author: MARKEY, Chief Judge.

text:
    WESTERN DAIRY PRODUCTS, INC., Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 74-27.
    United States Court of Customs and Patent Appeals.
    Feb. 13, 1975.
    George Bronz, Edward J. Farrell, attys. of record, Washington, D. C., for appellant.
    Carla A. Hills, Asst. Atty. Gen., Andrew P. Yance, Chief, Customs Section, Steven P. Florsheim, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MARKEY, Chief Judge.

This is an appeal from the judgment of the United States Customs Court, 72 Cust.Ct. 75, C.D. 4506, 373 F.Supp. 568 (1974), dismissing appellant’s challenge to the classification of “ ‘SAVORTEX’ CALCIUM REDUCED DRIED SKIM MILK” (CRDSM). Appellant claims the merchandise to be properly classifiable under TSUS Item 182.95 as an edible product not otherwise provided for elsewhere in Schedule 1. The Customs Court found CRDSM to be classifiable as milk (TSUS, Item 115.50) or as an article of milk not specially provided for (TSUS, Item 118.30). We affirm.

Statutes

Tariff Schedules of the United States:

General Headnotes and Rules of Interpretation:

9. Definitions. For the purposes of the schedules, unless the context otherwise requires— **********

(f) the terms “of”, “wholly of”, “almost wholly of”, “in part of” and “containing”, when used between the description of an article and a material (e. g., “furniture of wood”, “woven fabrics, wholly of cotton”, etc.), have the following meanings:

(i) “of” means that the article is wholly or in chief value of the named material; * * *

Schedule 1, Part 4:

Subpart A. Milk and Cream

Subpart A headnote:

1. The term “milk and cream”, as used in this sub-part, includes whole milk, skimmed milk, buttermilk, and cream, except cream described in subpart B of this part.

*********

Dried milk and cream:

Buttermilk containing not over 6 percent of butterfat Other:

115.50 Containing not over 3 percent of butterfat.....

*********

Subpart D. — Other Milk Products Whey:

118.00 Fluid ...................................

118.05 Dried...................................

118.10 Yoghurt and other fermented milk...........

118.15 Chocolate milk drink........................

118.25 Ice cream..................................

118.30 Malted milk; and articles not specially provided for, of milk or cream..................... * * *

Schedule 1, Part 15:

Subpart B. — Edible Preparations

Subpart B headnotes:

1. This subpart covers preparations fit for human consumption not provided for elsewhere in schedule 1.

****** * * *

Edible preparations not specially provided for (including prepared meals individually packaged):

*********

Other:

182.95 Other ..................................... * * *•

The Merchandise

The imported merchandise is prepared by passing ordinary liquid skim milk through a bed of ion exchange resin, adjusting the liquid’s pH as necessary, and finally removing the water, leaving CRDSM powder. The ion exchange resin removes some calcium ions from skim milk and replaces them with sodium ions. Thus CRDSM has more sodium and less calcium than skim milk.

We are told that the exchange of sodium for calcium ions causes the calcium phosphate-calcium caseinate complex found in skim milk to be converted into sodium caseinate, a water soluble protein. It is sodium caseinate which makes CRDSM useful as a meat fat emulsifier in sausage manufacture.

Issue

The sole question before us is whether the Customs Court erred in finding that CRDSM is insufficiently different from dried skim milk to preclude its classification as milk or as an article of milk not specially provided for.

OPINION

We agree with the Customs Court that CRDSM is properly classified under TSUS Item 118.30 as an article of milk not specially provided for. Accordingly, we find it unnecessary to reach the propriety of the alternative classification under TSUS Item 115.50.

Citing TSUS, General Headnote 9(f)(i), supra, appellant urges that CRDSM is not an article “of milk” because it contains no milk; that it cannot therefore be wholly or in chief value of milk; that it is a distinct product, chemically created from skim milk and salt; that it has new properties and uses as well as an appearance in solution different from that of skim milk. The evidence indicates, however, that lactose is the largest component of both skim milk and CRDSM and that CRDSM differs chemically from dried skim milk only in the constituent amounts of calcium, sodium, and soluble protein. All components of skim milk are thus contained in the imported product. Because the record is silent as to the relative component values, General Headnote 9(f)(i) cannot be determinative of whether the merchandise is or is not an article of milk.

Appellee candidly admits that “[t]he meaning and scope of the term ‘milk,’ as it is used [“of milk”] in item 118.30, TSUS, is not entirely clear.” (appellee’s emphasis). To clarify that meaning and scope, appellee urges the application of the doctrine of noscitur a sociis. See Nomura (America) Corp. v. United States, 62 Cust.Ct. 524, C.D. 3820, 299 F.Supp. 535 (1969), aff’d, 58 CCPA 82, C.A.D. 1007, 435 F.2d 1319 (1971). The Customs Court followed that approach. After examining the meaning of Items appearing in close proximity and relation to TSUS Item 118.30, the Customs Court concluded:

TSUS, and the legislative history of TSUS, offer additional support for the classification of CRDSM as an article of milk. “Whey” and “yogurt” are articles of milk specifically provided for (items 118.00, 118.05, and 118.10), in schedule 1, part 4, subpart D, wherein item 118.30 provides for all articles not specially provided for, of milk. Whey is the portion that remains after separation from the curd in the process that [sic] cheese is made from milk. Yogurt is a fermented milk product. (United States Tariff Commission, Summaries of Trade and Tariff Information (1968), Schedule 1, Vol. 4, pp. 6 and 145.) Both are made from milk that has been modified by a chemical change of sorts. Under the Tariff Act of 1930 whey, which has edible uses for human consumption and nonedible uses (1968 Summary, supra, p. 6), was classified under paragraph 1559 (the similitude provision) and yogurt, an edible preparation, under paragraph 1558 as a nonenumerated manufactured article. (Tariff Classification Study, Schedule 1, p. 54). The specific provisions for “whey” and “yogurt” thus indicate that schedule 1, part 4, subpart D, is intended to classify all articles wholly or in chief value of milk, be they nonedible preparations or edible preparations for human consumption. The history of TSUS further points out that schedule 1, part 4, subpart D, is intended to bring togeth- , er milk products widely separated in the Tariff Act of 1930 (paragraphs . 1559 and 1558), including malted milk and “compounds of milk or cream” dutiable under paragraph 708 of the 1930 Act. (Tariff Classification Study, Schedule 1, p. 54.) Schedule 1, part 15, subpart B, on the other hand, is a “basket” provision for edible preparations not specially provided for, covering products also previously classified under paragraphs 1558 and 1559 of the 1930 Act. (Tariff Classification Study, Schedule 1, p. 251.)

We agree with the above analysis. CRDSM, whey, and yogurt are all products which result from a redistribution of some of the components of milk. Whether the redistribution is achieved chemically or otherwise is not determinative of the issue before us. The mustering of products analogous to CRDSM and classifiable under eo nomine provisions for milk-derived products, impels the conclusion that CRDSM is properly classified as an article of milk.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Milton J. SHAPP et al., Plaintiffs-Appellants, v. William E. SIMON et al., Defendants-Appellees.
    No. 3—4.
    Temporary Emergency Court of Appeals.
    Jan. 13, 1975.

      Lawrence Silver, Deputy Atty. Gen., Dept, of Justice, and James R. Adams, Harrisburg, Pa., Com. of Pa., on the brief for plaintiffs-appellants.
    Allen W. Hausman, Washington, D. C., Carla A. Hills, Asst. Atty. Gen., New York City, Stanley Rose and Christopher Was, Dept, of Justice, Washington, D. C., with him on the brief for defendants-appellees government.
    William Simon and Keith E. Pugh, Jr., Washington, D. C., on the brief for defendant-appellee Shell Oil Co.
    Edmund K. Trent and James J. Restivo, Jr., Pittsburgh, Pa., on the joint brief for plaintiffs-appellees Pennzoil Co. and United Refining Co., adopting by reference the brief of defendant-appellee Shell Oil Co.
    John C. Detweiler, Valley Forge, Pa., on the brief for defendant-appellee Mobil Oil Corp.
    Alfred W. Córtese, Jr., Philadelphia, Pa., for appellee Amoco Oil Co.; Richard G. Schneider, Philadelphia, Pa., and C. Lansing Hays, Jr., New York City, for appellee Getty Oil Co. (Eastern Operations); John G. Harkins, Jr., and Barbara W. Mather, Philadelphia, Pa., for appellees Continental Oil Co. and Crown Central Petroleum Corp.; David F. Al-bright and Richard M. Kremen, Baltimore, Md., for appellee Petroleum Marketing Corp., adopting by reference the brief of Shell Oil Co.
    Before HASTIE, CHRISTENSEN and JOHNSON, Judges.
   ON SUGGESTION FOR REMOVAL FROM THE DISTRICT COURT

PER CURIAM:

The posture of this case is unusual in that its removal to the Temporary Emergency Court of Appeals for trial and adjudication of all issues is proposed before any part of the controversy has been decided by the district court in which suit was properly brought.

