author: SWYGERT, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stanley B. ROBINSON and William Taylor, Defendants-Appellants.
    Nos. 73-1950, 73-1951.
    United States Court of Appeals, Seventh Circuit.
    Argued April 27, 1974.
    Decided Aug. 19, 1974.
    Rehearing Denied Oct. 31, 1974.

      William J. Stevens, Tyce S. Smith, Willard J. Lassers, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Charles P. Kocoras, Gary L. Starkman, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.

      Before SWYGERT, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judge.
   SWYGERT, Chief Judge.

Defendants Stanley B. Robinson and William Taylor appeal their convictions on an indictment brought against them and William H. Tolliver. Robinson was found guilty by the jury on four counts. Count one charged that Robinson and Tolliver, Chicago Police Officers, conspired with Theodore Holmes, Taylor, and unknown coconspirators to deprive citizens of their rights to life, liberty, and property without due process of law, and that the operation of the conspiracy resulted in the deaths of Jeff Beard and Verdell Smith, in violation of 18 U.S.C. § 241. Robinson was found guilty of the conspiracy count; Tolliver and Taylor were acquitted. In addition, Robinson was convicted under counts eight, nine, and ten of the indictment. Counts eight and nine, describing violations of 18 U.S.C. § 242, charged that he, while acting under color of law, deprived Joseph Rubio and Jeff Beard of constitutional rights and protections. Robinson was charged in count ten with the kidnapping and interstate transportation of Jeff Beard in violation of 18 U.S.C. § 1201(a). Robinson was sentenced to life imprisonment on each of counts one, nine and ten, and one year imprisonment on count eight, the sentences to run concurrently.

Taylor, named as an aider and abettor to Robinson in counts nine and ten, was found guilty by the jury. He was sentenced to life imprisonment on each of the counts with the sentences to run concurrently.

The foregoing charges emanate from a series of criminal activities beginning in April 1972 and culminating with the murder of Jeff Beard in May 1972. About April 21, 1972 Holmes met Robinson to discuss matters involving Robinson’s employment of Holmes. During the course of the conversation Robinson told Holmes that he knew of an endeavor whereby Holmes could make a great amount of money. Robinson referred to the scheme as “milkrun,” which contemplated in vague terms the robbery of an armored car containing money. Robin son indicated to Holmes that four people and assorted weapons would be needed to accomplish the job. Holmes agreed to participate and told Robinson that he could get two other people to enter into the scheme. One of those was William M. O’Neal, Holmes’ nephew. Holmes said O’Neal would be willing to join their efforts and that O’Neal had access to the needed weaponry due to O’Neal’s membership in the Black Panthers.

O’Neal, unknown to Holmes, was a paid informant for the Federal Bureau of Investigation and had functioned in that capacity since 1968. Upon being contacted by Holmes, O’Neal was asked if he would consider becoming a part of a big robbery that was planned by a police officer. Although appearing noncommittal, O’Neal agreed to meet with Holmes and Robinson to discuss the robbery plans. The meeting was arranged. At the meeting, Robinson informed O’Neal that he was planning a big robbery worth a million dollars. Robinson said that financing would be necessary in order to stage the robbery and that the necessary funds could be obtained by shaking down drug pushers. In addition, Robinson stated that these preliminary shakedown activities would bring the group closer together.

A day or two after their initial meeting, Robinson and O’Neal met at Holmes’ house. Robinson said he had a possible source of financing which they should check out. The three drove to a liquor store on the south side of Chicago. Robinson went in and returned ten minutes later. He stated they were going to murder a man named Chuck McFerren because he was a witness in a state murder trial. Robinson said that money was no object and that the “hit” would be worth more than $2,000 apiece which they could use to finance the “milkrun.” Robinson told his confederates their “contractor,” Pancho Hall, would not pay any money until Mc-Ferren was murdered and his body disposed of.

For two weeks after obtaining then-contract, Holmes, Robinson, and O’Neal staked out the El Caballero Lounge in Chicago which McFerren owned, waiting for McFerren to appear, and then following him, looking for a suitable moment to kill him. During this two week period, the conspiracy was joined by Nathaniel Junior. Robinson informed Junior that they would be shaking down drug dealers and that he would arrest them. Robinson informed Junior that the man they were presently stalking, McFerren, would only be a test to see if they would work together and, if successful, Robinson had a plan to rob an armored car containing a million dollars. Junior was informed by Robinson that if they could work together, Robinson could get them other “hit” contracts.

On May 6, 1972, O’Neal, Robinson, and a person O’Neal identified as William Tolliver were seated in Robinson’s car,outside of McFerren’s El Caballero Lounge waiting for McFerren to leave. After waiting six hours, at approximately 5:00 a. m., McFerren’s Cadillac automobile pulled away from behind the club and headed toward the Dan Ryan Expressway. Robinson followed the automobile onto the expressway. After trailing the automobile for a mile, Robinson maneuvered his car into a position that enabled the person O’Neal identified as Tolliver to fire a rifle blast through the rear window of the Cadillac. The shot killed the passenger in the automobile. The next day O’Neal called Robinson and informed him that the wrong person had been shot; that Mc-Ferren was not riding in the Cadillac and, instead, they had shot a man named Verdell Smith. Later that day, Robinson and O’Neal went to Pancho Hall to collect money on their contract. Robinson stated that Hall declined to make any kind of payment until the right person was dead.

The next event in the conspiracy began with a meeting on May 15, 1972 between Robinson, O’Neal, and Robert Bruce on the west side of Chicago. Before the meeting Robinson had informed O’Neal that he had a $5,000 murder contract on Joe Rubio, a reputed narcotics pusher. During the meeting they spotted Rubio and proceeded immediately to follow him in O’Neal’s car.

Robinson instructed O’Neal to overtake Rubio and stop the car he was in. After stopping Rubio, Robinson emerged from his car with his gun drawn. Bruce and O’Neal likewise got out with their handguns drawn. Robinson and Bruce opened Rubio’s car door and forced him out whereupon Robinson handcuffed Rubio’s hands behind his back and put him in the back seat of O’Neal’s car. Robinson cursed Rubio, stating that he had a contract to kill him and directed O’Neal to drive to a public park forest where he said he intended to murder Rubio. Robinson informed Rubio of the $5,000 amount of the contract and indicated that it would cost Rubio .money to get out of the car alive. As they proceeded to the park forest, O’Neal told Robinson that they should use Rubio to their financial advantage by having him push drugs and that it was therefore senseless to kill the man.

After reaching an apparent agreement with Rubio that he would distribute narcotics for them, the three drove Rubio back to the area in Chicago where they had abducted him. As part of the cost of getting out of the car alive Rubio paid $100 each to Robinson, O’Neal, and Bruce. After Rubio left, Robinson indicated to Bruce that there were other things they would do to make money, including the “milkrun.” In addition, Robinson told Bruce that they would also have hit contracts to perform.

The last event occurred on May 17, 1972. Robinson called O’Neal and told him that he had a task to perform that evening. The two met and Robinson explained that he had a “contract” worth $1000 on Jeff Beard, a narcotics pusher. Taylor purportedly had made the contract with Robinson. Robinson and O’Neal went to the area in Chicago where Beard lived and waited for his appearance. After waiting until 10:00 p. m., with no success, they were prepared to call it a night. In passing a pool hall, however, Robinson spotted Beard. Shortly thereafter, Beard left the pool hall, and Robinson accosted him. Informing Beard that he had a warrant and that he was going to take Beard to the police station, Robinson searched Beard, handcuffed him, and placed him in the back seat of the car being driven by O’Neal. Robinson ordered O’Neal to drive to the “Indiana District,” to which O’Neal responded by driving south toward Indiana. On the way Robinson ordered O’Neal to stop, whereupon Robinson, after making a phone call, took control of the car and drove on to Indiana. Robinson told Beard that they wanted merely to talk to him about the possibility of Beard pushing narcotics for them. After arriving in Indiana, Robinson pulled the car off the road and asked Beard to step out so that they might discuss further matters outside of the hearing of O’Neal. Moments later, Robinson shot and clubbed Beard to death.

I

Robinson raises the following issues in this appeal: (1) whether the acquittal of Tolliver and Taylor on count one precluded the jury from finding that Robinson participated in the charged conspiracy; (2) whether the Government is chargeable with destruction of evidence with respect to the murder weapon used in the Jeff Beard killing; (3) whether it was an abuse of discretion for the district court to deny a severance to Robinson on the ground that the admissions of his codefendant Taylor regarding the latter’s criminal background prejudiced Robinson; (4) whether it was an abuse of discretion for the trial judge to sequester the jury toward the end of the trial; (5) whether the trial judge committed reversible error with respect to certain evidentiary rulings; and (6) whether Robinson’s due process rights were violated by the manner in which the Government conducted the investigation of this case. The defendant Taylor joins Robinson in issue number six and raises no other matters. We affirm the convictions of Robinson and Taylor.

