- 
lant was aware, prior to his first federal habeas, 

alleged only ineffectiveness of ¢rial coun- 

sel. On his direct state appeal, appellant 

was represented by different counsel than 

had represented him at trial. We do not 

know whether appointed counsel at the 

first federal habeas read and evaluated the 

briefs filed on direct appeal. We need not 

consider this question, however, because 

this asserted ground for relief fails in any 

event. 

[8,9] An accused is entitled to the ef- 

fective assistance of counsel on a direct 

appeal as of right. FEwvitts v. Lucey, — 

U.S. —, 105 S.Ct. 830, 83 L.Ed.2d 821 

(1985). Here appellant's counsel duly per- 

fected the appeal and filed a brief compe- 

tently asserting error in allowing the vic- 

tim’s .in-court identification on the ground 
that it resulted from an impermissibly sug- 

gestive pretrial display and in allowing tes- 

timony by third persons of the victim's 

pretrial identification. These points are ad- 

dressed in the opinion affirming appellant’s 

conviction. This is not a case, then, where 

counsel’s deficiencies prevented any appel- 

of the claims raised in his third federal habeas 
which we have held are barred by abuse of the 
writ. In a pleading filed April 23, 1982 in his 
fourth state habeas proceeding, appellant 
claimed that his counsel on direct appeal of his 
state conviction was inadequate because he 
failed to raise as error certain matters appellant 
had specifically requested him to raise. Among 
these purportedly ignored grounds of error 
were: illegal search and seizure; “no counsel 

during a critical stage of the prosecution”; mul- 
tiple theories in the jury charge; “the indict- 
ment in this cause is possibly forged”; fatally 
defective indictment; no warrant for search; 
ineffective assistance of trial counsel; “the pho- 
tographic display violated petitioner's right”; 
and denial of records by appellate counsel. Ap- 
pellant then recited: 

“Now, due to counsel's refusal to file these 
points of error, all courts who have heard any 
of petitioner's claim[s] has refused to hear 

them for not filing them on direct appeal or 
in motion for new trial, even though petitioner 
consistently attempted to have these errors 
raised by appeal lawyer.” (Emphasis added.) 
If appellant did in fact ask his lawyer to raise 

these points on the direct appeal of his convic- 
tion, then appellant knew at that time of the 
facts underlying each of these alleged grounds 
of error and comprehended their independent 
legal significance before he had filed any of his 
state or federal habeas petitions.  



  

182 

late review, as in Lucey, or where there 

was, by reason of actual conflict of interest 

or the like, effectively no appellate counsel, 

or where, similarly, appellate counsel “en- 

tirely fails to subject the prosecution’s case 

to meaningful adversarial testing.” Unit- 

ed States v. Cromic, 466 U.S. 648, 104 
S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984) (em- 

phasis added); Ricalday v. Procunier, 736 

F.2d 203, 209 n. 6 (5th Cir.1984). 

[10,11] That being the situation, a 

claim of ineffective assistance of counsel 

requires a particularized showing of an 

identifiable lapse in the performance of the 

attorney which when viewed under a “high- 

ly deferential” standard nevertheless falls 

“outside the wide range of professionally" 

competent - assistance.” Strickland wv. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 

2065, 2066, 80 L.Ed.2d 674 (1984). This 

“requires showing that counsel made er- 

rors so serious that counsel was not func- 

tioning as the ‘counsel’ guaranteed the de- 

fendant by the Sixth Amendment.” Id. 104 

S.Ct. at 2064. See also Nealy v. Cabana, 

764 F.2d 1173, 1174, 1177 (5th Cir.1985). It 

is also the accused’s burden to establish 

that the particular lapse was prejudicial, 

that there is “a reasonable probability” 

that but for the error the ultfmate result 
would have been different. Strickland, 

104 S.Ct. at 2068. The accused must 

“show how specific errors of counsel un- 

dermined the reliability of the finding of 

guilt.” Cronic, 104 S.Ct. at 2047 n. 26. 

See also Nealy v. Cabana, supra. The 

ultimate “benchmark” is “whether coun- 

sel’s conduct so undermined the proper 

functioning of the adversarial process that 

the trial cannot be relied on as having 

produced a just result.” Strickland, 104 

S.Ct. at 2064; Nealy v. Cabana, at 1177. 

19. Further, appellant's request to his counsel to 
raise issues surely bespeaks his knowledge of 
the facts and potential legal significance of the 
requested claims. Appellant did not assert that 
he first learned of his counsel's failure to raise 
these issues on appeal after his first federal 
habeas proceeding. Hence he did not discharge 
his burden of proffering a legal excuse for not 
previously raising this claim. 

772 FEDERAL REPORTER, 2d SERIES 

[12,13] Here appellant points to no 

identifiable lapse by his state appellate 

counsel, but merely claims that counsel re- 

fused to raise issues that appellant alleg- 

edly requested him to raise. However, ap- 

pellant does not provide any specifics about 

what those issues might have been. This 

wholly fails to state a valid claim of inef- 

fective assistance of counsel. ‘“[M]ere con- 

clusory allegations do not raise a constitu- 

tional issue in a habeas proceeding.” Ross 

v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 

1983). Counsel is not ineffective merely 

because he fails to raise an issue or issues 

requested by the appellant. See Winters v. 

Cook, 489 F.2d 174, 179-80 (5th Cir.1973).19 

Moreover, our examination of the state tri- 

al and appellate record fails to disclose any 

basis for a valid claim that counsel's omis- 

sion to raise any issue or issues constituted 

ineffective assistance.’ Finally, the state 

record reflects that the proceedings were 

fundamentally fair, that their result and 

the finding of guilt are reliable, and that no 

breakdown in the adversarial process ren- 

dered them otherwise. See Ricalday, 736 

F.2d at 209 & n. 6. 

Appellant’s claim of ineffective assist- 

ance of counsel on direct appeal is without 

merit. 

THE FORGED INDICTMENT CLAIM 

Having thus rejected all of appellants 
~— a 

ther clai ne remaining 

ground for relief asserted in his third fed- 

éral habeas application, namely, the claim 

that his state indictment was forged. Ap- 
———. 

pellant alleges in his third federal habeas 

petition that 

“F) The signature’ of the Foreman of 

the Grand Jury is forged. Based upon 

information and belieT, petitioner claims 

that the signature of Harvey Cash, Fore- 

  

  

  

  

  

20. We also observe that state trial counsel did 
not object to the indictment or the jury charge 
or raise any search and seizure point. The 
prior proceedings determined that trial counsel 
did not provide inadequate representation.  



points to no 

ate appellate 

at counsel re- 

pellant alleg- 

However, ap- 

pecifics about 

Ee been. This 

laim of inef- 

“[M]ere con- 

be a constitu- 

bding.” Ross 
P12 (5th Cir. 

ctive merely 

Sue or issues 

pe Winters v. 

h Cir.1973).19 

the state tri- 

disclose any 

nsel’s omis- 

s constituted 

ly, the state 

edings were 

result and 

, and that no 

process ren- 

icalday, 736 

ctive assist- 

il is without 

T CLAIM 

appellant’s 

e remaining 

is third fed- 

v, the claim 

orged. Ap- 

eral habeas 

Foreman of 

Based upon 

oner claims 

Cash, Fore- 

| counsel did 

e jury charge 

point. The 

trial counsel 

cntation. 

HAMILTON v. McCOTTER 183 
Cite as 772 F.2d 171 (1985) 

man; is forged and is not the signature 

of said Harvey Cash. If in fact this is 

correct, petitioner’s conviction is not 

based on a lawfully and sworn-to in- 

dictment, which is tantamount to Aggra- 

vated Kidnapping; and is a bar to all 

prosecution, in accordance to the Consti- 

tution of the United States. 

“G) The indictment of this cause is 

fundamentally defective.... (8) is possi- 
bly forged and not a presentation of the 
grand jury.” (Emphasis added.) 

[14] At oral argument,the State inter- 
preted This claim to raise, not the question 

of a totally “manufactured” indictment, 

but only the claim that the indicting grt grand 

jury's foreman had failed to personally 

Sign the indictment, impliedly recognizing 

fhe possibility that an unidentified third 
party had signed the foreman’s name in his 
stead. The he State cites McCullough . 
State, 425 S.W.2d 350 (Tex.Crim.App.1968), 
for the proposition that a grand jury fore- 
man’s signature is not essential to the va- 
lidity of an indictment.” However, neither 
that case nor Ex parte Landers, 366 
S.W.2d 567 (Tex.Crim.App.1963), which 
McCullough cites as authority for the 
proposition, nor the case cited in turn in 
Landers, Ex parte King, 156 Tex.Cr.R. 
231, 240 S.W.2d 777 (1951), involved indict- 
ments that were alleged to have been other 
than properly re d by a duly constitut- 
ed grand jur 

gh and its predecessors properly stand 
only for the proposition that the mere ab- 
sence of the grand jury foreman’s signa- 
ture on an indictment otherwise actually 

21. Appellant insists that it is “possible” e 
Dalla County DITA ae 
manufactured and STgRed THe HIRITIENT, and 
tha 1S convic- 
tion, were therefore based entirely on a fiction 
having no legal force. As support for his allega- 
tion that his indictment was “manufactured,” 
appellant cites several unreported Texas cases, 
all apparently discovered, and, indeed, some 
decided, after his first federal petition, in which 
he claims that the Dallas County District Attor- 
ney'’s office was in fact implicated in the manu- 
facture of fraudulent indictments: Doyle v. 
State, No. F76-1319-NP; Beasley v. State; Ow- 

  

  

  

  

  

  

  

properly returned by the grand jury is 
not fatal to the indictment’s validity. 

[15] Contrary to the State’s construc: 
tion of appellant's claim, we think that hat ap- 
pellant Tas raised the question of whether Rr 
his™1 a 
grand jury, and, if not, whether he was 
therefore ever properly under the state tri- 
al court’s jurisdiction. 

In the proceedings below, the State did 
not assert that appellant should have previ- 
ously raised this claim, and, indeed, infer- 
entially admitted otherwise. Due to the 
very nature of the claim, it is not one of 
which appellant or any of his lawyers could 
be expected to have been aware. Appel- 
lant did not raise this claim in any forum 
prior to the dismissal of the first federal 
habeas. The State, beyond characterizing 
this claim as being “completely without 
merit” and “incredible beyond belief,” has 
made no factual allegations by way of re- 
buttal. Appellant supports his claim with 
citations to cases which he allegedly discov- 
ered only after his first federal petition, 
and which, he asserts, purport to establish 
that the Dallas District Attorney’s office 
was “manufacturing” fraudulent indict- 
ments during the period of time relevant to J 
appellant’s indictment. 

  

  

  

  

  

  

  

  

Moreover, we think that this allegation 
states grounds -for-wiich justice might well 
require that a federal court reach the mer- 
iT0f the Issue, Whether or not it werd 
technically subject to dismissal under Rule 
g(b), at least in the absence of a much 
clearer showing than this record affords 
that the claim was wrongfully withheld 

  

  

  

  

  

ens v. State; Lewis v. State, F78-4790-NQ; 
Hammonds v. State, F78-5221-NM, all Saenedly 
arising from the April 1975 term of the s 
County Grand Jury of which Harvey Cg was 
foreman, and all Tfom the state district courts in 
Dallas County; from Judicial District Court No.. 
5 of Dallas County, Texas, 1980 term: Texas v. 
Michael Wayne Thomas, No's F80-7461-L1J, 
F80-7655-LJ, F80-7582-LJ, and F80-7778-LJ 
from Court No. 203 of Dallas County, Thomas v. 
State, F81-1870-PJ, F81-1871-PJ, F81-1872-PJ, 
and F81-1873-PJ; and from Court No. 2, Dallas 
County, Thomas v. State, F81-10187-IT. 

  

    
  

  
 



  

  

184 

from the first federal habeas.?? Jones v. 

Estelle, 722 F.2d at 165; Sanders v. Unit- 

ed States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 

1078-79, 10 L.Ed.2d 148 (1982). We there- 

fore reverse the district court’s summary 

dismissal of this alleged ground for relief, 

and remand for further consideration of 

this issue. 

[16,17] We point out that there is no 

federal constitutional right to an indictment 

before trial in a state criminal action. 

Hurtado v. California, 110 U.S. 516, 4 

S.Ct. 111, 28 L.Ed. 232 (1884); see also 

Alexander v. Louisiana, 405 U.S. 625, 92 

S.Ct. 1221, 31 L.Ed.2d 536 (1972); Liner v. 

Phelps, 731 F.2d 1201, 1203-04 (5th Cir. 

1984). In this Circuit, the sufficiency of a 

state indictment is not ordinarily a matter 

for federal habeas relief unless the indict- 

ment is shown to be so fundamentally de- 

fective as to have deprived the convicting 

court of jurisdiction to try the cause. Lin- 

er v. Phelps, 731 F.2d at 1203; Branch v. 

Estelle, 631 F.2d 1229, 1233 (5th Cir.1980). 

As we indicated in Liner, federal habeas 

  

22. Accordingly, the collateral indication (see 
note 18, supra ) that appellant was earlier aware 
that the indictment was “possibly forged” is not, 
in the present posture of this case, a sufficient 
basis for abuse of the writ dismissal. We do not 
intend to necessarily preclude such a dismissal 
on a more adequate showing. However, as pre- 

viously noted, abuse of the writ was not urged 
by the State below as to this ground, so appel- 
lant was not called on to explain. It is not 
necessarily inconceivable that, particularly with 
regard to a claim such as this, later information 
transformed what were at first mere suspicions 
into a more substantial claim. 

23. The Texas Constitution sets out the following 
“Rights of accused in criminal prosecutions”: 

“In all criminal prosecutions the accused 
shall have a speedy public trial by an impar- 
tial jury. He shall have the right to demand 
the nature and cause of the accusation against 
him, and to have a copy thereof.... [A]lnd no 
person shall be held to answer for a criminal 
offense, unless on an indictment of a grand 
jury, except in cases in which the punishment 
is by fine or imprisonment, otherwise than in 

the penitentiary, ....” Tex.Const. art. I, § 10 
(emphasis added). 

24. The state court denial of post-conviction re- 
lief on this ground did not address the legal 
merits of the claim, but rather apparently deter- 
mined, without any evidentiary hearing, that 
appellant's allegations would not overcome the 

  

772 FEDERAL REPORTER, 2d SERIES 

relief may “be invoked with respect to the 

sufficiency of an indictment only when the 

indictment is so fatally defective that under 

no circumstances could a valid conviction 

result from facts provable under the indict- 

ment, and that such a determination ‘can 

be made only by looking to the law of the 

state where the indictment was issued.’ 

Johnson v. Estelle, 704 F.2d 232, 236 (5th 

Cir.1983) (emphasis added).” 731 F.2d at 

1203 (emphasis in original). 

The Texas Constitution generally re- 

quires a grand jury indictment for all felo- 

ny prosecutions.” So it is at least argua- 

ble, in the absence of case law or statutory 

authority to the contrary, that Texas courts 

would reach the conclusion that a wholly 

forged indictment does not confer criminal 

jurisdiction to the state trial court so that 

the “conviction” would be void. Cf. Holl- 

ingsworth v. State, 87 Tex.Cr.R. 248, 221 

S.W. 978 (1920); King v. State, 473 S.W.2d 

43, 48 & n. 11, 52 (Tex.Crim.App.1971). As 

noted, neither party has furnished us with 

any authority in point on this issue.* 

presumption of regularity. Thus, in recom- 
mending (to the Court of Criminal Appeals) 
denial of appellant's third state habeas petition 
in which the forged indictment claim was 
presented as the fifth ground for relief (see note 
4, supra), the state trial court observed: 

“With respect to Petitioner's Fifth (5th) con- 

tention, it is the well established rule of law 
that the records in a cause will be presumed 
to be regular in absence of direct proof to the 
contrary, and Petitioner's mere allegations to 
the contrary are not direct evidence to the 
contrary. Harvey v. State, 485 SW2d 907 
(Tex.Crim.App.1972). The records indicate 
the signature of the foreman of the Grand 
Jury, Harvey Cash, on the indictment present- 
ed by the Grand Jury, and the indictment 
must be presumed to be regular in absence of 
direct proof to the contrary—Petitioner’s -- 
mere allegations to the contrary are not suffi- 
cient to rebut the presumption. Harvey v. 
State, supra.” 

The cited Harvey case does not deal with 
indictments or charging instruments. 

We do not reach the issue of whether state 
conviction on a wholly “manufactured” indict- 
ment, where state law requires the prosecution 
to be by indictment and the accused and his 
counsel are unaware of the defect, would consti- 

tute a violation of due process under the Four- 
teenth Amendment even if it did not render the 
conviction subject to collateral attack under  



pect to the 

when the 

that under 

conviction 

the indict- 

ation ‘can 

law of the 

hs issued.’ 

p, 236 (5th 
B1 F.2d at 

erally re- 

br all felo- 

ast argua- 

statutory 

xas courts 

a wholly 

br criminal 

rt so that 

Cf. Holl- 

L248, 221 

73 S.W.2d 

1971). As 

d us with 

ue.* 

in recom- 

I Appeals) 
cas petition 

claim was 

ef (see note 

red: 

(5th) con- 

rule of law 

er presumed 
broof to the 

egations to 

nce to the 

SwW2d 907 

s indicate 

the Grand 

int present- 

indictment 

absence of 

Petitioner's 

e not suffi- 

Harvey wv. 

deal with 

cther state 

red” indict- 

hrosecution 

>d and his 

buld consti- 

the Four- 

render the 

ack under 

  

CARBONELL v. LA. DEPT. OF HEALTH & HUMAN RESOURCES 185 
Cite as 772 F.2d 185 (1985) 

On remand, the district court therefore 

ought at least consider additional plead- 

ings, so that it might perhaps dispose of 

this claim on the basis of a summary judg- 

ment; if necessary, it should develop an 

adequate factual record by appropriate 

means, including, if warranted, an eviden- 

tiary hearing. Cf. Guice v. Fortenberry, 

661 F.2d 496, 500 (5th Cir.1981). At such a 

hearing, the burden of proof would, of 

course, be on appellant. 

CONCLUSION 

We sustain the district court’s dismissal 

of all claimed grounds for relief asserted in 

appellant’s petition except the claim that 

the indictment on which he was prosecuted 

was forged. As to this one claim only, we 

reverse the district court and direct further 

proceedings in conformity herewith. 

Accordingly, the judgment is AF- 

FIRMED in part and REVERSED in part, 

and the cause is REMANDED to the dis- 

trict court for further proceedings consist- 

ent herewith. 

O < KEY NUMBER SYSTEM 

Marta CARBONELL, 

Plaintiff-Appellant, 

Vv. 

LOUISIANA DEPT. OF HEALTH & HU- 

MAN RESOURCES, Secretary of the 

Louisiana Dept. of Health & Human 

Resources, et al., Defendants-Appellees. 

No. 85-3088 

Summary Calendar. 

United States Court of Appeals, 

Fifth Circuit. 

Oct. 3, 1985. 

Discharged state employee brought 

civil rights action challenging her dismis- 

state law. We are reluctant to reach such a 
constitutional issue in a factual vacuum, when 

state law or factual development may well ren- 

sal. The United States District Court for 

the Eastern District of Louisiana, Ronald 

A. Fonseca, Magistrate, dismissed the suit, 

and employee appealed. The Court of Ap- 

peals, Politz, Circuit Judge, held that: (1) 

district court lacked subject-matter jurisdic- 

tion over § 1983 claim challenging an ad- 

verse state-court judgment on theory that 

state administrative action therein upheld 

violated plaintiff’s constitutional rights, 

and (2) discharge of state employee for 

repeatedly refusing direct orders of reas- 

signment did not violate Title VII. 

Affirmed. 

1. Civil Rights ¢13.13(3) 

Finding that there was no intent to 

discriminate against state employee, who 

was discharged for refusal to accept reas- 

signment, on basis of national origin was 

not clearly erroneous and therefore em- 

ployee was not entitled to recover on her 

§ 1981 claim against Louisiana Department 

of Health and Human Resources. 42 

U.S.C.A. § 1981. 

2. Civil Rights ¢=13.1 

Section 1983 does not create a federal 

cause of action but, rather, a remedy for 

vindication of other federal statutory or 

constitutional rights. 42 U.S.C.A. § 1983. 

3. Federal Courts ¢=504 

Once a determination has been made 

by a state court relative to existence or 

nonexistence of a federal right, and any 

possible infringement of that right, the 

only avenue of review is to United States 

Supreme Court via 28 U.S.C.A. § 1257(3). 

42 U.S.C.A. § 1983. 

4. Courts ¢=509 

District court lacked subject-matter 

jurisdiction over § 1983 claim challenging 

an adverse state-court judgment on theory 

that state administrative action therein up- 

der decision of the point unnecessary to the 
ultimate disposition of the case.   

  

  

 



  

  
  

  

    

1012 

to credit the opinion of Dr. Iznaga who 
stated in a letter that she had a permanent 

physical impairment of the right shoulder 
and stated that Macia was “unable to per- 

form her regular duties.” This statement, 

however, is ambiguous. If the reference to 

“regular duties” refers to her ability to 

work as a salesperson, it may have no 

reference or relevance to the question of 

whether she can perform the “regular 
duties” of a receptionist. Moreover, the 
permanent impairment of the shoulder does 
not necessarily mean a disability to do any 
work. See Knott v. Califano, 559 F.2d 
279, 281-82 (5th Cir.1977). 

[51 Although Macia claims the ALJ 

failed to evaluate her combination of im- 

pairments of the right shoulder and left 
elbow, the ALJ considered these conditions 

at length and found that she had “status 

post fracture right shoulder and left el- 
bow.” The ALJ made specific and well 
articulated findings as to the effect of the 

combination of impairments. Bowen v. 

Heckler, 748 F.2d 629, 635 (11th Cir.1984). 

[6] Macia argues that the ALJ improp- 
erly based her decision on Macia’s testimo- 

ny concerning daily activities. She cites 20 

C.F.R. § 404.1572(c), which provides that 

activities such as “household tasks, hob- 

bies, therapy, school attendance, club activ- 

ities, or social programs” are generally not 

considered ‘substantial gainful activity.” 
This regulation prevents the determination 

of non-disability at the first step of the 
sequential evaluation process on the basis 
of daily activities. 20 C.F.R. § 404.1520(b). 
The regulations do not, however, prevent 

the ALJ from considering daily activities at 

the fourth step of the sequential evaluation 
process. See 20 C.F.R. § 404.1520(e). 

IL 

Macia’s argument that the ALJ should 

have applied Rule 201.06 of the Grid, 20 
C.F.R. § 404, Subpart P, Appendix 2, 

§ 201.00 Table 1, fails because the Grid is 

applied only if the claimant is unable to 
perform “his or her vocationally relevant 

829 FEDERAL REPORTER, 2d SERIES 

past work.” 

Appendix 2, § 200.00(a). 

III. 

[7,8] Macia contends that the ALJ 

should have disregarded her past work as g 
receptionist which she performed 12 yearg 
prior to her hearing, even though the regy. 
lations refer to relevant work experience ag 

work done within the last 15 years, 20 
Macia presented ng 

evidence to establish that the skills and 
abilities she acquired as a receptionist 12 

C.F.R. § 404.1565(a). 

years ago were no longer applicable to the 

requirements of that job today. A pre- 
sumption of inapplicability of these skills 

and abilities arises only if the work was 

performed more than 15 years ago. 20 

C.F.R. § 404.1565(a). Macia had the bur- 
den to prove her inability to perform her 
past relevant work. Sryock v. Heckler, 
764 F.2d 834, 835 (11th Cir.1985). She 
failed to meet this burden. 

AFFIRMED. 

Ww 
(:) £ key NUMBER SYSTEM 

T 

Ian LIGHTBOURNE, 

Petitioner-Appellant, 
Vv. 

Richard L. DUGGER, Secretary, Florida 

Department of Corrections, Robert A. 

Butterworth, Attorney General, Re- 

spondents-Appellees. 

No. 86-3643. 

United States Court of Appeals, 

Eleventh Circuit. 

Sept. 18, 1987. 

Rehearing and Rehearing En Banc 

Denied Nov. 30, 1987. 

Petitioner convicted of first-degree 

murder and sentenced to death filed peti- 
tion for writ of habeas corpus. The United 
States District Court for the Middle Dis- 

trict of Florida, No. 85-136-Civ-OC-16, 

John H. Moore, II, J., denied petition, and 

petitioner appealed. The Court of Appeals 
held that: (1) petitioner who asked during 

interrogation whether he had to continue 

20 C.F.R. 404, Subpart'p 
® 

i 
4 

J 
} 

 



Subpart P, 

    

   
   

        

   

   

the ALJ 

st work ag g 
led 12 years 

zh the regu. | 
xperience ag | 

5 years, 20 | 
resented no 

> skills and 
eptionist 12 
cable to the 

iy. A pre. 
these skills 

: work was _ 

Ss ago. 20 
ad the bur- 

erform her 

v. Heckler, 

1985). She 

ry, Florida 

Robert A. 

1eral, Re- 

peals, 

n Banc 

irst-degree 
filed peti- 

Che United 
fiddle Dis- 
Civ-0C-16, 
tition, and 

of Appeals 

ted during 
o continue 

   
    

  

    

      

    

     
      

    

     
     

   

    
       
     

         

      

    

     
      
     

       

      
    

    

   
     

  

   

   
   

  

   

  

       
     
     

LIGHTBOURNE v. DUGGER 
1013 

Cite as 829 F.2d 1012 (11th Cir. 1987) 

did not thereby reassert his right to remain fendant was thus not denied his right to 

silent so as to prevent further interroga- assistance of counsel due to statements 

gon; (2) admission of incriminating state- made after formal charge against defend- 

ments made to cell mate did not violate ant had been filed, where police officer did 

petitioner's right to assistance of counsel, not initiate contact with cell mate, solicit 

where cell mate was not promised any mon- cell mate to be paid informant, encourage 

ey or other consideration in exchange for solicitation of incriminating statements, or 

information; and (3) petitioner was not de- promise that cell mate would be compensat- 

nied effective assistance of counsel due 0 oq or rewarded in event that cell mate 

counsel's failure to object to trial courts reported incriminating statements to au- 

consideration of statements by yicum's rel- 4 orities. U.S.C.A. Const.Amend. 6. 

atives and petitioner's sister in presentence 

investigation report. 7. Constitutional Law &=266.1(1) 

Affirmed. 
Criminal Law =412.1(1) 

Anderson, Circuit Judge, concurred in Sixth and Fourteenth Amendments are 

art and dissented in part and filed opinion. not violated when law enforcement offi- 

cers, either through luck or happenstance, 

obtain spontaneous and unsolicited incrimi- 

nating statements. US.C.A. Const. 

Amends. 6, 14. 