In the district court, the Commonwealth of Pennsylvania. and the Governor and other high officers of that state sued the Federal Energy Administrator and several corporations that sell gasoline in Pennsylvania. The complaint alleged that wrongful conduct of the Federal Energy Office and various oil companies had resulted in improper diminution of the allocations of gasoline which the Federal Energy Office made available to the Commonwealth and other users of gasoline in Pennsylvania under the Emergency Petroleum Allocation Act of 1973.

On March 11, 1974, the Federal Energy Administrator responded by moving for dismissal of the complaint for lack of standing, mootness, failure to state a claim entitling the plaintiffs to relief and, alternatively, for summary judgment. Then, before the district court acted on his motion, the Administrator moved that the district court certify to this court, as a “substantial constitutional issue”, the question he had raised whether the plaintiffs have standing to litigate the claims that constitute their complaint. Section 211(c) of the Economic Stabilization Amendment of 1971, as made applicable to petroleum allocation cases by Section 5 of the Emergency Petroleum Allocation Act of 1973, was invoked as the statutory sanction for such certification. The district court granted this motion and certified to us the question of the plaintiffs’ standing.

Promptly thereafter, the Administrator, invoking our power and discretion under Section 211(c) of Economic Stabilization Amendments of 1971, filed a suggestion “that this Court have the entire action sent to it for consideration and final determination”. Thus, moving in two steps, the Administrator is seeking to have this entire law suit tried and decided in first instance by the Temporary Emergency Court of Appeals. We cannot properly consider the suggested second step before determining whether the first step of certifying the standing issue to us was appropriate.

The question whether the plaintiffs have standing to litigate the claims they have asserted arises under the provision of Section 210(a) of the 1971 Act that “any person suffering legal wrong because of this title” may bring an action in the district court. Thus, the district court was confronted with the question whether any of the plaintiffs is a “person suffering legal wrong” through the acts alleged in the complaint. This, in our view, is essentially a question of the interpretation of a statute and the applicability of its language to persons who are affected, in the ways that plaintiffs say they are, by the conduct complained of. We do not understand it to be contended that Congress could not constitutionally authorize the Commonwealth of Pennsylvania or its Chief Executive to bring such a suit as this. Rather, the question is whether such authority is conferred by Section 210(a). We hold that this is not a “substantial constitutional question” within the meaning of Section 211(c).

This case has come to this court pursuant to an inappropriate certification by the district court. The case is hereby remanded to the district court with direction to determine the merits of the March 11, 1974 motion to dismiss and, more generally, to proceed with this litigation as may be appropriate for the adjudication of the controversy.

      . Cf. Gonzalez v. Automatic Employees Credit Union, 1974, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249, where, under a different statutory scheme, a decision by a three-judge district court, dismissing for lack of standing a plaintiff’s challenge to the constitutionality of a state statute, was held not to present “a substantial constitutional question” directly reviewable by the Supreme Court.


author: ENRIGHT, District Judge: BARNES, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Rafael MIRANDA, Appellant.
    No. 73-3552.
    United States Court of Appeals, Ninth Circuit.
    Jan. 13, 1975.
    Martha Goldin, Saltzman & Goldin, Hollywood, Cal., for appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Before BARNES and HUFSTEDLER, Circuit Judges, and ENRIGHT, District Judge.

       The Honorable William B. Enright, United States District Judge for the Southern District of California sitting by designation.

   OPINION

ENRIGHT, District Judge:

Appellant was charged with seven counts of embezzlement of federally insured funds from the Main Office of the Imperial Bank in Los Angeles, California. Trial before a jury resulted in conviction on all seven counts. Several trial errors are alleged to have deprived appellant of a fair trial. We agree that two of the alleged errors, in combination, were of sufficient .gravity to require reversal.

Appellant was employed by the Imperial Bank from April 1972 to January 1973 as a home loan payment collector in the bank’s mortgage department. One of appellant’s responsibilities was the acceptance of money from homeowners who came directly to the bank to make loan payments. Appellant was convicted of embezzling seven of these deposits.

Payments were often made in cash, which was stored in a locked cabinet overnight. On the next business day, the cash would be converted to cashier’s checks which were then delivered by appellant to the cashier of the bank. The cashier would prepare a cash card to be processed through the bank’s computer, crediting the appropriate customer’s account. Customers were given receipts for their cash payments.

The computer automatically notified the mortgage department when accounts were delinquent. Its reports were referred to appellant, who had full authority to direct forbearance on delinquent accounts. When an account was granted forbearance, a payment schedule was established to bring the loan current, and a notation was made on the account so that the customer would not be sent a delinquency letter.

Appellant was responsible for approximately 4,000 accounts until October 23, 1972, when the bank hired another collector to alleviate appellant’s heavy work load. The new collector was assigned one half (2,000) of the accounts. Until that time, appellant was the department’s only collector, aided by two assistants who turned over all payments to him.

The evidence at trial focused upon seven payments which were made to appellant or his assistants in cash and which were never credited to the homeowners’ accounts. The records of these accounts indicated that they were delinquent, and a notation had been made on the accounts that appellant had granted them forbearance. The homeowners had receipts for these payments.

Of the several trial errors alleged by appellant, two merit discussion. These two errors, when taken together, deprived appellant of the fair trial to which he was constitutionally entitled.

The first concerns the trial court’s limitation of defense counsel’s cross-examination of appellant’s former supervisor, Mr. Carrion. Counsel for appellant attempted to elicit from Mr. Carrion testimony indicating which employees had access to the keys to the cabinet in which cash payments were kept until they were converted ' into cashier’s checks. Government objections to this line of questioning were sustained, apparently on the grounds of relevancy.

We do not agree. One of the major elements of the government’s case was the appellant’s opportunity to steal the money by virtue of his possession of a key to the cabinet. In view of this, establishing that several employees of the mortgage department also had access to the keys was an important part of appellant’s defense. Curtailing cross-examination of prosecution witnesses as to access to the keys thus represented a substantial limitation of his defense. This is particularly true when fellow employees were called by the government to deny the theft, giving rise to inferences damaging to the appellant.

Although it is well established that the scope of cross-examination is within the discretion of the trial court, United States v. Bagsby, 489 F.2d 725 (9th Cir. 1973), it is equally well established that the right of cross-examination is a fundamental one embodied in the Sixth Amendment as the right of an accused to confront the witnesses against him. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964). We believe that the trial court’s restriction upon defense counsel’s cross-examination constituted infringement of this fundamental right.

Standing alone, such error as to the proper scope of cross-examination might not be serious enough to warrant reversal. However, added to this was the court’s erroneous response to a jury request for evidence pertaining to the division of the accounts at the time a new loan collector was hired. During its deliberations, the jury sent a note to the court asking who had made the division of accounts between appellant and the new loan collector and whether appellant had control before and after the division. The court answered “yes” to the latter question, but mistakenly believing that there was no evidence concerning who divided the accounts, the court did not respond to the first question. Though requested by the defendant, the court declined to have any testimony read back to the jury in this regard.

Subsequently, a note was sent to the court asking for a second time who had made the division of accounts and upon what basis the division was made. The court replied that there was “no evidence” as to either question. The court was incorrect in stating that there was no evidence as to who made the division of the accounts. Mr. Carrion had testified on cross-examination that

Gerry Raad [the new loan collector] came in in October of 1972 at which time I divided the total loan services for our investors in half. I gave half of the loan service to Mr. Raad and the other half to Mr. Miranda [appellant], [R.T. 331].

We cannot agree with the government that this error was harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It is apparent that the jury considered the question of who divided the accounts highly significant, so significant that during prolonged deliberations, it asked specifically for this precise information on two occasions. In a case which rested solely upon circumstantial evidence, testimony that someone other than appellant had exercised control over the division of the accounts may very well have been decisive in the jury’s consideration of the case. The fact that the testimony was not reread and was, in fact, erroneously represented in response to a specific inquiry compounds the problem further.

Failure to apprise the jury of Mr. Carrion’s testimony pertaining to the division of the accounts, when coupled with the court’s restriction of cross-examination concerning which employees had access to the keys to the cabinet, seriously limited appellant’s opportunity to have all evidence favorable to him considered by the jury. In the circumstances of this case, we would hold that these actions constituted reversible error. Reversed and remanded.