II

Addressing the first issue, Robinson contends that the conspiracy conviction must be reversed. The jury found Robinson guilty on count one “with death resulting,” but failed to specify as to which deaths Robinson was found culpable. It is the defendant’s contention that a finding of conspiratorial conduct as far as the death of either Yerdell Smith or Jeff Beard is involved must be set aside because of these circumstances: (1) because of the acquittal of Tolliver and Taylor on the first count, Robinson had no coconspirators, and (2) because of the acquittal of Tolliver, the jury must have disbelieved all of O’Neal’s testimony regarding the Verdell Smith killing, including Robinson’s purported involvement.

With respect to Robinson’s sole conspirator contention it is clear that-O'Neal, Taylor, and Tolliver were not members of a conspiracy resulting in the deaths of Smith and Beard. O’Neal lacked criminal intent while Taylor and Tolliver were acquitted on the count one conspiracy charge. Robinson was also charged, however, in count one of conspiracy with Holmes and other unidentified individuals. In our view there was sufficient evidence from which the jury might have properly found that Robinson, Holmes, and others were part of a conspiracy which contemplated violent acts, including murders and that the deaths of Smith and Beard did in fact result from the conspiracy. Moreover, it is not necessary that all or more than one of the conspirators participate in a particular overt act of the conspiracy. United States v. Cardi, 478 F.2d 1362, 1368 (7th Cir. 1973). Accordingly, the absence of Holmes during the occurrence of the Smith murder, and the sole participation of Robinson in the Beard killing did not preclude the jury from inferring that these were overt acts in furtherance of a conspiracy between Robinson, Holmes, and certain unknown persons.

As to Robinson’s inconsistent verdict contention, he argues that in acquitting Tolliver of the Smith murder the jury must have disbelieved O’Neal in relating the events -surrounding the murder, including Robinson’s participation, and that the jury therefore returned a verdict inconsistent with its asserted factual findings. To the extent the jury’s verdict can be squared with logic it may well be, as the Government contends, that the doubt surrounding O’Neal’s ability to adequately identify Tolliver as the trigger man in the Smith murder impelled the jury to his acquittal. We need not engage in such speculation, United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir. 1929); for it is well established that the “conviction of some alleged conspirators does not fall because others named are acquitted, even though the conviction of the others is logically required for the finding of guilty of those held.” United States v. Fox, 130 F.2d 56, 57 (3d Cir. 1942).

Ill

Robinson contends that his conviction with respect to the Jeff Beard killing should be reversed because the Government allegedly permitted the destruction of evidence which it is claimed might have exonerated Robinson of the murder. The evidence destroyed was the murder weapon, a .45 caliber handgun, claimed to have been used by Robinson in shooting Beard.

The asserted destruction of evidence occurred as a result of an attempt by O’Neal’s father, William O’Neal, Sr., to clean the .45. After Robinson and O’Neal drove back to Chicago from Indiana on the morning of the Beard killing, Robinson gave O’Neal the .45 used to shoot Beard. The gun was covered with mud from Robinson’s struggle with Beard during the killing. O’Neal took the weapon to the home of his father in Chicago. William O’Neal, Sr. testified that when he received the .45 it was full of mud and in a jammed condition. Although he was not asked to clean the gun, O’Neal, Sr. undertook to do so because of the dirt on it. He soaked the gun in a solution of water and table salt for twenty-four hours and then disassembled the gun and cleaned the barrel with a clothes hanger and cloth. He returned the gun to his son approximately four or five days later. The murder weapon was then turned over to an FBI agent, Ray Mitchell, on May 23, some six days after the Beard shooting.

At trial the Government’s weapons analyst testified that the Beard death bullet was fired from a weapon which had the same general rifling characteristics as the .45. However, the analyst stated that in comparing the Beard death bullet with test firings from the .45, he determined that an identification between the two was impossible because of differences in the microscopic marks. The weapons analyst could not therefore make a positive determination whether the .45 was used to fire the Beard death bullet. The witness said, however, that William O’Neal, Sr.’s cleaning and treatment of the weapon could have changed the microscopic marks left by the barrel of the .45 so as to preclude their identification with marks left by the barrel on a bullet fired before its cleaning.

Robinson asserts that the Government allegedly permitted the destruction of potentially exonerating evidence and that his conviction should therefore be set aside regardless of the good faith or bad faith of the Government. It is contended that the Government had a duty to have taken immediate possession of the murder weapon and that failing to do so, it should not be allowed to “explain away” the discrepancies revealed in the weapon analysis.

Although the defendant relies heavily on United States v. Bryant, 142 U.S. App.D.C. 132, 439 F.2d 642 (1971) for support, we do not reach the issues suggested by that decision, for Robinson’s trial tactics have so obscured the issue that we must hold it to have been waived. At trial, Robinson attempted to convey the impression that O’Neal stole the .45 from him. The Government argues that this was an attempt to blame O’Neal for Beard’s murder, a theory which would necessarily concede that the .45 was the murder weapon and render the lost evidence irrelevant. The Government’s argument does not necessarily follow from the cited transcript passages; Robinson could have consistently argued both that the .45 was not the murder weapon and that he did not possess it. However, the Government’s position is given much strength by the fact that Robinson did not raise the destruction of evidence issue in the trial court. This suggests that he was willing to concede the identification of the .45 as the murder weapon.

More importantly, Robinson’s failure to raise the issue below denied the trial judge an opportunity to pass on the factual questions involved. We have no evidence or findings as to whether O’Neal acted in bad faith in giving the gun to his father. We must speculate whether Robinson’s trial theory conceded that his gun was used to kill Beard. Both of these questions would have been substantially clarified had the issue been raised below. Because he appears to have conceded the issue and at the very least presented an alternative theory which conceded the issue arguendo, and since he did not raise the issue below, and this has left the record so incomplete that we cannot resolve it, we rule that any error was waived.

IV

Robinson contends that it was an abuse of discretion for the trial judge to deny his motion for severance under Federal Rule of Criminal Procedure 14 in view of the alleged prejudice caused him by being tried in the samé proceeding with the defendant Taylor. The basic prejudice to Robinson is claimed to emanate from evidence impeaching Taylor which Taylor admitted in his testimony. That testimony pertained to Taylor’s prior two felony convictions involving narcotics and Taylor’s conceded operation of a “narcotics pad” in Chicago. Robinson urges that forcing him to trial with Taylor burdened Robinson with the credibility of a man who was easily impeached. In addition, Robinson contends that the trial judge erroneously refused a limiting instruction designed to cure the prejudice.

We have previously spoken to this issue in United States v. Tanner, 471 F.2d 128, 137 (7th Cir. 1972) where we stated:

A defendant bears the burden of demonstrating that he has been prejudiced by the joinder; that burden is a difficult one. “The defendant must show something more than the fact that ‘a separate trial might offer him a better chance of aquittal.’ ”

Robinson’s allegation that the testimony relating to Taylor’s criminal record and narcotics activity prejudiced him is not sufficient to make out a showing of prejudice warranting severance. Indeed, Robinson’s allegation is no more than a claim that a separate trial would have created a stronger probability for his acquittal. The mere assertion that the impact of impeachment evidence pertaining to Taylor may carry over to Robinson thereby prejudicing him is not enough to meet the difficult burden imposed on a party seeking to establish prejudicial joinder. Accordingly, we hold that the trial judge did not abuse his discretion in denying Robinson’s motion for severance.

V

Robinson contends that the trial judge’s sequestration of the jury on the Government’s motion at a point in the trial immediately preceding Robinson’s testifying unfairly tainted the defendant, and that there was no substantial reason justifying sequestration. Robinson claims that under the circumstances the action of the judge was highly prejudicial and that it was an abuse of discretion for the trial court to grant the Government’s motion.

The Government made its motion for sequestration after the voir dire examination by defense counsel of FBI Agent Roy Mitchell and Chicago Police Officer James Tobin which was conducted for the purpose of making an offer of proof. The offer of proof was denied whereupon the Government made its sequestration motion charging that defense counsel’s offer of proof raised potentially prejudicial matters far adrift from what the jury might properly consider and that, in part, the offer of proof had no real purpose so far as making a record. The Government contended that in view of the attendance at trial and during the offer of proof of the news media, a potential risk existed to the proper conduct of the trial in the event the substance of the offer of proof might inadvertently or otherwise come to the jury’s attention.

