author: ROSS, Circuit Judge.

text:
    Louis RISKE and Jerry Riske, Appellants, v. TRUCK INSURANCE EXCHANGE, a corporation, Appellee.
    No. 73-1066.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1973.
    Decided Jan. 16, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 6, 1974.

      Kenneth M. Moran, Jamestown, N. D., for appellants.
    Mart R. Vogel, Fargo, N. D., for ap-pellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

After a jury returned a verdict for Louis Riske and Jerry Riske, in the sum of $130,000, against Truck Insurance Exchange (Truck), the district court set aside the jury verdict and entered judgment for Truck. The Riskes appeal. We reverse and remand with instruction to reinstate the jury verdict and enter judgment for the Riskes in the sum of $130,000.

This case arises from a personal injury suit brought by Cynthia Ngan, an exchange student from Hong Kong, attending the University of North Dakota, against Jerry Riske and Louis Riske. Miss Ngan was injured when she was riding a snowmobile at the Riskes’ farm in Minnesota. The snowmobile was an “Arctic Cat” model, manufactured by Arctic Enterprises, Inc. (Arctic). Miss Ngan was thrown from the snowmobile, and her right hand and arm became entangled in the track of the machine. The machine’s back rest had broken off prior to the accident.

Miss Ngan subsequently brought suit against the Riskes and Arctic in the United States District Court for the District of North Dakota. She claimed the Riskes were negligent, and her action against Arctic was predicated on products liability, breach of warranty and strict liability. Truck defended the Riskes as required by their contract of liability insurance. Applying Minnesota law, the jury returned a verdict for Miss Ngan in the amount of $200,000.' Under the comparative negligence law of Minnesota the jury found Jerry Riske to have been 45% negligent, Louis Riske 45% negligent, Miss Ngan 10% negligent, and declined to return a verdict against Arctic. Judgment was entered in Miss Ngan’s favor for the sum of $180,000, and Truck paid the full policy coverage', which was $50,000.

Thereafter, the Riskes, pursuant to an agreement with Miss Ngan, brought suit against Truck alleging essentially that Truck had, in bad faith, refused to settle the lawsuit or otherwise consider the interests of the Riskes in good faith, and, secondly, that Truck had, in bad faith, negligently defended the Riskes. The jury agreed and awarded the sum of $130,000.

At the close of the plaintiffs’ evidence the defendant moved for dismissal. At the close of all the evidence the defendant moved for directed verdict. The nature of the motions were that the Riskes had not shown effective offers to settle, the Riskes had not proven damages, and the Riskes had not proven bad faith. The court expressly reserved decision on the motions until after the jury returned its verdict. On December 8, 1972, the jury returned a verdict for the Riskes. On December 18, 1972, the district court granted the earlier motion for a directed verdict, set aside the jury verdict and ordered that judgment be entered ip favor of Truck. The court concluded that “the evidence is not sufficient to support a finding of lack of good faith on the part of the defendant .” Riske v. Truck Insurance Exchange, 351 F.Supp. 760, 766 (D.N.D.1972).

As we have noted before, the Riskes sought to recover on two theories: 1) bad faith failure to settle, and, 2) bad faith defense. Since we believe the evidence was sufficient to support the jury’s verdict on the first theory, we need not reach the question of whether the evidence was sufficient to support the second.

A. Standard of Review.

In reviewing questions relating to the sufficiency of the evidence, it is clear that Minnesota law, North Dakota law, and federal law all require that this Court view the evidence and any inferences which may be reasonably drawn therefrom in the light most favorable to the nonmoving party. See, e. g., Ziegler v. National Life & Accident Insurance Co., 441 F.2d 869, 870 (8th Cir. 1971); Steel v. Downs, 438 F.2d 310, 311 (8th Cir. 1971); Hanson v. Ford Motor Co., 278 F.2d 586, 589-599 (8th Cir. 1960). See also Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir. 1970), cert, denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971). See generally, 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 at 541-547 (1971).

B. Applicable Law.

The district court in this diversity ease applied Minnesota substantive law. Applying the forum state’s conflict of laws rule, and characterizing the basis of this action as one in tort, 14 G. Couch, Cyclopedia of Insurance Law Second, § 51:22 at 523 (Anderson ed. 1965); Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv. L.Rev. 1136, 1138 n. 5 (1954), we believe that Minnesota had the most significant contacts. Compare Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972). Here the injury occurred in Minnesota, the contract of insurance related to Minnesota property, and the first lawsuit was tried under Minnesota law. Accordingly, we hold that Minnesota law applies.

C. Minnesota Law — Bad Faith Failure to Settle.

Under Minnesota law it is clear that: A liability insurer which assumes control of the right of settlement of a claim against its insured under a policy which gives it the exclusive right to defend and settle may become liable in excess of its policy limits if it fails to exercise “good faith” in considering an offer to settle the claim within the policy limits.

Lange v. Fidelity & Casualty Co. of New York, 290 Minn. 61, 185 N.W.2d 881, 882 (1971). See also Herges v. Western Cas. & Surety Co., 408 F.2d 1157, 1161 (8th Cir. 1969); Keeton, Liability Insurance and Responsibility for Settlement, supra, 67 Harv.L.Rev. at 1136; 14 G. Couch, Cyclopedia of Insurance Law Second, supra, § 51:129 at 625-626; Anno., Duty of Liability Insurer to Settle or Compromise, 40 A.L.R.2d 168 (1955).

The Minnesota courts have defined this duty as follows:

The duty to exercise “good faith” with respect to the decision whether to accept an offer of settlement within the policy limits requires the insurer to view the situation as it would if there were no policy limits applicable to the claim, including the obligation to give equal consideration to the financial exposure of both the insured, whether solvent or insolvent, and the insurer, and the obligation to inform the insured, in the manner in which he would be advised if he consulted private counsel, in detail of the potential consequences of a deficiency judgment and of the potential conflict between the interests of the insurer and the insured.

Lange v. Fidelity & Casualty Co. of New York, supra, 185 N.W.2d at 882.

In this case, it appears, three offers to settle were made to Truck by Miss Ngan’s attorney: 1) an offer for $25,000 shortly after the accident, 2) an offer for $45,000 sometime thereafter, and, 3) an offer for $25,000 during trial. For the moment, it will be assumed that the offers were viable and the question of the viability of the offers is discussed infra. In this case the Riskes proposed to prove bad faith failure to settle in three ways: 1) inadequate investigation, 2) inadequate evaluation of the claim, and, 3) inadequate consideration of the insured’s interest. These devices for proving bad faith are standard analytical measures with respect to this question. See 14 G. Couch, Cyclopedia of Insurance Law Second, supra, §§ 51:10-51:18 at 514-520.

1. Inadequate Investigation.

The Riskes argued that Truck could not adequately determine whether to accept an offer to settle since it was ignorant of the extent of Miss Ngan’s injury. As evidence of this contention the Riskes argue that Truck’s attorney did not take the deposition of Miss Ngan’s doctor. Instead Truck relied upon a medical report which indicated that the doctor had first established Miss Ngan’s disability to be 25% in her right arm. At trial the doctor changed his testimony and indicated the disability could be as much as 60% in the right arm.

The Riskes called an expert witness by the name of Donald R. Hansen. Hansen, an attorney, was qualified as an expert in the field of personal injury law. It was his opinion that “good standards of practice” required that Truck’s counsel depose the doctor. Truck on the other hand called two other lawyers, qualified in the personal injury field as experts, who testified that such a deposition procedure was unusual and not required.

It is undisputed that in order to evaluate the merits of an offer to settle one must be in possession of enough facts to make an accurate evaluation of the extent of injury. See, e. g., Maryland Casualty Co. v. Elmira Coal Co., 69 F.2d 616, 619 (8th Cir. 1934); 14 G. Couch, Cyclopedia of Insurance Law Second, supra, § 51:13 at 516; Anno., Duty of Liability Insurer to Settle or Compromise, supra, 40 A.L.R.2d at 208 § 13[a]. In this case, testimony from an expert witness indicated that the counsel for Truck should have deposed the doctor. While this evidence could be disbelieved on the basis of Truck’s counter-testimony, it was at least a factor which the jury was entitled to consider.