BARNES, Circuit Judge

(dissenting):

I dissent. I find harmless error on the part of the trial judge, in view of the manner in which the case was tried; the objections made and not made by defense counsel; and the evidence produced at the trial.

      . The trial judge proceeded to question the witness himself:
      THE COURT: . . . Just give us these people. Don’t talk about the rest of them. Who handled money?
      THE WITNESS: That would be Mr. Miranda and his assistants.
      THE COURT: Who were they?
      THE WITNESS: Daisy Juarez and Evelyn Cordova.
      THE COURT: Those three people?
      THE WITNESS: Yes.
      THE COURT: Anybody else?
      THE WITNESS: No, nobody else.
      THE COURT: Let’s talk about them only, the rest of the people are totally irrelevant to the rest of this lawsuit.
      MR. STRELLER: I’m trying to establish who had access to the cabinet where the money was kept.
      THE COURT: That does not make any difference, counsel.
      [R.T. 336 337],


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Raymond C. PRICE and Control Sciences, Inc., Plaintiffs-Appellees, v. LAKE SALES SUPPLY R. M., INC., Defendant-Appellant.
    No. 74-1038.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 16, 1974.
    Rehearing Denied Dec. 5, 1974.

      Richard D. Law, Denver, Colo. (James E. Pittenger, Denver, Colo., on the brief), for plaintiffs-appellees.
    John M. Evans of Fuller & Evans, Denver, Colo. (Richard T. Laughlin, Kearny, N. J., and Clyde A. Faatz, Jr., Denver, Colo., on the brief), for defendant-appellant.
    Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

This is a patent case which presents issues as to the validity of a patent (U. S. Patent No. 3,528,560) on a sample display rack. It was issued September 15, 1970 and is known as the Price Patent. Appellant Lake Sales Supply is shown to be a California corporation which had headquarters in Denver from January 1971 to March 1972, but subsequently ceased to do business in Colorado.

In addition to the validity issue it is contended by appellant that the Price Patent was not infringed: (a) that is, that the device did not infringe the patent, and (b) that there is a dearth of proof to establish an act of infringement.

Trial was to the court. The judge entered his memorandum opinion order and judgment on October 16, 1973. This contained the court’s findings of fact and conclusions of law. The patent was held to be valid and infringed. The court enjoined appellant from making, using or selling the carpet display rack and granted appellees the right to a further hearing to determine damages from the infringement. This had been delayed pending the present disposition.

In 1968 the plaintiffs-appellees Raymond C. Price and Control Sciences, Inc. conceived the idea of a carpet display rack which would display carpet and at the same time would be hidden by the display and, in addition, would fold up for convenient storage and shipping. In his first attempt to obtain a patent Price described a device which had two elongated frame sections, similar in size, which rotated about the pivotal axes and which flattened out to permit easy storage and shipping and which could be moved into a transverse position in which the sections stand in an upright position to form a stable display position with fasteners along the upright portions of the frame capable of supporting samples.

Price made a total of 13 claims originally, all of which were similar to the one which is noted in the footnote. All of these were rejected by the Examiner for obviousness defined in 35 U.S.C. § 103. Price proceeded to amend his claims by clarifying that the samples were to be hung on the outside of the elongated frame sections with supports for the samples intermediate to the sides of the U-shaped channel tubing which was used in the frame. Thereby, the samples would extend throughout substantially all the vertical extent of the structure concealing the frame itself.

The patent was issued on an invention consisting of two frames connected by a permanent pivot which allowed the two frames to close and to flatten out for storage and to readily open out into perpendicular intersecting planes for purposes of displaying sample binders of carpet on hangers or fasteners located on the sides of the frame so that the frame itself was substantially hidden.

The Examiner approved Claims 17, 18 and 19 which are set forth in an appendix to this opinion. Also in the appendix are pictorial reproductions which show the device in some detail. The infringing device also consisted of two intersecting- rectangle frames connected in their middles but which did not rotate in the same manner as the Price Patent described above. The two intersecting rectangles were connected by nuts and bolts together with a removable metal strip at the bottom of the frames secured in an open position perpendicular to one another. The infringing device also contained four removable headers, one located each at the top corners of the two rectangles. These were used for advertising purposes. The headers and the metal strip prevented the intersecting frames from being rotated into a closed position on a single plane. The display hangers were wrapped around the tubing, being secured by the nuts and bolts in the back of the tubing.

As noted, the trial court upheld the patent and ruled that it was infringed.

The contentions on appeal are, first, that the trial court erred in upholding the patent and, second, that the patentable aspects were first disclosed in the amended patent application and thus were made more than one year after the first sale of the invention to the public. Third, it is contended that the patent was not infringed.

In addition to the obviousness contention, the plaintiffs asserted at trial that the patent was lacking in invention. 35 U.S.C. § 102(a). This latter was a major issue at the trial, and the trial judge made a thorough analysis and upheld the patent. The thoroughness may account for the abandonment of the contention on appeal. It was recognized by the trial court that a device may satisfy 35 U.S.C. § 102 with a novel combination of old elements and at the same time not fulfill the requirements of non-obviousness in 35 U.S.C. § 103. This invention admittedly consisted of a combination of old elements and hence the obviousness question pertained to the differences between the defendant’s invention and the prior art, whereby the subject matter in its entirety would have been obvious to a person having ordinary skill in the art to which the subject matter pertains. The tests for determining obviousness are set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). These tests are:

1. The scope and content of the prior art are to be determined.

2. Differences between the prior art and the claims of the patent in suit are to be ascertained.

3. The level of ordinary skill in the pertinent art needs to be resolved.

Having examined this background (pursuant to the John Deere decision), the obviousness or non-obviousness of the subject matter is to be determined. Ascertainment of the scope of the prior art and determination of the difference between the prior art and the claims in suit together with the level of skill in the art are all questions of fact. Whether in the light of these factual matters the patent is obvious then becomes a question of law.

Explicit findings in accordance with these criteria are to be made in every case according to dicta in opinions of the Supreme Court. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969). It is noteworthy that there is law to the effect that failure of the trial court to make explicit findings in the John Deere categories is fatal. Use of broad conclusionary terms is forbidden in these decisions. See Waldon, Inc. v. Alexander Mfg. Co., 423 F.2d 91 (5th Cir. 1970). See also Van Corp Mfg., Inc. v. Townley Industrial Plastics, Inc., 464 F.2d 16 (5th Cir. 1972). Cf. Antici v. KBH Corp., 324 F.Supp. 236 (N.D.Miss.1971). Other cases have not demanded this strict categorical approach. So long as it is clear that the court has grappled with the problems presented it is accepted. As far as we were able to ascertain, this circuit follows this latter approach. See Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971). The leading case for this proposition from our Circuit is Eimco Corporation v. Peterson Filters and Engineering Co., 406 F.2d 431 (10th Cir. 1969). Other circuits also follow this less stringent approach. See Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66 (3d Cir. 1972), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972) and Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 322-323 (7th Cir. 1972). In Frantz the district court did not even discuss § 103 or John Deere. Nonetheless, the circuit court held that the district court had implicitly fulfilled the John Deere requirements. The trial court here did not use the “broad conclusionary terms” condemned in the Waldon case. In our view its findings were sufficient to provide the appellate court with a clear understanding of the trial court’s reasons so as to present an adequate review. National Lead Co. v. Western Lead Products Co., 291 F.2d 447 (9th Cir. 1961).

We doubt that the Supreme Court intended that mere failure to use numbered paragraphs for the John Deere findings called for automatic reversal. The trial court in our case did indeed, however, consider carefully the scope and content of the prior art in relation to the patent in suit. While it noted that it was unnecessary to consider the numerous citations of prior art, it nevertheless considered all of the material presented.

In the case at bar the trial court did not limit the scope and content of the prior art. It broadly considered the prior art to include all of the citations brought to its attention by the parties.

Appellant’s further complaint is that the trial court failed to compel plaintiffs-appellees to produce the original of a document, a copy of which had been introduced as an exhibit. The problem stems from the trial court’s reference to the copy which was somewhat illegible and its remark that it might have been the most cogent citation. Appellant says that the court should have compelled production of the original and its failure to do so violated its constitutional rights (due process). We see no error based on the Constitution or other law. The copy reveals sufficient information to allow a ruling as to pertinence of the depiction.

The trial court did not cite each and all items of prior art. It selected for citation the most relevant and it made the requisite comparisons with the claims in dispute. We find no error in this procedure. In holding as the trial court did that the display rack would not have been obvious to a person having ordinary skill in the art, the court was commenting on the basis of its analysis of the prior art. Taking into account the elements and common use and the kinds of things that persons have been creating and utilizing, we see no deficiency in not enunciating a measuring device for evaluation of the pertinent art.