Quite clearly sequestration is a discretionary matter for the trial judge, subject to challenge only upon a showing of abuse. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); Kleven v. United States, 240 F.2d 270 (8th Cir. 1957). In scrutinizing the trial judge’s exercise of discretion, we must keep in mind that the “purpose of sequestering is . . .to protect the jury from interference,” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966), and that in a trial likely to arouse substantial public interest, such as the one here, the trial judge should be alert to safeguarding the jury from any potential interference with its decision. In our view the trial judge was correct in believing that defense counsel’s offer of proof was sufficiently prejudicial to warrant mid-trial sequestration in order to avoid the potential risk that the matters involved in the offer of proof might somehow come to the jury’s attention. We disagree with Robinson’s assertion that the timing of the sequestration order, just prior to when he was to take the stand in his defense, somehow impugned his right to a fair trial. The trial judge carefully instructed the jury as to the purpose for sequestering them and emphasized that neither party was chargeable with the decision, but that it was solely his responsibility. Under the circumstances, therefore, the trial judge did not abuse his discretion in ordering sequestration of the jury during the trial.

VI

Robinson challenges four evidentiary rulings: (1) the Government was permitted to introduce evidence of alleged crimes which Robinson contends were not encompassed by the indictment; (2) Robinson contends that he was improperly precluded from impeaching O’Neal by establishing a foundation, through FBI Agent Roy Mitchell, for showing that O’Neal lied when he testified that he observed Robinson in a Cadillac in mid-July, 1972; (3) Robinson claims that the court erroneously prevented him from impeaching O’Neal through hearsay testimony related by Officer To-bin; and (4) the Government allegedly improperly impeached Robinson by prior inconsistent statements contained in a book manuscript prepared by Robinson.

Turning to the first contention, the alleged crimes not charged in the indictment related to evidence involving a plan to rob an armored truck in Chicago, the so-called “milkrun,” and evidence pertaining to other “contracts” to murder. As to the evidence involving the milkrun it would appear that the crime charged in count one of the indictment adequately contemplated the so-called milkrun. With respect to the evidence of other murder contracts, the evidence which Robinson challenges was either the subject matter of various substantive counts in the indictment against him or involved areas into which the defense counsel ventured initially. Accordingly, we find Robinson’s challenge regarding alleged crimes not part of the indictment to be without merit.

Robinson’s second challenge to certain evidentiary rulings concerns the trial judge’s refusal to allow Robinson to elicit testimony from Agent Mitchell to the effect that O’Neal told the agent that he saw Robinson in a 1971 Cadillac bearing Illinois license plates around July 11, 1972. Since he was not allowed to put the foundation question to the witness, Robinson was foreclosed from bringing in the testimony of the owner of the Cadillac, which would have contradicted O’Neal’s disclosure to Mitchell. The owner of the Cadillac would have testified that at no time in mid-July 1972, was Robinson ever present in his automobile. In excluding the foundation question and the ensuing testimony, the trial judge stated that it was immaterial whether O’Neal saw Robinson in July 1972 for it was undisputed that Robinson had disappeared at that time, almost a full month after the last act in furtherance of the conspiracy. The trial judge went on to hold that the “issue of whether Robinson was in Chicago in July, and thus whether O’Neal was mistaken or lied about seeing him then, is collateral and may lead to waste of time and distraction of the jury from the real issues in the case.” We agree, and add only that the probative value of this evidence with respect to impeachment purposes was clearly outweighed by its tendency to distract the jury from the real issues at trial and its potential to unduly consume time. The evidence was properly excluded.

Addressing the defendant’s third evi-dentiary contention, at trial Robinson sought to introduce testimony by Chicago Police Officer James Tobin to the effect that in May and June 1972 FBI Agent Roy Mitchell told Tobin that O’Neal had made certain statements to Mitchell concerning the killing of Ver-dell Smith. The statements allegedly made in May were: (1) that O’Neal was accompanied in the murder car by a male Negro sergeant of police and also by a male Negro patrolman who was on furlough; and (2) that the sergeant of police took the fatal shot. The statements allegedly made in June were: (3) that it was Tolliver and not Robinson who took the fatal shot; and (4) that Robinson was driving, Tolliver was seated in the right front seat, and O’Neal was positioned in the rear seat of the automobile.

O’Neal’s trial testimony was that Robinson, not Tolliver, was on furlough; Robinson was the driver of the car; Tol-liver took the fatal shot from the rear seat; and O’Neal was seated in the right front seat. The defendant’s purported aim in attempting to utilize the Tobin testimony was to impeach O’Neal. The trial judge declined to admit To-bin’s testimony either for impeachment purposes or as substantive evidence, and, in our view, he was correct.

The Tobin testimony was offered to impeach Mitchell’s testimony that he, Mitchell, did not communicate to Tobin the aforementioned statements numbered (1) through (4), that is, the “To-bin version” of the May and June statements. However, prior to offering the impeaching testimony of Tobin, it was incumbent on the defendant to put the preliminary question to Mitchell thereby adducing the “primary assertion,” namely, the assertion to be impeached. The defendant never asked Mitchell whether O’Neal had communicated to him the “Tobin version” of the events surrounding the Smith killing. Had the defendant made this inquiry, Mitchell may well have responded by denying that O’Neal ever told him the “Tobin version” of the events; at that point the defendant would then have a primary assertion capable of impeachment.

Even assuming that the lack of a primary assertion is not fatal to Robinson’s contention, we nevertheless hold that the Tobin testimony is inadmissible. Robinson offered the testimony to impeach the anticipated testimony of Mitchell that O’Neal never communicated to him the Tobin version of events involving the Smith murder. It is an established rule that when a witness’ testimony is “merely negative” and “not damaging to the examiner, but merely disappointing,” the witness may not be impeached by showing a prior inconsistent extra-judicial statement that would be favorable to the examiner. McCormick, Evidence, pp. 71-72 (2d ed. 1972); Taylor v. Baltimore & Ohio R. Co., 344 F.2d 281, 283-285 (2d Cir. 1965). The rationale for the rule is “the protection of the other party against the hearsay use by the jury of the previous statement,” (McCormick, supra, pp. 71-72) for it is thought that whatever legitimate effect the impeaching testimony might possess, it is outweighed by the potential that the jury will use it as substantive evidence regardless of instructions by the court as to its limited purpose. Mitchell’s denial that O’Neal told him the “Tobin version” of events would be merely negative in its effect on Robinson’s defense and, as such, not damaging. Under the circumstances, the Tobin testimony was not admissible to impeach Mitchell. In addition, it is clear that Tobin’s testimony covering prior inconsistent statements of Mitchell could not be admitted as substantive evidence that O’Neal made the statements. United States v. De Sisto, 329 F.2d 929, 933 (2d Cir. 1964); United States v. Cunningham, 446 F.2d 194, 197-198 (2d Cir. 1971).

Robinson’s last challenge to an eviden-tiary ruling involves the use of a bpok manuscript authored by Robinson during the Government’s cross-examination of Robinson. The manuscript dealt with the narcotics traffic in Chicago and portrayed the experiences and life of a police officer who underwent experiences similar to those described by Robinson in his testimony at trial. Robinson had given the manuscript to a Chicago newspaper reporter, David Young for the purpose of enlisting the aid of the reporter in editing the manuscript. Young testified that Robinson had told him that the manscript was an accurate representation of events as Robinson saw them. Robinson testified, however, that certain portions of the manuscript were fictionalized.

The trial judge allowed the Government to cross-examine Robinson on the manuscript for the purpose of impeaching Robinson by showing prior inconsistent statements in the manuscript, ask Robinson whether they were true or fictionalized, and, if true, treat the statements as any other prior inconsistent statement. Robinson contends that because of the tone and nature of the manuscript, he was highly prejudiced by its reading at trial. We disagree; the prejudice to Robinson, if any, was slight. It is difficult to perceive any prejudice merely from the fact that the manuscript depicted Robinson as an honest and clever “supercop” in the fight against narcotics, while casting the authorities as stupid and venal. Moreover, the prejudicial impact, if any, was far outweighed by the probative value of the manuscript with respect to matters of impeachment. Accordingly, we find Robinson’s contention to be without merit.