2. Evaluation of the Claim.

Closely related to the allegation of improper investigation is the Riskes’ contention that Truck evaluated Miss Ng^n’s claim in bad faith in that Ngan clearly had a strong case against the Riskes on both issues of liability and damages. We emphasize that:

[I]t has frequently been recognized that the fact that the claimant had a very strong case against the insured on both these issues [liability and damages] has some tendency to show that the insurer’s rejection of the offer was in bad faith.

14 G. Couch, Cyclopedia of Insurance Law Second, supra, § 51:18 at 520.

We believe the Riskes adduced substantial evidence from which the jury could conclude that Miss Ngan had an extremely strong case:

a. Truck’s own correspondence indicated that Miss Ngan would be likely to have “a very strong jury appeal” and, “we are going to find the jury in an extremely generous and sympathetic mood.”
b. It’s correspondence also indicated there was a valid potential for excess exposure, and the company recognized the Ngan case was large and dangerous.
c. Its correspondence further indicated “talk about contributory negligence will be rather meaningless.” The Riskes’ expert witness, Hansen, testified that his evaluation of the case indicated Miss Ngan was not contributorily negligent.
d. Hansen further testified his evaluation of Ngan’s claim indicated Louis Riske was negligent.
e. Hansen testified his evaluation of the case indicated there was no chance that Jerry Riske would be held not liable.
f. Hansen also concluded the Riskes’ co-defendant Arctic would be held not liable.
g. Hansen testified the probable jury verdict was between thirty to fifty thousand dollars in excess of policy limits.

Of course Truck produced persuasive evidence that its evaluation of the claim was made in good faith. But, as we have previously suggested, we must view the evidence in the light most favorable to the Riskes.

3. Equal Consideration of the Insured’s Interests.

There is substantial evidence from which the jury could conclude that Truck totally ignored the Riskes and proceeded to consider the Ngan suit in terms of its own interest solely.

First, Minnesota law is clear that when:

[d] etermining the good faith of the insurer, an important question is whether the insurer informed the insured of all proceedings, including communication of settlement offers. (Emphasis supplied.)

New Amsterdam Casualty Co. v. Lundquist, 293 Minn. 274, 198 N.W.2d 543, 551 (1972). See also Lange v. Fidelity & Casualty Co. of New York, supra, 185 N.W.2d at 886; Larson v. Anchor Casualty Co., 249 Minn. 339, 82 N.W.2d 376, 384 (1957); 14 G. Couch, Cyclopedia of Insurance Law Second, supra, § 51:16 at 518; Anno., Duty of Liability Insurer to Settle or Compromise, supra, 40 A.L.R.2d at 216-218 § 17.

The Riskes adduced substantially unrebutted evidence that the first offer to settle for $25,000 was not communicated to the Riskes, and that the third offer to settle during trial for $25,000 was not communicated to the Riskes. Truck’s brief, without citation to the record, indicates that the Riskes were informed of the $45,000 offer to settle during trial. We have some difficulty with this assertion. As we read the record, the only testimony indicating that the Riskes were informed of any settlement negotiations appears to have been the testimony of Truck’s attorney that he told the Riskes, during the first day of trial, he had offered Miss Ngan’s counsel $20,000 to settlé. This testimony does not indicate that the Riskes were informed of Miss Ngan’s offer. In any event, waiting until trial to communicate the offer to the Riskes is not timely notice, and we have so held in a similar case. Herges v. Western Cas. & Surety Co., supra, 408 F.2d at 1162.

Second, Louis Riske testified that Truck’s attorney told him, during the third day of trial, that, in the event of an excess judgment, Truck would be liable since it had rejected an offer to settle for $40,000. The district court discounted this evidence of bad faith because “[a]t best, it could be considered an admission of bad faith by an agent which would not be binding on his principal unless supported by some evidence.” Riske v. Truck Insurance Exchange, supra, 351 F.Supp. at 765. We frankly do not understand this contention. Truck commissioned the attorney to represent the interests of the Riskes and Truck, including discharging the attorney’s legal duty under Minnesota law to inform the Riskes of settlement negotiations. As a consequence, we believe that such a statement, if made, is binding on Truck, at least for the purpose of showing its bad faith in failing to settle the case. See, e. g., C. McCormick, McCormick on Evidence § 267 at 643-644 (Cleary ed.1972).

Third, Minnesota law clearly requires that an insurance company view settlement offers as if there was no policy limit. Lange v. Fidelity & Casualty Co. of New York, supra, 185 N.W.2d at 884. Truck’s attorney wrote Truck’s Branch Claims Manager:

Dear Dick:
Dick, I have your request that we give you our thinking in regard to the value of this file, and what offer we feel should be made.
In summarizing the applicable factors, we find as follows:
* * * * -X- *
9. We have $50,000.00 available coverage.

This letter was written some time after Miss Ngan’s counsel had first offered to settle for $25,000.

Fourth, we note that Truck emphasizes the fact that the Riskes consulted with independent counsel. This fact is said to buttress Truck’s claim that the Riskes were aware of what was going on in the lawsuit. While this evidence is certainly relevant, we do not believe it to be conclusive. We fail to see how independent counsel could be very effective when Truck adopted a policy of not informing the Riskes of the settlement offers (within the policy limits) received from Ngan’s counsel. In Duke v. Hoch, 468 F.2d 973, 979 (5th Cir. 1972), the Court held that where an insurer furnished a defense to an insured in a suit for both damages covered by the policy and damages not covered, the presence of insured’s own counsel did not dispense with the necessity of insurer’s counsel discharging his responsibility to disclose fully, before proceeding, the divergence of interest between the insured and insurer arising from a question relative to whether damages were or were not allocated. The Court noted that:

Section 4(b) of the Statement of Principles of the ABA and the Conference Committee on Adjusters states:
The companies and their representatives, including attorneys, will inform the policyholder of the progress of any suit against the policyholder and its probable results. If any diversity of interest shall appear between the policyholder and the company, the'policyholder shall be fully advised of the situation. Id.

We think the rationale of the Duke case is fully applicable to this case since we can conceive of few other circumstances where the conflict of interest between the policyholder and the company is more acute than when a settlement offer within policy limits is rejected by the company. See Lange v. Fidelity & Casualty Co. of New York, supra, 185 N.W. 2d at 886. We finally note that the Riskes’ consultation with independent counsel could hardly be characterized as retaining counsel for the purpose of defending the Riskes. Counsel did not appear at trial, and, from the testimony, it appears that counsel was only consulted when Truck informed the Riskes of the happening of an event.

In this connection, we note that Truck emphasizes that its attorney testified that he informed Louis Riske, during the first day of trial, that the company had offered to settle for $20,000. The attorney said that Riske replied, that he certainly did not think “he owed anyone any money like that.” It is argued that this evidence demonstrates that the Riskes’ own evaluation of Ngan’s claim was consistent with Truck’s and therefore such evidence tends to support Truck’s claim that it gave the Riskes’ interest equal consideration. We agree that this evidence is supportive of Truck’s argument, but in light of the other extensive evidence, particularly the failure to inform the Riskes of Ngan’s offers to settle within the policy limits, we believe the jury could properly find for the Riskes in this respect. We further note that there was at least some suggestion in the record that the only conversation Louis Riske clearly remembered having with Truck’s attorney about settlement matters was during the third day of trial when Riske testified that Truck’s attorney told him that .Truck would be liable in the event of an excess judgment.

In conclusion, we believe that there was substantial evidence from which a jury would be entitled to draw the conclusion that Truck acted in bad faith.

D. Viability of the Offers.

Truck alternately contends that Ngan made no viable offers to settle, and hence Truck cannot be charged with liability for failing to investigate them, evaluate them, or consider the insured’s interest with respect to the offers.

1. The $25,000 Offer.

By letter dated December 9, 1968, Ngan’s counsel offered to settle the suit for $25,000. However, Ngan’s counsel was under'the erroneous impression that the policy limits were for $25,000. Accordingly, Truck argues that it cannot be charged with liability for not accepting the offer since Ngan’s counsel did not understand the true facts. We reject this argument for a number of reasons.