Finally, the court’s conclusion of non-obviousness, in the light of prior art, was rationally reached. The court’s determination that the Price Patent “does not appear to have been a development obvious to a person having ordinary skill in the art” is indeed a conclusory holding, but as we have observed, this issue is more in the nature of a conclusion of law than a finding of fact. We are not then disposed to rule that it is thereby deficient.

The simplicity of this device does suggest to the uninitiated that it is obvious. This is not, however, a reliable test of obviousness. The inquiry tends instead to be whether the new combination of elements reflects something more than mechanical skill. See Oliver United Filters v. Silver, 206 F.2d 658, 663 (10th Cir. 1953) cert. denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416 (1953). Perhaps everything seems obvious with the advantage of hindsight. See Erie Technological Products, Inc. v. Diecraft Metal Products, Inc., 461 F.2d 5 (7th Cir. 1972).

Plaintiffs’ invention consists of five essential elements. All but one of these have some manifestation in the cited prior art and yet none of the cited prior art contains the combination of elements which is found in the Price Patent. We must conclude that this combination would not have been obvious to one of ordinary skill in the art so that he could have created from scratch a display rack having the five essential elements of this patent and could have done so in the manner in which it was accomplished by the plaintiffs. While it is possibly obvious to add each of the five elements to a composite of the other four, this would not be obvious to a person of ordinary skill in the art to allow him to successfully put all of the five elements together at one time. It is this synthesis in the Price invention which justifies the conclusion that it is not obvious and that it is thus entitled to be protected.

II.

Was the appellee disqualified for a patent on the basis that his invention was offered, was sold, was on sale or in use in excess of one year prior to the date of the patent application? 35 U. S.C. § 102(b) provides that a person is not entitled to a patent if the invention was on sale or in use for more than a year prior to the date of application in the United States. The time of tender of the amendment creates this problem. Appellee here did not obtain a patent until he offered the amendment to the Patent Office. Because of this he is confronted with the possibility of being barred if the patentability aspect of the invention was first disclosed by an amendment. Such was the holding of the Supreme Court in Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Corp., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). Appellee Price made the initial application less than a year after the invention went on sale. But the time of the amendment was more than one year after the invention went on sale. Appellant contends that the Muncie Gear ruling is fatal to the plaintiffs’ patent. The Muncie Gear rule recognizes, however, that where the amendment “only makes express what would have been regarded as the equivalent of earlier claims or where it merely incorporates into one claim [that which could] be gathered from the perusual of all, if read together, it [must] be allowed.” Autogiro Company of America v. United States, 384 F.2d 391, 410 (Ct.Cl.1967). If, on the other hand, the amendment is something more than a clarification, Muncie Gear applies. See Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406 (6th Cir. 1964), which says “the question is whether there is anything in the prior disclosures which will support the subsequent claim, or does the claim broaden or change the original invention.” Id. 332 F.2d at 417.

The trial court considered the amendment not to be in conflict with the rule of Muncie Gear. The Examiner reached the same conclusion. The opinion of the Examiner (and that of the court too) is to be given great weight in determining what is “new matter.” See Technicon Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391 (7th Cir. 1967). The question is, of course, a factual evaluation. To us also the amendment is clarifying in its form and effect rather than new matter.

III.

Does the evidence show that the appellant infringed the patent within the meaning of 35 U.S.C. § 271 which defines infringement as follows: “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”

Appellant argues, first, that the device is not infringed, but even if it is the evidence fails to show that appellant committed an act constituting an infringement. The question we consider first is whether the accused device falls within the patent. See Graver Tank and Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950).

As is ordinarily true, the accused device is not exactly like the patented one. One marked difference is that the patented device is pivotally secured in the middle of the two rectangles to allow them to be folded into an open position for display or into a closed position for other purposes. The two rectangular frames in the accused device are secured with nuts and bolts together with the removable strap and removable headers to maintain the open position at all times. And a second difference is that the patent has channels to hold sample binders that are intermediate to the sides of the U-shaped tubing of which the frames are composed, whereas the accused device provides for sample binders with channels which wrap around the tubing of which the frames are composed.

The trial court held that although the accused device was not precisely identical, nevertheless the two devices do the same work in substantially the same way, accomplishing substantially the same result.

In McCullough this court recognized that a patent which constitutes a marked improvement in the art is entitled to a substantial range of equivalents, and every element or its functional equivalent must be found in the accused device in order to have an infringement.

Consistent with McCullough and the other decisions, we agree with the trial court that the presence of the nuts and bolts rather than the pivot does not result in the accused device being outside the range of equivalents. It would seem that since the loosening of the nuts and bolts and the removal of the strap and headers accomplishes the same result as the pivot, the obviousness of this change brings the accused device within the scope of the equivalence doctrine.

The same is true of the method for holding the sample binders. These are also similar and thus within the scope of the equivalence doctrine. The wraparound channels are functionally equivalent to the channels on the patent in suit located intermediate to the sides of the U-shaped tubing.

Whether there is infringement and applicability of equivalents are both factual questions. See Graver Tank and Mfg. Co. v. Linde Air Products Co., supra. The ruling is therefore not to be disturbed unless clearly erroneous. It is not.

Were acts of infringement established? Evidence of appellee to establish acts of infringement was meager. There was evidence that the defendant used the infringing device on its own premises to display carpet. This, however, was stricken. The fact that the trial court nevertheless referred to it is harmless error in view of proof of another act of infringement. The other was sale of an infringing display rack to Montview Interiors, a carpet retailer. Appellant would have us disregard this evidence because it was not brought to his attention by supplementing the appellant’s interrogatory as is required by Rule 26(e). The court received it to prevent manifest injustice.

It is quite true that parties are under a continuing duty to supplement their responses. See 4 J. Moore, Moore’s Federal Practice § 26.81 (1970). Rule 26 clearly requires this. There is no indication, however, that the trial court believed that this failure to amend was a knowing concealment. In any event, it is questionable whether exclusion is the only proper penalty for failing to comply with the requirement. Surely the trial judge has some discretion in selecting the sanctions and it does not appear that the court abused its discretion in this instance.

* * *

In sum, then, it is concluded that the plaintiff had a valid patent; that the defendant infringed that patent; and that the record is free from serious error.

The judgment of the district court is affirmed.

APPENDIX A

The three claims that the Patent Examiner finally approved are as follows:

17. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and lengthwise adjustable means at intervals along the upright portions of the frame sections intermediate their sides for supporting sample binders of varying sizes and shapes in a hanging rectangular display at selective elevations with an upper binder covering a portion of the binder next below whereby said rectangular display conceals most of the frame sections.
18. A fixture as defined in Claim 17, in which the binder supporting means are arranged to dispose the hanging binders in substantially rectangular arrangement and' in a position substantially perpendicular to the frame section in which they are supported.
19. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and horizontally disposed channels at intervals along the outer faces of the upright portions of the frame sections for supporting sample binders of varying sizes and shapes in a hanging rectangular display extending throughout substantially the vertical extent of the fixture and concealing most of the frame sections.

      . The original claim shows the general nature of the device:
      A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat, superposed relation for storage and shipping and movable to a second substantially transverse position in which the secitions are adapted to stand in an upright position, support members disposed in circumferentially spaced arrangement at the base of the respective upright frame sections for establishing a stable display position for the fixture on a supporting surface, and means at intervals along the upright portions of the frame sections for supporting sample binders of varying sizes and shapes.

      . The full text of the trial court’s conaments on the obviousness question is as follows:
      B. Obviousness
      It is well established that a combination of old elements may be novel within the meaning of 35 U.S.C. § 102 (1970) and yet fail to satisfy the requirement of non-obviousness established by 35 U.S.C. § 103 (1970). See, e. g., Ohio Citizens Trust Company v. Lear Jet Corporation, 403 F.2d 956, 957 (10th Cir. 1968) cert. denied 394 U.S. 960, 89 S.Ct. 1308, 22 L.Ed.2d 561 (1968). The Supreme Court has spoken to the process by which the § 103 obviousness inquiry is to be resolved:
      While the ultimate question of patent validity is one of law, . . . the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined.
      Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) (citation omitted).
      Defendant has failed to convince us that the Price patent is obvious in light of the prior art. The Kamenstein patent, No. 1,518,148, is a display rack designed to display merchandise on the inside of the rack, rather than on the outside, as is the case with the Price rack. The Miamo patent, No. 1,322,596, is a book-like display rack with numerous vertical pivotal axes, all of which are attached to stationary, wall-hung brackets. It has no supporting feet and does not teach exterior hangers even remotely similar to the Price hangers. The White patent, No. 410,226, is an easel showing two frame sections, pivotal connections, and supporting' feet. The use to which these elements are put in White, however, lias only the most remote resemblance to their use in the Price patent. The Whitman Candy Rack (Defendant’s Exhibit T), while suitable, apparently, for display of boxed candy and ladies’ purses, discloses nothing in the manner of hangers on the outside of the frame; indeed, decorative fringes on the exterior edges of the shelves would seem to preclude any such hanging of merchandise. While we could continue at great length to discuss the numerous citations of prior art brought to our attention by both parties, no useful end would be served by such a discussion. It will be sufficient simply to state that on the basis of a careful review of the prior art, the Price display rack does not appear to have been a development obvious to a person having ordinary skill in the art. . We find that the Price Patent, No. 3,528,560, is not obvious within the meaning of 35 U.S.C. § 103 (1970).