VII

Robinson, joined by Taylor, contends that the manner by which the Government conducted its investigation of this case was so shocking to the conscience and violative of the underpinnings of due process that the Government should have been prevented from prosecuting them. Specifically, the defendants condemn the Government’s use of an informant, O’Neal, who actively participated in the events of the conspiracy involving torture, extortion, and murder. Also, the defendants contend that the Government failed to timely intervene in the series of crimes of which it had full knowledge in advance. It is these circumstances which the defendants contend support their assertion that the Government was guilty of unlawful conduct and should thereby not be allowed to prosecute.

We agree with the defendants that one of the primary obligations of federal law enforcement officials is the safeguarding and preservation of property and lives from criminal depredations. However, the very person who engages in those criminal depredations should not be heard to complain of a breach of the obligation to safeguard life and property. Indeed, we find it anomalous that the defendants in effect claim that they should not answer for their heinous crimes because the Government failed to timely intervene to prevent them from doing what they had always intended to do. The defendants do not argue entrapment, nor do they claim to have been induced by the Government or its informant. Their only tactic is to shift the focus of scrutiny to the actions of the Government. That is not enough, for it cannot be gainsaid that the defendants initiated and engaged in activities clearly shocking to conscience and violative of basic notions of civil and human rights. Accordingly, we hold that if there was a breach of obligation on the Government’s part, only the innocent victim may legitimately complain.

The convictions of defendants Robinson and Taylor are affirmed.

      . 18 U.S.C. § 241 provides :
      If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
      If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
      They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.

      . 18 U.S.C. § 242 provides :
      Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both ; and if death results shall be subject to imprisonment for any term of years or for life.

      . 18 U.S.C. § 1201(a) provides :
      (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when :
      (1) the person is willfully transported in interstate or foreign commerce ;
      (2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
      (3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 101(32) of the Federal Aviation Act of 1958, as amended (49 U.S.C. § 1301(32)); or
      (4) the person is a foreign official as defined in section 1116(b) or an official guest as defined in section 1116(c) (4) of this title,
      shall be punished by imprisonment for any term of years or for life.

      . Indeed, the milkrun was an objective of the conspiracy alleged. It was an inducement whereby Robinson enlisted others to join him in his efforts to deprive various individuals of their civil rights.

      . On prior cross-examination O’Neal admitted that he had told Agent Mitchell of seeing Robinson three times in a 1971 Cadillac in early July.


source: Caselaw Access Project

author: TIMBERS, Circuit Judge:

license: Public Domain

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, and Angel Roman, Intervenor-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, AMALGAMATED MACHINE, INSTRUMENT AND METAL LOCAL 485, Defendant-Appellant.
    No. 1158, Docket 74-1472.
    United States Court of Appeals, Second Circuit.
    Argued May 24, 1974.
    Decided Aug. 2, 1974.

      Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D. C. (Carla A. Hills, Asst. Atty. Gen., Robert E. Kopp, Atty., Dept, of Justice, Washington, D. C., Edward J. Boyd, U. S. Atty., and Harold J. Friedman, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for plaintiff-appellee Secretary of Labor.
    Stephen C. Vladeek, New York City (Everett E. Lewis, Robert L. Jauvtis and Vladeek, Elias, Vladeek & Lewis, New York City, on the brief), for defendant-appellant Local 485.
    Before SMITH and TIMBERS, Circuit Judges, and TYLER, District Judge.

       Hon. Harold R. Tyler, Jr., of the Southern District of New York, sitting by designation.

   TIMBERS, Circuit Judge:

On this appeal from orders entered March 13, 1974 and April 5, 1974 in the Eastern District of New York, John F. Dooling, Jr., District Judge, which (1) invalidated a local union’s 1970 election for the office of business manager, (2) directed that a new election for that office be held under the supervision of the Secretary of Labor, and (3) required that the incumbent union business manager and all union business agents or organizers who intend to seek that office resign at least thirty days prior to the supervised re-election, the principal issues are whether the record supports the district court’s determination that the contested 1970 election was not conducted in accordance with the union constitution as required by § 401(e) of the Labor Management Reporting and Disclosure Act (the Act), 29 U.S.C. § 481(e) (1970), and whether, having invalidated the election, the district court was authorized, pursuant to § 402(c) of the Act, to order resignations prior to the supervised re-election. The latter question appears to be one of first impression.

We affirm.

I.

The facts are not in dispute and may be briefly summarized.

In September 1969, the officers of Amalgamated Machine, Instrument and Metal Local 485 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO (Local 485) unanimously appointed one Hamilton Archer to serve as the union’s temporary business manager until the next regularly scheduled union election in February 1970. In October, Archer’s appointment was ratified by Local 485’s executive board. The general membership, however, was not afforded an opportunity to participate in Archer’s interim appointment.

Prior to his appointment as temporary business manager, Archer had served for three years as one of Local 485’s business agents. In this appointive capacity, he had rendered various services to a number of shops represented by the union. Such services included participation in contract negotiations and the hearing and consideration of union member grievances. In addition, Archer had been active in the recruiting and organizing of new union members. After his appointment as temporary business manager, Archer did not resign as one of Local 485’s business agents, but he continued to render services in that capacity to many of the shops he had previously served and continued formally to be recognized by the union as a “business agent-only”. He did devote a substantial portion of his time, however, to the executive functions of business manager.

At a general meeting of the union membership on December 18,1969, Archer was formally nominated for the office of business manager. Although others had expressed an interest in running, he was the only formal nominee for the office. At the same meeting, inter-venor Angel Roman and another individual, both of whom were then business agents of the union, were nominated for the union’s offices of Corresponding and Recording Secretary and Vice President, respectively. Their nominations, however, were ruled out of order on the ground that Article XI, Section 7, of Local 485’s constitution declares incumbent business agents ineligible for elective office.

The union elections were held on February 24, 1970. Archer and “his” slate of candidates ran unopposed and were elected.

On February 26, 1970, two days after the election, Roman, along with eight other union members, filed a formal writ-

ten protest with Local 485’s executive board challenging Archer’s election. The gravamen of the challenge was that Roman and the vice presidential candidate had been discriminated against because, as business agents, they had not been permitted to run for elective office, whereas Archer, who after his appointment as business manager had continued to function as a business agent and at the time of the election was officially recognized by the union as such, was permitted to run.

After exhausting available internal union remedies without success, Roman filed a complaint with the Secretary of Labor pursuant to § 402(a) of the Act. He charged that Archer’s election had not been conducted in accordance with Article XI, Section 7, of the union constitution, as required by § 401(e) of the Act. The Secretary investigated Roman’s complaint and found probable cause to believe that there had been a § 401(e) violation. On August 8, 1970, pursuant to § 402(b) of the Act, the Secretary commenced the instant action in the district court seeking a declaration that Archer’s election was invalid and an order directing that a new supervised election be held.

After a bench trial, the district court filed a comprehensive opinion which included detailed findings of fact and conclusions of law. The crux of the court’s holding was that, since Archer “continued to be a Business-Agent-only as a matter of Internal Local Management, record-keeping, and compensation” after his appointment as business manager and since he was functioning as a business agent at the time of the February 1970 elections, he was ineligible under the union constitution for election to the office of business manager. The court further held that Archer’s initial appointment was unlawful as contrary to the spirit, if not the letter, of the union constitution.

Accordingly, pursuant to § 402(c) of the Act, the court voided Archer’s election and directed that a supervised re-run be held at Local 485’s regularly scheduled membership meeting in September 1974. The court further ordered Archer, who had been re-elected as business manager in 1972, and the organizers or business agents of the union who intend to run for that office, to resign their posts at least thirty days prior to the September re-run.

II.

On appeal Local 485 does not challenge the factual findings on the basis of which the district court concluded that Archer was a business agent at the time of his February 1970 election and therefore was ineligible under Article XI, Section 7, of the union constitution to run for the position of business manager. Rather, it focuses on the validity of Archer’s interim appointment. It contends that, since Archer was Local 485’s de facto business manager at the time of the contested election, he could not also have been a business agent as a matter of law. It claims therefore that he was not subject to disqualification under the union constitution.

In support of its position, the union advances two arguments. First, it argues that Archer’s status in February 1970 was not open to challenge by the Secretary because of the failure of any union member to file a timely protest to Archer’s September 1969 appointment as required by § 402(a) of the Act. Second, it argues that Archer’s appointment was expressly authorized by Department of Labor Regulations which render such an appointment exempt from scrutiny by the Secretary in a § 402 action. For the reasons below, we hold that the union’s arguments are based on a fundamental misconstruction of the applicable statute and regulations.