Pp 

1. Criminal Law &=412.1(4) 

Once informed of Miranda rights, ac- 

cused has burden of indicating in some 
His wish to 5 shent. 

manner his wis remain silent 8. Criminal Law ¢=641.5 

2. Habeas Corpus &=85.1(2) Right to effective assistance of counsel 

In federal habeas court, statutory Pré= encompasses right to representation free 

sumption of correctness applies to subsidi- from actual conflict on part of defense 

ary factual questions resolved in state , unsel. U.S.C.A. Const. Amend 6. 7 

court proceedings. 28 U.S.C.A. § 2254(d). 

3. Criminal Law 412.111, 4) 

Accused who asked interrogating offi- 

cer whether he had to continue with inter- 

rogation did not positively and adequately 

assert his right to discontinue questioning, 

and thus volunteered statements after offi- 

9. Criminal Law &=641.5(6) 

Fact that public defender appointed to 

defend federal habeas petitioner cross-ex- 

amined witness formerly represented by 

same public defender’s office did not deny 

petitioner effective assistance of counsel, 

cer attempted to clarify equivocal request where counsel for petitioner subjected wit- 

by spontaneously resuming discussions ness to extensive cross-examination, includ- 

without inducement. 
ing details of witness’ plea agreement. 

4. Criminal Law 1225 US.C.A. Const.Amend. 6. 

All citizens have duty to report Crimi” 49, Criminal Law ¢=641.5(4) 
nal activity to appropriate authorities. 

If defendant can successfully demon- 

5. Criminal Law ¢=412.1(2) strate existence of actual conflict of inter- 

In order to establish violation of Sixth est, defendant must also show that this 

Amendment in jailhouse informant case, conflict had adverse effect upon his law- 

accused must show that fellow inmate Was yer's representation in order to prevail on 

BB 
rtm claim of ineffective assistance of counsel. 

accused. U.S.C.A. Const.Amend. 6. US.C.A. Const.Amend. 8. 

6. Criminal Law ¢=412.1(2) 

Defendant's cell mate was not acting 

as agent of police at time defendant made 

incriminating remarks to cell mate, and de- 

11. Criminal Law 641.5 

ties. U.S.C.A. Const.Amend. 6. 

   

  

           

   

    

T
o
n
 

Sa
nt
e 

   

S
L
 

E
R
 

Sc
an
 

Ea
sy
    

    

    

  

    

  

          

  

Attorney who cross-examines former 

client inherently encounters divided loyal- 

  

  

e
r
 

—
—
—
 

ii
 

  

  

  

  

                

  

                  

    
     

                        

    

     

    

       



  

          

1014 

12. Criminal Law &=1208.1(6) 

Defendant who is charged with capital 

offense has right to present virtually any 

evidence in mitigation at penalty phase. 

13. Criminal Law ¢=641.13(7) 

In order to determine what evidence 

might be appropriate at penalty phase of 

capital trial, defense counsel has duty to 

conduct reasonable investigation. U.S.CA. 

Const.Amend. 6. 

14. Criminal Law ¢=641.13(7) 

Lawyer's election not to present miti- 

gating evidence at penalty phase of capital 

trial is tactical choice accorded strong pre- 

sumption of correctness which is virtually 

unchallengeable. U.S.C.A. Const.Amend. 

6. 

15. Criminal Law &=641.13(7) 

Federal habeas petitioner convicted of 

premeditated murder and sentenced to 

death was not denied effective assistance 

of counsel due to counsel's failure to 

present mitigating evidence at sentencing, 

where sentencing judge was aware of miti- 

gating factors that counsel allegedly failed 

to present, and mitigating effect of omitted 

evidence did not tip balance of aggravating 

and mitigating factors in favor of petition- 

“er. US.C.A. Const.Amend. 6. 

16. Criminal Law &=641.13(7) 

Federal habeas petitioner who was 

convicted of premeditated murder and sen- 

tenced to death was not denied effective 

assistance of counsel due to counsels fail- 

ure to object to trial judge's consideration 

of personal statements by victim's relatives 

and petitioner's sister, where sentence was 

based on recommendation of jury and over- 

riding weight of statutorily authorized ag- 

gravating circumstances. U.S.C.A. Const. 

Amend. 6. 

17. Criminal Law €=986.2(3) 

Hearsay testimony may be considered 

during sentencing so long as objectionable 

testimony does not serve as basis for sen- 

tence. 

829 FEDERAL REPORTER, 2d SERIES 

James D. Crawford, Schnader, 3 

Segal & Lewis, Philadelphia, Pa., for peti. 

tioner-appellant. 
‘e 

Robert A. Butterworth, Atty. Gen., Sean 

Daly, Asst. Atty. Gen., Daytona Beach, 

Fla., for respondents-appellees. 

Appeal from the United States District 

Court for the Middle District of Florida. 

Before FAY, ANDERSON and 

EDMONDSON, Circuit Judges. 

PER CURIAM: 

This appeal challenges a denial of a Peti- 

tion for Writ of Habeas Corpus. Ian 

Lightbourne, (hereinafter petitioner), was 

found guilty of premeditated murder and 

felony murder in the perpetration of bur- 

glary and sexual battery in Marion County, 

Florida. Petitioner is incarcerated in a 

Florida correctional facility awaiting execu- 

tion. The United States District Court for 

the Middle District of Florida denied peti- 

tioner’s claims for relief under 28 U.S.C. 

§ 2254 (1982). Because we conclude that 

petitioner has failed to establish that either 

his conviction or sentence are violative of 

the Constitution and laws of the United 

States, we affirm. 

I. BACKGROUND 

A. Facts ; 

Nancy Alberta O'Farrell was the daugh- 

ter of a thoroughbred horse breeder in 

Ocala, Florida. On January 16, 1981, the 

O'Farrell family, with the exception of 

Nancy, attended an awards dinner in Hia- 

leah, Florida. Nancy stayed behind in her 

cottage located at the edge of the stud 

farm in order to address some brochures 

for a horse sale scheduled for Sunday, Jan- 

vary 18, 1981. Nancy was last seen alive 

at approximately 5:30 p.m. on Friday, Janu- 

ary 16, 1981. Sometime during Friday eve- 

ning, Nancy was sexually assaulted and 

fatally wounded with a gun. 

On Saturday, January 17, 1981, Nancy's 

sister, Mrs. Mary Lewis, and her husband 

arrived at Nancy's cottage to pick up some 

furniture. Mr. and Mrs. Lewis discovered 

a broken window and entered the residence  



   

    

   

  

      

  

   

  

   

    

   

   
   

  

    
    
    

      
    

      
      
      

   
   
   
   

   

  

ader, Harrison, 

% Pa. for peti- 

tty. Gen., Sean 

aytona Beach, 
ces. 

States District     
   

    

   N and 

yes. 

enial of a Peti- 

Corpus. Ian 
etitioner), was 
'd murder and 

tration of bur- 

Tarion County, 
rcerated in a 
waiting execu- 

trict Court for 
la denied peti- 
der 28 U.S.C. 

conclude that 

ish that either 

e violative of 
»f the United 

as the daugh- 
e breeder in’ 

16, 1981, the 

exception of 
inner in Hia- 

behind in her 

of the stud 

ne brochures 

Sunday, Jan- 
st seen alive 

Friday, Janu- 
1 Friday eve- 

saulted and 

981, Nancy’s 
her husband: 

sick up some 

  

    

  

ict of Florida, | 

      
    

            
           
     
     
    

     

      
     

       
           

       

           

      
    

      

    
    
    
     
     
    

     
     

     
     

      
    
          

    
        
        

            
     
      

   

  

       
   

    
    

   

's discovered. 
he residence | 

LIGHTBOURNE v. DUGGER 1015 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

through an unlocked sliding glass door. 

Nancy's body, dressed only in a bra and 

panties, Was found lying on her bed. Mr. 

and Mrs. Lewis attempted to contact the 

lice and noticed that the telephone wires 

had been cut. When the authorities ar- 

rived, Nancy's body was examined for 

signs of life. After none were found, offi- 

cials from the Marion County Sheriff's Of- 

fice secured the scene and conducted an 

investigation. 

A pillow was found by Nancy’s head and 

a pool of blood was discovered under her 

body. The source of the blood was traced 

to a gunshot wound just inside the hairline 

near the left temple. When Nancy’s body 

was removed from her bed, a .25 caliber 

shell casing was detected. The bedspread 

on which Nancy was lying was taken to 

headquarters and examined for the pres- 

ence of hairs and fibers. 

On January 18, 1981, an autopsy was 

performed on Nancy's body. An X-ray 

showed the existence of a bullet in the 

right posterior portion of Nancy’s head. 

The bullet was retrieved, evidence of rape 

was preserved, and blood and hair samples 

were taken. 

On January 24, 1981, petitioner was ar- 

rested in Ocala for carrying a concealed 

weapon. Petitioner, a twenty-one year old 

native of New Providence, Nassau, was 

found sleeping in his car in the possession 

of an RG .25 caliber semi-automatic pistol 

with black tape wrapped around the han- 
dle. Petitioner was seen by the Ocala po- 

lice with this gun on January 15, 1981, the 

day before Nancy died.! At the time of the 
arrest, petitioner listed the Ocala stud farm 
as his address. Petitioner was formerly 

employed by the stud farm as a groom, and 

he informed the arresting officer that al- 

though he no longer lived or worked at the 
O'Farrell ranch, he still received his mail 
there. 

While petitioner was detained pending 

the concealed weapon charge, he made 

1. On January 15, 1981 at approximately 3:30 
a.m., Officer George Clark of the Ocala Police 
responded to a suspicious vehicle call and found 
petitioner asleep in a car. Petitioner produced 
his Florida driver's license. Officer Clark ob- 
served a weapon on the floor of the car in plain 

some incriminating statements to his cell- 

mates. These statements were reported to 

the authorities. On February 3, 1981, 

when petitioner was questioned by officials 

from the Marion County Sheriff’s Depart 

ment, he admitted that he owned the .25 

caliber pistol found on his person and that 

he owned a rose shaped pendant bearing 

three Greek letters attached to a fine gold 

chain. Petitioner was charged with murder 

after a ballistics report connected petition- 

er's gun to the homicide. An indictment 

was filed on February 18, 1981. The indict 

ment accused petitioner of premeditated 

murder and felony murder in the perpetra- 

tion of either burglary, sexual battery, or 

both. 

Petitioner was tried in the Circuit Court 

of the Fifth Judicial Circuit in Marion 

County, Florida. At trial, Dr. Gertrude 

Warner, an Associate Medical Examiner 

for Marion County, testified that she was 

the pathologist who performed the autop- 

sy. According to Dr. Warner, the cause of 

Nancy's death was a brain hemorrhage pre- 

cipitated by the gunshot wound. Dr. War- 

ner further testified that an analysis of 

bodily fluids revealed that Nancy had en- 

gaged in sexual relations within forty-eight 

hours of the examination. 

Keith R. Paul, a forensic serologist from 

the Florida State Crime Laboratory, testi- 

fied about tests performed on Nancy's 

clothing. A blood and semen analysis re- 

vealed the presence of type B blood factors 

and phosphoglucomutase (PGM) enzyme 

type 2-1. Both of these blood factors 

matched the results of tests performed on 

samples of petitioner's blood. Nancy had 

type O blood and PGM type 1. 

Charles R. Meyers, a laboratory analyst 

and specialist in forensic ballistics testified 

that he examined the pillow found next to 

Nancy’s head and detected a bullet hole 

passing through it. According to Meyers, 

residue found on the pillow indicated that a 

view. Upon inspection, Officer Clark noticed 

that the weapon was a .25 caliber RG semi-auto- 

matic pistol with black tape wrapped around 

the handle. Officer Clark returned the weapon 

to petitioner because he was not in violation of 

any state or local laws. 

  

   
   
    
   

  

   

      

   
   

  

   

    

  

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1016 

gun had been fired within close proximity. 

Also, Meyers compared the bullet retrieved 

during the autopsy with bullets test fired 

from petitioner's gun. In Meyers’s opin- 

jon, the bullet which caused the death of 

Miss O'Farrell was fired from the same 

gun. In addition, Meyers compared the .25 

caliber shell casing found in Nancy's bed to 

those used to test fire petitioner's gun. In 

Meyers’s opinion, the similarity of mark- 

ings on the primers indicated that the spent 

shell recovered from Nancy's bed was fired 

from the same weapon. 

Mary Ann Mayer, a microanalyst em- 

ployed by the Florida Department of Law 

Enforcement, testified that she performed 

examinations of hairs collected from Nan- 

cy’s bedspread. After comparing one hair 

to samples taken from petitioner, Mayer 

found that the hair recovered from Nancy's 

residence was microscopically identical to 

petitioner’s pubic hair. Mayer stated that 

it was extremely rare for individuals to 

have hair with precisely the same charac- 

teristics. 

The necklace found in petitioner’s posses- 

sion was identified as Nancy’s Alpha Ome- 

ga Pi sorority lavaliere. Nancy's relatives 

testified that the necklace was unique and 

easily identifiable because Nancy had at- 

tached a Madonna cameo to the back of the 

pendant. Nancy's financial records reflect 

that she cashed a check for $150 on Janu- 

ary 14, 1981. Nancy's relatives testified 

that only $2.00 was recovered from Nan- 

cy’s residence after her death. 

Theodore Chavers, a cellmate in the Mar- 

jon County Jail testified that petitioner 

“knew too much”? about the details of 

Nancy’s death and made some incrimina- 

ting statements during the course of their 

conversations. According to Chavers, peti- 

tioner made references indicating that he 

entered Nancy's house, encountered her as 

she was coming out of the shower, forced 

her to engage in sexual intercourse, and 

2. According to Chavers, petitioner knew that the 

police would find no fingerprints, knew that the 

telephone wires had been cut, and knew that 

Nancy was found lying on her back. 

3. Although Chavers's testimony reveals that peti- 

tioner never explicitly admitted killing Nancy, 

829 FEDERAL REPORTER, 2d SERIES 

shot her? despite pleas for mercy. This 

version of the facts was corroborated by 

Theophilus Carson! another cellmate in the 

Marion County Jail. According to Carson, 

petitioner admitted forcing Nancy to have 

sex, shooting her because she could iden- 

tify him, and taking 2 necklace and some | 

money. 

On April 25, 1981, the jury returned a 

guilty verdict and a judgment of conviction 

was entered by the circuit court for pre- 

meditated murder and felony murder in the 

perpetration of burglary and sexual bat 

tery. On May 1, 1981, the jury recom- 

mended the death penalty. After consider 

ing the pre-sentence investigation report 

and weighing the aggravating and mitigat- 

ing circumstances, the circuit court im- 

posed the sentence of death. 

B. Procedural History 

Petitioner's conviction and sentence were 

affirmed on direct appeal. Lightbourne v. 

State, 438 So.2d 380 (Fla.1983), cert. de- 

nied, 465 U.S. 1051, 104 S.Ct. 1330, 79 

L.Ed.2d 725 (1984). The Governor of Flor- 

ida heard argument in favor of clemency 

on May 10, 1984. Approximately one year 

later, the Governor determined that execu- 

tive clemency was not warranted and 

signed a death warrant authorizing peti- 

tioner's execution on June 4, 1985. Peti-. 

tioner filed an emergency application for a 

stay of execution on May 31, 1985. The 

state circuit court construed the application 

as a motion for post-conviction relief pursu- 

ant to Fla.R.Crim.P. 3.850. The circuit: 

court denied both the stay and the rule 

3.850 motion. The Florida Supreme Court 

affirmed. Lightbourne v. State, 471 So.2d 

27 (Fla.1985). 

A Petition for a Writ of Habeas Corpus 

was filed on June 3, 1985, in federal district 

court. The district court reviewed as much 

of the record as possible on the eve of 

petitioner’s scheduled execution and en- 

Chavers stated that petitioner never denied it 

and made statements giving rise to the inference’ 

that he took her life. 

4. Also known as James T. Gallman.  



ercy. This 

borated by 

mate in the 

to Carson, 

cy to have 
could iden- 

e and some 

returned g 

[ conviction 

rt for pre- 
rder in the 

exual bat- 

ry recom- 
er consider- 

tion report 

nd mitigat- 
court im- 

itence were 

Ltbourne v. 

), cert. de- 

. 1330, 79 

or of Flor- 

f clemency 
y one year 

that execu- 

anted and 

izing peti- 
985. Peti- 

ration for a 

1985. The 

application 

slief pursu- 

Che circuit 

d the rule 

‘eme Court 

, 471 So.2d 

cas Corpus 

ral district 

»d as much’ 

he eve of 

n and en- 

er denied it 

he inference: 

LIGHTBOURNE v. DUGGER 1017 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

tered an order staying the death sentence 

pursuant to 28 U.S.C. § 2254. On August 

20, 1986, the district court denied the peti- 

tion. After reviewing the record and appli 

cable law and assessing the merits of peti- 

tioner’s claims,’ we affirm. : 

II. DISCUSSION 

A. Self Incrimination 

Petitioner argues that police interroga- 

tors violated Miranda v. Arizona, 384 U.S. 

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in 
the course of obtaining incriminating state- 

ments during custodial interrogation. The 

record reflects that on February 3, 1981, 

Investigator LaTorre advised petitioner of 

his Miranda rights and questioned him af- 

ter petitioner responded that he understood 

these rights and “had nothing to hide.” At 

some point during the interview, petitioner 

asked whether he had to continue with the 

interrogation. LaTorre asked petitioner 

what he meant by that question and wheth- 

er he wanted to take a break. At that 

point, and apparently without elaboration 

or indication that petitioner desired a res- 

pite,® petitioner continued the conversation 

and admitted that he owned the .25 caliber 

pistol and necklace found in his possession. 
Later, after petitioner stated that he 

wished to say nothing further, the ques- 
tioning was terminated. 

In Miranda, the Supreme Court estab- 
lished procedural safeguards to secure the 

privilege against self-incrimination. See 

5. In addition to the claims discussed, petitioner 
also coxniends that trial counsel was ineffective 
in failing to request the sequestration of the jury 
between conviction and sentencing. Because 
this issue was not raised in petitioner’s Petition 
for Writ for Habeas Corpus, this court will not 
consider the issue. See McGahee v. Massey, 667 
F.2d 1357, 1361 n. 10 (11th Cir.), cert. denied, 
459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 
(1982). 

6. Although the interrogation in question was 
videotaped, neither that recording nor a tran- 

script of it were made part of the trial record. 
The court reporter found the audio portion of 
the recording unintelligible, untranscribable 
and uncertifiable. Accordingly, a precise re- 
view of the dialogue is unfeasible and we must 
rely on the trial testimony. 

7. Petitioner alleges that the district court erro- 
neously failed to view the videotape of petition- 

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. 

In order to combat the evils associated with 
the “inherently compelling pressures which 

work to undermine the individual's will to 

resist and to compel him to speak where he 

would not otherwise do so freely,” Mi- 

randa, 384 U.S. at 467, 86 S.Ct. at 1624, 

accused individuals must be informed that 
statements made may be used as evidence 
against them, that they have a right to the 

presence of counsel, and that they have a 
right to remain silent. Miranda, 384 U.S. 
at 444, 86 S.Ct. at 1612. An individual may 

effectively waive these rights “provided 
the waiver is made voluntarily, knowingly 

and intelligently.” Id. 

[1] Once informed of Miranda rights, 

an accused has the burden of indicating in 

some manner his wish to remain silent. 

United States v. Alegria, 721 F.2d 758, 761 

(11th Cir.1983); United States v. Bosby, 

675 F.2d 1174, 1182 n. 13 (11th Cir.1982); 
see Miranda, 384 U.S. at 473-74, 86 S.Ct. 

at 1627. Petitioner contends that he un- 
equivocally indicated his desire to assert 

his privilege against self-incrimination by 
asking whether he had to continue with the 
questioning. This contention was raised in 

a motion to suppress. 

The state circuit court conducted a hear- 
ing on April 14, 1981 and considered the 
testimony of Officer LaTorre and petition- 
er. In addition, the court reviewed a twen- 

ty minute videotape of the interrogation in 
question.” After reviewing the testimony, 

er's interrogation. As previously indicated, this 
untranscribable tape was considered by the 
state circuit court during the suppression hear- 
ing but was not made part of the record. Peti- 
tioner had access to the tape at the time of trial. 
No motion to supplement the record has been 
filed. In the absence of extraordinary circum- 
stances, a court of appeals cannot consider evi- 
dence which does not appear in the record. Lee 
County Branch of NAACP v. City of Opelika, 748 
F.2d 1473, 1481 (11th Cir.1984). 

Even if this court disregarded the presump- 
tion of correctness attaching to subsidiary factu- 
al questions, acquired access to the video tape, 
and concluded that an opportunity to view the 
tape might be helpful when reviewing the volun- 
tariness of petitioners statements, we hold that 
an examination of this evidence would not be 
beneficial to petitioner. Any violation of Mi- 
randa which the tape might reveal would, at 

    

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1018 

the arguments of counsel and the pertinent 
law, the circuit court ruled that the state- 

ments made by petitioner were freely and 

voluntarily made after an explanation and 
waiver of Miranda rights. 

On direct appeal, the Florida Supreme 
Court concurred with the circuit court’s 
determination of voluntariness. Lightb- 

ourne, 438 So0.2d at 389. The supreme 

court concluded that petitioner’s “mid-inter- 

view inquiry” after the government offi- 

cials complied with the Miranda require- 
ments “did not rise to the level of a reas- 

sertion of his Miranda rights requiring a 

second waiver of those rights.” Lightb- 

ourne, 438 So.2d at 389. In the alterna- 

tive, the court ruled that even if petition- 
er’s question constituted an attempt to in- 

voke the right to remain silent, petitioner's 
“subsequent actions evidenced a second 

knowing waiver after such attempt.” Id. 

In accordance with the Supreme Court’s 
decision in Miller v. Fenton, 474 U.S. 104, 

106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the 
district court made an independent determi- 

nation of voluntariness in petitioner’s fed- 
eral habeas corpus proceeding. The dis- 

trict court, emphasizing the facts that peti- 
tioner’s inquiry was equivocal, that the 
government responded by attempting to 
clarify the question, and that petitioner 
clearly demonstrated the ability to discon- 
tinue the statements in question, concluded 
that petitioner did not reassert his right to 
remain silent after waiving it. After a de 

novo review of the record and plenary con- 
sideration of the voluntariness issue, we 

affirm. 

best, be considered harmless error. The state- 
ments made by petitioner were not an essential 
and integral part of the state's case. Investiga- 
tor LaTorre’s testimony established that peti- 
tioner was arrested in possession of the gun and 

* the necklace. Lewis Williams, an acquaintance 
of petitioner, identified the .25 caliber pistol 
found on petitioner's person as the gun which 
Williams sold to petitioner in November, 1980. 
Petitioner was seen by the Ocala police in pos- 
session of the weapon one day before the homi- 
cide occurred. See supra note 1. The ballistics 
report tied the O'Farrell murder to petitioner's 
gun. Given these facts adduced at trial, the 
statements made by petitioner regarding the 
ownership of the gun and the necklace consti- 
tuted cumulative evidence, did not concern seri- 

829 FEDERAL REPORTER, 2d SERIES 

As this court has acknowledged, “[i}f the 
individual indicates in any manner, at any 
time prior to or during questioning, that he 
wishes to remain silent, the interrogation 
must cease.” Martin v. Wainwright, 779 
F.2d 918, 923 (11th Cir.1985) modified on 
other grounds, 781 F.2d 185 (11th Cir), 
cert. denied, — U.S. ——, 107 S.Ct. 307, 

93 L.Ed.2d 281 (1986) (emphasis in original) 
(quoting Miranda, 384 U.S. at 473-74, 86 
S.Ct. at 1627). Nevertheless, when a pur- 

ported invocation of a Fifth Amendment 
privilege is ambiguous, the police may 
question the accused for the narrow pur 
pose of “clarifying [the] equivocal re- 

quest.” Martin, 770 F.2d at 924 (quoting 
Thompson v. Wainwright, 601 F.2d 768, 

771 (5th Cir.1979). Once it is clear that an 
accused wishes to remain silent, the desire 
to discontinue the interrogation must be 
“scrupulously honored.” Michigan v. Mos- 
ley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 
L.Ed.2d 313 (1975); see United States ». 

Hernandez, 574 F.2d 1362, 1369 (5th Cir. 
1978).8 

[2,3] In federal habeas court, a statu- 

tory presumption of correctness applies to 

“subsidiary factual questions” resolved in 
state court proceedings. Agee v. White, 
809 F.2d 1487, 1493 (11th Cir.1987); see 28 
U.S.C. § 2254(d). Thus, the state court 

finding that petitioner merely asked 
“whether he had to continue” before mak- 
ing the incriminating statements will be 
presumed correct. See Lightbourne, 438 
So0.2d at 389. Although the Florida Su- 
preme Court’s determination that the state- 
ments made after this question was asked 
were voluntarily given is not binding on 

ously contested issues of fact, and addressed 
largely self-evident matters. After reviewing the 
record, we conclude that had the allegedly im- 
proper statements been excised, it is clear be- 
yond a reasonable doubt that the jury would 
have returned a verdict of guilt. See United 
States v. Hasting, 461 U.S. 499, 510-11, 103 
S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983); Unit- 
ed States v. Davidson, 768 F.2d 1266, 1272 (11th 
Cir.1985). 

8. The Eleventh Circuit, in Bonner v. City of 
Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) 
(en banc), adopted as precedent decisions of the 
former Fifth Circuit rendered prior to October 
1, 1981. : \  



red, “(if the 
iner, at any 
ing, that he 

terrogation 
wright, 170 
nodified on 
(11th Cir), 

7 S.Ct. 307, 
; in original) 

473-174, 86 
when a pur- 

Amendment 
police may 
narrow pur- 

uivoeal re- 

24 (quoting 
1 F.2d 768, 
lear that an 

t, the desire 
n must be 

‘gan v. Mos- 

321, 326, 46 
bd States ». 

69 (5th Cir. 

rt, a statu- 

bs applies to 

resolved in 
e v. White, 
987); see 28 

state court 

rely asked 

before mak- 
nts will be 

bourne, 438 
Florida Su- 

at the state- 

was asked 

binding on 

nd addressed 
reviewing the 
allegedly im- 

it is clear be- 
le jury would 

See United 
510-11, 103 

(1983); Unit- 
56, 1272 (11th 

er v. City of 
1th Cir.1981) 

isions of the 
or to October 

LIGHTBOURNE v. DUGGER 1019 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

this court, see Miller, 106 S.Ct. at 451-53, 

«the federal habeas court, should ... give 

great weight to the considered conclusions 

of a coequal state judiciary.” Miller, 106 

S.Ct. at 451. After making an independent 

determination of whether petitioner’s state- 

ments unambiguously evinced an intent to 

reassert the privilege against self-incrimi- 

nation, we find that the district court prop- 

erly concluded that petitioner did not posi- 

tively and adequately assert his right to 

discontinue the questioning and therefore 

volunteered the statements after the police 

attempted to clarify an equivocal request. 