      . Defendant complains in relationship to the consideration of the prior art of the court’s refusal to allow its expert to testify as to the Sugden patent as an example of the prior art, because a copy had not been timely furnished to the plaintiffs. Defendant argues that this was error because such prior notice is not always required by the courts. But the trial court did consider this patent as part of the prior art, and we are unable, in view of the circumstances, to perceive error in the court’s denial of the expert testimony.

      . The five essential elements referred to are: (1) intersecting rectangular frames; (2) permanent pivots; (3) samples located on the outnide faces of the frames; (4) sample holders intermediate the sides of the U-shaped tubing; and (5) overlapping samples that substantially hide the supporting frames.

      . Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 27 L.Ed. 935 (1878). See McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965) cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1965); Bewal, Inc. v. Minnesota Mining and Mfg. Co., 292 F.2d 159 (10th Cir. 1961); King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir. 1965).


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America ex rel. Thomas KIRBY, Petitioner-Appellant, v. David R. STURGES, Chairman of the Illinois Parole and Pardon Board (or his successor), Respondent-Appellee.
    No. 73-2057.
    United States Court of Appeals, Seventh Circuit.
    Argued May 21, 1974.
    Decided Jan. 28, 1975.
    Certiorari Denied June 9, 1975.
    See 95 S.Ct. 2424.

      Robert L. Graham, Jerold S. Solovy, Chicago, 111., for petitioner-appellant.
    William J. Scott, Atty. Gen., Jayne A. Carr, Asst. Atty. Gen., Chicago, 111., for respondent-appellee.
    Before FAIRCHILD and STEVENS, Circuit Judges, and LARAMORE, Senior Judge.

       Senior Judge Don N. Laramore of the United States Court of Claims is sitting by designation. -

   STEVENS, Circuit Judge.

Having failed, on direct review of his robbery conviction, to persuade the Supreme Court to hold that evidence of his identification at a pre-indictment showup was inadmissible because he was not represented by counsel, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, Kirby now presents us with two questions which the Supreme Court has not yet answered. The first, expressly reserved in Kirby, is whether “the particularized circumstances of this case” disclose a deprivation of due process; the second, identified but not expressly decided in Neil v. Biggers, 409 U.S. 188, 198-199, 93 S.Ct. 375, 34 L.Ed.2d 401, is whether identification evidence derived from a showup which (a) was conducted after June 12, 1967, the date of decision of Wade, Gilbert and Stovall, and (b) was unnecessarily suggestive since a lineup could have been conducted, is, as a matter of constitutional law, inadmissible. Kirby also argues that his arrest was improper and that the district court erroneously denied his request for an evidentiary hearing.

I.

Willie Shard was robbed at about 4:30 in the afternoon of February 20, 1968. While walking from a friend’s house to a restaurant, Shard looked back and saw two men about 15 feet away. As he started up the steps to the restaurant, one of the men ran up and grabbed him around the neck while the other took seven traveler’s checks, about $30 in cash, and his identification cards from Shard’s pockets. Shard testified that he got a good look at the men before, during, and after the robbery. The next morning he walked to the police station, reported the theft, and gave the police a description of the two robbers.

At about 11:00 a. m. on February 22, two police officers arrested Kirby and his co-defendant Bean. They had stopped Kirby because he resembled a man named Hampton, who was wanted on an unrelated charge. When the police asked Kirby and Bean for identification, they displayed traveler’s checks and identification cards bearing Shard’s name. In response to further questions, Kirby first stated that the checks were “play money” and then that they had won them in a crap game. The conflicting and evasive answers, coupled with the possession of Shard’s property, persuaded the officers to take them into custody. The officers were not aware of the robbery of Shard until after they arrived at the station.

The police then called Shard at work and arranged to bring him to the station. He was asked if he had been robbed and whether he could identify the men who had robbed him. He was not told that any of his property had been recovered.

When Shard entered a large room at the police station, he saw Kirby and Bean sitting at a table with an officer and immediately identified them. They were then asked to stand and Shard was asked whether they were the robbers; he replied unequivocally that they were.

The record indicates that Shard testified at a preliminary hearing before Judge Ryan, before the grand jury, and at the jury trial of Kirby and Bean. During the cross-examination of Shard, counsel for the defendants had the transcript of Shard’s earlier testimony and the descriptions Shard had given to the police when he first reported the robbery. No material discrepancy was developed, and Shard expressed no uncertainty about the accuracy of his identification.

The trial transcript includes the testimony of Shard, the arresting officers, the officers who were present when Shard identified the defendants, and defendant Bean. The trial exhibits include Shard’s traveler’s checks and identification, and the prior record of Bean which was introduced for purposes of impeachment. Kirby did not testify.

In his closing argument to the jury, defense counsel emphasized the suggestive character of the identification at the police station. The trial judge gave no special instruction concerning the unreliability of eyewitness identifications in general or showups in particular. The jury found both defendants guilty.

The Illinois appellate court reversed the conviction of Bean on the ground that the mere possession of property belonging to another did not establish probable cause to arrest. It affirmed Kirby’s conviction, holding that his conflicting explanations of his possession of Shard’s property, coupled with that possession, justified the arrest, and that the motion to suppress had been properly denied. The court expressly ruled (1) that Wade and Gilbert were inapplicable to a pre-indictment identification, (2) that the circumstances surrounding the identification were not so suggestive as to deny Kirby due process of law, and (3) that the use of the showup as an identification procedure is not unconstitutional even though there was no compelling reason for not conducting a lineup.

The Illinois Supreme Court denied leave to appeal. As already noted, the United States Supreme Court, after a limited grant of certiorari, decided the Wade-Gilbert issue but left open the remaining questions.

The case is here on appeal from Judge Will’s denial of Kirby’s petition for a writ of habeas corpus. Judge Will found that the record established probable cause to arrest and that the identification procedure was not impermissible. After the district court had filed its memorandum opinion on the merits, Kirby moved for reconsideration and specifically requested an evidentiary hearing. That motion was denied.

II.

We agree with the following discussion of the arrest issue in the well-reasoned opinion of the district court:

Defendant’s first contention is that the trial court erred in denying his motion to suppress the physical evidence taken from him at the time of his arrest — the traveler’s checks and the Social Security card bearing the name “Willie Shard.” He argues that his arrest was without probable cause and therefore the physical evidence seized should have been suppressed as the product of an unlawful arrest.
Our review of the transcript of the hearing conducted by the trial court on this issue, as well as the reasoning of the Appellate Court of Illinois affirming the decision, reveals no constitutional error. The initial stop of petitioner was based upon the police officers’ mistaken belief that petitioner was a man wanted for con games according to a police department bulletin carried in the officers’ squad car and bearing a description and picture of the wanted person. The Supreme Court has held an arrest or stop based upon a reasonable mistake as to identity is lawful. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). Petitioner does not contend the mistake in identity was not reasonable, but rather that the particular police bulletin relied upon was too vague and overbroad in its description of the wanted man to serve as a sufficient basis for arresting him.
Petitioner’s contention is unsound as the bulletin carried a picture of the wanted man as well as a description of his physical characteristics. Furthermore, he overlooks the fact that he was not searched or arrested on the basis of his similarity to the suspect appearing in the bulletin. The alleged similarity was the basis only for the stop and request for identification. It was while petitioner was looking for identification that the officers noticed the traveler’s checks bearing the name “Willie Shard.” Admittedly, the possession of property bearing someone else’s name would not constitute probable cause for petitioner’s arrest. But, upon questioning petitioner as to the reason for his possession of this evidence, which was in plain view of one of the officers, petitioner gave two contradictory explanations. We find ourselves in agreement with the Illinois Appellate Court that this set of circumstances constituted probable cause to arrest petitioner and subsequently take from him the Shard traveler’s checks and Social Security card which was uncovered as a result of the search incident to that arrest.