Contrary to the union’s assertions, neither Roman’s internal union protest nor the Secretary’s § 402 complaint, which was predicated on the protest, challenges the validity of Archer’s interim appointment as such. Neither, for example, seeks to invalidate any of Archer’s official actions during his de facto incumbency. Rather, the theory advanced by the Secretary is that Local 485 violated Article XI, Section 7, of its constitution and imposed discriminatory candidate eligibility requirements on Roman by disallowing his nominaton on the ground that he was subject to the business agent disqualification, but permitting Archer to run in spite of the fact that he was formally recognized and continued to function as a business agent.

This complaint, as opposed to one questioning the propriety of Archer’s appointment as such, unquestionably was presented to Local 485’s executive board and was appealed unsuccessfully through union channels as required by § 402(a). This clearly is not a case, as the union suggests, where the self-regulatory policies of the Act have been frustrated because a claim of union wrong-doing was presented and developed by the Secretary rather than by aggrieved union members. Compare Hodgson v. Local 6799, United Steel Workers, 403 U.S. 333, 337-41 (1971); Wirtz v. Local 191, Teamsters, 321 F.2d 445, 448 (2 Cir. 1963). Nor was there any frustration of the union appellate process here. Compare Calhoon v. Harvey, 379 U.S. 134, 140 (1964).

Moreover, the Department of Labor Regulations referred to above are relevant only if, as the union claims, Archer’s de facto incumbency as business manager relieved him of the business agent disability. We hold that it did not.

As stated above, the union does not challenge the district court’s findings that Archer was both formally and functionally a business agent in February 1970. In effect, Local 485 concedes that Archer performed in the capacities of both business agent and business manager when he was elected to the latter office. It has not offered any explanation, however, by way of precedent or policy as to why one so situated should not have been subject to the business agent disqualification. We have found none.

On the contrary, the provision in the union constitution which sought to divorce business agents from union politics clearly was intended to avoid the possibility that business agents might use their position — with close contacts with the membership — to gain an unfair advantage in union elections. The fact that Archer occupied the office of business manager at the same time that he functioned as a business agent did not automatically mitigate the unfair advantage which Article XI, Section 7, of the union constitution was intended to prevent.

In short, we hold that, whether or not Archer was Local 485’s business manager at the time of his election to that post, he also was one of its business agents. As such, he, like Roman, was ineligible under the union constitution to stand for election.

III.

Local 485 also claims that the district court lacked authority under § 402(c) to order the resignation of Archer and those of the union’s organizers and business agents who intend to run for business manager prior to the supervised rerun. The Secretary claims, on the other hand, that such a remedy is contemplated by the general language of § 402(c) and is necessary and appropriate here to insure a fair election.

Section 402(c) provides that where, as here, a union election is found to have been conducted in violation of § 401, the court must set aside the contested election and direct that a new election be held under the supervision of the Secretary and in conformity with the constitution of the union and the requirements of Title IV of the Act. See Trbovich v. United Mine Workers, 404 U.S. 528, 537 n. 8 (1972).

In ordering the organizers and business agents of Local 485 who intend to run for the office of business manager to resign prior to the scheduled re-run, the court properly followed the mandate of § 402(c) in endeavoring to insure that the supervised election would be conducted in accordance with Article XI, Section 7, of the union constitution. In fact, by permitting such individuals to remain as business agents or organizers until thirty days prior to the new election, the court construed that provision of the union constitution more favorably toward the prospective candidates than had Local 485 which disallowed Roman’s nomination because he continued to be a business agent until approximately two months before the February 1970 election.

Furthermore, in ordering Archer to resign as business manager, the court did no more than exercise the inherent equitable powers conferred by § 402(c), see Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31, 33-34 (M.D.Fla.1967); cf. Mitchell v. De Mario Jewelry, Inc., 361 U.S. 288, 291-92 (1960); Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), to deprive Archer of the benefits of his ill-gotten incumbency and to prevent “the unfairness of the first election from infecting, directly of indirectly, the remedial election.” Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, 389 U.S. at 474. In view of the fact that a one month vacancy in the office of business manager will have no adverse effect on the union (the post had been left vacant for two years prior to Archer’s initial appointment) but will tend to promote an untainted re-run, we hold that the court did not abuse its discretion in directing Archer’s resignation.

Local 485 contends, however, that the resignation provision of the court’s order is in conflict with § 402(a) which provides that:

“The challenged election shall be presumed valid pending a final decision thereon . . . and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.” The union argues that a “final decision” on the election occurs only when a court enters an order pursuant to § 402(c) certifying the results of the new election. On the other hand, the Secretary maintains that the phrase refers to a judicial decision on the validity of the contested election.

This question appears to be one of first impression. We believe that the Secretary’s construction of the phrase is consistent with the legislative history of § 402(a):

“Since union business must not be brought to a standstill whenever an election is challenged, it is necessary to make some provision for the conduct of business while the proceeding is in progress. It would be intolerable for the Government to appoint outsiders to act as receivers. The choice lay between keeping the old officers in office or allowing the new officers to enter upon their duties even though their right may be challenged. The latter course seems preferable. A union election should be presumed valid until the contrary can be reasonably established.” (emphasis added).

S.Rep.No. 187, 86th Cong., 1st Sess. 22 (1959), quoted in 2 U.S. Code Cong. & Admin. News 2338 (1959).

Moreover, the fact that § 402(d) renders a judicial order invalidating a union election and directing that a new one be held “appealable in the same manner as a final judgment” strongly supports the Seei'etary’s position that the district court’s determination of a § 401(e) violation constituted a “final decision”.

We hold that the district court was empowered to order resignations prior to the supervised re-election and that it acted well within its discretion in doing so here.

Affirmed.

      . The office of business manger is the union’s highest executive position. The office deliberately had been left vacant since 1967.

      . Article XI, Section 7, of the union constitution provides in pertinent part:
      “A Local Organizer or Business Agent shall not be eligible for election to any office in the Local while he is an Organizer or Business Agent.”

      . The fact that Archer was reelected as business manager in 1972 in an unsupervised election, conducted during the pendency of the instant action, does not render moot the Secretary’s challege to the prior election. Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 474 (1968).

      . Archer’s predecessors in office had been appointed and then elected in the same manner as was Archer. The union constitution has no provision for filling an office deliberately left vacant.
      The Department of Labor Regulations relied on by Local 485 to validate Archer’s appointment provide:
      “§ 452.25 Vacancies in office.
      Title IV governs the regular periodic elections of officers in labor organizations subject to the Act. No requirements are imposed with respect to the filling by election or other method of any particular office which may become vacant between such regular elections. If, for example, a vacancy in office occurs in a local labor organization, it may be filled by appointment, by automatic succession, or by a special election which need not conform to the provisions of Title IV.”
      “§ 452.3 Interpretations of constitution and bylaws.
      The interpretation consistently placed on a union’s constitution by the responsible union official or governing body will be accepted unless the interpretation is clearly unreasonable.”
      29 C.F.R. §§ 452.25 and 452.3 (1974).
      In view of the grounds of our decision, we need not consider the question of the validity of Archer’s interim appointment.

      . We assume that Archer intends to seek renomination as business manager.


author: PELL, Circuit Judge. WILLIAM J. CAMPBELL, District Judge

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. Eugene R. CORLEY d/b/a Eugene R. Cor-ley Builders, and Leakakos Construction Co., Inc., Defendants-Appellees.
    No. 73-1376.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 19, 1974.
    Decided Sept. 13, 1974.

      William J. Campbell, District Judge, concurred in part and dissented in part, with opinion.

      Edward V. Scoby, Chicago, 111., for plaintiff-appellant.
    James A. Regas, Albert J. Horrell, Stephen J. Schostok, Chicago, 111., for def endants-appellees.
    Before PELL, Circuit Judge, and CAMPBELL and GRANT, Senior District Judges.

       Senior Judge William J. Campbell of the Northern District of Illinois and Senior Judge Robert A. Grant of the Northern District of Indiana are sitting by designation.

   PELL, Circuit Judge.

Plaintiff-appellant Northwestern National Insurance Company (Northwestern) brought a declaratory judgment action in federal district court seeking interpretation of its coverage under a comprehensive general liability policy issued to Leakakos Construction Company, Inc. (Leakakos). It named as defendants its insured, Leakakos, and Eugene R. Corley, d/b/a Eugene R. Corley Builders (Corley), plaintiff in a state court suit against Leakakos for alleged defects in masonry work done under a contract for a Corley-developed apartment building. Northwestern contends that exclusionary language in the insurance policy issued to Leakakos relieves it from the duty to “defend and pay any claim or judgment that might be rendered” against Leakakos and in favor of Corley. Northwestern’s complaint for declaratory judgment further alleges that the state court suit, filed October 1970, is still pending in the Circuit Court of Cook County, Illinois. It has not been brought to our attention that there has been any change in this status.