First, by not telling the Riskes of this offer Truck foreclosed the Riskes from the opportunity of demanding that the company settle the ease within the real policy limits. Second, there is evidence in this case that the company’s attorney purposely withheld disclosing the policy limits for a time until he was forced by a court order to make the disclosure. The reason given was “Onerousness.” Thus it was extremely difficult for Ngan’s attorney to make a realistic offer of settlement:

Liability may be predicated upon a refusal to disclose policy limits as will enable an injured party to make an offer of settlement.

14 G. Couch, Cyclopedia of Insurance Law Second, supra, § 51:10 at 48 (Anderson ed. 1972). See also Cernocky v. Indemnity Ins. Co. of North America, 69 Ill.App.2d 196, 216 N.E.2d 198, 205-206 (1966).

Still further, the claim that Truck did not accept the $25,000 offer because it was based upon an erroneous factual understanding of claimant’s counsel, is refuted by the fact that Truck, through its attorney, offered $8,500 at a time when Ngan’s counsel did not know the true policy limits. It is not entirely clear whether Truck’s attorney knew that Ngan’s attorney was ignorant of the true policy limits when he made the $8,500 offer. But he made the offer at the request of Mr. Olson, a claims manager. The $8,500 offer was made on June 25, 1969. Olson knew that Ngan’s counsel was unaware of the real policy limits by at least April 11, 1969. Ngan’s counsel did not find out the true policy limits until December, 1969.

2. The $45,000 Offer.

Ngan’s counsel made a verbal offer to settle for $45,000. Although Truck raises some argument about the firmness of the offer, the jury was entitled to believe the offer was firm. Hansen, the Riskes’ expert, testified that the offer was firm. Even the insurance company’s counsel seemed to concede that the statement was a demand: “I construed Mr. Pearson’s statements to, in effect, be a demand . . . .”

The insurance company responds additionally that it had the right to reject this offer because Truck had a right to seek contribution from the Riskes’ co-defendant, Arctic, and Arctic had consistently refused to settle for anything more than the costs of the lawsuit. The ease relied upon is Mendota Electric Co. v. New York Indemnity Co., 175 Minn. 181, 221 N.W. 61 (1928), where the court held that there was no bad faith when the insurance company did not contribute the maximum amount of its liability, but only a portion thereof, because it believed that the co-defendant should con-tribute an equal sum. In that case the insured made up the difference, settlement was made, and the insured sued the insurance company for the amount he contributed. Of course the difference between the Mendota Electric case and the instant case is that in the former it was clear that the insured was informed of the settlement negotiations in order that he could contribute to settlement. The record in this case lacks such clarity, and there is good reason to believe that the Riskes were not informed of the $45,000 offer at the time it was made.

3. The $25,000 Offer at Trial.

During the third day of trial Ngan’s attorney offered to settle only against the Riskes. Truck raises two objections to this offer.

First, that it would have been unethical to accept the offer because it was contingent upon the jury not being told of the settlement in order to preserve the possibility of a verdict against Arctic. No authority is cited for this proposition. By not telling the Riskes of this offer, as was clearly the case, the Riskes were foreclosed from demanding that Truck secure a ruling from the trial judge as to the propriety of such an agreement, or otherwise demanding that Truck attempt to revise the proposed agreement in such a way that it would be acceptable to Ngan and the trial court. In any event, even if the offer could not have been accepted because it would have constituted fraudulent or unethical conduct, the evidence that the company did not communicate the offer to the Riskes is still persuasive evidence of bad faith. Since the company did not raise the fraud issue at the time the offer was made, it can hardly be contended that Truck rejected the offer on these grounds. As a consequence, this evidence could be considered by the jury with respect to the other offers to settle in determining whether Truck adopted a policy of not informing the Riskes about Ngan’s settlement offers.

Second, it is argued that this offer would not have protected the Riskes. In Minnesota it appears that a covenant not to sue, which was offered here, permits contribution between joint tort feasors if the settling tort feasor has not paid his fair share. Employers Mutual Cas. Co. v. Chicago, St. P., M. & O. Ry., 235 Minn. 304, 50 N.W.2d 689, 693 (1953). Thus it is argued that Truck could not have accepted the offer since the offer, if accepted, might not have protected the Riskes.

However, it appears that a proper type of release could have been worked out. In fact, during the trial of this case Truck’s counsel indicated that a proper type of release was known as a “Pierrin-ger type release.” See Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). Therefore, when Truck failed to apprise the Riskes of the offer, it was impossible for them to consult their private attorney in order that he might suggest the proper form of release. Furthermore, Ngan’s attorney fully expected Truck to draw up the covenant. And even Truck’s own claims manager once suggested “a special release or covenant not to sue leaving Mr. Pierson (sic) open with his claim direct against Arctic . . . .” (Emphasis supplied.) Truck’s argument that it was trying to protect the Riskes in this respect may well have been considered disingenuous by the jury. There was evidence to support such a conclusion.

As a consequence, we conclude that Truck was presented with sufficiently viable offers from Ngan’s counsel as to require their disclosure to the Riskes.

E. Damages.

Truck advances an argument that the Riskes proved no damages since they entered into an agreement with Ngan to bring this action to satisfy the excess judgment by which Ngan agreed to completely discharge the Riskes from further liability without regard to the outcome of this litigation.

We think this contention is without merit for two related reasons. First, the Riskes agreed to prosecute the pending suit in exchange for a discharge and satisfaction of their debt to Ngan. However, the discharge and satisfaction by express written agreement “shall be effective as of the conclusion of the proceedings against [Truck] . . . .” Thus from a plain reading of the agreement the Riskes remained liable at the time the jury returned the verdict, and the Riskes continue to remain liable. Only when these proceedings are concluded will the debt be discharged and satisfied.

This interpretation of the agreement is clearly in accord with Minnesota law. The agreement here recounts that the Riskes are “unable to pay the balance of the judgment against them . . . .” In Minnesota, even an insolvent insured has a cause of action against an insurance company for a bad faith failure to settle resulting in an excess judgment. Lange v. Fidelity & Casualty Co. of New York, supra, 185 N.W.2d at 885. The Minnesota court adopted this rule because it feared that an insurance company would disregard the insured’s interest if it knew that because of the insured’s financial condition, the insured would not have to satisfy an excess judgment. And since even an insolvent insured suffers injury, such a result could not be sanctioned. Accordingly, we believe the agreement did not extinguish the Riskes’ right to sue or claim damages.

For the reasons hereinbefore expressed the judgment vacating the jury verdict is reversed, and the case remanded for entry of judgment pursuant to the jury verdict.

      . Although this case was presented to the Court on a wholly inadequate appendix and a supplemental appendix, this Court has fully reviewed the original files of the case including the full transcript.

      . Entry of judgment on the jury verdict pursuant to Fed.R.Civ.P. 58 starts the ten-day period permitted for filing a motion for new trial. Fed.R.Civ.P. 59(b). Since Truck was entitled to ten days from the entry of the Riske judgment to file a new trial motion, and since no judgment on the verdict was entered when the district court acted favorably to Truck, we believe that Truck is not now foreclosed from filing a motion for new trial. Accordingly, we specify that upon entry of judgment in favor of the Riskes pursuant to our mandate, Truck shall have ten days in which to file a motion for new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bobby HALLMAN, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1736.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Dec. 18, 1973.

      Bobby Hallman, pro se.
    Robert G. Renner, U. S. Atty., and Francis X. Herman, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior Disrtict designation. Judge, Eastern District of Michigan, sitting by

   PER CURIAM.

A jury found petitioner guilty of armed robbery of the First Plymouth National Bank, Minneapolis, Minnesota, in violation of 18 U.S.C. § 2113(a) and (d). The Honorable Earl R. Larson, United States District Judge, District of Minnesota, sentenced petitioner to 20 years imprisonment, and his conviction was upheld by this court. United States v. Hallman, 438 F.2d 94 (8th Cir. 1971). Petitioner filed this Section 2255 proceeding pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence. Judge Larson denied relief without a hearing. This appeal followed.