III.

In arguing that Judge Will erred in not holding an evidentiary hearing, Kirby primarily relies on the Supreme Court’s footnote stating that the due process question “remains open for inquiry in a federal habeas corpus proceeding.” We do not believe that the Court was mandating an evidentiary hearing. In our opinion the footnote preserved the question but did not prescribe the procedures to be followed in answering it.

The standards for determining when an independent evidentiary hearing in the federal district court is necessary were set forth in Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 9 L.Ed.2d 770. Kirby focuses on the requirement that the material facts be adequately developed at the state court hearing. He argues that there was some dispute over the facts pertaining to the stationhouse identification and the stop and arrest.

It is settled, however, that the mere existence of a dispute in the evidence does not necessarily require that an evidentiary hearing be held. The test is whether the material facts were adequately developed at a full and fair hearing before the state court. See Townsend v. Sain, supra; United States ex rel. Hartgraves v. Pate, 375 F.2d 289, 290 (7th Cir. 1967); United States ex rel. Pierce v. Cannon, 508 F.2d 197 at 205 (7th Cir. 1974). Kirby contends that an evidentiary hearing would more fully develop three sets of facts bearing on the reliability of Shard’s identification: (1) Shard’s opportunity to observe his assailants before, during, and after the robbery; (2) what Shard was told by the police on the way to the stationhouse; and (3) the certainty with which Shard identified Kirby at the showup. Our review of the record persuades us, however, that the state court hearing adequately developed these facts.

IV.

In Stovall the Supreme Court held that whether the confrontation conducted in a particular case is “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law. . . . depends on the totality of the circumstances surrounding it . . . .” 388 U.S. at 302, 87 S.Ct. at 1972.

Three different aspects of the “totality of circumstances” have been noted in cases testing the admissibility of pretrial identification evidence. The suggestive aspects of the police procedures were emphasized in Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir. 1966) and Foster v. California, 394 U.S. 440, 442-443, 89 S.Ct. 1127, 22 L.Ed.2d 402; the justifi cation for using a suggestive procedure was the apparent basis of decision in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and the reliability of the identification was critical in Neil v. Biggers, 409 U.S. 188, 199, 201, 93 S.Ct. 375, 34 L.Ed.2d 401; and Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S.Ct. 1999, 26 L.Ed.2d 387.

We have no doubt that the identification procedure used by the police in this case was inherently suggestive, and significantly so. Without question, almost any one-to-one confrontation between a victim of crime and a person whom the police present to him as a suspect must convey the message that the police have reason to believe him guilty. The psychological factors that have been so thoroughly discussed by scholars and judges create a real risk of misidentification in such circumstances. On the other hand, we think it equally clear that this case does not involve the extreme overt suggestiveness present in Palmer v. Peyton, supra, or Foster v. California, supra. We start then from the premise that significant suggestion is inherent in the use of any showup and was present in Kirby’s identification, but that it was not so aggravated as to compel reversal without regard to other parts of the totality of circumstances.

We next note that the State has offered no justification in this case for its use of a showup instead of a lineup as the identification procedure. There is no evidence of bad faith or excessive zeal to obtain a conviction; nothing more than laziness, or perhaps just “sloppy” police work, seems to be involved. Nevertheless, since the use of the show-up was not justified by any exigent circumstances, or even by any minimal showing of inconvenience, we have a case in which an unnecessarily suggestive identification procedure was employed. The confrontation was therefore defective for both of the reasons stated in Biggers; the showup increased the likelihood of misidentification, and that increased risk of error was gratuitous. 409 U.S. at 198, 93 S.Ct. 375, 34 L.Ed.2d 401. But, as the Court squarely held in that case — at least with respect to preStovall identifications — these two defects, without more, do not necessarily result in a deprivation of due process.

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the Court held that an in-court identification was permissible even though the witness had identified the three defendants at an unnecessarily suggestive lineup. In a lineup of six persons, only the three defendants had been required to speak; and only the one who wore a hat during the assault wore a hat during the lineup. These gratuitous and significantly suggestive aspects of the identification procedure did not offend due process because the evidence establishing the reliability of the identification was sufficiently persuasive to the Court. The holding in Coleman thus attaches overriding importance to the reliability factor in appraising the totality of circumstances.

This conclusion is consistent with the Court’s statement in Biggers that the “central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” The factors to be considered in deciding the reliability issue were then identified as “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” 409 U.S. at 199 — 200, 93 S.Ct. at 382.

A consideration of those factors in this case requires the conclusion that Shard’s identification of Kirby was sufficiently reliable to avoid the due process objection. The crime occurred in daylight and Shard testified unequivocally that he had a good opportunity to view his assailants before, during and after the crime. His description of the criminals made before the showup apparently fit the defendants. There was nothing at all uncertain about Shard’s identification of Kirby and Bean. And finally, less than two days had elapsed between the crime and the confrontation. Therefore, without placing any weight on the corroboration resulting from the defendants’ possession of the stolen property, the indicia of reliability satisfy the Biggers formulation.

Neil v. Biggers and Coleman v. Alabama involved pre-Stovall identifications. If the due process standard as applied in such cases remains the same in post-Stovall cases, we are satisfied that Kirby’s objections must fail. We come, then, to the question whether a new constitutional rule must be applied to post-Stovall identifications.

V.

A cryptic paragraph in Mr. Justice Powell’s opinion in Biggers may imply that the Court will approve of a deterrent rule that would control this case. He said:

What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S. App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 1957, 18 L.Ed.2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury. 409 U.S. at 198-199, 93 S.Ct. at 382 (footnote omitted).

The arguments in favor of an exclusionary rule which would deter the police from conducting a showup when a lineup is feasible carry substantial force.

The primary purpose of such a rule would be to enhance the reliability of the trial process in its search for truth. Unlike the Fourth Amendment and Fifth Amendment exclusionary rules which make probative and trustworthy evidence inadmissible, this rule would be designed to minimize the danger of convicting the innocent. The purpose of this rule would be completely consistent with the fundamental purpose of the trial process itself.

There is surprising unanimity among scholars in regarding such a rule as essential to avoid serious risk of miscarriage of justice. Professional journals, Judge Winter of the Fourth Circuit, Chief Judge Bazelon and Judge Wright of the District of Columbia Circuit, and the American Law Institute’s Tentative Draft of the Model Code of Pre-Arraignment Procedures, all take the position that evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure.

Since June 12, 1967, when Stovall was decided — indeed, since April 6, 1966, when the Fourth Circuit rendered its seminal decision in Palmer v. Peyton— the law enforcement profession has been on notice that the introduction of evidence of suggestive identifications may create constitutional error. It has been suggested that better identification procedures may well lead to higher, rather than lower, conviction ratios. Inept police procedures, such as that disclosed by this record, may increase the likelihood that juries may discount eyewitness testimony and, therefore, under the reasonable doubt standard, acquit defendants who are in fact guilty.

Moreover, a simple exclusionary rule— instead of a requirement that the particular circumstances of one identification after another be evaluated on a case-by-case basis — might lessen the burden of judicial review of the many cases in which eyewitness identifications are challenged. Reviewing courts would not have to sift trial records to determine whether adequate evidence corroborating the reliability of the showup is present. If a showup were employed, the only relevant question affecting admissibility of the station-house identification would be the justification, if any, for not holding a lineup.

Furthermore, as the district court, court of appeals, and Supreme Court opinions in Biggers indicate, the standards for determining when an identification is sufficiently reliable are somewhat elusive and leave room for considerable judicial disagreement.

There is, indeed, good reason to favor the adoption of an exclusionary rule such as that proposed in the American Law Institute’s Draft of a Model Code. May we, however, properly conclude that the enforcement of such a rule is mandated by the due process clause of the Fourteenth Amendment? We think not.

Our power to require the Illinois courts to observe any particular procedure, or to exclude any category of evidence offered at a criminal trial is, of course, derived solely from the Federal Constitution. With this premise in mind, we must first note that a showup does not itself violate any constitutional right of the suspect. Unlike a warrantless search, which may violate a constitutionally protected interest in privacy, the identification of a suspect — whether fair or unfair — does not necessarily affect any constitutionally protected interest of the suspect. The due process clause applies only to proceedings which result in a deprivation of life, liberty or property. The due process issue, therefore, does not arise until testimony about the show-up — or perhaps obtained as a result of the showup — is offered at the criminal trial. If that evidence is unfairly prejudicial, the trial judge may have a constitutional obligation to exclude it, or possibly to mitigate its impact by an appropriate cautionary instruction to the jury. But if a constitutional violation results from a showup, it occurs in the courtroom, not in the police station.