Without reaching the merits of the policy coverage controversy, as to which we also express no opinion, the federal district court granted Leakakos’s motion for summary judgment. In its memorandum decision, the court concluded that a 1970 decision of the Supreme Court of Illinois, Gibraltar Ins. Co. v. Varkalis, 46 Ill.2d 481, 263 N.E.2d 823, was dispositive. Varkalis, as interpreted by the district court, provides that an insurance company which attempts to reserve its rights under a policy subsequent to appearing and defending the action in behalf of its insured will be deemed to have waived those policy rights.

Northwestern raises two questions for review: (1) whether the district court properly interpreted the applicable state law; and (2) whether certain documents submitted by the parties raise a factual issue as to the existence of a December 16, 1970, reservation-of-rights letter.

I

The pertinent history underlying this appeal is as follows. In November 1967, Northwestern issued a comprehensive general liability insurance policy (# CLA 61 09 12) to Leakakos covering the period November 11, 1967, to November 11, 1968. The policy provided in part that the insurer would pay on behalf of Leakakos all sums which it would become legally obligated to pay because of “ [p] roperty damage to which this insurance applies, caused by an occurrence . . . In summer of 1967, Leakakos entered into a contract with Corley, whereunder Leakakos was to provide masonry work for the construction of an apartment building in Chicago. Leakakos began performance under the contract in September 1967 and completed the work eight or nine months later. In October 1970, Corley brought a $150,000 suit against Leakakos in state court alleging defects in construction and workmanship, which defects supposedly constituted departures from and violations of the terms and specifications of the Leakakos-Corley contract.

In December 1970, Leakakos’s personal attorney, James Regas, inquired whether Northwestern would undertake the defense of the Corley suit. On December 16, 1970, according to an allegation in Northwestern’s second amended complaint, Northwestern upon receipt of the inquiry mailed to Leakakos a letter in which it, inter alia, stated it was accepting untimely notice of the litigation “subject to full reservation of all our rights under the policy.” Leakakos denied receiving any such letter. On March 16, 1971, pursuant to stipulation granted by Corley, a law firm retained by Northwestern filed an appearance, answer, and jury demand on the insured’s behalf. However, two months prior to that submission, attorney Regas had filed an answer for Leakakos. Thus, there are two answers on behalf of Leakakos on file in the state court suit. On July 6, 1971, Corley’s attorneys took the deposition of one of the officers of the Leakakos corporation. Both James Regas and the firm retained by Northwestern attended.

About a week later, July 15, 1971, Northwestern wrote Leakakos that the insurer “shall proceed with the investigation and afford a defense of [the] litigation with the express understanding that in so doing this company does not waive any of its rights under the policy that was issued to you . . . .” The letter also stated that, in the absence of objection within ten days. Northwestern would assume that Leaka-kos consented to the handling of the defense subject to a reservation of right. On July 21, attorney Regas relayed an offer on the part of Corley to settle within the limits of the Northwestern policy ($100,000) and demanded that the insurer do so. The record discloses no response from Northwestern.

On December 16, 1971, Northwestern filed the present declaratory judgment action. Leakakos, joined by Corley, then sought summary judgment. In an amendment to the original motion, Leak-akos asserted that the only letter it had received which purported to reserve Northwestern’s rights was that dated July 15, 1971, by which time the insurer’s attorneys had already begun to participate in the defense of Leakakos in the state court. Leakakos maintained that subsequent to the entry of appearance by the counsel retained by the insurance company Leakakos, as it had a right to do, had relied upon the insurance company to “bear the burden of and do all things necessary for the defense of the State Court proceedings.” It argued that the insurer was therefore estopped from relying on the July 15th letter. The district court granted the motion for summary judgment.

II

The district court, in its memorandum opinion, stated that “the complaint in the state court action should have placed the insurance company on notice that a policy exclusion might be applicable. Since it entered into its defense without reservation, it is estopped from asserting a reservation at a later time.” The court found no need to determine whether Northwestern’s actions in state court had prejudiced Leakakos; thus, the court apparently interpreted Gibraltar Ins. Co. v. Varkalis, 46 Ill.2d 481, 263 N.E.2d 823 (1970), the case it considered dispositive, as sub silentio overruling what the district court acknowledged to be “a substantial line of Illinois Appellate Court cases . . . suggesting that there is no waiver upon the entrance of the insurance company into the case unless its actions prejudice the insured.” (Footnote omitted.) Northwestern strongly disagrees with the court’s reading of Varkalis.

In Varkalis, the insured in 1961 had caused the death of a woman by repeatedly driving his car over her body. He subsequently pleaded guilty to a murder charge and entered the penitentiary. In March 1962, Varkalis filed an action against the insured seeking damages for the wrongful death of the woman killed. Gibraltar Insurance Company stated that it first became aware of this claim in February 1964; the next month, counsel for the company entered an appearance and filed an answer on behalf of the insured. In April 1964, its counsel moved to dismiss Varkalis’ complaint, which motion was denied. It was not until more than a year later, in July 1965, that Gibraltar notified its insured that it would provide a defense but that it would not extend coverage under the policy because of the manner in which the “accident” had occurred.

In October 1966, Gibraltar filed a declaratory judgment action. The trial and appellate courts held that the action was barred by the statute of limitations. The appellate court further held that Gibraltar, by virtue of its conduct, was es-topped from asserting its policy defense. The Supreme Court of Illinois devoted the first part of its opinion to the statute of limitations question in which it disagreed with the lower courts. It then discussed the waiver issue:

“Notwithstanding this continued representation of Robinson [the incarcerated insured] in the wrongful death action . . . , not until July IS, 1965, did [Gibraltar] advise him that it was defending the action on his behalf under a reservation of its rights arising under the insurance policy. Under such circumstances we believe it clear that plaintiff has waived its right to assert its policy defense. . If plaintiff had doubts about its liability under the policy . it could have easily given Robinson prompt notice that it would defend the wrongful death action under a reservation of rights, or it could have refused to defend and instituted a declaratory judgment action . . . . ” 263 N.E.2d at 827. (Emphasis added.)

In its final remarks on the subject, the court repeated what it obviously thought to be the crucial point:

“[P]laintiff did not notify the insured of its intention to assert a policy defense until July 13, 1965. During the interim it acted on behalf of Robinson as though no questions of policy coverage were involved, thus clearly causing him to wholly rely for his defense on the efforts of plaintiff.” Id. (Emphasis added.)

Although, as the court below noted, the Illinois Supreme Court did not directly discuss prejudice, we think that the quoted passages show that the court implicitly assumed the existence of prejudice. We find support for this interpretation of the court’s language in its citation of two appellate decisions that refer to the factor of prejudice, Apex Mut. Ins. Co. v. Christner, 99 Ill. App.2d 153, 240 N.E.2d 742 (1968), and Gallaway v. Schied, 73 Ill.App.2d 116, 219 N.E.2d 718 (1966). Cf. Ford Motor Co. v. Commissary, Inc., 286 F.Supp. 229, 234 (N.D.Ill.1968), reviewing Illinois law. In the absence of a clear statement by the Illinois Supreme Court, we are reluctant to conclude that it abolished the requirement of a showing of prejudice to the insured.

Under the district court’s view of the applicable law, no factual question remained unresolved. However, our interpretation raises the question of whether the insured was prejudiced by Northwestern’s conduct.

Because of the result we reach in the next portion of this opinion, it is not necessary that we examine in depth the documents submitted in the present case from the point of view of determining whether it could be said that sufficient prejudice was reflected to activate an estoppel. It may well be in further proceedings in the district court that prejudice may be sufficiently shown through uncontroverted affidavits, although we are not persuaded on the record before us that such was the case here. We continue to adhere to the view that resort to summary judgment is “a salutary procedural device,” Kirk v. Home Indemnity Co., 431 F.2d 554, 560 (7th Cir. 1970), utilization of which in all appropriate cases should be encouraged rather than discouraged by appellate courts.

Since there was a genuine issue of material fact as to whether Leakakos suffered prejudice, summary judgment should not have been granted even if the letter of December 16, 1970, had never been written.