Petitioner raises three arguments: (1) his conviction should be reversed since it was based on the purportedly perjured testimony of a Government witness, Mildred A. Miller, in conspiracy with a Government informer; (2) the District Court erred in admitting a photograph of defendant showing him with a prison identification number, which denied him a fair trial and forced him to testify in violation of the Fifth Amendment; and (3) the absence of blacks on the grand and petit juries constituted systematic racial discrimination in violation of the Due Process and Equal Protection Clauses. Rejecting these arguments, we affirm the District Court’s denial of habeas corpus relief.

Petitioner first claims that Mildred A. Miller, an employee of the bank and a Government witness, who identified petitioner, conspired with a Government informer, Tommy Floyd, “to frame” petitioner. Petitioner submitted a hearsay affidavit of Lolita Richardson to the District Court, which we have reviewed, stating that Miller perjured herself to revenge Floyd’s preference for Richardson’s affections. Petitioner claimed at the District Court and here that Richardson first told him on the alleged perjury while he was incarcerated pending our decision on the direct appeal, that the petitioner informed his attorney, and that his attorney informed the District Attorney of the purported perjury. The defendant does not argue that the prosecuting attorney knew of the alleged perjury at the time Miller testified.

In United States v. Holt, 303 F.2d 791, 794 (8th Cir.), cert, denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1962), we stated:

n order to vacate the judgment and sentence on such grounds, two elements must be established: first, the use of perjured testimony, and, second, knowledge by the prosecuting officials at the time the testimony was used that it was perjured, [emphasis added] [citations omitted].

Petitioner does not claim that the Government knew of the allegedly perjured testimony at the time Miller testified. Richardson, in her affidavit, does not state that she informed anyone at the time of the trial of the purported perjury by Miller. Assuming for the sake of this argument that Miller perjured herself, petitioner has not stated that the Government knew of the perjury at the time it was allegedly committed. He, therefore, is not entitled to relief on this issue.

In addition, Richardson’s affidavit should be viewed with appropriate skepticism. Richardson, fiancée of petitioner at the time of his trial, failed to come forward during trial with this information on the alleged perjury. With petitioner now found guilty, we are strained to believe the truth of Richardson’s belated, hearsay accusations concerning Miller's truthfulness. Further, we think, as did the District Court, that even if Miller’s testimony was totally discounted, there was substantial evidence from which the jury could have reached the same verdict. A bank teller, a bank bookkeeper, and a minister bank customer all identified petitioner as the bank robber. Another witness testified concerning petitioner’s possession of a large sum of money, which was proved to be the bank’s “bait” money. In this regard, Miller’s identification of petitioner was only cumulative evidence.

Second, petitioner claims that the admission of a photograph of himself showing a prison identification number denied him a fair trial, forced him to testify in violation of the Fifth Amendment, and was reversible error. The photograph had been used by the FBI for purposes of identification when interviewing witnesses immediately after the robbery. At trial, petitioner’s counsel during cross-examination asked Barbara A. Scott, a bank teller, about the photograph. On redirect examination, the Government had the photograph marked, and the District Court admitted it. No comment was made during trial concerning the prison identification number. Petitioner’s counsel at trial did not object to the admission of the photograph, and this issue was not raised on direct appeal. Defendant had not taken the stand at the time of the photograph’s admission.

Normally we would not review issues not timely raised on appeal. Glouser v. United States, 296 F.2d 853, 857-858 (8th Cir. 1961), cert, denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). However, since petitioner claims that his court-appointed attorney on direct appeal informed petitioner that this issue would be raised, since the issue was not raised, and since it merits discussion, we will consider it.

We think it would have been advisable for the photograph to have been admitted with the prison identification number blocked out. However, no objection was made, nor was this fact specifically called to the court’s attention. In fact, no one even commented on the identification number. However, the admission of the photograph was permissible to rehabilitate Scott’s testimony concerning the identification of the petitioner. Mullins v. United States, 487 F.2d 581, 589-590 (8th Cir., 1973).

Petitioner’s claims that the admission of the photograph forced him to take the stand in violation of the Fifth Amendment and that his character was improperly put in issue do not call for vacating his sentence. First, no objection was made at trial concerning the admission of the photograph and, in particular, the presence of the prison identification number. Second, we, as the District Court, are “not persuaded that [petitioner] took the stand for the purpose of offsetting the inference to be drawn from the markings on the photograph.” Third, no comment was made at trial concerning the prison identification number. We are convinced that the petitioner was not denied the substance of a fair trial, so as to demand relief on this issue. Glouser v. United States, 296 F.2d at 856.

Third, petitioner asserts that blacks were systematically excluded from the grand and petit juries in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court held on this issue:

In the present case the jury was chosen pursuant to 28 U.S.C. § 1861 et seq. These Federal laws, in conjunction with the local court plan, provide for random selection of Federal jurors from the voting lists and voting cards throughout the State of Minnesota. Those chosen are anonymous to those administrators who carry out the selection process. Every four years following the national elections a new list of jurors is compiled, to keep the list current. Under this system it is not possible to say that there exists systematic exclusion of any race. On the contrary, the race of any potential juror is unknown at the time that person’s name is drawn for the master jury list. Petitioner has neither alleged nor demonstrated any statistical disparity between those minority persons qualified to be jurors and those minority persons who actually serve as jurors.

This statement fully responds to petitioner’s bare assertion that blacks were systematically excluded from the grand and petit juries.

Further, absent a showing of systematic exclusion of a class of qualified citizens, voter registration lists may be used as the only source of persons to serve on grand and petit juries. E. g., United States v. Parker, 428 F.2d 488, 489 (9th Cir.), cert, denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970); United States v. Butera, 420 F.2d 564, 573 (1st Cir. 1970); Camp v. United States, 413 F.2d 419, 421 (5th Cir.), cert, denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); United States v. Kroncke, 321 F.Supp. 913, 914-916 (D.Minn.1970). The District Court’s explanation of the jury selection process in Minnesota dispels any question that any class of qualified citizens is systematically excluded from jury service.

The District Court's denial of relief is affirmed.

      . Although the petitioner does not raise the issue that Richardson’s affidavit concerning Miller’s alleged perjury constitutes newly discovered evidence, we agree with the Government that such “evidence” cannot be grounds for reversal. This “evidence” would probably not produce an acquittal, and therefore a new trial should not be granted under these circumstances. United States v. McWilliams, 421 F.2d 1083, 1084-1085 (8th Cir.), cert, denied, 397 U.S. 1070, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970).


author: PER CURIAM:

text:
    SOPTRA FABRICS CORP., Appellant, v. STAFFORD KNITTING MILLS, INC., Appellee.
    No. 552, Docket 73-2513.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 13, 1973.
    Decided Jan. 10, 1974.
    Bernard A. Helfat, New York City (Helfat & Helfat, New York City), for appellant.
    Samuel J. Stoll, New York City (Stoll & Stoll, New York City), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and OAKES, Circuit Judges.
   PER CURIAM:

This textile design copyright case presents, in addition to a question of validity which goes right to the heart of design copyright in the fabric field, the issue whether the accused design was merely “inspired” — to use appellee Stafford’s design studio salesman’s word —by, or was flatly pirated from, appellant Soptra’s attractive, geometric design for use in dresses. District Judge Duffy, relying primarily upon a comparison of black and white photographic reproductions of the designs, found no infringement and did not reach the question of validity. We disagree, find infringement as a matter of law, determine the copyright valid, and remand with directions for an injunction and for an assessment of damages.

Dress fabric designs notoriously last one year. Appellants’ design here, No. 5700, was into its third successful season, aided perhaps by changes in the accompanying color combinations, when appellee, upon request by a mutual customer, took a swatch of material containing appellant’s design to its textile design studio, gave the salesman the design, as he put. it, “for inspirational purpose,” and told him “to make a design that would be non-conflicting to that design,” that is, sufficiently dissimilar to avoid this decision. It is not exactly easy in the two-dimensional, black and white print of a judicial opinion to compare two dress designs, but suffice it to say that in a design containing a strip of crescents, scalloping or ribbons between that strip and then rows of semicircles, the only obvious dissimilarity from a few feet away is that the semicircles in two rows of four are reversed in Stafford’s fabric, while they are not in the three rows of Soptra’s. Close up one sees that some of the Stafford crescents are tilted, that the Stafford scalloping is less gracefully treated and that Soptra’s design generally is somewhat more discreet.