The Justices have plainly told us that the admission of evidence of a showup does not necessarily violate due process. Logically, that statement applies equally to showups which occurred after as well as before the Stovall decision. For nothing in the Stovall decision itself implied that any redefinition of due process standards occurred on June 12, 1967. Indeed, quite the contrary inference might fairly have been drawn from the Court’s characterization of the due process objection to the admissibility of showup testimony as “a recognized ground of attack upon a conviction independent of any right to counsel claim.” 388 U.S. at 302, 87 S.Ct. at 1972.

If we assume that judges are capable of differentiating between identification evidence which is so unfair as to be constitutionally inadmissible, and that which state courts may permit juries to assess, there is no compelling need — indeed, no need at all — for a general exclusionary rule. For on that hypothesis such evidence would be rejected on a case-by-case basis. The new rule, on this assumption, would not avoid any constitutional deprivation. Its entire impact would be as a deterrent to undesirable police conduct, which, in itself, is constitutionally unobjectionable. No matter how desirable the new rule may be, on this hypothesis we must conclude that the Constitution does not give us the power to impose it upon the states in this circuit.

If, on the other hand, we assume that the unfairness of showups is both so pervasive and so difficult to recognize that judges cannot fairly administer the existing totality of circumstances rule, then an adequate constitutional predicate for the new rule may be found. However, nothing in either the literature or our experience persuades us that the difficulties in applying the existing rule are so great that a new simple rubric is essential to forestall judicial error.

Since the constitutional error that the rule is intended to avoid is an unfair trial, rather than merely an unfair identification, before an inflexible exclusionary rule is adopted it is appropriate to consider less drastic methods of avoiding the danger of unfairness. It is important to remember that identification testimony normally has some probative significance even if the identification procedure was unnecessarily suggestive. The risk of unfairness stems from the danger that juries may attach more weight to the evidence than it actually warrants. That danger can be minimized by appropriate cautionary instructions. A rule which invariably required the exclusion of evidence, no matter how slight the danger that the particular trial was actually unfair, would be at odds with our well-settled interpretation of the due process clause as providing “an elastic, flexible standard which varies with the attendant circumstances.” LaBatt v. Twomey, 513 F.2d 641, at 645 (7th Cir. 1975).

The risk that the jury will not properly assess the weight to be given identification testimony will obviously vary widely from case to case, just as the jury’s ability to assess other forms of evidence of dubious reliability will vary. There are elements of unfairness in every trial in which the instructions to the jury are imperfect, in which questionable testimony is presented, or in which members of the jury are less attentive or less perceptive in assessing credibility than the ideal. On the other hand, there are obviously many situations in which there is no unfairness at all in the admission of showup testimony. If, for example, the victim of a violent crime informed the police that his assailant was his brother, or perhaps a close friend of many years, it would be absurd to criticize the police for having the victim identify a suspect in a one-to-one confrontation. The range of variation-— from no unfairness at one extreme, through situations in which the jury can be safely relied upon to recognize the suggestive factors and discount the reliability of the identification, to the other extreme in which wholly unreliable evidence is nevertheless so persuasive that fundamental fairness requires that it be excluded — is itself a persuasive reason for not concluding that an inflexible exclusionary rule is mandated by the Constitution.

The rule which is needed is one that can be drafted more effectively by the legislative process than by a somewhat clumsy judicial fiat. For it is clear that all showup evidence should not be excluded, that the distinction between a showup and a lineup is somewhat illusory, that there is room for debate as to what justifications for a showup should be accepted, and that the objections to suggestive showups may apply equally to a variety of suggestive lineups. The several issues which must be addressed in the formulation of the new rule require more than judicial gloss for adequate resolution.

The adoption of a new rule which would make justification for the use of a suggestive procedure, rather than the reliability of the identification, the critical factor in testing admissibility is more appropriately the subject of a legislative decision than of constitutional adjudication. For a holding that the due process clause has been violated assumes a degree of unfairness in the trial that offends our basic sense of justice. It would be most anomalous to fashion a rule of constitutional law which at once excluded identification evidence offered against one defendant on the ground that it was so unfairly persuasive as to taint the entire trial, and yet admit against another defendant evidence that was equally unreliable and equally prejudicial simply because reasons of police or prosecutorial expediency afforded adequate justification in the second case. As a constitutional matter, reliability— rather than justification for reasons extraneous to the fairness of the trial — is properly regarded as the factor of critical importance.

Accordingly, accepting for purposes of our decision the desirability of adopting an exclusionary rule such as that recommended in the American Law Institute’s Tentative Draft No. 6 of a Model Code of Pre-Arraignment Procedure, we conclude that the Federal Constitution does not require the states to observe such a rule.

Affirmed.

      . In footnote 8 of its opinion in Kirby, the Court stated:
      “In view of our limited grant of certiorari, we do not consider whether there might have been a deprivation of due process in the particularized circumstances of this case. That question remains open for inquiry in a federal habeas corpus proceeding.” 406 U.S. at 691, 92 S.Ct. at 1883.

      . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

      . See testimony quoted in 406 U.S. at 686 n. 3, 92 S.Ct. 1877.

      . These facts were established by the testimony of the arresting officers. At trial, Bean testified that he and Kirby had found the papers in an alley nearby.

      . The officers who brought him to the station had no information about either the robbery of Shard or the arrest of Kirby and Bean.

      . Shard so stated at p. 65 of the transcript of his state court trial.

      . Kirby, who is sometimes called “Kirby Thomas” and sometimes “Thomas Kirby,” told the trial judge that he was dissatisfied with his trial counsel, apparently because he advised Kirby to take the stand. In the Illinois Appellate Court Kirby also argued that his counsel was ineffective because the evidence adduced at the hearing on the motion to suppress identification testimony was limited to establishing that counsel was not present and did not relate specifically to the claim that the due process clause was offended by the showup. The Appellate Court was satisfied that the record was adequate to decide both questions. Kirby has not pursued the denial of effective counsel contention in his habeas corpus petition. We are satisfied that the record is adequate to present the due process issues: it is apparent that Kirby and Bean were effectively represented both at the trial and in the Illinois Appellate Court.

      . The Illinois Supreme Court had so held in People v. Palmer, 41 Ill.2d 571, 572, 244 N.E.2d 173, 174 (1969).

      . The Illinois Supreme Court had so held in People v. Blumenshine, 42 Ill.2d 508, 512, 250 N.E.2d 152, 154 (1969).

      . 406 U.S. at 691 n. 8, 92 S.Ct. at 1883, 32 L.Ed.2d 411, quoted in full in footnote 1, supra.

      . “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” 372 U.S. at 312-313, 83 S.Ct. at 757 (footnote omitted).
      The Court further elaborated the situations in which an evidentiary hearing would be required:
      “We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” 373 U.S. at 313, 83 S.Ct. at 757.

      . In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, involving a pretrial photo identification, the Court phrased the test as whether the identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384, 88 S.Ct. at 971. The Stovall phraseology was subsequently repeated in Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d 402. In Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401, the Court referred to the Simmons formulation as a restatement of the Stovall governing test.

      . “The opportunity for suggestion inherent in the procedure used to secure this identification is manifest. Before listening to the voice that spoke in response to the Sheriff in the station, Mrs. Britt had been told that the police had a Negro suspect in custody. She had been shown the suspect’s shirt— the shirt which she later testified was ‘about the same color’ as that worn by her assailant. On Wednesday evening, in accordance with customary practice, Mrs. Britt had been asked to select one of a number of persons in a lineup. It is noteworthy that on Thursday evening an entirely different course was followed. Palmer’s was the only voice the complainant was permitted to hear repeat the damning words. When she was asked if she could identify the voice, the only voice that was submitted for identification, the highly suggestive atmosphere that had been generated could not have failed to affect her judgment.
      “Any identification process, of course, involves danger that the percipient may be influenced by prior formed attitudes; indeed we are all too familiar with instances in which supposedly ‘irrefutable’ identifications were later shown to have been incorrect. Where the witness bases the identification on only part of the suspect’s total personality, such as height alone, or eyes alone, or voice alone, prior suggestions will have most fertile soil in which to grow to conviction. This is especially so when the identifier is presented with no alternative choices; there is then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect.” 359 F.2d at 201 (footnote omitted).