As this court has observed, “[v]oluntary 

comments unresponsive to governmental 

questioning are admissible even after Mi- 

randa rights are asserted.” United States 

v. Suggs, 155 F.2d 1538, 1542 (11th Cir. 

1985). “The sole concern of the Fifth 

Amendment, on which Miranda is based, is 

governmental coercion.” United States v. 

Phillips, 812 F.2d 1355, 1362 (11th Cir. 

1987) (quoting Colorado v. Connelly, — 

U.S. —, 107 S.Ct. 515, 523, 93 L.Ed.2d 

473 (1986)). Here, the record reflects that 

after the police attempted to clarify peti- 
tioner’s question, petitioner spontaneously 
resumed discussions concerning the gun 

and the necklace without inducement. Un- 

der these facts, we fail to discern any gov- 

ernmental coercion. 

B. The Jailhouse Informant and the 
Right to Counsel 

Petitioner argues that he was denied the 
right to the assistance of counsel in viola- 

tion of Massiah v. United States, 8377 U.S. 

201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), 
and its progeny, by the admission of in- 
criminating statements made to cellmate 
Chavers. The record reflects the petitioner 
was placed in a cell with Chavers on Janu- 
ary 29, 1981. Approximately three days 
later, Chavers contacted Investigator La- 

Torre and informed LaTorre that he sus- 
pected that petitioner was involved with 
the O'Farrell homicide. LaTorre told Chav- 
ers to “go back to the cell and keep your 
ears open.” Petitioner was formally 
charged with the murder on February 3, 
1981. According to Chavers, petitioner 
made several incriminating statements af- 

ter becoming the subject of official investi- 

gation. Petitioner purportedly admitted 

entering Nancy’s house and sexually as- 

saulting her. Chavers was released from 

custody on February 10, 1981, and received 

a $200 reward offered by the sheriff’s de- 

partment for supplying the information. 

Petitioner filed a motion to suppress 

Chavers’s testimony on March 31, 1981. 

The circuit court held an evidentiary hear- 

ing on April 9, 1981. Investigator LaTorre 

testified that he never promised that Chav- 

ers would receive any money or other con- 

sideration in exchange for any information. 

LaTorre stated that he did, however, assist 

Chavers in obtaining bail. After hearing 

LaTorre’s testimony and the arguments of 

counsel, the circuit court found that Chav- 

ers did not take actions deliberately de- 

signed to elicit incriminating statements 

and denied the motion to suppress. 

On direct appeal, the Florida Supreme 
Court affirmed. In the words of that 

court: 

there is nothing in the record establish- 

ing that the informant Chavers had any 

prearranged guarantee of money in re- 

turn for information, and it appears that 

the two hundred dollars that he did re- 
ceive from the Marion County Sheriff's 

Department was drawn from a general 

reward fund and not given as an induce- 

ment to elicit information. 

Similarly, Investigator LaTorre’s ad- 
vice to the informant Chavers to keep his 
ears open does not constitute an attempt 

by the state to deliberately elicit incrimi- 

nating statements. Without some prom- 

ise or guarantee of compensation, some 

overt scheme in which the state took 

part, or some other evidence of prear- 

rangement aimed at discovering incrimi- 

nating information we are unwilling to 

elevate the state’s actions in this case to 

an agency relationship with the infor- 

mant Chavers. 

Lightbourne, 438 So.2d at 386. 

In Massiah, the Supreme Court ruled 

that the Sixth Amendment prohibits law 

enforcement officers from deliberately elic- 

iting incriminating information from a de- 

fendant in the absence of counsel after a 

  

  

   



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1020 829 FEDERAL REPORTER, 2d SERIES 

formal charge against the defendant has 

been filed. Massiah, 377 U.S. at 206, 84 

S.Ct. at 1203. Accordingly, law enforce- 

ment officers violate an accused's Sixth 

and Fourteenth Amendment rights when, 

after the right to counsel attaches, they 
install a radio transmitter in a co-defend- 

ant’s car and instruct the co-defendant to 

elicit incriminating statements, Massiah, 

377 U.S. at 206, 84 S.Ct. at 1208, isolate the 

accused, agree not to question him and 

obtain incriminating statements through an 

appeal to his religious convictions. Brewer 
v. Williams, 430 U.S. 387, 401, 97 S.Ct. 
1232, 1240, 51 L.Ed.2d 424 (1977), instruct a 
paid informant to develop a relationship of 
trust and confidence with the accused in 

jail and secure incriminating information 

by stimulating conversation, United States 

v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 
2189, 65 L.Ed.2d 115 (1980), and equip a 

co-defendant with a body wire transmitter 

in order to record a scheduled conversation 

about the co-defendants’ pending charges, 

their proposed alibis, and their plans for 

eliminating witnesses. Maine v. Moulton, 

474 U.S. 159, 106 S.Ct. 477, 490, 88 L.Ed.2d 
481 (1985). 

[4] In evaluating the conduct of both 

Chavers and LaTorre we should keep in 

mind the duty that is imposed upon all 

citizens to report criminal activity to the 

appropriate authorities. This duty to ad- 
vise the law enforcement officials was an 

established tenet of Anglo-Saxon law at 
least as early as the 13th century. “ ‘This 
deeply rooted social obligation is not dimin- 
ished when the witness ... is involved in 
illicit activities himself.... [T]he criminal 
defendant no less than any other citizen is 
obliged to assist the authorities.’” Jen- 

kins v. Anderson, 447 U.S. 231, 243-44 n. 

5, 100 S.Ct. 2124, 2132 n. 5, 65 L.Ed.2d 86, 
98 n. 5 (1980) (Stevens, J., concurring) (foot- 

note omitted). Courts should be slow to 

discourage disclosures or to make them 

useless. Although the Supreme Court, to 

advance certain constitutional safeguards, 

has carved out exceptions, to the extent of 
excluding some disclosures about crime 

from evidence at trial, we recall that these 

are, indeed, exceptions and not the rule. 

Unless evidence of crime is plainly excluda- 

ble, it can be allowed. The testimony of 
Chavers is not plainly excludable, 

[5] In order to establish a violation of 
the Sixth Amendment in a jailhouse infor. 
mant case, the accused must show (1) that 
a fellow inmate was a government agent: 
and (2) that the inmate deliberately elicited 
incriminating statements from the accused. 
Henry, 477 U.S. at 270, 100 S.Ct. at 2186; 
see United States v. Taylor, 800 F.2d 1012, 
1015 (10th Cir.1986). Regarding the 

threshold agency inquiry, no “bright line 

test for determining whether an individual 
is a Government agent for purposes of the 
Sixth Amendment” has emerged. Taylor, 
800 F.2d at 1015. Nevertheless, other cir- 

cuits have observed that the creation of an 
agency depends upon the existence of an 
agreement between the state and the infor- 
mant at the time that the elicitation takes 
place. See Taylor, 800 F.2d at 1015; 
Thomas v. Coz, 708 F.2d 132, 136 (4th Cir.), 
cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 

L.Ed.2d 262 (1983); United States v. Met- 
calfe, 698 F.2d 877, 882-83 (7th Cir.), cert. 

denied, 461 U.S. 910, 103 S.Ct. 1886, 76 
L.Ed.2d 814 (1983); United States v. Cald- 
er, 641 F.2d 76, 78-79 (2d Cir.), cert. de- 

nied, 451 U.S. 912, 101 S.Ct. 1984, 68 

L.Ed.2d 302 (1981). After analyzing the 

facts and circumstances of this case, the 

state circuit court and the Florida supreme 
Court concluded that no agency was cre- 
ated because no agreement had been en- 

tered into between LaTorre and Chavers 
when petitioner made the incriminating re- 
marks. 

[6] Chavers had no history of acting as 

a paid informant. Furthermore, the record 
reflects that LaTorre did not initiate con- 

tact with Chavers, solicit Chavers to be a 

paid informant, encourage the elicitation of 

incriminating statements, or promise or 
suggest that Chavers would be compensat- 

ed or rewarded in the event that Chavers 
reported incriminating statements to the 

authorities. LaTorre merely advised Chav- 

ers to listen. See Thomas, 708 F.2d at 133. 

LaTorre’s statement that he would assist 

Chavers in obtaining bail was not made 
until after petitioner admitted to Chavers’s  



estimony of 

ble. 

violation of 
house infop. 

ow (1) that 
ent agent; 

tely elicited 
he accused, 

t. at 2186; 
D F.2d 1012, 

prding the 
‘bright line 
individual 

poses of the 

4. 7 aylor, 

E, other cir- 

ation of an 
ence of an 

d the infor- 

ition takes 

at 1015; 

b (4th Cir.), 
Ct. 284, 78 
tes v. Met- 

Cir.), cert. 

. 1886, 76 

es v. Cald- 
, cert. de- 

1984, 68 
lyzing the 

case, the 

a supreme 

was cre- 

been en- 

I Chavers 

nating re- 

acting as 

he record 

tiate con- 

s to be a 

itation of 

omise or 

bmpensat- 

Chavers 

to the 

sed Chav- 

Pd at 133. 

hld assist 

ot made 

havers’s 

LIGHTBOURNE v. DUGGER 1021 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

involvement in the O'Farrell homicide, and 

LaTorre’s assistance was not conditioned 
upon further information being obtained. 
Chavers was not cognizant of the $200 

reward offered by the sheriff’s department 

until his release from custody. 

We must not confuse speculation about 

Chavers’s motives for assisting the police 
for evidence that the police promised Chav- 

ers consideration for his help or, otherwise, 

bargained for his active assistance. Chav- 
ers’s motives alone cannot make him an 

agent of the police even if the police knew 
and understood that his motives probably 
were self-serving and related to getting 

police cooperation in his own case. After 
reviewing the record, we find insufficient 

evidence to rebut the presumption of cor- 

rectness under 28 U.S.C. sec. 2254(d) appli- 

cable to the state court’s assessment of the 

facts and conclude that there is no basis 
upon which an agency can be established. 

Regarding the “deliberately elicited” in- 
quiry, the Supreme Court has recently stat- 
ed: 

the primary concern of the Massiah line 
of decisions is secret interrogation by 
investigatory techniques that are the 

equivalent of direct police interrogation. 

Since ‘the Sixth Amendment is not violat- 
ed whenever—by luck or happenstance— 

the State obtains incriminating state- 
ments from the accused after the right to 
counsel has attached,’ [quoting Moulton, 
106 S.Ct. at 487 (citation omitted) ] a de- 

fendant does not make out a violation of 

[the right to counsel] simply by showing 
that an informant, either through prior 

arrangement or voluntarily, reported his 
incriminating statements to the police. 
Rather, the defendant must demonstrate 

that he police and their informant took 
some action, beyond merely listening, 

9. The dissent raises several difficult points and 
reflects a different interpretation of this record 
and the controlling authorities. Such some- 
times happens and is understandable. What is 
not easily understood is how the admission of 
these statements, if error, would be harmful 
with respect to the sentencing phase of petition- 
er’s trial. The dissent finds harmless error as to 
the guilt phase but suggests such is not so as to 
sentencing. The aggravating factor under the 

that was designed deliberately to elicit 

incriminating remarks. 

Kuhlmann v. Wilson, 477 U.S. 436, 106 

S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986) (em- 

phasis added); see United States v. Hicks, 

798 F.2d 446, 449 (11th Cir.1986), cert. de- 

nied, — U.S. —, 107 S.Ct. 886, 93 

L.Ed.2d 839 (1987). When a state trial 

court has made a factual determination re- 

garding this issue after a hearing on the 

merits, the trial court’s findings are enti- 

tled to a presumption of correctness under 

28 U.S.C. sec. 2254(d). Kuhlmann, 106 

S.Ct. at 2630. 

[71 In this case, the district court ap- 
plied the presumption of correctness with 

respect to the state court’s findings that 

Chavers did not stimulate conversation 

with petitioner. After reviewing the 
record, the district court found “no basis 

for concluding that Chavers did anything 

but listen to Petitioner's voluntary com- 

ments.” Lightbourne v. Wainwright, No. 
85-136-Civ—-0C-16, slip op. at 9 (M.D.Fla. 
Aug. 20, 1986). The Sixth and Fourteenth 

Amendments are not violated when law 

enforcement officers, either through “luck 

or happenstance,” obtain “spontaneous” 

and “unsolicited” incriminating statements. 

Kuhlmann, 106 S.Ct. at 2630; see Hicks, 

798 F.2d at 449. After a plenary review of 

the record, we find insufficient evidence to 

rebut the presumption of correctness appli- 

cable to the state court determination and 
conclude that Chavers took no actions to 

stimulate the incriminating remarks and, 

more importantly, neither did LaTorre. 
Accordingly, the district court properly 

ruled that no agency existed and that peti- 
tioner’s incriminating statements were not 

deliberately elicited in violation of Kuhl- 

mann? 

Florida statute is sexual battery. While Chavers 
was the only witness dealing specifically with 
oral sexual activity, witness Carson covered the 
same sort of statements including Lightbourne 
forcing Nancy to engage in multiple sexual acts 
prior to her murder. To a very large extent the 
testimony of both was corroborative and repe- 
titious. If there is a Sixth Amendment violation 
in this case, it is harmless.   

    

 



  

  
    

1022 

C. Ineffective Assistance of Counsel 

Petitioner advances several grounds for 
relief based on violations of the constitu- 
tional right to effective assistance of coun- 
sel. Specifically, petitioner has identified 
three acts or omissions on the part of trial 
counsel which allegedly fell below the 
threshold level of competence. In order to 
state a claim of ineffective assistance of 
counsel sufficient to reverse a conviction or 
set aside a sentence, a claimant must show 
that “counsel’s performance was seriously 
deficient and that [the claimant] was preju- 
diced by the deficiency.” Sinclair ov. 
Wainwright, 814 F.2d 1516, 1519 (11th Cir. 
1987); see Messer v. Kemp, 760 F.2d 1080, 
1088 (11th Cir.1985), cert. denied, 474 U.S. 
1088, 106 S.Ct. 864, 88 L.Ed.2d 902 (1986). 
In order to satisfy the first requirement, a 
petitioner must convince the court that “in 
light of all the circumstances, the identified 
acts or omissions were outside the range of 
professionally competent assistance.” Ha- 
rich v. Wainwright, 813 F.2d 1082, 1088 
(11th Cir.1987) (quoting Strickland wv. 
Washington, 466 U.S. 668, 690, 104 S.Ct. 
2052, 2066, 80 L.Ed.2d 674 (1984)). When 
assessing the merits of a defendant’s claim, 
“an attorney’s actions are strongly pre- 
sumed to have fallen within that range, and 
a court must examine counsel's conduct 
without the use of judicial hindsight.” 
Messer, 760 F.2d at 1088. As this court 
has acknowledged, “strategic choices made 
after thorough investigation of law and 
facts relevant to plausible options are virtu- 
ally unchallengeable.” Sinclair, 814 F.2d 
at 1519 (quoting Strickland, 466 U.S. at 
690, 104 S.Ct. at 2066). Regarding the 
second requirement, the defendant must 
show that there is a “reasonable probabili- 
ty that, but for counsel's unprofessional 
errors, the result of the proceeding would 
have been different.” Harich, 813 F.2d at 
1088; Matire v. Wainwright, 811 F.2d 
1430, 1435 (11th Cir.1987) (quoting Strick- 
land, 466 U.S. at 694, 104 S.Ct. at 2068). 
When challenging the effectiveness of 

counsel during the guilt/innocence phase, 
the “defendant must show that, but for the 

10. Petitioner alleges that an actual conflict of 
interest existed because Carson, a prosecution 
witness, was formerly represented by an attor- 

829 FEDERAL REPORTER, 2d SERIES 

ineffective assistance, the jury would have 
had a reasonable doubt as to his guilt.” 
Harich, 813 F.2d at 1089. When challeng. 
ing the imposition of capital punishment, 
defendant must “show that without the. 
error there is a reasonable probability that 
‘the balance of aggravating and mitigating 
circumstances did not warrant death’” 
Messer, 760 F.2d at 1091 (quoting Strick. 
land, 466 U.S. at 695, 104 S.Ct. 2069), 

(1) Conflict of Interest 

[8] The right to effective assistance of 
counsel encompasses the right to represen. 
tation free from actual conflict on the part 
of defense counsel. See Cuyler v. Sulli- 
van, 446 U.S. 335, 349, 100 S.Ct. 1708, 
1719, 64 L.Ed.2d 333 (1980); Oliver », 
Wainwright, 782 F.2d 1521, 1524 (11th 
Cir.) cert. denied, — U.S. —, 107 S.Ct. 
313, 93 L.Ed.2d 287 (1986); Stevenson wu, 
Newsome, 774 F.2d 1558, 1562 (11th Cir. 
1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 
1476, 89 L.Ed.2d 731 (1986); Ruffin wv. 
Kemp, 767 F.2d 748, 750 (11th Cir.1985). 
Petitioner argues that an actual conflict of 
interest adversely affected his lawyer's 
representation.’ The record reflects that 
Theophilus Carson was arrested for grand 
larceny on November 25, 1980. On Febru- 
ary 2, 1981, Assistant Public Defender 
Bradley of the Public Defender’s Office for 
the Fifth Judicial Circuit of Florida was 
appointed to represent Carson. A prelimi- 
nary hearing was scheduled for March 2, 
1981. On that day, Carson pled guilty to a 
misdemeanor and the circuit court withheld 
adjudication and imposed a sentence of 
time served. Carson was not represented 
by Bradley subsequent to March 2, 1981. 
Petitioner’s trial commenced on April 20, 
1981. 

Petitioner was represented by Ron Fox 
and James Burke, also employed by the 
Public Defender’s Office for the Fifth Judi- 

cial Circuit. Petitioner asserts that an ac- 

tual conflict arose when Carson, a former 

cellmate of petitioner and a former client of 
the public defender’s office, testified on 

ney from the same public defender’s office that 
represented petitioner.  



     
   
   
    

  

     

  

    

  

    
   

    
   
    

  

    
   

   
   

  

   

  

   

    

   
    

  

   
    

  

   

ry would have 
to his guilt.” 
hen challeng. 

Punishment, a 
t without the 
probability that 
and mitigating 
rant death.” 
uoting Strick. 
.Ct. 2069), 

rest 

assistance of 
t to represen- 
ct on the part 
yler v. Sulli- 
0 S.Ct. 1708, 
P); Oliver », 
[, 1524 (11th 

, 107 S.Ct. 
Stevenson 1, 
62 (11th Cir. 
089, 106 S.Ct, 

);; Ruffin 
Ith Cir.1985), 
al conflict of 
his lawyer's 
reflects that 
ed for grand 

On Febru- 
lic Defender 
r's Office for 
Florida was 

A prelimi- 
for March 2, 
bd guilty to a 
purt withheld 
sentence of 

represented 
rch 2, 1981. 
n April 20, 

by Ron Fox 
byed by the 

le Fifth Judi- 

that an ac- 

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estified on 

r's office that 

     
       

  

   
   
    
    
    
   
   
       

   

     
   

    

    

    
    

      

     
   

      

LIGHTBOURNE v. DUGGER 1023 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

behalf of the state at petitioner's trial. 
The gist of petitioner's argument is that 

the “simultaneous representation” of Car- 

son and petitioner by the same public de- 

fender’s office prevented rigorous cross-ex- 

amination of Carson in au attempt to im- 
peach his credibility. 

[9] Questions involving conflicts of in- 

terest are mixed determinations of law and 

fact. Oliver, 782 F.2d at 1524. This issue 

was not addressed by any state court.! 
The district court rejected petitioner’s con- 

tentions. After reviewing the record, we 

find petitioner's alleged constitutional vio- 
lation based on a conflict of interest unten- 

able as a matter of law and fact. 

[10] In order to establish an effective 

assistance of counsel claim arising from an 

alleged conflict of interest, a defendant 
“must demonstrate that an actual conflict 

of interest adversely affected his lawyer's 
performance.” Oliver, 782 F.2d at 1524; 

Ruffin, 767 F.2d at 750 (quoting Cuyler, 
446 U.S. at 348, 100 S.Ct. at 1718); see 

Stevenson, 774 F.2d at 1562. A possible, 

speculative or merely hypothetical conflict 
does not suffice. Cuyler, 446 U.S. at 350, 
100 S.Ct. at 1719; Oliver, 782 F.2d at 1525. 
“[Ulntil a defendant shows that his counsel 

11. We are somewhat troubled by the fact that 
petitioner has apparently not exhausted this 
claim in state court. See Rose v. Lundy, 455 
U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). 
Nevertheless, we note that the Supreme Court 
has ruled that a federal court of appeals may, in 
its discretion, exercise habeas corpus jurisdic- 
tion when the state fails to raise an arguably 
meritorious defense. Granberry v. Greer, — 
U.S. —, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). 

In the interests of justice, we will exercise our 
discretion and address the merits of petitioner's 
claim. 

12. At the time of petitioner's trial, the Code of 
Professional Responsibility governed the stan- 
dards of ethical conduct in Florida. (The Code 
was replaced by the Rules of Professional Con- 
duct effective January 1, 1987. See In re Rules 
Regulating the Florida Bar, 494 So.2d 977, 977 
(Fla.1986); Fla.Stat.Ann.Bar and Judiciary 
Rules Chapter 4 (West Supp.1987)). An attor- 
ney owes a client the duty to avoid conflicts of 
interest. See Strickland, 466 U.S. at 688, 104 
S.Ct. at 2064-65. Under the Code, an attorney 
has an obligation to preserve the confidences 
and secrets of former clients. See EC 4-6. DR 
5-105 states in pertinent part: “[a] lawyer shall 

  

actively represented conflicting interests, 

he has not established the constitutional 

predicate for his claim of ineffective assist- 
ance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 
at 1719. If a defendant can successfully 
demonstrate the existence of an actual con- 

flict, the defendant must also show that 

this conflict had an adverse effect upon his 
lawyer's representation. Stevenson, 774 

F.2d at 1562; see Strickland, 466 U.S. at 

692, 104 S.Ct. 2067; Cuyler, 446 U.S. at 

350, 100 S.Ct. at 1719. Once a defendant 

satisfies both prongs of the Cuyler test, 

prejudice is presumed and the defendant is 

entitled to relief. Strickland, 466 U.S. at 

692, 104 S.Ct. at 2067; Cuyler, 446 U.S. at 

349-50, 100 S.Ct. at 1719. 

[11] Petitioner has articulated a poten- 

tial conflict of interest. An attorney who 

cross-examines a former client inherently 

encounters divided loyalties. See Porter v. 

Wainwright, 805 F.2d 930, 939 (11th Cir. 

1986); Stephens v. United States, 595 F.2d 

1066, 1070 (5th Cir.1979). Whether or not 

an actual conflict arose when Assistant 
Public Defender Fox cross-examined a 
client formerly represented by Assistant 

Public Defender Bradley presents a sub- 
stantial question.!? See Porter, 805 F.2d at 

not continue multiple employment if the exer- 
cise of his independent professional judgment 
in behalf of a client will be or is likely to be 
adversely affected by his representation of an- 
other client ... if it is obvious that he can 
adequately represent the interest of each and if 
each consents to the representation after full 
disclosure....” The Florida Supreme Court has 
acknowledged that a public defender’s office 
can constitute a “law firm” within the meaning 
of Canon 5. See State v. Fitzpatrick, 464 So.2d 
1185, 1186 (Fla.1985). Thus, a conflict may 
arise when a public defender’s office represents 
clients with adverse interests. When a public 
defender determines that a conflict of interest 
exists, the public defender is bound to report the 
conflict to the court so that independent counsel 
can be appointed. Fla.Stat. Ann. § 27.53(3) 
(West 1974). Of course, what constitutes a con- 
flict of interests as a matter of legal ethics or as 
a matter of state law and what constitutes a 
conflict of interests for federal constitutional 
questions may differ. In this case, the record 
does not reflect that any conflict was reported 
to the court. The Supreme Court has acknowl- 
edged that attorneys are in the best position to 
determine when a conflict of interest exists. 
See Cuyler, 446 US. at 347, 100 S.Ct. at 1717. 

  

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1024 829 FEDERAL REPORTER, 2d SERIES 

939. Due in part to the fact that petitioner 
did not raise this issue or request an evi- 
dentiary hearing pertaining to a potential 
conflict of interest prior to filing a Petition- 
er for Writ of Habeas Corpus in district 
court, the record is inconclusive. Never- 

theless, we hold that even if an actual 
conflict existed, petitioner has failed to al- 
lege such facts which, if proven, would 
demonstrate that the alleged conflict ad- 
versely affected petitioner’s representation. 

The record reflects that Carson testified 
during direct examination that he was in- 
carcerated for accessory to grand theft and 

that he was released because of a deal . 
worked out with the state. During an ex- 
tensive cross-examination, counsel for peti- 

tioner questioned Carson about his relation- 
ship with petitioner, contradictions in the 
sequence of events, potential independent 
sources of knowledge of the O'Farrell 
homicide, Carson’s use of an alias, and the 

lack of specifics with regard to petitioner's 
alleged statements, including what was 
taken, where the gun came from, and how 
the events transpired. In addition, counsel 
for petitioner thoroughly inquired about 

the details of Carson’s plea agreement and 
elicited the facts that Carson pled nolo 
contendere to the charges and received a 
sentence of time served consisting of ap- 

proximately 100 days. Given this testimo- 
ny, we discern no adverse effect upon peti- 
tioner’s representation. Counsel for peti- 
tioner fully and fairly cross-examined Car- 

son with respect to his “deal” with the 
state in order to show the possibility of 
bias or prejudice. In addition, petitioner’s 
counsel attempted to impeach Carson’s 
credibility through a variety of methods. 
Any conflict of interest which may have 
existed by virtue of the fact that Assistant 

Public Defender Fox happened to cross-ex- 
amine a client formerly represented by the 

same public defender’s office had, at best, 

a de minimus effect upon petitioner’s rep- 
resentation. Accordingly, we find no merit 

to petitioner’s claim that an actual conflict 
adversely affected petitioner's assistance 
of counsel. 

(2) Failure to Investigate 

Petitioner contends that his sentencing 
was improper and that the state should be 

required to do it again. See Hitchcock m 
Dugger, — U.S. —, 107 S.Ct. 1821, 95 
L.Ed.2d 347 (1987). Specifically, petitioner 
alleges that trial counsel was ineffective by 
the failure to adequately investigate peti- 
tioner’s background and offer additiona] 
evidence of mitigating circumstances at the 
sentencing phase. The record reveals that 
petitioner was called as a witness and testj- 
fied about his age, his citizenship, his lack 
of a significant criminal record, his edy- 

cation and his children. Petitioner asserts 

that counsel could have, but failed to 

present evidence of other mitigating cir- 
cumstances through the testimony of peti- 

tioner’s friends and family. In support of 

this contention, petitioner has offered the 
affidavits of twenty-seven relatives and ac- 

quaintances. According to the affiants, pe- 

titioner was one of ten illegitimate children 

raised in a very modest environment. De- 

spite the fact that petitioner was allegedly 
subjected to severe physical and psycholog- 
ical abuse by an older brother, petitioner 

was perceived as a happy, well-behaved and 

popular person. Regardless of the econom- 
ic hardships and social disadvantages asso- 
ciated with his home environment, petition- 

er was purported to be a good student, an 
excellent athlete and a devoted Catholic. 
Petitioner alleges that had the judge and 

jury been apprised of these facts, a reason- 

able probability exists that the result of the 

sentencing proceeding would have been dif- 

ferent. 