Soptra purchased its original design in October, 1970, in the form of a sketch or painting from the Rampelberg Studios in Paris. The design was put “in repeat” to broaden or extend it so as to cover a bolt of cloth. A silk-screen process was used to print the design on the greige goods or naked cloth. At first two colors (in addition to the “white” portion of the cloth that is rendered impervious to dye in the silkscreen process) were used in reproduction. Subsequently three colors were used. The copyright was secured by the Textile Distributors Association for the appellant, using a two-color combination as a sample.

The district court could not have been more correct in stating the underlying test for infringement as being “whether an average lay observer would find a substantial similarity in the designs . ” Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969). As Judge Learned Hand said, under such a test, “Decisions must therefore inevitably be ad hoe.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). In this respect we agree with Judge Frankel’s observation quoted by Judge Duffy below, that “Good eyes and common sense may be as useful as deep study of reported and unreported cases, which themselves are tied to highly particularized facts.” Couleur International Ltd. v. Opulent Fabrics Inc., 330 F.Supp. 152, 153 (S.D.N.Y. 1971).

The court below concluded that “the graphic patterns themselves are, in fact, different.” He does not specify in what respects. Our conclusion, with the same materials, exhibits, color combinations and black and white reproductions before us, is to the contrary: in our view the designs are substantially similar, the differences ever so slight, the dissimilarities insubstantial. While we may in a real sense be,factfinding, since we have before us the same record, and since no part of the decision below turned on credibility, “we are in as good a position to determine the question as is the district court.” Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d at 1317. The error of the district court was probably in neglecting to give due weight to “the uses for which the design is intended, especially the scrutiny that observers will give to it as used.” Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d at 489 (emphasis supplied). Here the designs were to be used in dresses, and although small differences between the designs might be found to exist under courtroom scrutiny, those differences fade away within a few feet or absent sharp scrutiny.

Judge Duffy purported to follow Clarion Textile Corp. v. Slifka, 223 F.Supp. 950 (S.D.N.Y.1961), where the court commented:

The designs are enough alike so that a woman wearing plaintiff’s [design] in brown and green would exclaim “There goes my dress” if she saw a woman wearing [defendant’s design] in the same color scheme. My belief is, however, that there would be no such exclamation if [defendant’s] were in light green and cerise.

Id. With all due respect to the Clarion Textile court its homely illustration misses the point: if the defendant’s dress there had been light green and cerise, would the woman wearing the design in brown and green say, “There goes the design of my dress”?

The court below went on to attempt to look beyond any color similarities (though appellee’s matched even appellant’s color combination in some of the comparison materials submitted to the court) by reviewing black and white photographic reproductions of the designs. By looking only to the black and white reproductions, the district judge, we fear, missed the point here also. Certainly the color schemes were not to be entirely overlooked. See Scarves by Vera, Inc. v. United Merchants and Manufacturers, Inc., 173 F.Supp. 625, 627 (S.D.N.Y.1959). As Couleur International, supra, said :

The appearance in one of defendant’s fabrics of colors identical to plaintiff’s is additional evidence of actual copying, as well as another factor leading to the conclusion that the aesthetic appeal of the fabrics is the same ....

330 F.Supp. at 154.

But perhaps the error was really the result of a young district judge’s failure to appreciate with the wisdom and experienced eye that only middle age can bring to the subject of feminine wear the substantial similarity we appellate judges discern in appellant’s and appel-lee’s designs.

Ad quod non est responsum.

On the question of validity Stafford argues that the Soptra copyright is invalid because it represents an exact copy of the uncopyrighted Rampelberg design and thus lacks the requisite originality. Stafford rightly refers us to, e. g., Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) (mezzotints of old masters’ paintings entitled to copyright), for the proposition that skill and judgment must be employed in the reproduction to entitle it to copyright. But Peter Pan Fabrics v. Dan River Mills, 295 F.Supp. 1366 (S.D.N.Y.), aff’d, 415 F.2d 1007 (1969) (per curiam), states what we consider to be the law of this circuit in terms of textile designs. The embellishment or expansion of the original design “in' repeat,” so as to broaden the design and thereby cover a bolt of cloth, together with beginning the pattern in a particular way so as to avoid showing an unsightly joint when the pattern is printed on textiles on a continual basis, constitutes modest but sufficient originality so as to support the copyright. 295 F. Supp. at 1368. The minimal quantum of originality in the textile pattern field, where the design printed is itself unmistakably original, as here, is not very high. Nevertheless, even if there were no originality, the Rampelberg painting-design could have been filed as a “work of art” under § 5(g) of the Act, 17 U.S.C. § 5(g). The filing here under § 5(h) as a reproduction of a work of art is at most an “error in classification” which under § 5 does not “invalidate or impair the copyright protection secured under this title.” 295 F.Supp. at 1368.

Accordingly we reverse and remand with directions that an injunction issue and that the district court proceed to an assessment of damages.


text:
    UNITED STATES of America, Appellee, v. Jean Claude KELLA and Laurent Fiocconi, Appellants,
    Nos. 423, 809, Dockets 73-2212, 73-2213.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 20, 1973.
    Decided Jan. 16, 1974.
    Arthur J. Viviani, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the S. D. N. Y., and John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.
    Raymond Bernhard Grünewald, Brooklyn, N. Y. (Grünewald, Turk & Gillen, Brooklyn, N. Y., on the brief), for appellants.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM:

Jean Claude Kella and Laurent Fioc-coni appeal from an order of Judge Edward Weinfeld of the Southern District of New York denying their motion, pursuant to F.R.Cr.P. 35, for an order correcting and reducing their sentences of 25 years’ imprisonment imposed on June 19, 1973. We affirm.

On January 4, 1972, a nine-count indictment was filed charging the appellants, Kella and Fiocconi, and 21 codefendants, with importing and selling heroin, and conspiracy to do the same in violation of 21 U.S.C. §§ 173 and 174, how repealed [“the old law”], and 21 U.S.C. §§ 812, 841, 846, 951, 952, and 953, the substituted statutory provisions [“the new law”]. Kella and Fiocconi were charged only in the first three counts of the indictment. Count 1 charged them with conspiring from January 1, 1970 to January 4, 1972 to import, sell and distribute heroin in violation of both the old and new laws. Both laws were relied upon because nine overt acts of the conspiracy were charged to have occurred while 21 U.S.C. §§ 173 and 174 were still in effect and the other nine overt acts charged in the indictment occurred after May 1, 1971, the effective date of the new law. Counts 2 and 3 charged both appellants with importing 37 kilograms of heroin on May 27, 1970, and with selling this heroin on May 29, 1970, in violation of the old law, which was in effect at the time of these criminal activities.

Following a seven-day trial in May 1972 before Judge Weinfeld and a jury, Kella and Fiocconi were found guilty as charged and sentenced to 20 years’ imprisonment on count 1 and 5 years’ on counts 2 and 3, these last terms to run concurrently with each other, but consecutively to the term imposed on count 1. All three terms were imposed under the old law. The appellants, who were remanded at once to begin serving their sentences, unsuccessfully appealed their convictions, 468 F.2d 632 (2d Cir. 1972), cert, denied, 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307 (1973). They then applied to the trial court, pursuant to F.R. Cr.P. 35, to correct and reduce what they claimed to be illegal sentences. On July 12, 1973, Judge Weinfeld denied their application.

The appellants argue that, with regard to count 1, Judge Weinfeld should have applied the penalty provisions of the new law rather than those of the old law, which were more severe. Whereas the new law provides for a maximum 15 year sentence and permits parole, the old law provided for a maximum 20 year sentence with no hope of parole, 26 U.S.C. § 7237(d).