Ill

The record presents an alternative and perhaps more significant ground for the reversal of the summary judgment. Northwestern alleged in its second amended complaint, filed June 16, 1972, that it had sent Leakakos a reservation-of-rights letter on December 16, 1970, that is, prior to the participation of Northwestern’s counsel in the state court proceedings against the insured. To support this contention, plaintiff appended an affidavit of its claim manager stating that he had dictated the letter, had signed the transcribed original, and had placed it in “the normal and usual channel for the out going mail.” The stenographer who typed the letter and the clerk who handles the company’s mailing also submitted affidavits. In response, the president of Leakakos filed an affidavit asserting that no letter dated December 16, 1970, had been received from Northwestern.

Although the district court permitted, over objection, the filing of the second amendment to the complaint which brought the December letter into the pleading orbit, the court’s memorandum opinion does not mention this letter, and we have no way of knowing what significance if any was given to it in the deci-sional process. The opinion refers explicitly only to the July 1971 reservation: “[I]n the instant case, the insurance company’s attempt to reserve came six months after it began to act in the case, four months after it filed an answer and 10 days after it represented the insured at his deposition.” None of these references could have related to the December letter. We further observe that neither the original complaint nor the first amendment thereto specifically cited either letter. Apparently when a motion for summary judgment was directed to the original complaint, counsel for Northwestern realized the necessity of showing something more than had been shown theretofore and in the second amendment to the complaint alleged for the first time both attempts at reservation, i. e., the December and July letters.

Since the district court apparently placed significance on the lateness of the attempt to reserve, we can only conclude that the December letter, if it qualifies as a reservation of rights, would have been sufficiently prompt to have created a genuine issue concerning a material fact. Thus summary judgment was improper. In so concluding, we reject defendants’ arguments that the affidavits submitted by Northwestern should be disregarded and that the letter of December was insufficient to reserve rights.

Leakakos’ first argument, based on Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is that the rules of the Illinois Supreme Court implementing the Illinois Civil Procedure Act govern which documents a federal district judge may examine .in ruling on a motion for summary judgment in an action grounded upon diversity jurisdiction. Defendants’ explanation of this supposedly relevant law is somewhat vague. We gather that Leakakos is maintaining that affidavits containing material countering the assertions in an opposing party’s motion for summary judgment must be attached to a document specifically denominated as being in opposition to summary judgment. Leakakos states that this same rule applies in federal courts in cases not based on diversity jurisdiction. The affidavits upon which Northwestern relies were merely filed as affidavits without any accompanying documents.

If Leakakos is merely arguing that the affidavits are not to be considered because they were not captioned “counter affidavits,” we would regard such a contention as frivolous.

Although we have doubts that defendants’ description of Illinois law is accurate, we find it unnecessary to ascertain Illinois practice on this matter. Rule 56, Fed.R.Civ.P., as interpreted by the federal courts, determines what evidence a federal judge may consider on a motion for summary judgment. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Lloyd v. Lawrence, 472 F.2d 313, 316 (5th Cir. 1973); Somers Constr. Co., Inc. v. Board of Education, 198 F.Supp. 732, 739 (D.N.J.1961); 10 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2712, at 390 (1973); see generally Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 718-25 (1974). The federal courts, under Rule 56, “[i]n addition to the pleadings . . . will consider all papers of record, as well as any material prepared for the [summary judgment] motion . . . .” Wright & Miller, supra at 476. See, e. g., Repsold v. New York Life Ins. Co., 216 F.2d 479, 483 (7th Cir. 1954); E. H. Marhoefer, Jr., Co. v. Mount Sinai, Inc., 190 F.Supp. 355, 359 (E.D.Wis.1961).

Second, in an alternative argument, Leakakos claims that even if we assume arguendo that the purported December 16, 1970 letter was mailed to and received by defendant, it does not aid Northwestern:- the letter supposedly failed to use language adequate to reserve Northwestern’s rights under the polity. Leakakos relies upon Popovich v. Gonzales, 4 Ill.App.3d 227, 280 N.E.2d 757 (1972), and the cases cited therein.

Several factors distinguish the present case from Popovich. First, unlike the letter of the insurance company in Pop-ovich, Northwestern's letter, according to the affidavits, expressly provided that “we do not waive our rights under the policy by reason of your failure to give us notice as soon as practicable” and “[a]gain, we are handling this matter subject to full reservation of all our rights.” Second, Popovich was a garnishment proceeding brought after plaintiffs had obtained a money judgment against the insured in a tort action. The Popovich court apparently considered such garnishment proceedings to be a special category of insurance coverage disputes, for the court stated that it had found no applicable Illinois authority and, hence, had turned to the case law of other jurisdictions for guidance. Third, Popovich noted that, for reasons of public policy, an insurer’s legal duty is rigidly enforced when a contract of automobile liability insurance is involved. The part of the policy relevant to Northwestern’s declaratory judgment action concerns the contractual liability, products, and completed operations of the Leakakos Construction Company, not the insured’s automobiles.

Nor do the garnishment cases relied upon in Popovich undermine the efficacy of Northwestern’s alleged December 16, 1970 letter. The notice of reservation of rights sent by the automobile liability insurer in Meirthew v. Last, 376 Mich. 33, 135 N.W.2d 353 (1965), was “vague and uncertain,” citing no specific policy defense; further, the insurer’s tardiness in sending the notice had prejudiced the rights of its insured and the consequential rights of the successful tort plaintiff. The instrument in Bogle v. Conway, 199 Kan. 707, 433 P.2d 407 (1967), was ambiguous and made no mention of any exclusionary clause in the policy or of any factual basis upon which a denial of coverage might be predicated. Finally, the stringent requirements set out in Henry v. Johnson, 191 Kan. 369, 381 P.2d 538 (1963), make sense only in the context of a garnishment proceeding; here, Northwestern is attempting to clarify its obligations under an insurance policy before the underlying suit is finally resolved. Compare Galloway v. Schied, supra.

The December letter might on a casual reading suggest that the only right being reserved by Northwestern was to deny coverage because of a belated notification of a claim. Our reading of the letter, however, exceeds this narrow interpretation. It appears to us to be a notification that there is a “full reservation of all our rights” and that because of belated notification and a consequent cold investigative potential plus lack of any prior knowledge, the company, while defending under the reservation, does not commit itself to coverage.

The unequivocal nature of the reservation is, in our opinion, of significance in Illinois law. Thus, in Popovich, supra, the court stated, “The letter in Gal-laway expressly and unequivocally stated the insurer’s intention to reserve all rights under the policy, whereas what was said by Merit in the case before us' was a warning, not a declaration of intention.” 280 N.E.2d at 760.

We do not entertain the opinion that the insured is not entitled to be more specifically informed of the exact reasons for a possible denial of coverage. On the other hand, we do not think that an insured who is given unequivocal notice, such as was given here, can sit quietly by and engage in a sandbagging operation to secure coverage for which he had paid no premium.

We note that in its original motion for summary judgment, which, significantly, was filed prior to the second amendment of the complaint, Leakakos stated the following:

“Under date of January 29, 1971, pursuant to the telephone request of one Mr. Hester, representing plaintiff herein [Northwestern], James A. Regas mailed to plaintiff a copy of the statement of Emmett Corley, who was the job superintendent during the performance of the construction pursuant to which said state court lawsuit was filed, also stating that plaintiff’s attorney in said state court suit agreed to allow plaintiff herein to undertake the defense of said suit and to file any other pleadings therein plaintiff may desire after plaintiff herein had resolved its position as to coverage.” (Emphasis added.)

The parties have not presented any explanation of this portion of the motion, but it seems to us rather clearly to state, within the month following the disputed letter of December 16, 1970, that counsel for Leakakos was aware that Northwestern was in the process of resolving “its position as to coverage.”

We recognize that the argument may be advanced, although it has not been thus far, that after Northwestern filed an answer Leakakos assumed that the question had been resolved in favor of coverage. Certainly as the record stands now, there is no basis for handling this possibility by the summary judgment route.

If the letter of December was sent and received, its general reservation of rights was made more specific with relation to the policy by the July letter. The significance of the timing of this letter as following closely upon the deposition of the president of Leakakos which may have demonstrated the exact nature of the claim cannot be determined from the record. It, too, may be one of the factual facets which will be affirmatively developed in further proceedings.

For the reasons set out above, we reverse the judgment of the district court and remand the cause for proceedings consistent with this opinion.

Reversed and remanded.

WILLIAM J. CAMPBELL, District Judge

(concurring in part and dissenting in part).