The Florida Supreme Court rejected peti- 
tioner’s argument. In the words of that 

court: 

[c]ounsel was not ineffective for failing 

to present mitigating evidence at sen- 

tencing. The trial record clearly indi- 

cates that the sentencing judge was in 

fact aware of many of the mitigating 
factors that counsel on appeal is now 

presenting to the Court. The lower 
court was fully aware of the fact that 
[petitioner] was raised in a ‘lower socioe- 

conomic home environment,” his edu- 

cational history and religious back- 
ground. The additional mitigating 

factors now presented to the Court are  



S.Ct. 1821, 95 

bly, petitioner 
ineffective by 

‘estigate peti- 
er additiona] 
stances at the 

i reveals that 

ess and testi- 

ship, his lack 

ord, his edy- 

[loner asserts 

ut failed to 
itigating cir- 
nony of peti- 
in support of 

; offered the 

itives and ae- 

: affiants, pe- 
nate children 
nment. De- 

vas allegedly 

:d psycholog- 
’r, petitioner 
behaved and 

' the econom- 

ntages asso- 

ent, petition- 

student, an 

ed Catholic. 

e judge and 

ts, a reason- 

result of the 

ve been dif- 

ejected peti- 

rds of that 

> for failing 

nce at sen- 

clearly indi 

dge was in 

mitigating 

eal is now 

The lower 

e fact that 

Wer socioe- 

> his edu- 

ious back- 

mitigating 

Court are 

LIGHTBOURNE v. DUGGER 1025 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

merely cumulative, now [sic] new. Thus 

our finding on direct appeal that the 

strength of the aggravating factors war- 

rant the death sentence is still valid. 

Lightbourne, 471 So.2d at 28. The district 

court concurred. Lightbourne, No. 85- 
136-Civ-OC-16 slip op. at 20-21. 

Petitioner’s allegations and proffered evi- 

dence are inadequate to overcome the 

strong presumption that the challenged 
action might be considered sound trial 

strategy and falls within the wide range 
of reasonable professional assistance. 

Strickland v. Washington, [466 U.S. 
668] 104 S.Ct. 2052, 2066 [80 L.Ed.2d 
674] (1984). Given the circumstances of 

this case, counsel’s decision to focus on 
Petitioner’s lack of a significant criminal 

record and to argue against the wisdom 

of the death penalty was a reasonable 

one. ‘It is all too tempting for a defend- 
ant to second-guess counsel’s assistance 

after conviction or adverse sentence, and 

it is all too easy for a court, examining 

counsel’s defense after it has proved un- 
successful, to conclude that a particular 
act or omission of counsel was unreason- 
able” Id. [104 S.Ct.] at 2065. 

Most of the evidence that Petitioner 
claims his counsel should have obtained 
and introduced at the sentencing phase 
was considered by the trial judge before 
Petitioner was sentenced. The presen- 
tence investigation report revealed that 
Petitioner was an illegitimate son, born 
and raised in a lower socioeconomic home 
environment, who had almost no relation- 
ship with his father because his father 
separated from the family when Petition- 
er was a small child. The comprehensive 
report also set forth Petitioner's marital 
and family status, educational back- 
ground, religious affiliation, interest in 
riding horses, and employment history. 
Although the report did not reflect that 
Petitioner’s friends and neighbors de- 
scribed him as a loving, non-violent indi- 
vidual, it did indicate that Petitioner 
lacked a significant record of prior crimi- 
nal activity. Essentially, the only evi- 
dence now proffered by Petitioner that 
was not considered by the trial judge at 
sentencing is the testimony of family and 

friends regarding Petitioner's physical 

abuse by his older brother and Petition- 

er’'s apparent compassionate character. 

Lightbourne, No. 85-136-Civ-0OC-16, slip 
op. at 20-21. 

[12-14] A criminal defendant who is 
charged with a capital offense has the right 
to present virtually any evidence in mitiga- 
tion at the penalty phase. See Hitchcock, 
— U.S. at ——, 107 S.Ct. at 1824; Peek ». 

Kemp, 784 F.2d 1479, 1488 (11th Cir.) (en 
banc), cert. denied, — U.S. —, 107 S.Ct. 
421, 93 L.Ed.2d 371 (1986). Nevertheless, 
“[c]ounsel has no absolute duty to present 
mitigating character evidence.” Mitchell 
v. Kemp, 762 F.2d 886, 889 (11th Cir.1985). 
In order to determine what evidence might 
be appropriate, defense counsel has the 
duty to conduct a reasonable investigation. 

Thompson v. Wainwright, 787 F.2d 1447, 
1450 (11th Cir.), cert. denied, — U.S. —, 
107 S.Ct. 1986, 95 L.Ed.2d 825 (1986). The 
failure to conduct any investigation of a 
defendant’s background may fall outside 
the scope of reasonable professional assist- 

ance. Thompson, 787 F.2d at 1452. After 

a sufficient investigation, however, “coun- 
sel may make a reasonable strategic judg- 
ment to present less than all possible avail- 
able evidence in mitigation.” Mitchell, 762 
F.2d at 889 (quoting Stanley v. Zant, 697 
F.2d 955, 965 (11th Cir.1983), cert. denied, 
sub nom. 467 U.S. 1219, 104 S.Ct. 2667, 81 
L.Ed.2d 372 (1984)). A lawyer's election 
not to present mitigating evidence is a tac- 
tical choice accorded a strong presumption 
of correctness which is “virtually unchal- 
lengeable.” Sinclair, 814 F.2d at 1519 

(quoting Strickland, 466 U.S. at 690, 104 

S.Ct. at 2066); see e.g, Darden v. Wain- 

wright, 477 U.S. 187, 106 S.Ct. 2464, 2474, 
91 L.Ed.2d 144 (1986); Porter, 805 F.2d at 
935; Tafero v. Wainwright, 796 F.2d 1314, 

1320 (11th Cir.1986); Dobbs v. Kemp, 790 

F.2d 1499, 1514 (11th Cir.1986), modified 
on other grounds, 809 F.2d 750 (1987); 

Funchess v. Wainwright, 772 F.2d 683, 690 
(11th Cir.1985), cert. denied, 475 U.S. 1031, 

106 S.Ct. 1242, 89 L.Ed.2d 349 (1986). This 
court has specifically ruled that counsel's 
decision to rely on the defendant’s testimo- 
ny rather than offering the testimony of   

  

  

 



  

      

1026 

the defendant’s family members to show a 
“turbulent family history” may be a rea- 
sonable strategic choice under the circum- 
stances. Tucker v. Kemp, 176 F.2d 1487, 
1491 (11th Cir.1985), cert. denied, — U.S. 
——, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986); 
see Mulligan v. Kemp, 171 F.2d 1436, 1444 
(11th Cir.1985). 

[15] Petitioner argues that trial coun- 

sel’s representation fell below an objective 

standard of reasonableness because coun- 

sel allegedly failed to conduct any investi- 
gation with respect to petitioner's back- 
ground. After an impartial but critical re- 
view of the record, we find petitioner's 
characterization of counsel's efforts clearly 
erroneous. It is evident that an investiga- 
tion was conducted and that counsel there- — 
after elected to put petitioner on the stand. 
Although no deficiencies with respect to 
petitioner’s background check are readily 
apparent, the reasonableness of counsel's 
investigation is difficult to assess because 
the specifics of counsel’s efforts have not 
been delineated for the record. Neverthe- 
less, even if petitioner's counsel did not 
conduct an adequate investigation, we con- 
clude that petitioner has not demonstrated 
sufficient prejudice which resulted from 
this alleged deficiency. 

As indicated, a defendant challenging the 
propriety of a death sentence must show 
that in the absence of counsel's alleged 
inadequate performance, a reasonable 
probability exists that the “balance of ag- 
gravating and mitigating circumstances did 
not warrant death.” Strickland, 466 U.S. 
at 695, 104 S.Ct. at 2069. Here, the trial 
judge found the existence of two mitigat- 
ing * and five aggravating ™ circumstane- 
es. The record reveals that the trial court 
was aware of a substantial amount of in- 

13. The trial judge found that petitioner had no 
significant history of prior criminal activity, see 
Fla.Stat.Ann. § 921.141(6)(a) (West 1985) and 
that petitioner was only twenty-one years of age. 
See Fla.Stat. Ann. § 921.141(6)(g). 

14. The trial judge found beyond a reasonable 
doubt that a capital felony was committed while 
petitioner was engaged in burglary and sexual 
battery, Fla.Stat.Ann. § 921.141(5)(d), that the 
capital felony was committed for the purpose of 
avoiding lawful arrest, Fla.Stat.Ann. § 921.- 
141(5)(e), that the capital felony was committed 

829 FEDERAL REPORTER, 2d SERIES 

formation which petitioner claims his coup. 
sel failed to discover and introduce during 

“the sentencing phase.’® Even if the infop- 
mation supplied by the affiants is not mere- 
ly cumulative, we find that any mitigating 
effect does not begin to tip the balance of 
aggravating and mitigating factors in fa. 
vor of petitioner. Petitioner has simply 
failed to show that counsel's performance 
was so deficient during the sentencing 
phase that this court cannot rely on the 
result as being just. 

(3) Failure to Object to 

Inflammatory Statements 

When challenging the denial of post-con- 
viction relief in state court, petitioner ar- 
gued that the trial judge improperly con- 
sidered prejudicial hearsay statements and 
accusations relating to non-statutory ag- 
gravating circumstances during the sen- 
tencing phase. The record reflects that 
following the guilt/innocence phase of the 
trial, the court ordered a presentence inves- 
tigation (PSI). A PSI report, completed on 
April 30, 1981, provided information relat- 
ing to the circumstances of the offense, 
petitioner’s alibi, and personal information, 
including petitioner’s criminal record, social 
history, marital status, education, religion, 
interests, activities, health and employ- 

‘ment. In addition, a “confidential evalua- 
tion” was prepared by the Department of 
Corrections containing personal statements 
by several of Miss O’Farrell’s relatives and 

petitioner’s sister. The O'Farrell family 
generally expressed the opinion that peti- 

tioner was remorseless, beyond rehabilita- 
tion, and deserving of the death penalty. 

Petitioner alleged that the consideration of 
these inflammatory statements prejudiced 

for pecuniary gain, Fla.Stat. Ann. § 921.- 
141(5)(f), that the capital felony was especially 
heinous, atrocious, or cruel, Fla.Stat.Ann. 
§ 921.141(5)(h), and that the capital felony was 
a homicide committed in a cold, calculated and 
premeditated manner without any pretense of 
moral or legal justification. Fla.Stat.Ann. 
§ 921.141(5)(). 

18. This information was contained in a presen- 
tence investigation report which was considered 
by the judge.  



      

   
   
   

     

    

    
    

      
    

  

    

ms his coup. 

duce during 
if the infor. 
iS not mere- 

y mitigating 
e balance of 
ictors in fg. 

has simply 
performance 

sentencing 
rely on the 

   to 

nts 

of post-con- 
stitioner ar- 

‘operly con- 

ements and 

atutory ag- 

g the sen- 
flects that 

hase of the 

tence inves- 

mpleted on 

ation relat- 

1e offense, 
formation, 
cord, social 

n, religion, 
d employ- 
ial evalua- 

artment of 

statements 

latives and 

ell family 
that peti- 
rehabilita- 

h penalty. 
leration of 

prejudiced 

    
   

     

  

    

    

   
    
    

   
    

  

n. § 921. 

s especially 
la.Stat.Ann. 

felony was 
-ulated and 
pretense of 
la.Stat.Ann. 

n a presen- 
considered 

  

LIGHTBOURNE v. DUGGER 1027 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

his sentencing. The Florida Supreme 
Court ruled that petitioner's claim was 

foreclosed from collateral review because it 

was not raised on direct appeal. Lightb- 

ourne, 471 So.2d at 28. 

[16] Thereafter, in his Petition for Writ 

of Habeas Corpus, petitioner recast the 

claim as an error by trial counsel in failing 

to object to the trial judge's consideration 

of the statements in the PSI report. The 

jury had no access to the report. The 

district court assumed that federal review 
of the claim was not precluded when 

couched in terms of ineffective assistance 
of counsel. Nevertheless, the district court 

found petitioner’s contention meritless be- 

cause of the absence of a reasonable proba- 

bility that any deficiency on the part of 

counsel in failing to object to judicial con- 

sideration of the inflammatory statements 

adversely affected the outcome of petition- 

er’s sentencing. Lightbourne, No. 85-136— 

Civ—-0C-16, slip op. at 22. We agree. 

[17] Federal law places few limitations 
upon the information which a trial judge 
may consider before determining an appro- 
priate sentence.'® United States v. Rodri- 
guez, 765 F.2d 1546, 1554-55 (11th Cir. 
1985). At least one Florida court has ruled 

that it is within a trial judge's discretion to 

consider statements by relatives of the de- 

ceased victim. See Howard v. State, 473 

So.2d 10, 11 (Fla.3d DCA 1985). In addi- 
tion, hearsay testimony may be considered 

during sentencing so long as the objection- 

able testimony does not serve as the basis 

for the sentence. See Rodriguez, 765 F.2d 
at 1555. Here, although the trial judge 
was admittedly aware of the sentiments of 
the O'Farrell family, the record unequivo- 
cally shows that the sentence was based on 

16. We note that the Supreme Court recently 
ruled in Booth v. Maryland, — U.S. —, 107 
S.Ct. 2529, 96 L.Ed.2d 440 (U.S.1987) that a 
Maryland statute requiring a court or jury to 
consider a “victim impact statement” when the 
death penalty is requested violated the Eighth 
Amendment. Pursuant to Maryland law, Booth 
elected to have his sentence determined by a 
jury instead of a judge. Booth, — U.S. at —, 
107 S.Ct. at 2529. The Court ruled that the 
victim impact statement describing the effect of 
the crime on the victim's family was irrelevant 
and unduly inflammatory and created a risk of 

the recommendation of the jury and the 

overriding weight of the statutorily autho- 

rized aggravating circumstances. Thus, 

even if counsel's conduct fell below an “ob- 

jective standard of reasonableness” by fail- 

ing to object to the statements in question, 

petitioner has unsuccessfully demonstrated 

a reasonable probability that the alleged 

deficiency prejudiced petitioner's sentence. 

Strickland, 466 U.S. at 688, 694, 104 S.Ct. 

at 2064, 2068. 

CONCLUSION 

For the foregoing reasons, the decision 

of the district court is AFFIRMED. 

ANDERSON, Circuit Judge, concurring 
in part and dissenting-in part: 

I concur in all of the opinion for the court 

except Part IL.B., with regard to the jail- 
house informant, Chavers. With respect to 

that issue, I respectfully dissent. In my 

judgment, the line of cases beginning with 

Massiah v. United States, 377 U.S. 201, 84 

S.Ct. 1199, 12 L.Ed.2d 246 (1964), and, in 
particular, United States v. Henry, 447 
U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 
(1980), require reversal in this case. 

In Massiah, the Supreme Court held that 
the Sixth Amendment prohibits law en- 
forcement officers from deliberately elicit- 

ing incriminating information from a de- 

fendant in the absence of counsel after 

formal charges have been lodged against 

him. In Henry, the Supreme Court applied 
the Massiah principle to a situation very 

similar to that in the instant case. While 

Henry was in jail, a fellow inmate engaged 

him in more than incidental conversation 

about Henry’s crime and as a result Henry 

made incriminating statements. The in- 

arbitrary and capricious action. Id, at —, 
107 S.Ct. at 2535-36. We do not believe that 
Booth is applicable here because the death sen- 
tence imposed by the Florida circuit court was 
based on the recommendation by the jury. As 
indicated, only the judge had access to the PSI 
and the allegedly inflammatory statements. 
The judge adopted the jury's recommendation 
relying solely on the weight of the statutorily 
authorized aggravating circumstances. Accord- 
ingly, we discern no prejudice with respect to 
petitioner's sentencing. : 

  

    

    
   
    

   
   

        

   

    

    

      

   
   

  

  
  

      

   

  

   

   

  

   

   
    
    

   
    

  

    

    
   

    
   
   
   
   
   
   
   
   
    

    
     
    
   
    
    

   

   

        

  

    
       

 



    

  

      

    

1028 

mate-informant had for at least a year been 

paid when he produced information. After 

learning of the informant’s access to Henry 

in the jail, the Federal Bureau of Investiga- 

tion agent told him not to question Henry 

or initiate any conversations with Henry, 

but to be alert to any statements made by 

Henry. The Court implicitly held that the 

inmate-informant’s activities—i.e., deliber- 

ately eliciting statements from Henry— 

were attributable to the government. The 

inmate-informant was more than a mere 

passive listener, and the Court concluded 

that he had “deliberately elicited” the in- 

criminating statements in violation of Mas- 

sich. Although the FBI agent did not in- 

tend for the informant to take affirmative 

steps to secure incriminating information, 

the Court expressly held that the FBI 

agent must have known the likelihood 

thereof, and that this violated the “deliber- 

ately elicit” test. 

When the affirmative actions designed to 

elicit incriminating statements were per- 

formed by another inmate, as in this case 

and in Henry, the agency status of that 

inmate-informant is a necessary prerequi- 

site for a Henry claim. Unless the infor- 

mant’s actions are attributable to the state, 

then there has been no deliberate elicitation 

by the state. There are two prongs of a 

Henry claim, and each must be satisfied 

for a defendant to prevail: (1) the infor- 

mant’s actions must be attributable to the 

state; and (2) the informant must be more 

than just a passive listener—he must “de- 

liberately elicit” the incriminating informa- 

tion from the defendant. Henry, 447 U.S. 

at 269-72, 100 S.Ct. at 2186-88; United 

States v. Taylor, 800 F.2d 1012, 1015 (10th 

Cir.1986); United States v. Geittmann, 

783 F.2d 1419, 1427 (10th Cir.1984). I refer 

to the former as the “agency” prong and 

the latter as the “deliberately elicit” prong. 

The ultimate issue is whether what has 

happened is the functional equivalent of 

interrogation by the government. Unless 

the agency prong is met, the informant’s 

activities are not attributable to the 

government. On the other hand, if the acts 

1. The state trial court denied the relevant mo- 

tion to suppress without opinion. However, 

because the prosecutor's argument to the court 

829 FEDERAL REPORTER, 2d SERIES 

of the informant are attributable to the 

government, then the question becomes 

whether the informant has “deliberately 

elicited” the incriminating statements. 

Addressing first the agency prong, the 

relevant facts disclosed in the record are as 

follows: (1) Theodore Chavers, the fellow 

inmate, made the initial contact with Inves- 

tigator LaTorre by telephone and let La- 

Torre know that he was in a position to get 

information from Lightbourne; (2) LaTorre 

testified that he understood that Chavers’ 

telephone call to him meant that Chavers 

was trying to give him some information 

and that Chavers would later come back to 

him and seek his help talking to the judge 

or getting out of jail; (3) LaTorre told 

Chavers to “keep his ears open” to any- 

thing that Lightbourne might say; 4) 

Chavers met with LaTorre on two occa- 

sions after the initial telephone call, and at 

the first of these meetings asked LaTorre 

about assistance in getting bail, and La- 

Torre told Chavers that he would talk to 

the judge about getting him bail; (5) Chav- 

ers subsequently had a third meeting with 

LaTorre and gave him more information; 

(6) as a result of the information he provid- 

ed, Chavers ultimately received a $200 re- 

ward and an early release from jail; and (7) 

LaTorre had previously received informa- 

tion from Chavers in connection with an- 

other case. 

Because the facts with respect to agency 

as disclosed in the record are at variance 

with some facts apparently found by the 

state courts, it is necessary to consider the 

presumption of correctness to which state 

fact findings are entitled. 28 U.S.C. 

§ 2254(d). The Florida Supreme Court! 

addressed only the agency prong and made 

the following findings: 

In the instant case there is nothing in the 

record establishing that the informant 

Chavers had any prearranged guarantee 

of money in return for information, and 

it appears that the two hundred dollars 

that he did receive from the Marion 

County Sheriff's Department was drawn 

focused on the agency issue, I would assume 

that the state trial court made an implicit find- 

ing that Chavers was not an agent.  



    
   

  

   

    

   

ibutable to the 

festion becomes 
as “deliberately 

statements. 

ency prong, the 
he record are ag 
vers, the fellow 

tact with Inves- 
one and let La- 
a position to get 

rne; (2) LaTorre 
d that Chavers’ 

nt that Chavers 

hme information 

er come back to 

ing to the judge 

3) LaTorre told 
5 open” to any- 

might say; (4) 
e on two occa- 

aone call, and at 

; asked LaTorre 

g bail, and La- 

2 would talk to 

1 bail; (5) Chav- 

*d meeting with 
re information; 
:ation he provid- 
sived a $200 re- 

rom jail; and (7) 
ceived informa- 

ection with an- 

  

   
   

  

   

  

   

    

    

   

   

  

   

     

   
   
   

  

   
   

    

   

      

   

      

    

    

    

‘spect to agency 

are at variance 
y found by the 
" to consider the 

to which state 
d. 28 US.C 
upreme Court! 
rong and made 

s nothing in the 

the informant 

1ged guarantee 
2formation, and 

wndred dollars 

ym the Marion 

ent was drawn 

I would assume 
> an implicit find- 
agent. 

  

   

LIGHTBOURNE v. DUGGER 1029 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

from a general reward fund and not giv- 

en as an inducement to elicit information. 

Without some promise or guarantee of 

compensation, some overt scheme in 

which the state took part, or some other 

evidence of prearrangement aimed at dis- 

covering incriminating information we 

are unwilling to elevate the state’s ac- 

tions in this case to an agency relation- 

ship with the informant Chavers. 

Lightbourne v. State, 438 So.2d 380, 386. 

Summarizing, the Florida Supreme Court 

made three findings. First, that there was 

no prearranged promise of the $200 reward 

or other compensation; second, that there 

was no overt scheme in which the state 

took part; and third, that there was no 

other evidence of prearrangement. All 

three are findings of subsidiary facts to 

which the presumption applies, unless one 

of the exceptions operates. The first find- 

ing—that there was no prearranged prom- 

ise of the $200 reward or other compensa- 

tion—is fully supported in the record. 

There is ample testimony that the $200 

reward was not mentioned until after Chav- 

ers had elicited and provided all of the 

information. Similarly, the second finding 

2. The relevant portions of the question and La- 

Torre's answer are as follows: 
Question: Did Theodore Chavers indicate to 

you why he was calling you, what motivated 

him to call you and supply you with this infor- 

mation? 
Answer: Well, Theodore Chavers, from what I 

understand or understood at that time, would 

call anybody to get out of jail, and I figured that 

he was trying to give me some information; if it 
meant anything, that he was later going to come 

back and say that I should talk to the judge or 

something to get him out of jail. 
Deposition of LaTorre, March 25, 1981, Supple- 
ment to Appendix—Vol. II at 393-94. 

3. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 
486-87, 88 L.Ed.2d 481 (1985), indicates that it 
is not significant that Chavers initially ap- 
proached LaTorre rather than vice versa. 

4. According to undisputed facts in the record, 
this statement was given on Feb. 2, 1981. How- 
ever, the transcript of the statement in the 
record is dated Feb. 3, 1981. For purposes of 
consistency, I will henceforth refer to this state- 
ment as the Feb. 2, 1981 statement. 

5. The relevant questions and LaTorre's answers 
are as follows: 

is supported in the record. However, I am 

persuaded that the third finding is not fair- 

ly supported in the record as a whole. 

Investigator LaTorre testified that he un- 

derstood that Chavers was calling him with 

a view to getting out of jail, and that 

LaTorre figured that Chavers was trying 

to provide information and would be com- 

ing back to seek LaTorre’s assistance in 

talking to the judge to get him out of jail.? 

Also, LaTorre testified that he had three 

contacts with Chavers. The first was on 

Sunday night, February 1, 1981, when 

Chavers initiated a telephone conversation 

in which he told LaTorre that he was in a 

cell with Lightbourne and gave LaTorre 

some preliminary information that Lightb- 

ourne had revealed! The second contact 

was the next day, February 2, 1981.4 La- 

Torre went to the jail, talked with Chavers, 

and took a taped statement from Chavers 

as to what Lightbourne had said. After 

taking the statement at this second contact, 

Chavers asked LaTorre to help get him out 

of jail, and LaTorre said he would talk to 

the judge to see if he could help get bail for 

Chavers.’ The third contact occurred sev- 

eral days later, and Chavers provided addi- 

Question: At the statement where bail was 

discussed, was the matter of bail discussed be- 

fore or after Theodore Chavers had given you a 

statement about the defendant? 

Answer: OK, I'm trying to say that when I 

obtained the first taped statement— 
Question: Which would have been— 

Answer: On February 2. 
Question: When you came back on February 

2? 
Answer: Right. 
Question: All right. 
Answer: Then I would anticipate or believe 

that the discussion was—after the statement was 

taken, he goes into an act, which he uses, you 

know, “you have got to help me out. I have got 

to get out of here”; and I said, “Well, I will talk 

to the judge. I will see what your charges are, 

see if we can get bail”; and then that may have 

been discussed when he came in the third time I 

had contact with him and took the second state- 

ment; we may have talked about it prior to him 

giving the statement or afterwards, but I don't 

really remember. It wasn't discussed within the 

statement. 

LaTorre’s testimony at Suppression Hearing, 

April 9, 1981, Appendix—Vol. I, Tab F at 23-24. 

   

     

      

   

    

   

    
    
   

     
   
   
   

  

   

  

   

    

   
   

   

      

   

      

   

   

  

    

—
_
,
_
-
-
 

   
    
   

  

   

    

            

   
   

  

   

      
     
         

    
   
    
   

    

   

        

        
    

     

     
        
   

     



  

  

    

  

1030 

tional information. They may or may not 

have discussed the bail matter again. A 

taped statement was also taken at this 

third meeting which appears in the record 

as having been taken on February 12, 

1981.8 

Thus, LaTorre’s testimony establishes 

that there was a “prearrangement” with 

Chavers, and the state court’s finding to 

the contrary is not fairly supported by the 

record as a whole. 

Putting aside the foregoing state finding 

which has no support in the record, the 

subsidiary facts relevant to the agency 

prong are clear. LaTorre understood that 

Chavers was providing information with 

the hope or expectation of some considera- 

tion with respect to his own charges. Mid- 

way through his dealings with Chavers, 

6. It is not clear exactly when this second state- 

ment was made. The transcript of the interview 

states that the interview was conducted on Feb- 

ruary 12, 1981. However, testimony at pre-trial 

hearings and at trial established that Chavers 

was released from jail on February 10, 1981 and 

that he gave the second statement while he was 

still in custody. Though the actual date of the 

second statement is therefore unclear, it is clear 

that it occurred at least several days after the 

first taped statement. Further precision is not 

relevant in this case. For purposes of ease of 

reference, I will henceforth call this second in- 

terview the Feb. 12, 1981 statement. 