In support of their argument, the appellants note that count 1 charged a conspiracy as much in violation of the new law as of the old, that many of the overt acts charged in the conspiracy count were alleged to have occurred after the new law took effect, and that the trial took place and sentence was imposed after the effective date of the new law. In light of this, they assert, “justice and equity would require a resolution in favor of what is the sentencing law as distinguished from what it was,”, especially since the new law’s terms are considerably more lenient.

Judge Weinfeld did not err in imposing sentences on the basis of the old law. The savings provision of the new law, Comprehensive Drug Abuse Prevention and Control Act of 1970, § 1103(a), 21 U.S.C.A. § 171 note, specifically states that:

Prosecutions for any violation of law occurring prior to the effective date of section 1101 [May 1, 1971] shall not be affected by the repeals or amendments made by such section . . . or abated by reason thereof.

The term “prosecution” as used in § 1103(a) has been read by this court to include sentencing so that

[W]hen Congress said that “prosecutions for any violation of law” before May 1, 1971 “shall not be affected by the [repeal]” of various narcotics laws, it intended to permit sentencing under the repealed law after a conviction under it. United States v. De-Simone, 468 F.2d 1196, 1198 (2d Cir. 1972).

Only last term, the Supreme Court reached a similar conclusion in Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). In affirming the rejection by the First Circuit of petitioners’ motion to vacate sentence and remand for resentencing under the new law, the Supreme Court emphasized that “[i]n the legal sense, a prosecution terminates only when sentence is imposed.” 410 U.S. at 609, 93 S.Ct. at 1154.

Nevertheless, appellants attempt to distinguish Bradley and DeSimone by noting that in Bradley the offense was committed and the defendants were tried before the new law went into effect and that in DeSimone only one of the many overt acts charged in the conspiracy eount of the indictment occurred after the effective date of the new law, “the preponderant bulk of the crime having been within the ‘old statute’ period.” We are unpersuaded by these distinctions.

Although the indictment here charged that the conspiracy extended beyond May 1, 1971, the effective date of the new law, the government’s proof at trial was limited solely to acts committed before May 1. During the trial, the government informed the court and the appellants that it was relying only on the old law averments of the conspiracy count and the overt acts which had occurred prior to May 1, 1971. Appellants through their counsel, agreed to submit the case to the jury on that basis. Thereafter, Judge Weinfeld in his charge to the jury cited only the pertinent old law provisions and the pre-May 1 overt acts of the conspiracy count. At no time was the new law or the post-May 1 overt acts mentioned. Since the appellants were unquestionably convicted under the old law, there was no error in applying its sentencing provisions as well.

The appellants argue, however, that even if their convictions were based solely on violations of the old law, they may still resort to 18 U.S.C. § 4202, which provides in pertinent part that “a Federal prisoner . . . may be released on parole after serving one-third of such term or terms. . . . ” Since § 4202 empowers the Parole Board to make decisions regarding the granting of parole independent of the trial judge’s sentence and long after that sentence has been entered and the prosecution has been terminated, appellants argue that it is in no way limited by the savings clause contained in § 1103(a). Confronted with this same argument in Bradley, supra, the Supreme Court expressly declined to pass on its merits. The argument was also raised before this court in United States v. Huguet, 481 F.2d 888, 891-892 (2d Cir. 1973). Without actually expressing an opinion on the issue, we suggested that the most appropriate course would be for the appellant to bring an action against the Parole Board “should [the Board] refuse to consider him for parole after one-third of his sentence has expired.” Since Kella and Fiocconi still have several years to serve before completing one-third of their sentences and before the provisions of § 4202 could conceivably apply, we need not decide at the present time whether this statute, which permits parole, applies to them even though they were sentenced under the old law which barred parole.

Affirmed.

      . The defendants, however, had been sentenced after the new law had gone into effect.

      . The Court has recently decided to review the question. Warden v. Marrero, 483 F.2d 656 (3rd Cir.), cert, granted, - U.S. -, 94 S.Ct. 865, 38 L.Ed.2d 752 (1974).
      While not deciding the issue in Bradley, the Supreme Court did decide, however, that a second parole provision, 18 U.S.C. § 4208(a) is unavailable to defendants sentenced under the old law. 18 U.S.C. § 4208(a) states that a district judge
      may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.
      Unlike § 4202, the procedure set forth in § 4208(a) occurs at the’ time of sentencing, Since this is part of the prosecution, § 1103(a) applies and the no-parole rule of the old law, contained in 26 U.S.C. § 7237(d), controls.


author: WINTER, Circuit Judge: WIDENER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. William Garland BRADSHAW, Appellant.
    No. 73-1803.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 1, 1973.
    Decided Jan. 9, 1974.

      Larry W. Pitts, Newton, N. C. (Stanley J. Corne, Corne, Warlick & Pitts, Newton, N. C., on brief), for appellant.
    Michael S. Scofield, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

Defendant appeals from his conviction upon a jury verdict that he possessed non-tax-paid whiskey in violation of 26 U.S.C. §§ 5205(a), 5604(a). The only question raised by this appeal is the admissibility, at defendant’s trial, of certain jugs of moonshine whiskey, together with testimony concerning their discovery, found in a truck parked on defendant’s property near his residence by Agent Williams of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. On the basis of Agent Williams’ testimony concerning events leading up to this war-rantless discovery and seizure, the trial judge overruled defendant’s objection to admissibility based on the fourth amendment. The government contends that the circumstances of Agent Williams’ discovery and seizure fell within either of both of two recognized exceptions to the prohibition against warrantless searches — “seizure of evidence within plain view” or “automobile search.” We disagree, and we reverse the judgment and grant a new trial, if the government be advised.

I.

On November 16, 1972, at approximately 1:30 p. m., Agent Williams and a state enforcement officer were taken to the vicinity of defendant’s residence by a second state enforcement officer who then drove off. Agent Williams and his companion nevertheless remained in radio contact with the other officer in the vehicle. Defendant had a reputation, known to Agent Williams, of being a moonshiner, and the purpose of the visit was to search the fields adjacent to defendant’s property for a still. The only access to defendant’s residence was an old road about a quarter mile in length that came to an end in his front yard. During their search of the adjacent fields, the officers observed three vehicles parked near defendant’s residence, including the one from which the liquor was later seized. A fourth vehicle was seen by the side of the access road, beyond the limits of defendant’s property and apparently abandoned.

Upon approaching the fourth vehicle, the officers detected the aroma of moonshine whiskey emanating therefrom. When their search for a still proved futile, the officers decided to leave in order to prepare for a stake-out of the abandoned vehicle. Agent Williams summoned the officer in the vehicle by radio to pick them up at a certain spot. As they were walking to the pickup point, the defendant drove by them in his pickup truck proceeding in the direction of his house. The officers made an unsuccessful effort to conceal themselves. Agent Williams, who had known defendant for fifteen or sixteen years, was certain that defendant had recognized him. Defendant parked his vehicle near his residence and left, but the officers were unable to determine whether he entered the house or took to the nearby fields.

As a result of this encounter, the officers decided they could not leave the scene without a substantial risk that defendant, alerted to their presence, might remove any contraband or evidence that might be contained in the abandoned car. After the third officer arrived in his car, they decided to go up to defendant’s house, summon him to the door and ask him what connection, if any, he had with the abandoned car as a preliminary to searching it. Agent Wil.liams and the others then drove to defendant’s residence.

Agent Williams’ attempts to summon defendant to the front door were interrupted by the arrival of two men in a truck carrying bran — a usual ingredient in the manufacture of moonshine whiskey. After a short discussion with the officers, the two men drove off and Agent Williams resumed knocking at the front door, calling defendant by name.

Failing to obtain a response, Agent Williams decided to try the back door. En route to the rear of the house, he passed a 1952 Ford truck parked near the building. It was approximately a ton and a half in size with sideboards and swinging doors in the rear which were closed. This meant that whatever may have been resting on the bed of the truck could not have been detected by the casual glance of a passer-by. When Williams got near this truck, he noticed that it exuded a strong odor of moonshine whiskey. Agent Williams’ ability to identify the odor of moonshine whiskey is not in dispute.