      . “In the first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. . When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. . . . Even after this the witness’ identification of petitioner was tentative. So some days later another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup. . . This finally produced a definite identification.
      “The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact ‘the man.’ In effect, the police repeatedly said to the witness, ‘This is the man.’ ” 394 U.S. at 442-443, 89 S.Ct. at 1128.

      . “However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.” 388 U.S. at 302, 87 S.Ct. at 1972. Although the brief opinion in Stovall can be read to hold that the exigency justification is sufficient no matter how unreliable and suggestive the identification may have been, the Supreme Court certainly has not expressly told us that a justification may be so strong as to make a blantantly suggestive and totally unreliable identification admissible. Indeed, as we note in the text, infra, it is difficult to understand how exigency can be a principled basis for accepting identification testimony which is so unreliable and prejudicial as to violate the essential demands of fairness protected by the due process clause.

      . “We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382.
      “Weighing all the factors, we find no substantial likelihood of misidentification.” Id. at 201, 93 S.Ct. at 383.

      . “Indeed, the court could find on the evidence adduced at the suppression hearing that Reynolds’ identifications were entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.” 399 U.S. at 5-6, 90 S.Ct. at 2001. Arguably, the holding in Coleman is not relevant to the issue presented by this case because Coleman dealt only with the admissibility of in-court identifications. Necessarily, however, if the indicia of reliability, apart from the suggestiveness of the identification, warranted a finding that the in-court identification was “not at all induced by the conduct of the lineup”, 399 U.S. at 6, 90 S.Ct. at 2001, it would equally follow that the victim’s identification at the lineup was reliable, notwithstanding the police suggestion. Unless that suggestion was harmless, it inevitably would taint both identifications. Logically, it seems to us that the due process objection — unlike the Sixth Amendment objection — should apply equally to the in-court identification and to testimony about a pri- or identification.

      . See United States v. Wade, 388 U.S. 218, 234, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

      . P. Wall, Eye-Witness Identification in Criminal Cases 28 (1965); Levine and Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U.Pa.L. Rev. 1079, 1108-1118 (1973); Smith v. Coiner, 473 F.2d 877, 880-881 (4th Cir. 1973), cert. denied, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 743; Wright v. United States, 131 U.S.App.D.C. 279, 404 F.2d 1256, 1262 (1968) (Bazelon, C. J., dissenting).

      . Thus, the showup was not conducted immediately after the robbery when it might be important for the police to ascertain quickly whether they had captured the right person or whether they should continue their search while the criminal is still within easy reach. See, e. g., Mock v. Rose, 472 F.2d 619, 621 (6th Cir. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2156, 36 L.Ed.2d 693; Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968); Note, Due Process Considerations in Police Showup Practices, 44 N.Y.U.L. Rev. 377, 387 (1969). Nor could this showup be justified because of the inability of the witness Shard to participate in a lineup, the situation in Stovall itself. Illinois has not argued that it would have been impossible to obtain reasonably comparable subjects to appear in a lineup, the justification put forth and rejected on the facts in Smith v. Coiner, 473 F.2d 877, 881 (4th Cir. 1973), cert. denied, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 743. Finally, there is no evidence that Kirby had consented to the showup.

      . “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a show-up without more does not violate due process.” 409 U.S. at 198, 93 S.Ct. at 382.

      . Similarly, in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the critical factor was the Court’s confidence “that the identification of Simmons was correct . . . Id. at 385-386, 88 S.Ct. at 972.

      . See Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent? 72 Mich.L.Rev. 717, 782-783 (1974); Recent Developments, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Colum.L.Rev. 1168, 1180 (1973); Note, Pretrial Identification Procedures— Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779, 794 (1971); Note, Due Process Considerations in Police Showup Practices, supra n. 20, at 392.

      . Smith v. Coiner, supra n. 19. But see the later Fourth Circuit decision in Stanley v. Cox, 486 F.2d 48, 52 (4th Cir. 1973), cert. denied, 416 U.S. 958, 94 S.Ct. 1975, 40 L.Ed.2d 309.

      . Wright v. United States, supra n. 19 (Bazelon, C. J., dissenting); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1252 (1968) (Wright, J., concurring in part and dissenting in part). Judge Friendly has concluded that Judge McGowan, speaking for the en banc majority, was also of this view in Clemons; see United States ex rel. Phipps v. Follette, 428 F.2d 912, 914 n. 3 (2d Cir. 1970). But see United States ex rel. Pierce v. Cannon, supra p. 402, and the cases cited therein at n. 11, where'we held, in the context of a poorly conducted lineup, that evidence of unnecessarily suggestive pretrial post -Stovall identifications need not be excluded if the Biggers indicia of reliability are present.

      . Model Code of Pre-Arraignment Procedure, Sections 160.1, 160.2 (Tent. Draft No. 6, 1974). See also Model Rules for Law Enforcement: Eyewitness Identification, Project on Law Enforcement Policy and Rulemaking, College of Law, Arizona State University, Section 2 (1972), reprinted in Model Code of Pre-Arraignment Procedure, App. VII (Tent. Draft No. 6, 1974).

      . McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235, 241 (1970).

      . The D. C. Circuit’s en banc decision in Clemons v. United States, supra n. 25, is a good example of the painstaking care needed in eyewitness identification cases under the Biggers test.

      . As Judge Leventhal observed in his concurring opinion in Clemons v. United States, the due process right at stake is the “right to a fair trial.” 408 F.2d at 1250.

      . See note 21, supra. See also Douglas, J., dissenting in Biggers v. Tennessee, 390 U.S. 404, 408, 88 S.Ct. 979, 981, 19 L.Ed.2d 1267: “Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup.”

      . Although Judge Leventhal’s opinion in Clemons v. United States was addressed to the unfairness of adopting a retroactive exclusionary rule, his essential analysis is equally relevant to the question whether the due process clause provides a satisfactory predicate for such a prospective rule. He stated in part:
      “In essence what the Stovall due process right protects is an evidentiary interest. Identification testimony is a particularly important kind of evidence, so important as to occasion exclusionary rulings that are sweeping in prospective application. But we are dealing here with the right to a retroactive condemnation of a pre-Wade admission of the identification evidence.
      “It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness — an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process.
      “Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.
      “Since the interest protected is in essence an evidentiary one, denial of the retroactive right recognized in Stovall and explicated in Simmons must depend on the assessment of all the factors and evidence bearing on the identification issue. The presence of other untainted identification testimony, counsel’s opportunity to inquire into the circumstances of the challenged identification, and to bring out the facts, are all relevant to the consideration of overall due process fairness to the accused.” 408 F.2d at 1251 (footnotes omitted).

      . It is true that in Biggers Mr. Justice Powell suggested that it would be particularly unfair to the law enforcement profession to apply a new exclusionary rule to a pre-Stovall show-up because the Court had not theretofore indicated that the suggestiveness of an identification was anything more than a matter of credibility to be argued to the jury. But since Stovall did not purport to fashion any general exclusionary rule — as opposed to an analysis of the circumstances of particular cases. — it does not seem reasonable to interpret Stovall as marking the effective date of a brand new exclusionary rule. If the Court should elect to fashion such a new rule, possibly even in this very case, it would seem more consistent with the retroactivity analysis in the first portion of the Stovall opinion to make the rule effective from the date of the decision in which it is announced than from the date of the decision in Stovall. See Grano, supra n. 23, at 779 n. 383.

      . In Clemons v. United States, 133 U.S.App. D.C. 27, 408 F.2d 1230 (1968) (en banc), Judge McGowan described the present due process rule as “a broad standard of review which focuses upon the distinctive facts of each case in their totality, and which relies very heavily upon the special capacity and experience of judges, trial and appellate, to discriminate between real and fancied dangers of the miscarriage of justice.” Id. at 1237.

      . Professor Grano, in his article in 72 Mich.L.Rev. 719, 794-797 (1974), suggests that in the absence of an exclusionary rule of evidence the Constitution may require trial judges to give a jury instruction which adequately emphasizes the unreliability of identification testimony, stressing the risks inherent in suggestive procedures. Trial judges should, of course, give such instructions in appropriate cases; moreover, although a general rule requiring such instructions may well be desirable, the reasons which persuade us that an exclusionary rule of evidence is not constitutionally required also would require rejection of this suggested constitutional rule.

      . For example, should a succession of show-ups in which the victim rejects the suggested identification, as occurred in Biggers, followed by a showup in which he makes the identification, be treated as a lineup or a showup? Conversely, should a lineup including five blacks and one white be treated as a showup if the victim identified his assailant as a white?

      . The suggestive procedures described in United States v. Wade, 388 U.S. at 232-233, 87 S.Ct. 1926, 18 L.Ed.2d 1149, do not place showups in a different category from other manifestly improper identification procedures.