7. There is no suggestion that LaTorre’s testimo- 

ny was discredited. In fact, LaTorre's testimo- 

ny was the only possible basis for any finding. 

8. The majority notes that LaTorre’s statement to 

Chavers that he would assist him in getting bail 

did not come until after Lightbourne had al- 

ready admitted his involvement to Chavers. Re- 

liance upon this fact overlooks two important 

points. First, LaTorre testified that he under- 

stood from the beginning that Chavers was try- 

ing to provide information in hopes of some 

such assistance. The bail talk at the February 2 

meeting merely made that implicit arrangement 

explicit. Second, very significant information 

was elicited from Lightbourne after the explicit 

arrangement, including all of the details of the 

crime and all of the details of the sexual assault. 

9. This conclusion is also supported by an exami- 

nation of the facts in cases where an agency 

relationship was not found. The facts in Lightb- 

ourne's case are more favorable to the petition- 

er than those in Thomas v. Cox, 708 F.2d 132, 

135 (4th Cir.), cert. denied, 464 U.S. 918, 104 

S.Ct. 284, 78 L.Ed.2d 262 (1983). In Thomas, no 

agency relationship was found where: (1) the 

829 FEDERAL REPORTER, 2d SERIES 

this implicit arrangement became explicit; 

LaTorre represented that he would help 
him get bail® In addition, LaTorre told 
Chavers to “keep his ears open” to any- 

thing Lightbourne might say. LaTorre had 

previously received similar information 
from Chavers. And finally, LaTorre did 

intercede on behalf of Chavers and Chavers 
was in fact released as a result of the 
information he provided. 

I conclude that these facts satisfy the 
agency prong of the Henry claim, such 
that the actions of Chavers are attributable 
to the state? Chavers was operating pur- 
suant to instructions from the state to lis- 

ten to Lightbourne. LaTorre understood 
Chavers’ expectation of benefit, and that 
understanding later became explicit when 
LaTorre said he would talk to the judge in 
an effort to get Chavers released on bail.!? 

informant was “motivated by conscience” in ini- 
tiating contact with the defendant and in offer- 
ing assistance to the government; (2) the infor- 
mant had made no prior arrangement with the 

government to procure information; and (3) the 

informant had “nothing to gain” from his ac- 
tions since he had been promised no reward, 

had no reason to expect any, and had already 
been released from prison. Obviously, Chavers’ 

relationship with the government differed sig- 

nificantly in each of these respects. See also 

United States v. Hicks, 798 F.2d 446, 448-49 

(11th Cir.1986) (finding no agency where cell- 

mate fortuitously reported defendant's incrimi- 

nating statement to the government, and where 

there had been no government creation or ex- 

ploitation of an opportunity to get information 

from the defendant), cert. denied, — U.S. —, 

107 S.Ct. 886, 93 L.Ed.2d 839 (1987); United 

States v. Metcalfe, 698 F.2d 877, 882-83 (7th 

Cir.) (finding no agency where no contact be- 

tween FBI and informant existed prior to infor- 

mant’s relating of incriminating statements and 

where there was no reward or expectation of a 

reward), cert. denied, 461 U.S. 910, 103 S.Ct. 

1886, 76 L.Ed.2d 814 (1983); United States v. 

Taylor, 800 F.2d 1012, 1015 (10th Cir.1986) 

(finding no agency where informant had only 

expectations of a reward and received none, and 

where informant received no instructions or 

directions by the government, despite fact that 

FBI placed informant in defendant's cell). See 

also United States v. Surridge, 687 F.2d 250 (8th 

Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 465, 

74 L.Ed.2d 614 (1982); United States v. Malik, 

680 F.2d 1162 (7th Cir.1982). 

10. Because the contrary finding would not have 

fair support in the record as a whole, I need not 

decide whether the ultimate agency issue, i.e., 

whether Chavers’ actions are attributable to the  



      

  

       
      

  

    

     

  

nt became explicit; 
at he would help 

ition, LaTorre told 
pars open” to any. 
t say. LaTorre had 
imilar information 
nally, LaTorre did 
havers and Chavers 
i a result of the 

e facts satisfy the 
Henry claim, such 
‘ers are attributable 
was operating pur- 
om the state to lis- 

Torre understood 

f benefit, and that 
came -explicit when 
talk to the judge in 
5 released on bail. 1? 

     

   
    

  

   

   
   

    

   

  

   
   

    

   
   

    

  

          

LIGHTBOURNE v. DUGGER 1031 

Cite as 829 F.2d 1012 (11th Cir. 1987) : 

Having concluded that Chavers’ actions 

are attributable to the state, I must next 

address whether his actions satisfy the “de- 

liberately elicit” prong of the Henry claim. 

The district court purported to defer to a 

presumption in favor of “the Florida Su- 

preme Court's factual finding that the 

state and Chavers did not stimulate conver- 

sation with Petitioner or otherwise attempt 

to deliberately elicit incriminating state- 

ments from him....” Lightbourne v. 

Wainwright, No. 85-136-Civ-0C-16, slip 

op. at 9 (M.D.Fla. Aug. 20, 1986). This was 

accepted by the majority. I respectfully 

disagree on three grounds. 

First, my reading of the Florida Supreme 

Court opinion persuades me that that court 

made no such finding. The language 

which the district court considered to be a 

fact finding was actually merely languag 

describing the Supreme Court decision in 

United States v. Henry." Also, the focus 

of the opinion of the Supreme Court of 

Florida was on the agency prong, and not 

on the “deliberately elicit” prong. The is- 

sue was stated: “The threshold inquiry 

here is whether or not Theodore Chavers 

was acting as an agent of the state.” 

Lightbourne v. State, 438 So.2d at 386. 

After describing the Massiah case and the 

Henry case, the Florida Supreme Court 

turned its analysis to the instant case with 

the language which I have quoted above at 

1028. That language focuses on the ab- 

sence of a prearranged guarantee of the 

$200 reward or other compensation, the 

absence of an overt scheme, and the ab- 

sence of other evidence of prearrangement. 

11. In context, the language which was taken to 

| by conscience” in ini- 
lefendant and in offer- 
rnment; (2) the infor. 
arrangement with the 
formation; and (3) the 
to gain” from his ac- 
promised no reward, 

any, and had already 
1. Obviously, Chavers’ 
vernment differed sig- 
:se respects. See also 
798 F.2d 446, 448-49 

no agency where cell- 
-d defendant's incrimi- 
svernment, and where 
nment creation or ex- 

ity to get information 
denied, — U.S. —, 

d 839 (1987); United 
=.2d 877, 882-83 (7th 

where no contact be- 
existed prior to infor- 
nating statements and 
rd or expectation of a 
1 U.S. 910, 103 S.Ct. 
383); United States v. 
1015 (10th Cir.1986) 

= informant had only 
nd received none, and 
d no instructions or 
aent, despite fact that 

iefendant’s cell). See 

dge, 687 F.2d 250 (8th 

S. 1044, 103 S.Ct. 465, 
Inited States v. Malik, 

382). es 

inding would not have 

as a whole, I need not 

ate agency issue, Le. 

are attributable to the     
  

  

  

                    

  

state, is a question of pure fact or a mixed 

question of fact and law to which the § 2254(d) 

presumption does not apply. The Eighth Cir- 

cuit has held that this ultimate issue is a legal 

question. United States v. Surridge, 687 F.2d 

250, 252 (8th Cir.), cert. denied, 459 U.S. 1044, 

103 S.Ct. 465, 74 L.Ed.2d 614 (1982). (“We 

agree that the determination as to the relation- 

ship or understanding between the police and 

the informant is a faciual determination. How- 

ever, beyond this factual determination there is 

a legal question: whether the relationship or 

understanding as found by the district court is 

such that the informant’s questioning has to be 

considered government interrogation for consti- 

tutional examination.”) The Eighth Circuit's 

conclusion finds some support in DeAngelo v. 

Wainwright, 781 F.2d 1516 (11th Cir.), cert. de- 

nied, — U.S. ——, 107 S.Ct. 444, 93 L.Ed.2d 392 

(1986). Similarly, in Thomas v. Cox, 708 F.2d 

132 (4th Cir.1983), the Fourth Circuit applied 

the presumption of correctness to subsidiary 

facts, id. at 135, but seemed to make an inde- 

pendent determination on the ultimate agency 

issue, recognizing that it was not subject to any 

bright line test, and that the degree of prear- 

rangement would determine the issue, id. at 

136-37. The Eighth Circuit's conclusion is also 

supported by analogy from Supreme Court 

precedent, discussed in text below, which sug- 

gests that the ultimate determination on the 

“deliberately elicit” prong is a mixed question of 

fact and law. 

Although the Third Circuit in United States v. 

Van Scoy, 654 F.2d 257, 260-61 (3d Cir.), cert. 

denied, 454 U.S. 1126, 102 S.Ct. 977, 71 L.Ed.2d 

114 (1981), labeled the agency issue a question 

of fact and applied the clearly erroneous stan- 

dard, the subsidiary facts there mandated that 

conclusion. To the same effect, see United 
States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 

1982). 
829 F.2d—24 

be a finding reads as follows: 

In United States v. Henry, 447 U.S. 264, 100 

S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Su- 

preme Court applied Massiah in the context of 

using informant information and apparently 

recognized an active/passive dichotomy in de- 

termining whether or not an informant is to 

be deemed acting as an agent of the state in 

any particular case. The key to the Henry 

decision lies in the requirement that in order 

for an informant to be acting as a state agent 

he must, acting in concert with the state, 

actively stimulate or instigate conversation 

specifically designed to elicit incriminating 

information. If no active role is taken by the 

informant, but rather he merely remains pas- 

sive and keeps his ears open for anything the 

defendant might wish to volunteer, then un- 

der the Henry analysis there is no agency 

relationship which would trigger the fifth and 

sixth amendment protections. 

In Henry, the Court found that the infor- 

mant, Nichols, was acting under instructions 

as a paid informant for the government. In 

return for information he was given money 

and this arrangement was mutually under- 

stood. In the instant case there is nothing in 

the record establishing that the informant 

Chavers had any prearranged guarantee of 

money in return for information, and it ap- 

pears that the two hundred dollars that he did 

receive from the Marion County Sheriff's De- 

partment was drawn from a general reward 

fund and not given as an inducement to elicit 

information. 

Lightbourne v. State, 438 So.2d 380, 386 (Fla. 

1983). Nowhere does the court hold that in this 

case the informant played a passive role. Thus, 

I can only conclude that the district court erro- 

neously gave deference to what it mistook to be 

a factual finding.



  
  

  
  

  

1032 

All of those findings related to the agency 

prong, and are discussed above. The only 

reference to the facts of this case in the 

context of the “deliberately elicit” prong 

was: “Similarly, Investigator LaTorre’s ad- 

vice to the informant Chavers to keep his 

ears open does not constitute an attempt by 

the state to deliberately elicit incriminating 

statements.” Id. at 386. That sentence 

focuses on what LaTorre was attempting 

to do. Contrary to the district court’s sug- 

gestion, the Florida Supreme Court made 

no reference to whether Chavers himself 

stimulated conversation, and certainly 

made no fact finding in that regard.!? 

Second, even if the state court had made 

such a fact finding, such a finding would 

not have been fairly supported in the 

record as a whole. The record reveals 

overwhelming evidence that Chavers did 

“take affirmative steps to secure incrimina- 

ting information. ...” Henry, 447 US. at 

271, 100 S.Ct. at 2187. Chavers questioned 

Lightbourne repeatedly with the express 

purpose of eliciting information about the 

crime and his participation in it. On one 

occasion, Chavers described Lis activities as 

similar to a lawyer cross-examining Lightb- 

ourne.® On another occasion, Chavers de- 

scribed himself and another inmate as act 

ing like a detective, coming up with clues. 

The following examples should suffice to 

demonstrate the strength of the evidence 

12. This reading of the Florida Supreme Court 

opinion is not only clear from the text of the 

opinion itself, but it is also consistent with the 

fact that the prosecutor in the trial court also 

focused on the agency prong, rather than the 

“deliberately elicit” prong. Of course, this ap- 

proach by the prosecutor, and by the Florida 

Supreme Court, is entirely appropriate. If 

Chavers were not an agent of the state, then his 

actions would not be attributable to the state, 

and his actions therefore would be irrelevant. 

13. In the first taped statement given to Investi- 

gator LaTorre, dated February 3, 1981, Chavers 

said: 

He said that ah, he was telling me about, to 

check this out man, he said, “These fuckin 

cops don’t have nothing, man.” I say, “Well, 

they don't.” He say, “No.” He say like, “They 

went in the house, they didn’t get no finger- 

prints, they didn’t get no nothin.” So we went 

on you, you know, in other words I just 

829 FEDERAL REPORTER, 2d SERIES 

that Chavers did deliberately elicit incrimj. 
nating information from Lightbourne, * 
—During Chavers’ descriptions of the 
conversations at trial, Chavers stated 

that Lightbourne was acting like he wag 
worried about something and Chavers 
said: “[S]o I said well, man, somethi 
wrong, man. You know, you can talk | 
me about it. I said, you must—you must “ 
be did do what they say you done, I say, 
because you seem like you worried about 
it.” Appendix—Volume III at 1110, 
—Describing the same encounter in his 

second taped statement to LaTorre, dat. 
ed Feb. 12, 1981, Chavers said: “I said, 

‘Man, you got somethin on your con 
science, something botherin you, man’, | 
said, ‘You done something wrong, man 
that is botherin you now?’ He say, ‘No, 
I’m scared to talk’. 1 say, ‘Whatcha 
mean ..” Supplement to Appendix— 
Volume II at 348. oo 

—During his first statement to Investi- 
gator LaTorre, dated Feb. 2, 1981, Chay- 
ers described his conversations with 
Lightbourne: “[H]e went to tell me 

about the security guard be there. So, 1 
said, ‘Well, there’s a security guard,’ and 
he said, ‘Yeh. And I say, ‘Man, you 

mean to tell me the security guard ain't; 

if this lady was to the house, he didn’t 

miss her, man, from not seeing her, 

knowing that she wasn’t in Miami or 

nothin like that’. He say, ‘I don’t know, 

played, you know, like I was a lawyer or 

something. I say, “Where was the lady at?” 

He say, “It was in the bed.” 

Supplement to Appendix—Vol. II at 343. 

14. In the second taped statement given to Inves- 

tigator LaTorre, dated February 12, 1981, Chav- 

ers said: . 

Yeh. I told him he was sick, man. He told 

more than me, he told Richard Carnegie and 

he told Larry Emmanuel, the guys I told you 

to talk to. Larry was the first one when I got 

in there, he told me and Larry. Larry was the 

first one, cause I told Larry; I say, “Larry”, 

“Try to help me put this thing together?” 

“You think this dude here raped that lady 

man?” You know me and him went on and 

me and him started coming up with clues, 

about the bullet that shot the lady, you could 

tell where the bullet was fired out of the gun 

and “everything, see, the gun that he got 

caught with. 

Supplement to Appendix—Vol. II at 351. 
SEF 

5%  



     
     
   

    
   

   
    
    

     

  

   

  

   
   

  

    

   
   

  

   

   

    

   

  

   

        

   

erately elicit in ] 
bm Lightbourng, gi? 
descriptions of “the 

al, Chavers gtataq 
hs acting like he was 
pthing and Chayers 

Fell, man, somethine 

OW, you can talk to 
you must—you mygt 
say you done, I say, 
€ you worried abot 
me IIT at 1110, 
ne encounter in hig 

*nt to LaTorre, dat. 
avers said: “I gaiq 
:thin on your con. : 

otherin you, man’, J 
ething wrong, man 

ow?” He say, ‘No, 
I say, ‘Whatcha 

nt to Appendix— 

   

      

   
   

          

   

  

   

   

  

   

        

    

    

iement to Investj- 
Feb. 2, 1981, Chay- 
onversations with 
went to tell me 

rd be there. So, I 

ecurity guard,” and 
I say, ‘Man, you 
curity guard ain't; 
2 house, he didn't 

not seeing’ her, 
sn’t in Miami or 

ay, ‘I don’t know, 

I was a lawyer or 
» was the lady at?” 

Vol. II at 343, . 

  

ment given to Inves- 

ary 12, 1981, Chav- 

sick, man. He told 
chard Carnegie and 
the guys I told you 
irst one when I got 
rry. Larry was the 

ry; I say, “Larry”, 
s thing together?” 
‘e raped that lady 
him went on and 
ng up with clues, 
he lady, you could 
red out of the gun 
gun that he got 

   

    

LIGHTBOURNE v. DUGGER 1033 
Cite as 829 F.2d 1012 (11th Cir. 1987) 

man’. I say, ‘This sure funny, man, look 

like he would heard or somethin’.” Sup- 

plement to Appendix—Volume II at 344. 

_During his second statement to Inves- 
tigator LaTorre dated February 12, 1981, 

Chavers further described his conversa- 

tions with Lightbourne: “I asked him, I 

say, ‘Man, what you think, them people 

onna run an autopsy and find out every- 
thing that happened?’ I say, ‘You think 
they gonna have a bullet test on that gun 

and find out that’s the gun that shot the 

lady?’ I say, ‘If so, man, you should try 

to say something?’ ‘If that’s not the gun 

that killed the lady, you should tell em 

who you got it from. I said, ‘Or you'll be 

in a world of trouble, man, ‘I'm serious, 

man.’ And, I tried to really reason. I 

tried to have him state it for when you 

came down here that he would be willing 
to talk to you about it, but you know just 
not every day somebody would step up 
and say that they murdered somebody.” 
Supplement to Appendix—Volume II at 

349. 
—After Chavers had reported to La- 
Torre, and LaTorre had interviewed 

Lightbourne, Chavers described Lightb- 
ourne coming back to the cell after his 

interview with LaTorre: “And so when 
he came back in the cell, he told me, say 

that they think he the one killed the lady 
and they was going to charge him with 
the charge because they said the bullet 
came out of the same gun that he had, 
and I said, well, if the bullet didn’t come 

out there, you don’t have nothing to wor- 
ry about. I say, if that ain’t the gun that 
killed her, you don’t have nothing to wor- 
ry about, and he started acting real nerv- 
ous and everything. He said, well, I 
don’t know, man, you know. He said, it 

15. Since the record amply demonstrates that 
Chavers took a very active role in eliciting infor- 
mation from the defendant, the Kuhlmann v. 
Wilson example of a “listening post” informant 
is inapposite to this case. Kuhlmann posed a 
situation where there were no conversations: 
the court found that the informant “at no time 
asked any questions” of the defendant, and that 
he “only listened” to the defendant's “spontane- 
ous” and “unsolicited” statements. Kuhlmann, 
477 US. at —, 106 S.Ct. at 2630. Upon those 
facts, which were presumed to be correct since 
they were subsidiary factual findings, the only 

might be the gun. I said, well, if it's the 
gun, Lightbourne, you should tell the 
people what you know about it to clear 

yourself out of it. I say, as far as it 
stand right now, you killed her, man.” 
Appendix—Volume III at 1110. 
—Recalling at trial what Lightbourne 

told him about the crime itself, Chavers 

said: “He told me about—he told her 
that he wasn’t going to hurt her, and he 

performed sex acts with her, and he also 
told me about—you know, well, after Mr. 

LaTorre done formally charged him that 
afternoon and took his picture and fin- 
gerprinted him, he came back in the cell 
and made a statement as Ms. O'Farrell 
having big vagina. So I asked him how 

would you know that Ms. O’Farrell had a 

big vagina, not unlessen you had inter- 

course with her.” Id. at 1115. 

After a careful review of the record, it is 

abundantly clear that Chavers repeatedly 
questioned Lightbourne for the express 
purpose of eliciting from him the details of 
the crime and his participation in it.’® Any 
finding to the contrary would not be fairly 
supported in the record as a whole. 

Finally, I disagree with the district 
court’s holding that the ultimate determina- 
tion of “deliberate elicitation” is a pure 
question of fact entitled to the § 2254(d) 

presumption.!® Kuhlmann v. Wilson, 417 
U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 
(1986), makes it clear that the issue of 

whether the informant asked any questions 
is a subsidiary issue of fact to which feder- 
al courts owe deference. The Supreme 
Court held that the court of appeals erred 
in giving a “description of Lee's [the infor- 
mant’s] interaction with respondent that is 
completely at odds with the facts found by 
the trial court. In the Court of Appeals’ 

possible legal conclusion was that there was no 
deliberate elicitation. By contrast, the facts of 
the instant case are very different. 

16. In light of my conclusion that this record 
cannot support any finding other than that 
Chavers deliberately elicited incriminating in- 
formation from Lightbourne, my conclusion 
that the ultimate determination on “deliberate 
elicitation” is a mixed question of fact and law 
is technically unnecessary to my resolution of 
this case. 

  

  

    

i
 

p
o
 

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A
E
 
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FE 
os
 

ad
 
0
 

   

          

  

   

      

    
   

  

   

  

   

  

   

     

    

    

  

   

    

    
   
   

    
    
    

    

   
   

      
      

        
    
      
    

     

  

        

    
     
     

    
        

      
    

      
      
    
    

          

        

      

      
    
    
    
    
    
      
      

        

      
        
      
      

      
      

               
    
    
    

     

  

 



    

        

    

  

1034 

view, ‘Subtly and slowly, but surely, Lee’s 

ongoing verbal intercourse with [respon- 

dent] served to exacerbate [respondent's] 

already troubled state of mind.” 106 
S.Ct. at 2630-31 (citation omitted). How- 

ever, after faulting the court of appeals for 

revising some of the state court’s findings 

and ignoring others, the Supreme Court 

rejected the court of appeals’ conclusion 

that the police deliberately elicited the in- 
criminating evidence. It is not absolutely 

clear from the language of Kuhlmann it- 

self whether the Supreme Court meant that 
the ultimate conclusion—i.e., deliberate 

elicitation—was also a pure fact, or wheth- 

er the ultimate conclusion, though a mixed 

question of fact and law, was rejected be- 

cause of the court of appeals’ disregard of 
the underlying subsidiary facts. I conclude 

that the Supreme Court must have meant 

the latter, because only the latter is con- 

sistent with the Supreme Court’s treatment 

of the issue in Henry. In Henry, the dis- 
trict court addressed the issue as the initial 

fact finder and concluded that there had 
been no violation of Henry’s Sixth Amend- 
ment right to counsel. The court of ap- 

peals for the Fourth Circuit reversed, con- 
cluding that there was sufficient “interro- 

gation” by the informant. Henry v. Unit- 

ed States, 590 F.2d 544, 547 (4th Cir.1978). 
The Supreme Court affirmed, holding that 
the informant “deliberately elicited” the in- 

criminating evidence. Had the conclusion 

been a question of pure fact, the court of 
appeals and the Supreme Court would have 

remanded the case to the district court as 
fact finder.) 

My conclusion that the ultimate determi- 
nation of “deliberate elicitation” is a mixed 
question of fact and law also finds support 
in Miller v. Fenton, 474 U.S. 104, 115-17, 

106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985). 
There the Supreme Court held that the 
“yoluntariness” of a confession is a ques- 

tion of law subject to plenary review in 
federal habeas corpus proceedings. The 
ultimate issue of whether the circumstanc- 

es of a Henry claim rise to the level of the 
functional equivalent of interrogation by 

17. This is especially true since Henry was a 
close case. Henry, 447 U.S. at 277, 100 S.Ct. at 

829 FEDERAL REPORTER, 2d SERIES 

the government, like the issue in Mi, 
Fenton, turns on “whether the techn 
for extracting the statements” are aq 
ible with the Constitution. 474 yg 

116, 106 S.Ct. at 453. Also as in Mj 
Fenton, the ultimate issue here does 
turn on assessments of credibility an 4 
meanor; the critical events occur in g 
and there is the same understandable 

tance to exclude otherwise reliable ey 
dence. 474 US. at 117-18, 106 S.Ct. 
453-54. See also DeAngelo v.  W, ne 
wright, 781 F.2d 1516 (11th Cir.), cert, 

nied, — US. —, 107 S.Ct. 444, 
L.Ed.2d 392 (1986). 

The conclusion that Chavers “deliber 

ly elicited” the incriminatory statem 

evidence in this case is far Fone 

that which formed the basis of the Su- 
preme Court’s decision in Henry. There, 
the Supreme Court concluded on far. 

engaged in affirmative conversation wi hick 
¥ 

resulted in fort 5 incriminating sf 

pressly instructed the informant, Ni 
not to Jeon Henry or initiate conve L: 

ers against questioning or 

tiating conversations with him. : 

more, it is obvious from the first te 
statement which LaTorre took from ( 

from Lightbourne. 

For the foregoing reasons, I conclude 

that Lightbourne has satisfied both the 
agency prong and the “deliberately elic 

prong of the Henry claim. In my Jud, 
& 

2190 (Powell, J., concurring).  



¥ PUBLISH 
IN THE UNITED STATES COURT OF APPEALS 

  

FOR THE ELEVENTH CIRCUIT 

  

No. 87-3588 

  

GERALD EUGENE STANO, 

Petitioner-Appellant, 

versus 

RICHARD L. DUGGER, 

ROBERT A. BUTTERWORTH, 

Respondents~Appellees. 

  

Appeal from the United States District Court 
for the Middle District of Florida 

  

(August 22, 1989) 

Before FAY, ANDERSON and EDMONDSON, Circuit Judges. 

FAY, Circuit Judge. 

Gerald Eugene Stano appeals the district court's denial 

of his petition for writ of habeas corpus brought pursuant to 

28 U.8.C.v-'§..2254 (1982). Stano asserts fourteen errors 

claiming violations of his rights under the fifth, sixth, 

eighth and fourteenth amendments to the United States 

Constitution. Among the violations, Stano claims a denial of 

his right to state-held exculpatory evidence concerning both 

 



  

: the guilt/innocence and sentencing phases of his trial, to 

present fully evidence necessary for his defense, to a 

reliable and unbiased jury recommendation regarding the death 

sentence, to effective assistance of counsel, to confront the 

witnesses against him, and to a fair and impartial trial. We 

find no violation of Stano's constitutional rights as 

asserted in these claims and therefore affirm the district 

court's order denying habeas relief. 