Agent Williams then “stopped at the rear of the truck” and “looked through a kind of crack in the back swinging doors” — this crack was a space between the edges of the doors which did not fit together snugly when closed. Through this crack Agent Williams observed a large quantity of one gallon plastic jugs containing a white liquid. He then entered the truck, ascertained that the jugs contained moonshine liquor and seized them. He, of course, did not have a warrant for the search or the seizure.

II.

It is commonplace learning that warrantless searches and seizures are unreasonable within the meaning of the fourth amendment unless they fit within certain carefully defined classes of cases. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). And so we turn to the “plain view” exception to the prohibition against warrantless searches urged on us by the government.

The most recent exposition by the Supreme Court of the “plain view” exception can be found in the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There, two prerequisites to the availability of the exception were prescribed.

First, the officer’s presence at the vantage point from which he discovers the evidence in plain view must not amount to an unjustifiable intrusion into an area with respect to which defendant's expectations of privacy are protected by the fourth amendment. That is, the officer must not have entered defendant’s zone of privacy, or, if he has, such entry must have been justified by “a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused.” 403 U.S. at 466, 91 S.Ct. at 2038. Secondly, the discovery of the evidence in plain view must have been inadvertent.

The rationale underlying this exception is that the abuses which the fourth amendment warrant requirement is designed to prevent are satisfactorily dealt with by the requirement that the original intrusion be constitutionally justifiable. In consequence, it would be needlessly inconvenient, and sometimes perhaps a danger to the police or to the evidence, to require the police to ignore evidence in plain view until they have obtained a warrant particularly describing it. 403 U.S. at 467-468, 91 S.Ct. 2022.

Turning now to the application of these principles to the facts of the instant appeal, we conclude that the agents entered an area with respect to which the defendant had a reasonable expectation of privacy protected by the. fourth amendment when they came onto his premises. However, the agents had a legitimate reason for this incursion unconnected with a search of such premises directed against the accused. They were clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that Agent Williams exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door.

It follows that Agent Williams got within smelling range of the truck in which the liquor was found without unjustifiably intruding into defendant’s fourth amendment zone of privacy. Had he “discovered” the liquor at this point, the plain view doctrine would be applicable to its seizure. However, Agent Williams did not “discover” the liquor until he actually saw it through the crack between the rear doors of the truck. The liquor was certainly not in “plain view,” within the ordinary meaning of that phrase, when Agent Williams first detected the odor emanating from the truck. Nor did he, at that point, have any basis upon which to conclude, with certainty, that liquor was actually present in the truck. An alternative explanation of the smell was equally probable — that liquor had once been present in the truck but had since been removed leaving the truck permeated with its vapors. Agent Williams thus had no more than a reasonable ground to infer the presence of liquor at this point. A further visual observation was necessary to confirm the hypothesis.

It was not possible for Agent Williams to make this confirmatory observation without exceeding the original purpose of his intrusion, which had justified his presence on defendant’s property up to that point, and making a further intrusion into an area of protected privacy. Objects lying on the bed of the truck could not be seen except by someone who took special pains to look through the crack. The truck was parked on defendant’s property very near to his .residence. Under such circumstances, the defendant had a reasonable expectation that the contents of his truck would remain unknown to the general public. Thus, we believe that when Agent Williams looked through the crack between the closed rear doors of the truck, he “searched” the truck within the meaning of the fourth amendment.

We hold that where, in the course of an initially justifiable intrusion, an officer discovers facts which give him reason to believe that evidence of crime will be found by a further intrusion beyond the scope of the original intrusion, the “plain view” doctrine is inapplicable unless there is independent justification for such further intrusion. Since it was a search directed against the defendant, we must examine whether the “automobile search” doctrine validates Agent Williams’ further intrusion of looking through the crack between the doors of the truck.

III.

It is established that under certain circumstances, an officer, having probable cause to believe that an automobile contains evidence of the commission of a crime, may search that automobile for such evidence without first obtaining a warrant. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Gomori v. United States, 437 F.2d 312 (4 Cir. 1971). We have no doubt that, at the point at which Agent Williams smelled the distinctive odor of moonshine whiskey emanating from the truck, he had probable cause to believe that the truck contained contraband. Taken together with defendant’s known reputation as a moonshiner and the presence at the scene, moments earlier, of two individuals in a vehicle carrying one of the raw materials of a distilling operation, Agent Williams’ detection of the odor of moonshine amounted to probable cause for the belief that moonshine was to be found in the truck.

But here again, the lack of a clear majority in Coolidge makes difficult a decision as to the exact scope of the doctrine that a warrantless search of an automobile may be made upon probable cause. In Coolidge v. New Hampshire, supra, a plurality of the Supreme Court found the Chambers/Carroll doctrine inapplicable to a certain seizure of an automobile because

. . . there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States— no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where “it is not practicable to secure a warrant.” 403 U.S. at 462, 91 S.Ct. at 2035.

Elsewhere the plurality explained that the automobile exception was a specific instance of the doctrine of “exigent circumstances” justifying a warrantless search:

As we said in Chambers “exigent circumstances” justify the warrantless search of “an automobile stopped on the highway,” where there is probable cause, because the car is “movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” “[T]he opportunity to search is fleeting . . .” 403 U.S. at 460, 91 S.Ct. at 2035 (emphasis supplied by the Coolidge plurality.)

If we could accept as fully authoritative the plurality opinion in Coolidge, reversal clearly would be required. Of the specific factors tending to justify a war-rantless search of an automobile enumerated by the plurality, only two are present here — the object of the search was contraband and the guarding of the truck by two of the officers while the third went to obtain a warrant would have involved some inconvenience. But, absent entirely from this situation are any of the facts indicating risk of loss of evidence. We doubt that the plurality in Coolidge regarded the two factors present here alone as determinative. In the first place, the inconvenience of standing guard over a vehicle while another officer obtains a warrant is likely to be present in most automobile searches. It is unlikely that the plurality thought that they were authorizing warrantless searches in such a large proportion of possible cases, particularly since it is clear that their conception of the rationale underlying the exception is based on the risk of loss of evidence. Secondly, we do not believe that the plurality intended to place determinative significance upon the distinction between “contraband” and “mere evidence” that had been categorically rejected in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967).

There is, however, substantial doubt concerning whether the Coolidge plurality’s apparent view that the “automobile exception” is limited to circumstances where the obtaining of a warrant would risk loss of evidence is any longer a correct statement of the law. In applying Coolidge, courts other than the Supreme Court have sustained warrantless searches of automobiles under circumstances where the only factor that could possibly have militated against imposition of the warrant required is the inconvenience of posting a guard over the vehicle while someone is sent to obtain a warrant. People v. Bukoski, 41 Mich. App. 498, 200 N.W.2d 373 (1972); People v. Dumas, 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208 (1973); United States v. Bozada, 473 F.2d 389 (8 Cir. 1973); United States v. Connolly, 479 F.2d 930 (9 Cir. 1973). The Connally case flatly holds that the inconvenience of posting a guard is an “exigent circumstance” that justifies dispensing with the warrant requirement. The Do-rnas “case explains its result in terms of the less intense expectation of privacy that attaches to automobiles when compared with personal residences. Such reduced expectation of privacy justifies dispensing with the warrant requirement when there is probable cause.

Furthermore, the Supreme Court has recently stated that, in addition to the risk of loss of evidence, the extensive and often non-criminal contact with automobiles that state enforcement officials have in the course of the performance of their duties justifies treating automobiles differently from houses for purposes of the warrant requirement. Cady v. Dombrowski, 413 U.S. at 439, 93 S.Ct. at 2527. Although this new element in the rationale for the “automobile exception” would not, on its face, appear to apply to searches for evidence of a federal crime conducted by federal officers, the decision in Cady v. Dom-browski suggests that the rationale for the exception is somewhat in a state of flux.