Consistent with the views expressed in Parts I and II of Judge Pell’s excellent opinion, I would remand this case to the district court for a determination of whether Leakakos’ reliance upon Northwestern’s conduct (in assuming Leaka-kos’ defense , in the state court action) prejudiced the insured to an extent sufficient to render Northwestern’s belated reservation of rights inoperative. With respect to the views expressed in Part III, however, I must respectfully dissent.

I cannot agree that Northwestern’s alleged letter of December 16, 1970 reserved the right to contest coverage on the basis of the specific policy exclusions subsequently identified in Northwestern’s letter of July 15, 1971. At best, the December 16 letter reserved to Northwestern the limited right to contest coverage if it could demonstrate that its ability to prepare and conduct an adequate defense had been prejudiced by the alleged delay between the “accident” and notification thereof by the insured.

The December 16 letter, set forth in full at footnote 7 of the majority opinion, was quite specific in this regard. It noted that the policy required written notice “be given this company as soon as possible”, and contended that the “[fjailure to report accidents to us promptly prejudices us seriously in the completion of our investigation and the handling of such claims.” Clearly, the possibility of such prejudice constituted the basis for and, in my view, the extent of Northwestern’s reservation of rights. Specifically, the letter provides that “[bjecawse of the delay in reporting the accident, we accept the notice subject to full reservation of all our rights under the policy”, and that “we shall proceed . upon the understanding that in so doing we do not waive our rights under the policy by reason of your failure to give us notice as soon as practicable .”. (Emphasis added).

This is not a case in which the insured belatedly notified the insurance carrier of some vague and unspecific claim. Were such the case, perhaps the insurance company would be warranted in unqualifiedly reserving all its rights, without identifying the specific grounds upon which coverage may ultimately be contested. But in the instant case, by December of 1970, the state court proceedings had already been commenced. Northwestern could quite easily have reviewed the allegations of the complaint and determined that the subject policy might not provide coverage with respect to the claim asserted therein against Leakakos. Since the insurance company, on December 16, 1970, knew or had reason to know the nature of the claim asserted in the complaint, its failure to reserve its rights on the basis of specifically identified policy exclusions should foreclose it from later asserting that such rights were reserved by operation of the unspecific reservation of rights language appearing in the alleged letter of December 16, 1970.

      . 28 U.S.C. § 2201. Jurisdiction is based on diversity of citizenship. The parties and the district court accepted the law of Illinois as controlling.

      . The clauses upon which Northwestern focuses on this appeal are :
      “The company [Northwestern] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
      Coverage B. property damage
      to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured 'seeking damages on account of such . . . property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient ....
      Exclusions
      This insurance does not apply:
      (j) to property damage to premises alienated by the named insured arising out of such premises or any part thereof ;
      (k) to . . . property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications . . . prepared or developed by any insured; but this exclusion does not apply to . . . property damage resulting from the active malfunctioning of such products or work;
      (m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith . . . . ”

      . The letter more fully read :
      “Your attorneys . . . have demanded of this Company that a defense be afforded to Leakakos Construction Company, Inc. . . . You are notified that all the information in our possession concerning this policy reveals that this Comprehensive General Liability Insurance policy does not afford coverage for the alleged loss because of the exclusionary language in the policy referable to the alleged property damage liability feature of the policy in that the insurance does not apply to ‘property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith,’ and in addition, the policy provided essentially that the insurance does not apply ‘to property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured,’ as well as for other exclusions recited in the policy.
      “As a matter of courtesy to you and to extend to you every assistance possible this Company shall proceed with the investigation and afford a defense . . . with the express understanding that in so doing this Company does not waive any of its rights under the policy .... [T]his Company still has the right to disclaim hereon in the event that there is a verdict and judgment rendered against the said Leakakos Construction Company . . . . ”

      . The district court was referring to Northwestern’s letter of July 15, 1971. In Part III of our opinion, we discuss the matter of the disputed December 16, 1970, letter from Northwestern to Leakakos.

      . See Apex, 99 Ill.App.2d at 161-162, 240 N.E.2d at 747:
      “If ... in spite of its doubts as to coverage, the insurer elects to take over the insured’s defense, it will afterwards be estopped from denying its own liability under the policy. The estoppel referred to here is ‘estoppel in pais’; it is ordinarily justified on the ground that the insurer has prejudiced the insured’s right to control his own defense. . . . Estoppel in pais operates as a result of the insurer’s monopolization of the insured’s defense, since the insured, in reliance thereon, refrains from seeking other counsel.”
      Here Leakakos’ counsel did participate in the litigation from the outset.
      And see Gallaway, 73 Ill.App.2d at 127, 219 N.E.2d at 723:
      “ . . . Furthermore, the insured suffered no damage by the efforts of Apex in her behalf and the doctrine of waiver, or estoppel in pais can have no application under the circumstances in this case.”

        See generally Case Note, 26 Ill.L.Rev. 90, 92 (1931).

      . We are not unmindful of the fact that in many instances when an insurance company is defending an action, counsel for the named defendant, while nominally appearing in its behalf, is in fact engaged in nothing more than over-the-shoulder observation. There is a reference to such conduct in a pleading and a brief of Leakakos, but the extent of the personal attorney’s participation, and whether Leakakos was in some way prejudiced by a second-line defense, if that was a fact, was not developed in affidavits. In a brief in this court, Leakakos refers to the verified answer to the complaint, as amended, and quotes from it; if “verified” refers to substantiation by oath, the answer in the record is not verified. In any event, the assertions regarding reliance are too general and conclusional in nature to serve affidavit purposes for summary judgment. Leakakos claims, again in briefs or unverified pleadings, that its counsel was representing it because of the claim being in excess of coverage. In the present era of litigation, complaint prayers frequently exceed the coverage, but often this is not accompanied by the insured hiring his own attorney. Leakakos’ counsel did apparently control the litigation at one point, because he filed the first appearance and answer. Both counsel participated in later discovery procedures. The unsettled questions of fact pertaining to prejudice become relevant on remand and can only be answered by more detailed affidavits or other evidentiary development. Of course, the likelihood of relevancy will probably hinge on the determination of the December letter issue, which itself would not appear resolvable by summary judgment procedures unless someone changes his evidence.

      . Northwestern attached to its second amended complaint a “copy” of the letter it allegedly mailed to Leakakos on December 16, 1970:
      December 16, 1970
      The Leakakos Construction Co.
      5316 West Harrison Street Chicago, Illinois
      Re : Claim No. 64-13351
      Insured: The Leakakos Construction Co.
      D/A: Spring 1968
      Gentlemen:
      On December 16, 1970 we received our first notice of a pending lawsuit that allegedly involves improper construction on the part of your company. The plaintiff is Eugene Corley Doing Business as Corley Builders. This situation allegedly took place in March of 1968. Tour policy CLA 61 09 12 under which this matter presumably is reported to us requires that written notice of accident be given to this company as soon as possible. Failure to report accidents to us promptly prejudices us seriously in the completion of our investigation and the handling of such claims. Because of the delay in reporting the accident, we accept the notice subject to full reservation of all our rights under the policy.
      As a matter of courtesy and to extend to you every assistance possible, we shall proceed with the investigation, adjustment and defense of this claim upon the understanding that in so doing we do not waive our rights under the policy by reason of your failure to give us notice as soon as practicable and subject also to the understanding that you are not to waive any rights which you might have.
      Again, we are handling this matter subject to full reservation of all our rights.
      Yours very truly,
      Phillip A. Mendel
      Claim Manager
      Although the letter speaks of “accidents,” we think that the matter to which it refers was sufficiently clear to alert the insured. See 7A J. Appleman, Insurance Law & Practice § 4694, at 545 (1962); cf. Canadian Universal Ins. Co. v. Northwest Hospital, Inc., 389 F.2d 559, 561 (7th Cir. 1968). It is also noted that the comprehensive general liability insurance here involved is one part of a group of policies, much of which is vehicular insurance, issued to Leakakos.

      . We also are at a loss to understand why trial counsel for Northwestern did not call the omission to the attention of the district court by an appropriate motion prior to appealing, thereby giving the district court an opportunity to rectify the deficiency.

      . Subsequent to the filing of the second amendment to the complaint, the president of Leakakos filed an affidavit to the effect that no letter dated December 16, 1970, addressed to Leakakos at its office in Chicago “was ever received.” It, of course, is possible that an individual could be aware that he had not ever received a specific letter. Without setting forth the basis of the positive statement that a corporation, with presumably more than one employee, had never received a specified letter, the president’s affidavit smacks more of the conclusional than of the factual.