I. BACKGROUND 
  

In 1981 Gerald Stano confessed to killing a young woman 

in 1974, and a grand jury indicted him for first-degree 

murder. Stano was twice tried for the murder of Cathy Scharf 

in Brevard County Circuit Court. The first ‘trial in 

September, 1983 ended in a mistrial after the jury failed to 

reach a unanimous verdict: The jury in the second trial 

returned a guilty verdict on December 2, 1983 and 

recommended the death Sentence! Stano appealed the 

conviction and sentence to the Florida Supreme Court, which 

affirmed.l stano v. state, 473 So.2d 1282 (Fla. 1985). The   

  

lon appeal to the Florida Supreme Court, Stano alleged 
numerous errors in the state court trial proceedings. Among 
them, Stano claimed that the trial court improperly: 1) 
limited the scope of his voir dire; 2) restricted his 
presentation of evidence at both the guilt/innocence and 
penalty phases of the trial; 3) declared the victim's 
parents unavailable to testify and allowed their former 
testimony into evidence; 4) permitted the court deputy clerk 
to testify which violated the court's appearance of 
impartiality; 5) allowed the state's expert to testify to an 
ultimate fact beyond his expertise which denied Stano a fair 
trial; 6) denied Stano's motion for judgment of acquittal 
for the state's failure to establish the corpus delicti; 7) 
conducted portions of Stano's trial outside his presence; 8) 
permitted the state's cross-examination and argument 
regarding Stano's’ decision: to appeal his previous 

 



  

"United States Supreme Court denied certiorari on January 21, 

1986. Stano v. Florida, 474 U.S. 1093, 108 5.Ct. 869, 88 
  

L.Ed.2d 907 (1986). 

Stano's application for executive clemency was denied on 

May 22, 1986. His execution was scheduled for July 2, 1986 

at 7:00 a.m. Stano then filed a postconviction relief motion 

on July 1, 1986, pursuant to Rule 3.850 of the Florida Rules 

of Criminal Procedure, which the state circuit court denied. ? 

The Florida Supreme Court granted an initial stay of 

execution pending review of the state circuit court's order, 

but ultimately affirmed the denial of relief on October 16, 

1986 finding no error in the trial court's determination that 

an evidentiary hearing was not required. Stano Vv. Florida, 
  

497 So.2d 1185 (Fla. 1986). The United States Supreme Court 

refused certiorari on May 18, 1987. Stano v. Florida, 107 
  

S.Ct, 2203. (1987). On June 4, 1987, the Governor signed 

Stano's second death warrant for the murder of Cathy Scharf. 

Stano was then rescheduled for execution. On July 6, 1987, 

  

convictions; 9) allowed specific evidence about Stano's prior 
murder convictions as aggravating factors in sentencing; and 
10) failed to find numerous statutory and nonstatutory 
mitigating circumstances. The Florida Supreme Court denied 
relief on all grounds. Stano v. State, 473 So.2d at 1289. 

  

2In his Rule 3.850 motion, Stano raised the following 
six points: 1) The confessions which led to ‘the prior 
guilty pleas, introduced as aggravating evidence at the trial 
which ultimately resulted in Stano's death sentence, were 
coerced; 2) The state improperly withheld exculpatory 
evidence from Stano's trial counsel; 3) Trial counsel was 
ineffective for failing to adequately cross-examine a state 
witness; 4) Trial counsel was ineffective for failing to 
object to the state's cross-examination of Stano in the 
sentencing proceeding; 5) The testimony of two psychiatrists 
for the state at sentencing regarding the statutory 
mitigating circumstances was improper; and 6) The defense's 
expert, who made a psychological study of Stano, was 
incompetent. 

 



»the Florida Supreme Court denied Stano's motion for a five 

  

day extension of time to file a petition for writ of habeas 

corpus. Stano filed no further collateral motions for relief 

in the state courts. 

On August 22, 1987, Stano filed a petition for writ of 

habeas corpus with the United States District Court for the 

Middle District of Florida. Of the numerous grounds claimed 

in the petition, the district court concluded that only the 

ineffective assistance of counsel claim merited evidentiary 

development. After a limited evidentiary hearing, the 

district court denied habeas relief. Stano appealed the 

district court's ruling to this court alleging multiple 

violations of his constitutional rights. We now review each 

of these claims in turn. 

ITI. ANALYSIS 
  

A. BRADY CLAIM 

Stano argues that the district court erred in refusing to 

hold an evidentiary hearing on his claim that the 

prosecution suppressed material exculpatory evidence in 

violation of Brady v. Marviand, 373 U.S. 83, 83 8.ct. 1194"   

10 L.Ed.2d 215 (1963). Stano asserts that the state violated 

his constitutional right to due process by suppressing 

evidence showing that: 1) A police detective, J. W. Gadberry, 

believed that Stano had falsely confessed to and was not 

responsible for a prior murder for which Stano had been 

 



+ '‘convicted3; 2) The state colluded with defense counsel in 

  

obtaining confessions from Stano; 3) A defense counsel 

psychologist instructed the detectives on psychological 

methods of extracting confessions from Stano; 4) The 

detectives coerced Stano into confessing by promising him 

escape from the electric chair, life A Ti and 

hospitalization; and 5) Other courts had rejected Stano's 

various prior confessions as unreliable. The district court, 

agreeing with the Florida Supreme Court, found that the 

petitioner's allegations were of nothing more than unfounded 

improprieties and, at most, inadmissible evidence. See 

Stano, 497 So.2d at 1186-87. The court held that no credible 

or reliable record evidence supported the allegations. 

Additionally, the court stated that the allegations did not 

constitute evidence so favorable to the defense that its 

suppression deprived the petitioner of a fair trial. We 

agree. 

In certain circumstances, the district court is mandated 

to conduct an evidentiary hearing in a habeas proceeding. 

Where the facts are in dispute, a federal habeas court must 

grant an evidentiary hearing "if the habeas applicant did not 

receive a full and fair evidentiary hearing in a state court, 

gither at the time of ‘the trial or “in a collateral 

proceeding." . Townsend v. Sain, 372.U.5. 293, 312, 83.5.Ct. 
  

  745, 756, 9 1..EQ.24 770 (1963); Agan v.. Dugger, 835 F.2d 

  

3The prior murder occurred in February, 1980. Stano 
confessed to the homicide in April of that year. He later 
pled guilty and was convicted of first degree murder for the 
offense. Detective Gadberry disagreed with several of his 
peers regarding Stano's involvement in the murder. 

5 

 



  

108 —   

*1337,:.1338 (11th Cir. 1987), cert. denied, Ug. Ss. 

S.Ct. 2846, 101 L.Ed. 2d 884 (1988). However, an evidentiary 

hearing is not required unless the petitioner alleges facts 

which, if proved, would entitle him to federal habeas relief. 

Townsend, 372 U.S. at 313; Porter v. Wainwright, 805 F.2d 
  

  

930, 933 (11th. Cir. 1986), cert. denied, U.S. / X07 
  

S.Ct. 3195, 96. L.Fd.2d 682 (1987). Thus, assuming Stano's 

allegations to be true, he must state a valid claim for 

relief under Brady. 

Brady holds "that the suppression by the prosecution of 

evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of 

the prosecution." 373 U.S. at 87, 83 '85.Ct. at 1196-97. To 

establish a due process violation under Brady, the petitioner 

must show that: 1) The prosecution suppressed evidence; 2) 

The evidence suppressed was favorable to the defendant or 

exculpatory; and 3) The evidence suppressed was material to 

the issues at trial. United States v. Burroughs, 830 F.2d 
  

1574, 1577-78+(11th Cir. 1987), cert. denied, .. U.S. 108 —   

5.Ct. 1243, 99 L.Ed.2d 442 (1988); United States v. Stewart, 
  

820 "F.2d 370,374. (11th Cir. 1987). The Supreme Court in 

United States v. Badgley, 473 U.S. 667, 105 's.cCt. 3375,.87   

L.Ed.2d 481 (1985), defined the standard of materiality 

required to show a Brady violation. "The evidence is 

material only if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of the 

proceeding would have been different. A 'reasonable 

probability' is a probability sufficient to undermine 

6 

 



  

‘confidence in the outcome." 1d. at 682, 105 S.Ct. at 3384: 

Burroughs, 830 F.2d at 1578. 
  

1. Alleged Governmental Suppression of Evidence 

Stano alleges that the state improperly withheld 

evidence that a police detective believed Stano falsely 

confessed to a prior murder for which he was convicted; that 

a conspiracy existed to obtain Stano's confessions; that 

Stano was a pathological liar; and that Stano's prior 

confessions were coerced. To analyze whether the 

prosecution improperly suppressed evidence, factors such as 

the prosecutor's duty to search out and disclose certain 

evidence, as well as the availability of the evidence to the 

defense, must be considered. "A prosecutor is not 

constitutionally obligates to obtain information dehors his 

files for the purpose of discovering information which 

defense counsel can use . . . ." Morgan v. Salamack, 735 
  

P.2d 354, .3858:(2d Cir.;. 1984). Moreover, relief 1s not 

warranted whenever a combing of the prosecutor's files after 

trial reveals evidence possibly useful to the defense but 

unlikely to have changed the verdict. Giglio v. United 
  

States, 405 U.S. 150, 154 (1972). The Supreme Court has held 

that the prosecution is not constitutionally required to 

"make a complete and detailed accounting to the defense of 

  

all police investigatory work on a case." United States v. 

Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed4.2d4 342 (1976) 

(quoting Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 
  

33 L.Ed.2d. 706..(1972)). In addition, the state has no 

obligation "to communicate preliminary, challenged, or 

speculative information." Agurs, “427 U.S. at - 109 n. 16 

7 

 



  

{quoting Gilles v. Marvland, 386 U.S. 66, 98, 87. S.Ct. 793, 17 
  

L.BEd.2d.737 (1967) (Fortas, J. concurringl)). 

Detective Gadberry's difference of opinion with other 

detectives, his superiors, and the state attorney regarding 

Stano's responsibility for a prior murder, is not the type of 

evidence that a prosecuting attorney is constitutionally 

required to communicate to the defense. Such preliminary 

police investigatory work, which stands challenged by other 

members of the department and which is speculative at best, 

need not be revealed. This evidence was equally available to 

the defense, as well as to the prosecution, since Detective 

Gadberry made no secret of his opinion among his peers. See 

Appendix 16, p. 6. Thus, the prosection did not suppress 

this evidence. 

Stano's other allegations of suppression fail to satisfy 

this prong of Brady for the same reason. Allegations of a 

conspiracy to obtain confessions and of coercion in other 

cases do not constitute the type of evidence the state must 

investigate and disclose, particularly where the prior 

confessions and pleas resulted in valid, final convictions. 

The state owes no duty to the defense to explore and 

undermine the validity of prior final convictions. The 

prosecutor may rely on the petitioner's guilty pleas in other 

cases, which result in convictions subject to independent 

appellate review, as waiving most non-jurisdictional 

  

challenges to the convictions' constitutionality. See McCoy 

V.g -Walnwrioht, 804  P.24 1196, 1198 (11th Cir. '1988). 
  

Although a challenge to the voluntary and knowing nature of a 

guilty plea may be raised on direct appeal or collateral 

8 

 



  

“attack of that conviction id., the validity of a guilty plea 

in one case may rarely be challenged in the collateral attack 

of another. Regarding the remaining allegations, the record 

reflects that the defense was in possession of evidence prior 

to trial that other jurisdictions considered Stano's 

confessions unreliable and declined to prosecute based on 

them, and that Stano was a pathological liar.4 consequently, 

since the defense was either not constitutionally entitled to 

the evidence or it had equal access to the material, Stano's 

allegations fail to establish a Brady violation under the 

first step of inquiry; that the state suppressed evidence. 

2. Evidence Favorable to the Petitioner 

Assuming however, that the state did indeed suppress 

some evidence, the second prong of the Brady analysis 

requires that the evidence be favorable to the petitioner. 

From our consideration of the record, we agree with the 

district court that the alleged exculpatory evidence is not 

evidence favorable to the accused. To be favorable here, the 

evidence first must be admissible and subject to 

consideration by the trier of fact. In this case, Detective 

  

4The defense sought to admit evidence on the issue of 
Stano's false confessions through the testimony of Detective 
James S. Kappel from the St. Petersburg Police Department. 
Detective Kappel's proffered testimony, which the trial court 
found inadmissible as irrelevant and nonprobative, dealt with 
various .cases in which Stano had confessed to murders which 
the jurisdiction declined to prosecute. See Advanced 
Appendix Vol. 13, O, p. 1796-1818. Additionally, the defense 
possessed the report of a psychologist, Dr. Ann McMillan, in 
which she concluded that Stano exhibited serious pathological 
behavior, including lying. See Advanced Appendix Vol. 7, G, 
DP. =92, Two psychiatrists corroborated this conclusion at 
Stano's sentencing hearing. See Advanced Appendix Vol. 4, B, 
pP- 1216, "247, 1249. 

 



  

+ Gadberry allegedly would have testified regarding his 

reservations about Stano's guilt in another case. Detective 

Gadberry's proposed statement regarding a wholly separate 

murder for which Stano has been convicted, like Detective 

Kappel's proffered testimony concerning other cases, would 

not be admissible at any stage of this homicide proceeding. 

See Argument B, infra. The detective's differing opinion 

about a case not at issue here is irrelevant and speculative 

as to the determination of Stano's guilt or sentence in the 

Scharf murder. The same reasoning applies to the evidence 

dealing with the actions of other jurisdictions. The 

refusals by other jurisdictions to prosecute Stano in no way 

creates an inference that this case wal erroneously 

prosecuted or that Stano's Scharf confession is unreliable. 

Thus, such inadmissible evidence can hardly be deemed 

exculpatory. 

Similarly, 2 Stano's allegations that his prior 

confessions were coerced and the result of a conspiracy 

involving: collusion of the state and defense counsel 

establish no basis for relief. If ‘we accept 'Stano's 

allegations as true, the fact that coercive techniques were 

used in previous cases to elicit confessions does not create 

an inference that the same coercion was applied in this case. 

The evidence would be inadmissible in considering Stano's 

guilt or sentence for the Scharf murder. We cannot draw the 

conclusion that coercion exists here, especially when the 

record reflects that Stano's confessions regarding Scharf 

were made voluntarily and knowingly. See Trial Transcript, 

Advanced Appendix Vol. 3, A, p. 867-68, 969-71, 979. Because 

10 

 



  

this evidence would not establish such an inference, and 

indeed would not even be a proper consideration for the 

factfinder, it is not exculpatory. The requested evidence 

simply is not Brady material. 

We stress that procedurally, the collateral attack in 

this case of Stano's prior confessions and guilty pleas {is 

improper. The proper forum for presenting the issues exists 

in the courts where those cases can be directly or 
  

collaterally challenged, not in a habeas proceeding for a 

separate case. A need for finality and certainty exists 

regarding the convictions and judgments of the courts. 

According to the United States Supreme Court, "the concern 

with finality served by the limitation on collateral attack 

has special force with respect to convictions based on guilty 

pleas." United v. Timmreck, 441: U.8. 780, 7384, 99.S.Ct. 
  

2085, 60 L.Ed.24d 634 (1979) ' {footnote omitted). The 

petitioner seeks to place a burden on this court which would 

disrupt the finality of prior judgments. Were this allowed, 

the parties and the courts would be subject to the risk of 

inconsistent results and interminable litigation. We 

decline to permit such a result. 

3. Materiality 

The final prong under Brady requires a showing that a 

reasonable probability exists that had the evidence been 

disclosed to the defense, the result of the proceeding would 

have been different. Were Stano able to satisfy the first 

two prongs of the analysis, his allegations would fail under 

this inquiry. 

11 

 



Our review of. the record indicates that even if the 

  

evidence had been admissible, and the defense had used 

Detective Gadberry's statement, the outcome of the case 

nevertheless would not have changad. Galnerii’s’ dtatendnt 

refers to his involvement with Stano not on ‘the Scharf 

murder, but on a wholly separate case. He was not even 

present during segments of the Stano interrogation regarding 

the prior "homicide. See Apvendix, 15 p. 2. Contrary“ to 

Gadberry's assertion that another cetective's psychological 

influence pressured Stano into confassing, Stano confessed 

numerous times to multiple homicidss independent of this 

detective's influence, including confessing at his own 

sentencing proceeding in this case. See 2dvancad Appendix 

Vol. 4, B, p..+'1825-26. Morsover, the record discloses that 

Stano's detailed confessions rebut Cadberry's opinion that 

Stano was vague in describing the murder. Thus, the record 

clearly refutes Gadberry's evaluation of Stano. 

As for the remaining allegations of coercion and 

conspiracy, the record indicates that Stano's confessions 

were freely and voluntarily given. The petitioner alleges no 

concrete instances of coercion in the obtaining of the Scharf 

confessions, but only ‘a long history of a psychologically 

pressured relationship between Stano and various detectives 

and defense team members in unrelated cases. The speculative 

nature of these assertions does not meet the requisite level 

Cfumatexiality ‘under [rnd and Paglay, especiellv. when the 

record contains several instances of reliable Scharf confessions, 

including Clarence Zacke's testimony that Stano 

$2 

 



  

‘confessed to him in prison. See Trial Transcript, Advanced 

Appendix Vol. 3, A, p. 893-986. 

Neither would the outcome of the case likely have 

changed had the defense utilized the alleged exculpatory 

evidence at sentencing. Had the defense attacked the 

conviction to which Detective Gadberry's statement related, 

several other prior convictions remained, and Stano himself 

reconfessed to eight murders while on the stand at his 
  

sentencing hearing. See Advanced Appendix Vol. 4, B, p. 

1829. Stano therefore, has failed to state allegations 

sufficient to set out a constitutional violation under Brady. 

The prosecution did not improperly suppress evidence 

favorable to the petitioner which would have materially 

altered the outcome of the case. No due process claim is 

cognizable under Brady which would entitle Stano to an 

evidentiary hearing. Thus, the district court properly 

denied the petitioner's request for relief. 

B. RESTRICTION OF EVIDENCE CLAIM 

Stano claims that the trial court erred in restricting 

his presentation of evidence at both the guilt/innocence and 

sentencing phases of trial. He seeks®' reversal of his 

conviction, or at a minimum, reversal of his death sentence. 

Stano argues that the evidence that he falsely confessed to 

other murders which he did not commit, and the testimony of a 

psychiatrist that mentally ill people often confess to crimes 

which they do not commit and that Stano may be such a person, 

was exculpatory and should have been admitted by the trial 

court. Stano asserts that his sixth, eighth and fourteenth 

13 

 



  

‘ amendment rights to establish a defense and prove the 

unreliability of his own confessions were violated by the 

trial court's exclusionary ruling, and thus, his conviction 

should be reversed. The district court denied habeas relief 

on this ground and found that the evidence was both 

irrelevant and speculative regarding the murder of Cathy 

Scharf. We agree. 

As: the district court noted, for this ‘claim to be 

cognizable the trial court's evidentiary ruling must have 

deprived the habeas petitioner of fundamental fairness. 

Osborne vy. Wainwright, ‘720 F.24 1237, 1238-39 (11th Cir.   

13983). Generally, "a federal court in a habeas corpus case 

will not review the trial court's actions in the admission of 

evidence." Nettles v. Wainwright, 677 F.2d 410, 414 (5th   

Cir. Unit B 1982). (citations omitted). However, when a 

constitutional question is presented, the federal court will 

inquire into the nature of the evidentiary ruling to 

determine whether the alleged error denied the petitioner a 

fundamentally fair criminal trial. Id. at 414-15; Shaw v, 

Boney, 693 F.2d 528, 530 (11th Cir. 1983). 

The disputed evidence must be material, and rise to the 

level "of a crucial, critical, highly significant factor." 

Smith vv. Wainwright, 741 F.2d "1248, 1258 {(1ith"Cir. 1934),   

cert, denied, 470. U.8. 1087, 105.8.Ct. 1853,.85 L.Ed.2d 180   

(1985) (quoting Jameson v. Wainwright, 719 F.2d 1125, 1127   

{11th Cir. 1983), cert, denied, 466 U.S. 975, 104 S.CL, 23585,   

80 1..Fd.2d 827 (1984)}. Unless the evidence is critical or 

significant enough to have denied the petitioner a fair 

trial, he is not entitled to relief. For example, in Smith, 

14 

 



  

‘the defendant was tried for first degree murder. During the 

course of the proceedings, the trial judge admitted testimony 

regarding the facts of a second murder for which the 

defendant was charged, but not on trial. The defendant 

objected to the admission of the narrative regarding the 

second murder: and: claimed "that the evidence was 

inflammatory, prejudicial and inadmissible. On appeal from 

the denial of habeas relief, this court upheld the trial 

court's evidentiary ruling admitting the testimony and found 

that the petitioner failed to establish a violation .of 

fundamental fairness. Smith, 741 F.2d at 1258. Although we 

recognized that the admissibility of such evidence presented 

a close state law question, under the materiality test, 

evidence concerning the second murder did not violate the 

petitioner's constitutional rights. = Id. Likewise, Stano's 

challenge to the trial court's evidentiary ruling merits no 

habeas relief in this appeal. The defense asserts that its 

theory of the case was to establish Stano as a liar, not a 

murderer. Stano argues that the trial judge excluded 

evidence material to this defense at the gquilt/innocence 

phase of the trial, and material to mitigation at sentencing. 

The analysis in this case concerning an exclusionary ruling 

as compared with that in the Smith case dealing with an 

admissibility ruling remains the same; whether the disputed 

evidence was material and deprived the petitioner of 

fundamental fairness. 

The trial court here correctly ruled that the evidence 

was not probative, was irrelevant and was inadmissible at 

the guilt/innocence phase since it did not indicate that 

15 

 



  

"Stano's Wate 1 Sow in the Scharf case was false or tainted. 

Evidence that Stano falsely confessed to other murders he did 

not commit or for which he was not charged does not reflect 

that his confession regarding the murder of Cathy Scharf was 

also false. The petitioner's reliance on the cases cited in 

his brief is misplaced. Those cases deal with a defendant's 

right to compel presentation of relevant, material, reliable, 

and critical testimony; not irrelevant, speculative and 

  

conjectural testimony as here. See Washington v. Texas, 388 

U.S. 14, 87 :8.Ct. 1920, 18 L.E4d.2d4 1019 (1967) (eyewitness 

testimony); . Chambers v. Migsissippi, "410 U.S. 284, 93 S.Ct. 
  

1038, 35 .L.EQd.2d4 297 (1973) (critical i evidence bearing 

substantial assurances of trustworthiness regarding another 

individual's confessions to the same crime for which the 
  

defendant is on trial); Crane v. Kentucky, 476 U.S. 683, 106 
    

S.Ct. 2142, 90 L.Ed.2d 636 (1986) (evidence regarding the 

circumstances under which the confession at issue was 
  

secured) . 

Moreover, the: proffered testimony of .Dr. Stern, a 

psychiatrist, that people often confess to crimes which they 

did not commit constitutes mere speculation in connection 

with Gerald Stano.? Since the evidence was neither relevant 

  

51n fact, when asked whether Gerald Stano is the kind of 
person that would confess to something he had not done, Dr. 
Stern replied that "[h)le could be, I don't know if he is, but 
he could be." See Advanced Appendix Vol. 13, 0, p. 178s. 
Additionally, Dr. Stern would not state an opinion as to 
whether Stano had the capacity to confess falsely in this 
case. He stated: "I could not testify on’ this case. in 
particular, because I don't know anything about this case." 
Id. at 1793. Dr. Stern continued that he had nc knowledge, 
"[n]Jone whatsoever," of the facts and circumstances of the 
Scharf case. * Id... Thus, the psychiatrist could not testify 
specifically regarding Stano and the Scharf confession. 

16 

 



  

nor probative regarding Stano's guilt or innocence for the 

murder of Cathy Scharf, it did not rise to the level of a 

"erucial, critical, highly. significant “factor! 

constitutionally necessitating its admission under a 

fundamental fairness inquiry. Consequently, its exclusion 

did not deny Stano a fair trial. 

The defense also argues that Stano was prohibited from 

presenting the evidence in mitigation at the sentencing phase 

of his trial due to the trial court's exclusionary ruling. 

We note that a defendant must be permitted to introduce any 

mitigating evidence at sentencing in a capital case if the 

evidence relates to the defendant's character, record or the 

circumstances of his offense. Skipper v. South Carolina, 
  

  

476 U.S, 1, 1068 S.Ct. 1669, 90 L.Ed.2d.1 (1936); Eddings v, 

Oklahana, 455 11,8. 104, 102° 8.Ck. 869, :71:L.Ed.2d 1 {1932};   

Lockett wv, aohio, 438 U.S. 588,98 S.ct. 2954, 57. L.Ed.2d 973 
  

(1978). However, a trial judge still retains the discretion 

to exclude irrelevant, nonprobative evidence. Lockett, Id. 

at 604:°n. 12; Fla. Stat. § 921.141 (1) (1985). Conjectural 

evidence, such as that sought to be introduced by Stano, 

should not play any role in the capital jury's sentencing 

determination. See California v. Brown, 479 .U.8. 538, 542, 
  

107 S.Ct. 837, 923 L.EQ.2d 934 (1987). ' We conclude that the 

trial judge acted within his discretion in finding the 

evidence irrelevant and in precluding its introduction at 

sentencing. No adverse constitutional implications arose 

17 

 



® fron the exclusion of the evidence.® Therefore, we affirm 

  

the district court's denial of habeas relief on this claim. 

C. CALDWELL CLAIM 
  

In this claim, Stano alleges that the prosecution 

misinformed the jury of its sentencing responsibility in 

violation of Caldwell v. Mississippi, 472 U.S. 320,%4105 S.Ct.   

2633, 86 L.E4d.2d 231 (1985). The defense asserts that the 

prosecution improperly elicited testimony by the petitioner 

on cross-examination at sentencing, that Stano planned to 

attack all his prior convictions and sentences on grounds of 

ineffectiveness of counsel. See Advanced Apbendix Yol. 4,8, 

p. 1836-37. Additionally, the prosecutor argued during 

closing argument that the jury needed to return one appeal - 

proof death penalty since it was likely that the 

petitioner's prior two death sentences would be reversed. 

Id. at 1279. Stano claims that he was deprived of a 

fundamentally fair sentencing proceeding as required by the 

eighth amendment, and therefore a new sentencing proceeding 

is necessary. The district court found this claim meritless 
  

6gven if we were to hold that the trial court 
improperly excluded the evidence at sentencing, such action 
would not violate Stano's right to a fundamentally fair 
sentencing proceeding. Our review of the record indicates 
that such an error would not be of the "magnitude as to deny 
fundamental fairness to the criminal trial." Nettles, 677 
F.2d at 414-15 (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir. 1976), cert. denied, 429 U.S. 850, 97 S.Ct. 139, 50 

  

  

L.Ed.2d 124). In any event, evidence that Stano possessed a 
propensity to lie was introduced at sentencing through the 
report of a psychologist, Dr. Ann McMillan. See Advanced 
Appendix VYol..7,.6, p. 92. Thus, this facet of the defense 
was ultimately presented to the jury for consideration in 
mitigation. 

18 

 



  

‘and held that the prosecutor's comments did not diminish the 

jury's sense of responsibility. We affirm. 