Prior to the dissents in Coolidge and the decision in Cady, the scope of the automobile exception seemed to be carefully defined to require the presence of circumstances indicating the risk of loss of evidence. Certainly, that is the only fair reading of th&_, Carroll-Chambers-Coolidge line of eases. We are not persuaded that this line of cases has been abandoned or overruled. Therefore, we are constrained to conclude that this search was invalid. We are particularly persuaded where, as here, the vehicle is parked on defendant’s property, a circumstance, we believe, which enhances the defendant’s expectation of privacy with respect to its contents.

To summarize, we hold that, since two of the agents could have guarded the truck smelling of moonshine whiskey while the third obtained a warrant without significant risk of loss of evidence, the search and seizure in this case violated the fourth amendment and that the fruits thereof should have been suppressed.

For these reasons, we reverse the judgment of conviction against defendant. On the present record, there is lacking evidence legally sufficient to convict defendant if the search, the seizure and testimony with respect to them are excluded. We do not know, however, whether the government has available other evidence of guilt not sought to be used at this trial. In reversing, we therefore grant the government the right to try defendant anew, if it be so advised.

Reversed: new trial granted.

WIDENER, Circuit Judge

(dissenting) :

I respectfully dissent and would affirm the conviction on the ground that the evidence was lawfully seized under the plain view exception, or as phrased in this circuit without mentioning plain view, “probable cause for the search complained of.” Gills, infra, 357 F.2d p. 303.

The majority finds that:

(1) “. . . the agents had a legitimate reason for this incursion [of the curtilage] unconnected with a search of such premises directed against the accused.” P. 1100.
(2) “They were clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property.” P. 1100.
(3) “Furthermore, we cannot say that Agent Williams exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was unable to get an answer at the front door.” P. 1100.
(4) “It follows that Agent Williams got within smelling range of the truck without unjustifiably intruding into defendant’s fourth amendment zone of privacy.” P. 1100.
(5) “Agent Williams’ attempts to summon defendant to the front door were interrupted by the arrival of two men in a truck carrying bran — a usual ingredient in the manufacture of moonshine whiskey.” P. 1099.

As noted in the opinion of the court, moonshine whiskey has a distinctive odor, and, contrary to the majority, I am of opinion that the agent “discovered” (see pp. 1100-1101) the moonshine when he smelled the odor coming from the truck and, looking through the crack in the door, saw it without disturbing the door of the vehicle. Under the “totality of facts and circumstances” existing here, Gills, 357 F.2d, p. 302, the ensuing search to me was not the unreasonable search prohibited by the Fourth Amendment.

We have upheld a search under facts no more favorable to the government in United States v. Gills, 357 F.2d 299 (4th Cir. 1965), cert, den., 384 U.S. 933, 86 S.Ct. 1448, 16 L.Ed.2d 532 (1966), a case mentioned only by footnote by the majority, which I suggest the opinion of the court here overrules.

Although the majority opinion states the holding in Gills did “not consider the separate issue of a warrantless search,” I find it difficult to grasp how the question arose on appeal, separately or otherwise, “under the Fourth Amendment” as stated at p. 301, Gills, unless the objection in the trial court to the admissibility of the evidence was that the search had been made without a warrant. Gills precisely held that the search was justified because the totality of facts and circumstances created “probable cause for the search complained of,” Gills, p. 303. The majority opinion, then, despite its holding at p. 1101, that the agent “. . . had probable cause to believe that the truck contained contraband” and “. . . probable cause for the belief that moonshine was to be found in the truck,” necessarily holds that something in addition to probable cause is required for the search of a motor vehicle without a warrant. In my opinion, this case ought to come within the rule expressed in United States v. Haley, 321 F.2d 956, 958 (6th Cir. 1963):

“If, on the other hand, the search occurred before the arrest, it came within the rule that a search without a warrant of an automobile engaged in the illegal transportation of intoxicating liquor, made upon probable cause, is not prohibited by the Fourth Amendment.”
The holding of the majority is:
“. . .we hold that, since two of the agents could have guarded, the truck smelling of moonshine whiskey while the third obtained a warrant without significant risk of loss of evidence, the search and seizure in this case violated the fourth amendment and that the fruits thereof should have been suppressed.” (Pp. 1103-1104).

The majority, then, suggests that two of the agents should have stayed on the defendant’s property, without a search warrant, and guarded the truck, obviously for the sole purpose of preventing the defendant from exercising dominion over it — a seizure in any context. In my opinion, this seizure of the whole truck, while awaiting the return of the third agent with the search warrant, would have been at least as unjustifiable as looking through the crack in the door, which has been disapproved. The Fourth Amendment protects against “unreasonable searches and seizures.” Holding that the search by looking would be unlawful, when the seizure of the whole truck would not, is construing the Fourth Amendment with critical niceness to which I may not accede.

      . Defendant’s attorney, in the course of cross-examination of Agent Williams and Officer Devinney, advanced the contention that the actual purpose of the intrusion was a search of the truck in which the liquor was found. In admitting the evidence derived from the search, the district court impliedly found that the agents’ purpose in going onto defendant’s property was, in fact, what their testimony showed it to be, i. e. to interrogate defendant about the abandoned vehicle. We cannot say that this finding was clearly erroneous.

      . Compare, Smith v. Slayton, 484 F.2d 1188 (4 Cir. 1973) (Evidence on front seat of auto parked on public street).

      . Although we are also convinced that Agent Williams’ ultimate discovery of the liquor was not “inadvertent” as required by the plurality opinion in Coolidge, the need for showing inadvertence, in addition to justifiable intrustion into defendant’s expectations of privacy, is not beyond dispute. It is clear from the separate opinions in Coolidge that three members of the present Court (Burger, C. J., White, J., and Blackmun, J.) disagree with the requirement that the discovery be inadvertent. These, together with the two new members (Rehñquist, J., and Powell, J.) could make a majority against the “inadvertence” requirement. This circumstance has led to a split of authority in the lower courts over the continued viability of the “inadvertence” requirement. Compare, Martinez v. Turner, 461 F.2d 261, 264-265 (10 Cir. 1972) (applying the requirement) with North v. Superior Court, 8 Cal.3d 30, 104 Cal.Rptr. 833, 502 P.2d 1305 (1972) (rejecting it).
      In view of the uncertain status of the “inadvertence” requirement, we rest our decision on the ground that Agent Williams did not discover the evidence until his intrusion had exceeded the bounds of his original justification for being present. All the justices in Coolidge agreed that the original intrusion has to be justifiable if the plain view exception is to apply.

      . The only reason why this factor was not present in Coolidge was that the police decided to keep the vehicle under surveillance for a substantial period of time after they had obtained probable cause to seize it before taking any action.

      . But, see, United States v. Menke, 468 F.2d 20 (3 Cir. 1972) for the contrary view concerning the importance of the fact that contraband is the object of the automobile search.

      . It could be argued that our own decision in Smith v. Slayton, supra, note 2, also falls into this category of cases. Judge Butzner in writing for the court, cited the exposure of evidence on the front seat of a car parked across the street from a police station as an exigent circumstance justifying immediate seizure. His opinion does not disclose whether more than one officer was present so that a guard could be posted while a warrant was obtained, although presumably other police were available from the police station across the street. But the principal basis of the decision was that the plain view doctrine applied, because the blood stained seat cover was clearly visible to one who had a right to be on a public parking lot.

      . We disclaim any intention of overruling United States v. Gills, 357 F.2d 299 (4 Cir. 1965), and we do not think, despite the dissent’s contrary suggestion, that we achieve that effect sub silentio. The only issue decided in Gills was whether there was probable cause to search defendant’s car which had been stopped on the highway. We held that there was probable cause to search when the odor of moonshine whiskey was detected, defendant employed deceptive means to prevent access to the trunk of the vehicle and defendant attempted to flee under extremely adverse conditions to avoid the search. We did not consider the separate issue of a warrantless search. Moreover, the search was conducted after defendant was arrested, and the vehicle searched was under his control at the outset of the encounter, so that, as a case decided prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a warrantless search might have been sustainable as a search incident to a lawful arrest. Indeed, several of the authorities cited in Gills are-“incidental search” cases. 357 F.2d at 302. If the continuing vitality of Gills has been impaired, the impairment stems from Chi-mel, and not from what is decided today.