Caldwell states "that it. is’ constitutionally 
  

impermissible to rest a death sentence on a determination 

made by a sentencer who has been led to believe that the 

responsibility for determining the appropriateness of the 

defendant's death rests elsewhere." 472 U.S. at 328-29, 105 

S.Ct. at. 2639. In Caldwell, the prosecutor told the jury 
  

that its decision was not final, but that it was reviewable. 

id. at 325. The state told the jury that its decision was 

automatically subject to review in an effort to minimize its 
  

sense of the importance of its role.’ Id. The Supreme Court 

found that the comments deprived the defendant of ‘a 

sentencing determination which rested on the jury's 

awareness of its awesome responsibility. Id. at 341. 

As: the. ..district. court ‘determined, Caldwell is 
  

inapplicable to the facts of this case. The state at 

sentencing attempted to show that Stano's confessions were 

motivated by a strong desire to avoid the death penalty 

rather ' than: a need to. gain psychiatric help. The 

prosecution's strategy was to rebut the defense's claim that 

the death penalty would be meaningless and cumulative since 

  

7In response to the defense's arguments to the jury 
regarding the gravity of calling for another's death, the 
prosecution forcefully argued that the defense was in error 
in trying to force the jury to feel a sense of responsibility 
for its decision. Id. The prosecutor stressed: "Now they 
would have you believe that you're going to kill this man and 
they know-they know that your decision is not the final 
decision. My "God, how. unfair can you be? Your. job is 
reviewable. They know it. . . . [T]hroughout their argument, 
they said this panel was going to kill this man. . . . [T]he 
decision you render is automatically reviewable by the 
Supreme Court." 1d. 

19 

 



  

‘Stano had already received two other death sentences. 

Moreover, the state wished to show that Stano continued to 

kill despite psychiatric treatment. 

The United States Supreme Court set out the standard 

regarding improper prosecutorial comment in Darden wv. 
  

Wainwriaht,- 477 U.S, 168, 106 8.Ct. 2464, 91 L.Fd.2d 144   

(1986) . Inquiry must be centered on "whether the 

prosecutors' comments 'so infected the trial with unfairness 

as to make the resulting conviction a denial of due 

process.'" .1d. at 181, 106:8.Ct. at 2472 (citation omitted). 

This court reviewed Caldwell in light of Florida's statutory   

sentencing scheme in Adams v. Wainwright, 804 F.2d 1526 {11th   

Cir. 1986), modified on reh'qg on other grounds, 816 P.2d 1493 
  

  

(11th. Cir. 1987), cert. granted, Dugger .v. Adams, U.S. / 
  

108 S.Ct, 1106, 99. L.Fd.2d4 267. In Adams, we held that a 

  

trial judge's repeated instruction that the court was not 

bound by the jury's recommendation, that no responsibility 

for the defendant's death rested upon the jury's shoulders, 

and that the jury was merely an advisory group whose 

recommendation the court could readily reject created an 

impermissible likelihood that the sentence imposed was 

unreliable. Id. at 1528-29. 

Similarly, in Mann v. Dugger, 844 F.2d 1446 {lith. Cir. 
  

1988) (en banc) we held that the prosecutor and trial court 

misled the jury as to its critical role in sentencing, and 

minimized the jury's sense of responsibility by allowing 

repeated comments stressing that the ultimate responsibility 

for the death sentence rested with the court, and that the 

jury's role was merely advisory. Id. at 1457-58. However, 

20 

 



  

in Harich_ v. Dugger, 844 F.2d 1464 (11th Cir. .1988) (en 
  

banc), we held that certain prosecutorial and judicial 

comments did not minimize the jury's sense of its role in 

sentencing. In Harich, the trial judge informed the jury on 

several occasions that the final decision regarding 

sentencing is for the court to decide. Also, the prosecutor 

at voir dire stated that the jury's sentencing decision was a 

recommendation and that the court decides the actual 

punishment. Unlike in Mann however, we stated that 

"[n]either the prosecutor nor the trial judge implied that 

the jury's recommendation was superfluous. The fact that the 

jury knew they were making a recommendation did not detract 

from the importance of their decision." | Id. “at 1475. 

Moreover, this court explained that comments which 

accurately state the respective functions of the judge and 

jury are permitted so long as the importance of the jury's 

role is sufficiently emphasized. 14. We stressed that 

review will be on a case by case basis. 

We agree with the district court that the jury's role 

in this matter was not diminished by the prosecutor's 

comments. Our review of the record indicates that this trial 

judge made no statement which would diminish the Jury's 

perception of its important responsibility. The prosecutor's 

comments actually made the jury more aware of its central 

role in recommending the death sentence. The prosecutor 

emphasized that it was the jury's responsibility to hold the 

petitioner accountable for his crime and that they were the 

ones needed to return an appeal-proof sentence. See Advanced 

Appendix Vol. 4, B, p. 1279-80. We find that these comments 

21 

 



  

did not operate to deprive Stano of a reliable, carefully 

determined sentence from a jury fully aware of its critical 

sentencing responsibility. Consequently, the district court 

properly denied Stano a new sentencing proceeding. 

D. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS 

Stano next contends that he received ineffective 

assistance of counsel in several respects in the presentation 

of his defense at both the guilt/innocence and sentencing 

phases of his trial. First, Stano claims that the district 

court erred in denying him a full and fair evidentiary 

hearing on this issue. Second, Stano alleges that his trial 

counsel was ineffective for failing to challenge all of the 

confessions introduced at gquilt/innocence and for failing to 

attack all of Stano's previous convictions and sentences 

introduced at sentencing. Finally, Stano argues that his 

counsel was ineffective for failing to cross-examine and 

impeach adequately a key state witness, to object to the 

testimony of two psychiatrists regarding Stano's competency, 

and to ensure that Stano received competent mental health 

assistance at trial. | 

The district court, after an exhaustive analysis of this 

issue, concluded that Stano's ineffective assistance of 

counsel claims were procedurally defaulted under Wainwright 
  

¥Y:.. .Bykes, 433 U.S. 72, 97 5.Ck. 2497, 53-.1,.Ed.24 594 (1977)   

(procedural default will bar federal habeas review unless the 

petitioner can show cause for the default and actual 

prejudice from the alleged constitutional violations). 

However, in an abundance of caution, the district court held 

22 

 



  

ah evidentiary hearing to develop a more complete factual 

record concerning the actions of Stano's counsel. Since the 

district court ultimately considered the merits of this 

claim, we now examine Stano's contentions as well. 

The United States Supreme Court in Strickland v. 
  

Washington, 466 U.S. ‘668, 104 S.Ct. 2082, 80 L.Ed.2d 674 
  

(1984), delineated a two-pronged standard for evaluating 

ineffective assistance of counsel claims: 

First, the defendant must show that counsel's 
performance was deficient. This requires showing 
that counsel made errors so serious that counsel 
was not functioning as the 'counsel' guaranteed the 
defendant by the Sixth Amendment. Second, the 
defendant must show that the deficient performance 
prejudiced the defense. This requires showing that 
counsel's errors were so serious as to deprive the 
defendant of a fair trial, a trial whose result is 
reliable. 

Id. a¥ 637, 104. 3.CE. at 2064. 

Strickland requires the petitioner to show that 
  

counsel's alleged acts or omissions, upon consideration of 

all the civeumstances, fell outside the wide range of 

professionally competent assistance. Id. at 690, 104 S.Ct. 

at 2066; .Harich, 544  F.24 at 1469, There is a strong 

presumption that counsel provided effective assistance. 466 

U.S. at "689, 104 S.Ct. at 2065-66. The court will not find 

counsel ineffective if their approach to a case was 

reasonable. 844 F.2d at 1469. 

The test for prejudice involves considerations similar 

to those under Brady; whether '"there 1s a reasonable 

probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to 

23 

 



  

“undermine confidence in the outcome." 466 U.S. at 694, 104 

S.Ct. 2068. We note that effective counsel is not errorless 

counsel, and hindsight should play little role in measuring 

ineffectiveness. Solomon v. Kemn, 735 F.2d 395, 402 (11th   

Cir. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct, 940, 83   

L.Ed.2d 952 (1985); Proffitt v. Wainwright, 685 F.2d 1227, 
  

1047. (11th. cir. 1982), modified, 706 F.2d 311 (11th Cir. 
  

1983), cert. denied, 464 U.S. 1002 (1983). 
  

1. Evidentiary Hearing 

Under the Strickland standard, our review of the record   

indicates that the district court afforded Stano a full and 

fair evidentiary hearing on the ineffectiveness claims. The 

court heard testimony on August 24 and 25, 1987 from two 

witnesses who could directly address the ineffectiveness 

issue; Stano's trial counsel, Mr. Russo and Mr. Friedland. 

(R. 6, "PD. 104=313: "R. 7, Pp. 326-414). The witnesses 

testified regarding their trial tactics and strategy, and the 

reasonableness of their performance. The state proffered 

testimony concerning the proper standard of attorney conduct 

required under the circumstance of this case. Thus, the 

district court developed sufficient facts at the evidentiary 

hearing to afford Stano a fair hearing, to render judgment on 

the claim, and to provide an adequate record for review in 

this court. 

2. Challenges to Confessions 

Stano's claim of ineffectiveness of counsel for failing 

to challenge both the prior confessions and convictions used 

in aggravation at sentencing, and the Scharf confessions used 

at guilt/innocence and sentencing, is without merit. Defense 

24 

 



  

attorney Russo testified that procedurally, he did not know 

how he could have attacked the prior convictions and 

litigated them within the time frame of the trial, and that 

he had never heard of defense counsel collaterally attacking 

convictions used in aggravation. {R. 7, Dp." 403-06) Mr. 

Russo felt that his resources were better spent representing 

Stano at trial than collaterally attacking other convictions 

of which he had no indication were involuntary. Id. at 407. 

He further testified that his strategy would not have 

involved collaterally attacking the prior life convictions 

when the result of the challenges could mean death sentences. 

14d. 

Trial counsel also testified at the evidentiary hearing 

regarding the Scharf confessions. Mr. Russo stated that it 

would not have been feasible to attack Stano's confessions 

since he had confessed to so many people for the murder of 

Cathy Scharf in direct contravention of counsel's advice.8 

Id.siat 360. Additionally, Mr. Russo and Mr. Friedland both 

testified that the defense's strategy at guilt/innocence was 

to admit all the Scharf confessions to emphasize the 

inconsistencies among them and prove that Stano did not 

commit the murder, but rather, falsely confessed to it. Id. 

at 272-74, 355-56. Trial counsel stated that Stano's 

  

8Mr. Russo clarified: "If there was one confession in 
this case, one confession only, and I knew that that could be 
constitutionally attacked, yes, I would constitutionally 
attack it, but that was not the case in this situation. : 
Case [sic)..in this situation went to trial, was that wr. 
Stano confessed to Paul Crow, confessed twice to John Manis, 
he confessed to Clarence Albert Zacke, he wrote several 
letters: to. the press, gave press interviews . ". '. he 
confessed to the psychiatrist in the case. on 

25 

 



  

Ye eontess ton at sentencing to a murder for which he was 

previously not convicted, but which was not Cathy Scharf, 

fit into the defense's strategy that Stano was a false 

confessor. Id. at -391. 

After careful consideration of the record, we conclude 

that counsel's performance in their investigation of the 

facts, consideration of the law, securing of evidence and 

conduct at trial, was competent. The approach taken by the 

defense was one which falls well within the objective 

yardstick that we apply when considering the question of 

ineffectiveness of counsel. "[S]trategic choices made after 

thorough investigation of law and facts relevant to plausible 

options are virtually wunchallengeable." Sinclair v, 
  

Wainwright, 814 F.24 1516, 1519 (11th Cir. 1987) (quoting   

  

Strickland, 466 U.S. at 690) . Competent attorneys completely 

informed of the circumstances and law of this case could well 

have taken action identical to counsel here. 

Even if we were to find that competent counsel would not 

have taken the approach defense counsel used in this case, 

the petitioner cannot establish the second prong of 

Strickland by showing any prejudice from counsel's alleged   

errors. No reasonable probability exists that but for 

defense counsel's alleged omissions, the result of the 

proceeding would have been different. See Strickland, 466 
  

U.S. at 694,. 104 S.Ct. at 2068, 

Had the six prior convictions at sentencing been 

successfully challenged and suppressed as aggravating 

circumstances, three other aggravating factors remained to 

support a jury recommendation of death: 1) The murder was 

26 

 



  

'".committed while Stano was engaged in the commission of a 

kidnapping; 2) The murder was especially heinous, atrocious 

Or: Cruel; and 3) The murder was .cold, calculated. and 

premeditated without any pretense of moral or legal 

justification. When challenging the imposition of capital 

punishment, the petitioner must show that "there is a 

reasonable probability that, absent the errors, . . . the 

balance of aggravating and mitigating circumstances did not 

warrant death." Id. at 695. We cannot say that the sheer 

number of prior convictions influenced the jury to recommend 

a death sentence. Ample record evidence supports a jury 

recommendation of death based on the circumstances of the 

Scharf murder alone, especially absent mitigating 

circumstances. Stano alleges no error in the remaining 

aggravating circumstances found by the jury. Thus, even if 

the prior convictions were omitted from the sentencing 

hearing, the petitioner has shown no reasonable probability 

that the outcome of the case would have changed. 

The same reasoning applies to the allegations concerning 

the Scharf confessions. If Stano had shown that trial 

counsel erred by failing to attack his<sfirst confession to 

Detective Crow in March, 1981, the subsequent confessions to 

Investigator Manis in @ August, 1932 would still? be 

admissible. Likewise, if those confessions were also 

suppressed, the testimony of Clarence Zacke in July, 1983 

still remained. Finally, Stano voluntarily reconfessed in 

September, 1983, to a psychologist, Dr. Mussenden, who 

examined him pursuant to an order on defense motion. 

Assuming that an attorney rendered ineffective assistance in 

27 

 



  

failing to present additional argument for suppression of the 

initial confession, the defendant was not prejudiced where 

the second confession occurred in entirely different 

  

surroundings and would have been admissible. See Elledge Vv. 

Dugger, 823% F.2d 1439, 1443«-44 (11th Cir. 1937). 

Consequently, this claim fails under Strickland. 
  

3. Cross-examination of State Witness 

Stano alleges that his counsel was ineffective for 

failing to cross-examine and impeach adequately Clarence 

Zacke, a jail inmate to whom Stano had confessed the Scharf 

murder. We find that under Strickland, this claim lacks 
  

merit. The jury and trial judge were aware that Zacke was an 

untrustworthy witness. Trial counsel Point ont that Zacke 

met Stano while both were in jail, see Advanced Appendix Vol. 

3, A, p. 898, and that Zacke was a five-time convicted felon. 

1d. at 905. Zacke testified that he traded his testimony for 

a reduced sentence, return of “property, and a . prison 

transfer. Id. at. 906-07. Defense counsel elicited 

testimony that Zacke did not come forward with his testimony 

until after Stano's .first mnistrial, and that he knew the 

state's case was weak. Id. at 910-911. Counsel also brought 

out that Zacke watched the first trial on the news every 

night and that his account of the murder did not match 

Stano's exactly. Id. at 913-13, 9505. Finally, the jury and 

trial judge learned, through the testimony of other 

witnesses, that doubt existed whether Zacke even had the 

opportunity to talk with Stano. Id. at 942. Accordingly, 

the trial counsel's approach to handling this witness was 

reasonable and competent as measured by Strickland. 
  

28 

 



  

4. Psychiatric Testimony 

Stano claims that his counsel was ineffective for 

failing to object to the testimony of two court-appointed 

psychiatrists that Stano was sane, competent and not entitled 

to the statutory mitigating circumstance of "extreme mental 

and emotional disturbance" and "substantially impaired." See 

Fla. «Stat. 5921.141(6)Y{bh) and (fF). We find that this 

testimony, presented at the sentencing phase of the trial, 

did rot violate Stano's constitutional rights under the 

fifth, sixth, eighth and fourteenth amendments. 

The Supreme Court recently ruled that the admission of 

findings from a psychiatric examination of the defendant, 

proffered by the state during the quilt phase of a trial to 

rebut psychiatric evidence presented by the defendant, did 

not violate the defendant's constitutional rights where the 

prosecution and defense. had jointly requested the 

  

examination, and where the defendant had attempted to 

establish a "mental status" defense. Buchanan v. Kentucky, 

483. 0.8, 402, __., 107.8.Ct 2906, 2918, 97 L.E4.2d4.336 (1937). 

In Buchanan, the Supreme Court stated that the prosecution   

may rebut the defense's presentation of psychiatric evidence 

with evidence from the reports of the examination requested 

by the defense. Id. In this case, Stano placed his mental 

status at issue in mitigation at sentencing, and relied on 

the psychological report of Dr. McMillan, the defense's 

expert. The state, therefore, could. properly: offer . the 

results of the psychological reports the defense itself 

requested. In light of this, defense counsel's failure to 

object to this testimony was a correct decision. Thus, under 

29 

 



  

".strickland, counsel rendered reasonably effective   

assistance. 

5. Mental Health Assistance 

Stano alleges that his trial counsel was ineffective for 

failing to ensure that he received competent mental health 

assistance at the guilt/innocence and sentencing phases of 

trial. Stano relies on Ake v. Oklahoma, 470 U.S. 68, 105 
  

S.Ct. 1087, 84 L.Ed.2d 53 (1985) as establishing his right of 

access to a psychiatrist when the state indicates that it 

will present evidence of the defendant's future 

dangerousness as an aggravating factor at sentencing. Stano 

claims ‘that Dr. McMillan was incompetent, failed to 

accurately utilize one of the psychological tests given to 

the petitioner, and erroneously compared Stano's 

psychological profile with those of mass murderers. 

Upon review of the record, we conclude that Stano has 

failed to make a colorable showing of ineffective assistance 

of counsel on this issue under Strickland. Defense counsel 
  

ensured that Stano was examined by several court-appointed 

psychiatric experts at various stages of the proceedings. 

One of the experts, Dr. McMillan, interviewed and evaluated 

the petitioner in depth, explored his 1life history, and 

psychologically tested Stano. See Advanced Appendix Vol. 7, 

G, p. 92. Dr. McMillan found that Stano had suffered gross 

emotional and physical neglect as a child, had abnormal and 

antisocial behavior, suffered from paranoid schizophrenia, 

committed acts which were the product of mental disease or 

defect, and exhibited characteristics of a neurologically 

impaired personality. Id. In addition, defense counsel 

30 

 



  

procured a court order permitting Stano to undergo a CAT scan 

to test for neurological damage. 

Trial counsel's actions concerning Stano's mental health 

assistance were reasonable and competent. The psychiatric 

experts involved in the case adequately assisted in the 

defense. An indigent defendant has no "constitutional right 

to choose a psychiatrist of his personal 1liking or to 

receive funds to hire his own." Aka, 470 U.S. at 83, 105   

S.Ct. at’®lo096. Although Dr. McMillan was appointed by the 

court and was not Stano's personal choice, the record reveals 

no evidence supporting Stano's allegation of incompetence. 

Stano's claim therefore, fails under Strickland. 
  

E. REMAINING CLAIMS 

Stano also asserts the following claims: 1) The trial 

court improperly admitted, at Stano's second trial, the 

testimony of the victim's parents given in the prior Stano 

mistrial; 2) The trial court erred in permitting the court 

clerk to testify, through the victim's parents' testimony, as 

to the authenticity of certain exhibits; 3) The trial court 

improperly allowed the state's dental expert to testify 

beyond his expertise regarding identification of the victim; 

and 4) The trial court erred in permitting specific evidence 

regarding Stano's prior convictions as aggravation at 

sentencing. We find that each of these rulings by the trial 

judge was proper, and did not deprive the petitioner of a 

fundamentally fair trial. Shaw v. Boney, 695 F.2d 528, 530 
  

(11th: Clix. 1933). 

31 

 



  

Further, Sean claims that the district court erred in 

denying an evidentiary hearing on whether the state's 

witness, Clarence Zacke, was a state agent. We agree with 

the district court that. this claim has no basis .in the 

record, 1s highly speculative, and that no evidentiary 

hearing was required. Finally, Stano asserts "i district 

court erred in finding procedural default on the ineffective 

assistance of counsel claims. Because we agree with the 

district court that the underlying substantive claims are 

without merit, we need not reach the procedural issue. 

ITI. CONCLUSION 
  

For the foregoing reasons, we AFFIRM the district 

court's denial of habeas relief. 

32 

 



  

ANDERSON, Circuit Judge, concurring in part and dissenting in 
part: 

I agree with the resolution of each claim discussed by 

the majority, except for the Brady claim and the Henry claim. 

With regard to those two claims, I respectfully dissent. 

The procedural posture of this case is that Gerald Stano 

has had the benefit of an evidentiary hearing only on his 

ineffective assistance of counsel claim, not on his other 

claims, including the two based on Brady v. Maryland, 373 
  

U.5. 83, 83 S.Ct. 1194 (1963), and United States v. Henry, 
  

447 U.8. '264,:100 S.Ct. 2183 (1980). For the reasons that 

follow, I conclude that Stano is entitled to an evidentiary 

hearing on these two claims. 

If there has been no evidentiary hearing in state court 

on an issue raised on habeas corpus, one is required if the 

petitioner alleges facts which, if true, would entitle him to 

vellef. Townsend vy. Sain, 372:U.8. 293, 312, 33 8.ct. 745, 
  

757.(1963); Porter v. Wainwright, 805 F.2d 930, 932 (11th 
  

Cir, 1986), cert. denied, 482 U.S. 918, 107 8.Ct. 3195 
  

(1987). See almo Adan v. Dugger, 835 F.2d 1337, 1339 (11th 
  

Cir. 1987) (evidentiary hearing warranted where record 

inconclusive on face but allegations raise relevant issue).1 

The petitioner will not be entitled to an evidentiary hearing 

when his claims are merely "conclusory allegations 

unsupported by specifics" or "contentions that in the face of 

the record are wholly incredible." See Blackledge Vv. 
  

 



  

Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629 (1977). With 

these standards in mind, I will proceed to analyze the two 

claims. 

I. BRADY CLAIM 

The majority holds that there was no error in denying 

Stano an evidentiary hearing on his Brady claim. A Brady 

violation occurs where: (1) the prosecution suppressed 

evidence; (2) the evidence was favorable to the defendant; 

and (3) the evidence was material to the issues at trial. 

See United States v. Burroughs, 830 F.2d 1574, 1577-78 (11th   

Cir. 1987), cert. denied sub non. Rogers v. United States, 
  

u.s. 108 S.Ct. 1243 (1988). Suppressed evidence is 

material when "there is a reasonable probability that ... the 

result of the proceeding would have been different" had the 

evidence been available to the defense. United States v. 
  

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985). 

Specifically, Stano has alleged that the prosecution 

suppressed evidence that Paul Crow, the main police 

investigator, Donald Jacobson, one of Stano's defense 

attorneys, and Dr. Ann McMillan, the defense psychologist, 

colluded. The collusion was with the goal of exploiting 

Stano's mental vulnerabilities in order to coerce murder 

confessions, including confessions to the Scharf killing. 

Stano alleges that Dr. McMillan, at Jacobson's suggestion, 

gave Crow psychological information that would make his 

coercion more likely to succeed. He alleges that Jacobson 

 



  

assisted Crow in coercing the confessions, and that Crow used 

the information and assistance in his on-going eliciting of 

confessions. 

Stano has proffered evidence which gives rise to the 

following reasonable inferences.2 Stano was arrested on his 

first murder charge in April, 1980. J.W. Gadberry, the 

officer who had first brought Stano in, participated in the 

early investigation, which was led by Sergeant Paul Crow. 

Soon after Stano's arrest, Don Jacobson was appointed as 

Stano's attorney, and he hired Dr. Ann McMillan as a defense 

psychologist. Both Crow and Jacobson were interested in 

producing books about their work with Stano, if he turned 

out to be a serial killer.3 There is evidence that Crow even 

hired a literary agent.4 Jacobson asked McMillan to find out 

if Stano was a serial killer and indicated that he was not 

interested in representing Stano unless he was. Jacobson 

instructed her to tell Crow how best to interrogate Stano in 

order to elicit confessions, by exploiting Stano's mental 

vulnerabilities.5 

Crow used that psychological information in 

interrogating Stano, as described below.6 He maintained 

close contact with Stano day after day and deprived him of 

contact with others. There were frequent long interrogation 

sessions at which Crow would not allow anyone else to be 

present.7 Crow stated to a freelance writer that he could 

lead Stano to the correct result and that he would rehearse 

 



  

confessions with him.8 Gadberry, the police detective, was 

with Stano at the time of the first murder confession, in 

another case, and stated that Crow led Stano to the body, not 

the reverse.9 

Jacobson, an ex-FBI agent who also did some legal work 

for members of the police department, worked extensively with 

Crow and the state attorney. He often allowed members of the 

police investigatory team to interrogate Stano outside the 

presence of counsel.10 Jacobson helped formulate the 

questions Crow would address to Stano, and discussed with 

Crow telling Stano to confess to more killings in order to 

become eligible for an insanity defense.l11 He also advised 

Stano's parents to talk freely with Crow and Dr. McMillan.12 

The information given by McMillan to Crow included 

Stano's psychological vulnerabilities. There is 

psychological evidence that Stano was susceptible to strong 

authority figures who relied on manipulation and that he 

could not appreciate the consequences of his confessions. 

McMillan now admits to advising Crow to play on Stano's 

"grandiosity"; other evidence is that Stano would likely 

confess in order to gain attention. Gadberry, who was 

present at the early stage of the investigation, felt that 

Stano had an abnormal need for attention and affection due to 

mental illness, and that Crow exploited this. Another 

detective, who worked with Crow on another Stano murder 

investigation approximately eight months before the first 

 



  

Scharf confession, believed that in making confessions Stano 

"got carried away by delusions of grandeur.'"13 

There is also evidence that the coercion led to Stano 

confessing to murders that other jurisdictions refused to 

prosecute. Confessions obtained by Crow to murders committed 

in New Jersey, Tampa Bay and Titusville, Florida were not 

prosecuted, due to Crow's interrogation techniques, lack of 

physical evidence, or the discovery of the bona fide 

offender. 

Stano's first murder confessions to Crow came in April 

and May of 1980. In May and June, 1980, Crow and Detective 

Lehman interviewed Stano in the Van Haddocks murder. The 

transcript of the interviews, at which counsel is not 

present, includes instances of promises, 14 threats,15 and 

coaching.16 In March, 1981, Crow, Jacobson, and Dr. McMillan 

met with Stano's father, whom Jacobson had advised to 

cooperate with Crow. They asked Mr. Stano to convince Stano 

to confess to more killings. He was told that more 

confessions were necessary to save Stano's life, because if a 

pattern of insanity were established Stano would not be 

executed. Crow then gave Mr. Stano specific information 

relevant to various murders to use in asking Stano to 

confess. When Mr. Stano met with his Son, Mr. Stano cried 

and begged Stano to confess, explaining the insanity theory 

to him and encouraging him to talk to Crow about other 

murders. Stano asked his father to contact Crow; a few days 

 



  

later, Stano gave his first confession to the Scharf 

killing.17 

The evidence of collusion and coercion by Crow continues 

through the period of the second confession, which occurred 

on August 11 and 12, 1982. Crow had continued working with 

Stano on pending cases through late 1982. Detective Manis 

was contacted by Crow to the effect that one of Stano's 

confessions matched Manis' pending Scharf case. In January, 

1982, Manis spoke to Stano, who denied committing the Scharf 

murder. Crow continued to visit Stano often at the prison 

during this period. In April, Crow initiated another meeting 

between Stano and Manis, but when Manis arrived, Crow had 

been inside and said that Stano would not talk. Also, Crow 

and Stano were still communicating personally: in June, 

Stano wrote to Crow and said he wanted to help by "telling 

you what you want to know about anything," and asked for 

contact with Howard Pearl, a public defender. In July, 

Jacobson, no longer representing Stano, instructed him to 

make "a clean breast of everything" and that Crow was his 

best source; this letter had a covert copy to Crow.18 On 

August 10, Stano was transferred to Crow's jail, and a memo 

was circulated restricting access to Stano to Crow only.19 

On August, 11, Manis interviewed Stano for 1 1/2 hours, with 

Crow present about half the time; on August 12,1982, the 

second Scharf confession was taped. 

 



  

As noted above, to establish a violation of Brady, the 

defendant must show the suppression of material, favorable 

evidence. The principal Brady evidence claimed by Stano 

relates to the alleged collusion between Crow, Jacobson and 

McMillan. This evidence includes of course Crow's own 

knowledge of the collusion. Documentary evidence supporting 

the inference of collusion and coercion would include the 

covert copy of Jacobson's letter and the tape of the prior 

confession revealing promises, threats and coaching. 

Portions of Gadberry's recent affidavit suggests that a 

second detective in the prosecution team, i.e., Gadberry, had 

knowledge that Crow's interrogation of Stano impermissibly 

exploited his mental vulnerabilities. 

It is clear that the foregoing evidence was suppressed 

by the prosecution. All of the material was in the 

prosecution's possession. Crow knew the information, and his 

knowledge is imputed to the prosecution. See United States 
  

Vv. Antone, 603 F.2d 566, 569-70 (5th Cir. 1979) (knowledge   

imputed between two sovereigns pooling investigative energies 

to become part of an investigative team); Schneider wv. 
  

Estelle, 552 F.2d 593, 595 (5th Cir. 1977) (state law 

enforcement officer is part of prosecution team and his 

knowledge is imputed to prosecution) .20 Similarly, 

Gadberry's knowledge is imputed to the prosecution. Also, 

the prosecution would have had possession of the covert 

letter (through Crow) and the transcripts of the Crow 

 



  

interrogation. This was material that the prosecution had 

the duty to disclose.21 Also, the defense did not have equal 

access to the material. See United States v. McMahon, 715 
  

F.2d 498 (11th Cir.) , cert. denied, 464 U.S. 1001, 104 s.ct.   

507 (1983). While the defense had some evidence that Stano 

was a pathological liar and that some jurisdictions had 

declined to prosecute him, the defense did not have access to 

crucial information. ' In particular, it is not reasonable to 

expect the defense to suspect the existence of collusion 

between Jacobson, Crow and McMillan and the coercion that 

allegedly took place. 

The Brady material is also favorable to the defense, 

the second prong of the test. The evidence supports 

inferences tending to show that Stano's confessions in the 

Scharf case were not voluntary. The evidence raises an 

inference that collusion by Jacobson, McMillan and Crow 

enabled Crow to coerce confessions.22 The claimed Brady 

material which is directly relevant to collusion and coercion 

would be favorable on this ground. Under Colorado v. 
  

connelly, 479 U.8. 157, 107 S.Ct. 515 (1986), there must be   

state coercion to invalidate a statement on the ground of 

involuntariness -- the lone fact of the defendant's mental 

deficiencies will not establish coercion. Connelly, 107 
  

S.Ct. at 520. However, the defendant's mental vulnerability 

and whether the state is aware of the vulnerability and 

exploits it in the course of the coercion are relevant to 

 



  

establishing the validity of a confession. 14. at 520-21, 

Moreover, the claimed Brady evidence is favorable in that it 

is independently relevant as evidence to impeach the 

testimony of Crow and Manis, who testified about the 

circumstances of most of the confessions. See United States 
  

v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380 (1985)   

(Brady requirement applies to impeachment material). 

The Brady evidence is also material, the final prong of 

the test. The standard for materiality of Brady evidence is 

whether "there is a reasonable probability that ... the 

result of the proceeding would have been different" had the 

evidence been available to the defense. United States v. 
  

Bagley, 473 U.5., 667, 682, 105.85.Ct. 3375,.3383 (1985). 

Stano was convicted on the basis of three confessions: the 

confession to Sergeant Crow, the confession to Detective 

Manis, and the Zacke testimony. 

The evidence described above supports Stano's allegation 

that coercion and collusion occurred with respect to the 

first two confessions. During the period in which the first 

confession took place, there is evidence of Jacobson and 

McMillan's collusion with Grow. There is also evidence that 

Stano was particularly vulnerable because of mental illness, 

that the purpose of the collusion was to take advantage of 

that, and that Crow in fact exploited it. There is other 

evidence that during this period that Crow used threats and 

promises in order to obtain confessions from Stano. During 

 



  

the period of the second confession, there is evidence that 

the collusion and coercion continued. Crow's continued 

contact and correspondence with Stano raises an inference 

that he continued to be in a position to exploit Stano's 

mental vulnerabilities. The circumstances of the Manis 

confession also support an inference that Crow "managed" the 

confession, only allowing it when he had sufficiently coached 

or coerced Stano. Finally, the letter from Jacobson to 

Stano, with its "covert" copy to Crow, raises an inference 

that the collusion was continuing. Thus, the evidence 

impeaches the validity of both confessions, due to the 

evidence of collusion and the evidence of Stano's 

vulnerability to coercion resulting from that collusion. See 

Colorado v. Connelly, 479 U.S. 157, ry 107 SCL. 515, 5320   

(1986) . 

In terms of the essential factors in the trial's 

outcome, this leaves the Zacke confession. As I discuss 

below, the Zacke confession is constitutionally suspect, and 

may be inadmissible as constituting a violation of United 

States v. Henry, 447 U.S. 264, 100 S.Ct. 2183 (1980). Even   

if the Zacke confession is not constitutionally infirm, Zacke 

was a convicted felon who had recently traded testimony for 

favorable treatment. His testimony was seriously weakened at 

trial by the defense's cross-examination on these and related 

grounds. If the Brady material undermined the other two 

confessions and the prosecution was forced to rely primarily 

10 

 



  

on Zacke's testimony, the presence of the Brady material 

would be "sufficient to undermine confidence in the outcome" 

Of the trial. United States v. Bagley, 473 U.S. 667, 682, 
  

105 S.Ct. 3375, 3383 (1985), 

The majority also refers to the fact that Stano 

confessed to several murders at sentencing. However, all of 

the sentencing confessions relate to murders other than the 

Scharf killing.23 +1In fact, at sentencing Stano specifically 

denied that he had killed Scharf. Because the confessions at 

sentencing related to other murders, they cannot undermine 

the materiality of the Brady evidence. 

I conclude that reasonable inferences from the proffered 

evidence satisfy all three prongs of Brady, and that Stano is 

entitled to an evidentiary hearing. 

II. HENRY CLAIM 

Stano is also entitled to an evidentiary hearing with 

respect to his Henry claim. Under Henry, incriminating 

testimony elicited by an undisclosed government informant is 

inadmissible as violative of the right to counsel. United 

States v. Henry, 447 U.S. 264, 100 S.Ct. 2183 (1980). .'The   

district court found no merit in Stano's Henry claim, finding 

that it was speculative and unsupported in the record. The 

majority opinion agrees with the district court. 

In Henry, the Supreme Court applied the principle 

articulated in Massiah v. United States, 377 U.S..201, 84   

S.Ct. 1199 (1964), to the situation of an inmate-informant. 

11 

 



  

- 

The Court held that the inmate-informant's deliberate 

elicitation of incriminating testimony violated Massiah's 

prohibition of state elicitation of incriminating information 

from a defendant in the absence of counsel. To establish a 

Henry violation, each of the following two tests must be 

satisfied: (1) the informant's actions must be attributable 

to the state; and (2) the informant must be more than just a 

passive listener -- he must "deliberately elict" the 

incriminating information from the defendant. Henry, 447 

U.S. ‘at 269=72, 100 S.Ct. at 2186-33, 

Stano's Henry claim is not so speculative that it does 

not merit an evidentiary hearing. As noted above, in the 

posture of this case, Stano is entitled to an evidentiary 

hearing if he alleges facts which, if true, would entitle him 

to relief. The claim is not so devoid of factual content as 

to be impermissibly conclusory, nor does evidence in the 

record reveal Stano's contentions to be wholly incredible. 

See Blackledge v. Allison, 431 U.S. 63, .74, 97 8.Ct, 1621,   

1629 (1977). I will discuss in turn the evidence as it 

pertains to the state agency and the "deliberately elicit" 

prongs. 

Stano alleges that Clarence Zacke was placed in the same 

jail to elicit incriminating testimony from Stano. With 

respect to the state agency requirement, the following 

evidence in the record supports Stano's claim. Moxley, the 

prosecutor at Stano's trial, was also Zacke's prosecutor. 

12 

 



  

The notes in the prosecutor's file in the Zacke case indicate 

that Zacke was interviewed by Moxley's office on April 15, 

1983, and on April 26, 1983. At the time, Zacke was in the 

state prison. At the April 15 meeting, Zacke promised to 

help the prosecution any way he could in the future, and the 

prosecutor stated he would try reward Zacke in return.24 The 

prosecution file gives rise to an inference that the 

prosecution and Zacke agreed that Zacke would be returned to 

the Brevard County Jail and receive leniency in exchange for 

telling the police what he heard from prisoners about other 

murders.25 One of the notes in the prosecution file deals 

with setting up a plea date for Zacke. At the bottom of that 

page is the notation: "When G. Stano is moved, we cah move 

C.Z. into his cell." The proffered evidence also indicates 

that Zacke was in fact transferred to the Brevard Jail and 

placed in proximity to Stano. The evidence also shows that 

in July Zacke engaged in conversation with Stano in the jail 

exercise yard, resulting in Stano's confession. 

The foregoing evidence supports Stano's allegation that 

Zacke was an agent of the state at the time he engaged Stano 

in conversation. The proffered evidence permits an inference 

that the state moved Zacke, placed him in proximity to Stano, 

and agreed to reward Zacke in exchange for his agreement to 

tell the police what he could learn from Stano. I conclude 

that Stano's allegations are not merely conclusory nor wholly 

incredible in the face of the record, Blackledge, 431 U.5. at 
  

13 

 



  

74, and therefore Stano is entitled to an evidentiary hearing 

on this agency issue. 

Neither does the record conclusively rebut the required 

showing that the informant "deliberately elicited" the 

incriminating statement. The incriminating statements were 

made in the jail's exercise yard, during a 1 1/2 hour 

conversation. Stano and Zacke were taken out together and 

were the only prisoners in the yard. It is unclear who 

initiated the conversation, which began with a discussion of 

cars, but it was Zacke who steered it specifically to 

murder.26 Stano volunteered that the police had torn his car 

apart looking for blood, but did not find any. Zacke then 

asked Stano why the police did not find blood and what made 

them think they were going to. In response to this question, 

Stano admitted having killed. Throughout the rest of the 

conversation, which focused on the Scharf murder, Zacke 

actively asked questions of Stano, moving the conversation 

along.27 This degree of involvement is at least as extensive 

as that at issue in Henry itself, where the informant had not 

initiated the conversation and had taken no more steps to 

elicit the evidence than to engage in conversation with 

Henry. United States v. Henry, 447 U.S. at +100 :8.CL. at   

2187-88, 

This evidence permits an inference that Zacke 

purposefully directed the conversation to incriminatory 

matters, i.e., that he "deliberately elicited" the confession 

14 

 



  

from Stano. Thus, given my conclusion with respect to the 

state agency prong, neither one of the required showings is 

wholly incredible in light of the evidence, and thus Stano 

1s entitled to an evidentiary hearing on his Henry claim.28 

T1I. CONCLUSION 

Stano has alleged facts which, if true, are sufficient 

to grant relief under Brady v. Maryland and United States wv. 
  

  

Henry. These two claims are not mere conclusory allegations, 

and they are not wholly incredible in light of the record. 

Therefore, I conclude that Stano is entitled to an 

evidentiary hearing on these two claims. 

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1. The Supreme Court has noted the importance of an 
opportunity for factual development of a habeas claim: 
"Because detention so obtained is intolerable, the 
opportunity for redress, which presupposes the opportunity to 
be heard, must never be totally foreclosed ... Tt is the 
typical, not the rare, case in which constitutional claims 
turn upon the resolution of contested factual issues." 
Townsend, 372 U.S. at 312, 83 8.0L. ‘at 756.   

2. Not all of the following evidence is claimed by Stano to 
be Brady material. However, it is useful to view the Brady 
material in the context of all relevant proffered evidence 
which supports the need for an evidentiary hearing. As 
indicated in the text below, the principal Brady evidence 
claimed by Stano relates to the collusion between detective 
Crow and the defense attorney and psychologist. 

3. Appendix 19, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Lissa Gardner re Ecker conversation) ; 
Appendix 100, Appendix to Petition for Writ of Habeas Corpus 
(Affidavit of Virginia Shubert re Detective Lehman 
conversation). 

4. Appendix 19, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Lissa Gardner re Ecker conversation). 

5. The above information is from a statement made by 
McMillan. Appendix 20, Appendix to Petition for Writ of 
Habeas Corpus (Affidavit of Scharlette Holdman re McMillan 
conversation). 

6. Id.; Appendix 16, Appendix to Petition for Writ of Habeas 
Corpus (Gadberry Affidavit). 

7. Appendix 16, Appendix to Petition for Writ of Habeas 
Corpus (Gadberry Affidavit); Appendix 19, Appendix to 
Petition for Writ of Habeas Corpus (Affidavit of Lissa 
Gardner re Ecker conversation). See also Pet. Exhibits 3 - 5 
(interrogation with only Stano, Crow and Lehman present). 

  

8. Appendix 19, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Lissa Gardner re Ecker conversation). 

9. Appendix 16, Appendix to Petition for Writ of Habeas 
Corpus (Gadberry Affidavit). 

10. See, e.q., Pat. Exhibits 3 -'5 (interrogation with only 
Stano, Crow and Lehman present). 
  

16 

 



  

11. Appendix 19, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Lissa Gardner re Ecker conversation); 
Pet. Exhibit 4 at 14 (Crow-Lehman interrogation); Appendix 
29, Appendix to Petition for Writ of Habeas Corpus (Affidavit 
of Eugene Stano). 

12. Appendix 29, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Eugene Stano); Appendix 20, Appendix to 
Petition for Writ of Habeas Corpus (Affidavit of Scharlette 
Holdman re McMillan conversation). 

13. Appendix 100, Appendix to Petition for Writ of Habeas 
Corpus (Affidavit of Virginia Shubert re Detective Lehman 
conversation). 

14. Two examples follow: 

Crow: Gerald, the more you can come across 
with, we're gonna be able to take you out of this 
thing and put you in an isolated situation. Get 
you to 

Stano: What do you mean by that? 

Crow: Out from the groups. 

Stano: No, I don't want no damned single 
cell. 

Lehman: You're gonna want, Gerald, believe me 
there's a few people out here that are out to 

slit your "... throat. 

Lehman: And we don't want to see you get in 
that chair. We're keepin', we're trying to keep 
your ass out of it ... as hard as we can. 

Appendix 64, Appendix to Petition for Writ of Habeas Corpus. 

15. The following are several examples from the 
interrogation: 

Crow: Now they can take you out of here, take 
you back-up: north’ .... 

Lehman: You ever see a Governor's warrant? 
It comes through with goddamned ribbons and 

dolilies on it and it's Yike a goddamned skull. And 
it says you're gone whether you like it or not 

17 

 



  

Crow: We gotta get some clout so we can keep 
you in the state. 

Crow: You got problems. 

Stano: Thanks. 

Crow: More problems than you think. Because 
two bodies is not going to make you eligible for 
insanity. 

Appendix 66, Appendix to Petition for Writ of Habeas Corpus. 

Lehman: [T]he angle that you struck them 
with it, why that blade didn't break. And part of 
the way we're going to keep you down here is just 
like Sergeant Crow said--Pennsylvania and Jersey, 
man, they're chompin' at the bit. 

Stano: They think I did 

Lehman: TI don't want to see you get the 
chair. There's a guy coming up to get the chair 
next week up in Georgia ... I can't help but think 
that somewhere along the line you got the answers 
for us. 

Appendix 67, Appendix to Petition for Writ of Habeas Corpus. 

16. This is one of many examples: 

Lehman: Done a little research into this 
knife you're talking about, a retractable blade. 
The bone to the skull on Haddocks and the breast 
plate on Maher don't jive up with what you're 
telling us what you used on them 

Crow: You had to use a stronger blade than 
that, Gerald. 

Appendix 67, Appendix to Petition for Writ of Habeas Corpus. 

17. The affidavit of Stano's father, Eugene Stano, provides 
the information regarding this episode. Appendix 29, 
Appendix to Petition for Writ of Habeas Corpus. 

18. The draft of the letter reads, in relevant part: . "Your 
best source is still Sergeant Paul Crowe [sic] (send Paul a 
covert copy of this letter -- have Paul stop by and pick this 
up and read it and throw it in the wastebasket) ." Pet. 

18 

 



  

Exhibit 7. 

19. The memo states that "under "NO" circumstances is this 
inmate to talk to ANY DETECTIVE-POLICE OFFICER-FEDERAI AGENT- 
STATE ATTORNEY OFFICE or ANY ATTORNEY. All appointments for 
this inmate to speak to ANY person will be arranged and 
handled by Sergeant Paul Crow, "ONLY." Sergeant Crow will 
handle all telephone calls, visitors, etc. He will have NO 
contact with anyone, except jail personnel, in the normal 
course of security checks." Appendix 47, Appendix to 
Petition for Writ of Habeas Corpus. 

  

  

20. These cases were decided prior to the close of business 
on September 30, 1981, and are binding precedent under Bonner 
Vv. City of Prichard, 661 P.2d 1206, 1209 (11th Cir. 1981).   

21. The majority states that the Gadberry information need 
not have been disclosed because it was "preliminary, 
challenged or speculative information." See United States v. 
Agurs, 427°U.S. 97,109 n.16, 96 S.Ct. 2353, 2400 (1576) 
(quoting Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, 
J., concurring)). While I agree that Gadberry's difference 
of opinion with the other members of the police as to Stano's 
responsibility for one of the other murders may be the kind 
of speculative preliminary police work that the prosecution 
would have no obligation to disclose, the Gadberry 
information is more extensive than that. The Gadberry 
information proffered by Stano is relevant to the allegations 
of collusion and to Stano's mental state and its exploitation 
by Crow's interrogation techniques. 

  

  

22. I note that the majority assumes that the proffered 
evidence of collusion and coercion relates only to 
confessions to murders other than the Scharf murder. My 
discussion of the evidence demonstrates that the collusion 
continued and tainted the Scharf confessions also. See Crane 
v. Kentucky, U.8. . ~, 106 §.Ct. 2142 .11986) (evidence 
surrounding the making of a confession bears on its 
credibility and voluntariness and must be admitted, 
especially in a case with no physical evidence). 

  
  

On the basis of its erroneous factual assumption, the 
majority then suggests that certain evidentiary rules would 
render inadmissible any evidence challenging or explaining 
any of the previous convictions or the confessions on which 
such prior convictions were based. I doubt that the majority 
has correctly applied the evidentiary rules. 

Under Florida law, a court must admit evidence tending 
to explain the defendant's previous convictions. Francois v. 
State, 407 So.2d4 885, 890 (Fla. 1981), cert. denied, 458 U.S. 
1122, 102 S.Ct..3511 (1982); see algo Elledge v, State, 346 

  

  

  

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50.2d 998, 1001 (Fla. 1977) (no error in admission of 
circumstances leading to conviction to aid analysis of 
defendant's character), cert. denied, 459 U.S. 981 (1982). 
The Florida supreme court stated in Francois that "a 
defendant must be allowed to present evidence pertaining to 
the degree of his or her involvement in and the circumstances 
of the events upon which the previous convictions are based." 
The court held that there was no error in the case because 
the defendant had made no proffer, but specifically stated 
that "it would be a different case if the court had excluded 
evidence proffered by the defendant rebutting the state's 
evidence of aggravation or relative to any matter in 
mitigation." 1Id.; see also Tafero v. State, 406 So.2d 89, 95 
(Fla.Dist.Ct.App. 1981) (dicta stating that evidence that a 
previous crime was not actually committed by the defendant 
would have been required to be admitted in his capital 

  

  

  

  

  

sentencing proceeding). But see Buford v. State, 403 So.24 
943, 953 (Fla. 1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 
1039 (1982). Therefore, the evidence of the circumstances of 
Stano's previous confessions would be admissible under 
Florida law. 

It bears underscoring that Stano does not seek to 
introduce evidence legally attacking his prior confessions 
and guilty pleas. The values of economy and finality are not 
implicated by the purposes for which Stano proffers his 
evidence: regardless of the extent to which Stano uses 
evidence which implicitly impeaches the previous confessions 
to explain the circumstances of the Scharf confessions, the 
previous confessions' legal validity will stand unimpaired, 
unless they themselves are attacked in a direct or collateral 
proceeding. In contrast, the cases cited by the majority 
describe the legal consequences of a guilty plea with respect 
to a later direct or collateral legal attack on that 
conviction. See, e.g., McCoy v. Wainwright, 804 F.2d 1196 
(11th Cir. 1986). 
  

Also, I note that even were such evidence not admissible 
under Florida law, it would be admissible as a matter of 
Federal constitutional law. According to the line of cases 
following Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954 
(1978), a capital defendant may not be precluded from 
offering as a mitigating factor any aspect of his character 
or record. See also Skipper v. South Carolina, 476 U.S. 1, 
ir 106 85.Ct. 1669, 1670-71 (1986): Perry Vv. State, 395 
So0.2d 170, 174 (Fla. 1980) (following Lockett). Evidence of 
the circumstances of Stano's previous convictions would speak 
directly to his record. 

  

  

  

Finally, it appears that two of the prior convictions 
relied upon at sentencing in this case have been challenged 
collaterally, and those challenges are now pending in this 

20 

 



  

court. Stano v. Dugger, No. 88-3375. If one or both of 
those prior convictions are invalidated, the instant death 
sentence might have to be vacated. Johnson v. Mississippi, 
EUs. Fo gost ct. 1981 £1988). 

  

  

23. Stano also made a confession regarding Scharf in 1983 to 
Doctor Mussenden, a psychologist. This confession, which was 
not relied upon at trial, should not prevent Stano from 
being entitled to an evidentiary hearing. It is impossible 
to tell from the record the circumstances of the statement; 
thus, it cannot conclusively rebut Stano's other evidence. 
Also, a statement of this type made to an examining 
psychologist would be inadmissible to show guilt or 
innocence. See Fla. Stat. Ann. 90.503(4).(1979); McMunn v. 
State, 264 So0.2d 868, 870 (Fla.Dist.Cl.App.1972) (applying 
predecessor statute). See also Alvord v. Wainwright, 725 
F.2d 1282, 1294 {11th Cir.), cert, denied, 469 U.S.. 956, 105 
S.Ct. 355 (1984) (discussing Florida patient- 
psychotherapist evidentiary privilege). It therefore would 
not have changed the outcome at trial. 

  

  

  

The majority also suggests that Stano's sentencing 
confessions rebut the allegations of improper influence. 
However, the record contains several types of evidence 
showing that Stano is mentally ill in a manner that leads him 
to falsely confess to crimes. Given this propensity, any 
collusion that convinced Stano that he would obtain life if 
he confessed to many murders, and Crow's exploitation of 
Stano's mental vulnerabilities, could very well have a 
continuing effect; under this reasoning, the circumstances of 
the sentencing confessions would not conclusively rebut the 
continuing taint of the demonstrated earlier improprieties. 

24. At the meeting, Zacke said, "if there's anyway I can 
help, law enforcement, I will help. And not just 
specifically relate to the cars... I will cooperate, to the 
best of my knowledge, with anything else ya'll want to know, 
that I may know anything about. Regardless of what it is." 
A moment later, the prosecutor responded, "Now Mr. Zacke, the 
other things that I'm sure you've got information on after 
this case gets further down the road, I'm gonna put a price 
tag on um' amd the more you do ..., the more I'm going to try 
and do for you." Appendix 127, Appendix to Petition for Writ 
of Habeas Corpus (Statement of Clarence Albert Zacke). 

25. This inference is supported by the fact that Zacke had 
previously traded information for leniency, that the above- 
described language from the Zacke interview includes Zacke's 
promise to reveal additional information and the prosecutor's 
promise that he would try reward it, and the notes indicating 
that Zacke would be put in proximity to Stano when brought 
back to the Brevard County Jail. 

21 

 



  

26. Zacke testified that the conversation began in the 
following manner: 

We also talked -- he had seen my truck and my 
Cadillac and was talking about them, too, that had 
been confiscated .... Then he told me that they 
tore the whole interior out of his Trans Am 
searching for blood in his Trans 2m .... We talked 
about how fast Trans Ams were and stuff like that. 

Then I asked him, I said how come they did not 
find no blood in your car? What made them think 
they were going to? He said they think I am dumb 
enough to kill girls in my car and leave blood 
He said when I kill them, I don't splatter blood 
all over myscar ... Il.said.yes, I read the paper. 
I said you killed thirty nine or forty of them. He 
said no, I have killed a hundred. 

  

  

  

      

Deposition of Clarence Zacke, 34-35 (emphasis added). 

27. After having asked why Stano killed, Zacke's 
participation moved the conversation to the details of the 
Scharf murder: 

Then he says Cathy was a tramp, a pure tramp. 
1 sald who is Cathy? .... He told me, he says the 
girl that he is on trial is here in Brevard County 
for killing 

He said he took his time with her ... I said 
how is that? He said well, I stabbed her a few 
times, but he said I did not stab her very deep 
I said is that how you killed her? He said no 

I said don't you feel anything about it? He 
said no. 

Deposition of Clarence Zacke, 35-38. 

28. The majority addresses the merits of Stano's Henry claim 
without addressing the state's argument that the claim is 
procedurally barred. Accordingly, I also will not address 
the procedural issue. In any event, "cause" would probably 
be established by the state's suppression of the relevant 
Brady evidence, i.e., evidence from the prosecutor's file of 
the arrangement between the state and Zacke that Zacke would 
receive leniency and Zacke would be transferred close to 
Stano and would tell the police what he learned from Stano. 
The "prejudice" prong is obviously established. 

22