author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Fred J. ZEEHANDELAAR, Defendant-Appellant.
    No. 781, Docket 73-2703.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 20, 1974.
    Decided May 15, 1974.

      Anne Sidamon-Eristoff, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D., New York, and John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.
    Jac M. Wolff, New York City, for defendant-appellant.
    Before LUMBARD, FRIENDLY, and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

After a five-day jury trial in the Southern District, Fred J. Zeehandelaar was found guilty on October 3, 1973 of violating 18 U.S.C. § 1001 by submitting false documents to the Department of Interior, Bureau of Sport Fisheries and Wildlife. He was fined $5000 and sentenced to one year’s imprisonment, with execution of sentence suspended as to all but three months, the remainder to be served on probation. On appeal, Zeehandelaar maintains that there was insufficient evidence to sustain his conviction, that highly prejudicial hearsay testimony was erroneously admitted into evidence, and that there were various irregularities in the process by which the jury reached its verdict. We reverse.

On December 14, 1971, Zeehandelaar, an importer of wild animals, met with Stanley Brock, general manager of Wild Kingdom, Inc., an animal farm then being built in Orlando, Florida, to arrange for the importation of a variety of wild animals, including twenty cheetahs. At this meeting, Zeehandelaar stated that the cheetah was about to be placed on the Endangered Species List, after which time imports would no longer be permitted, except in instances of economic hardship such as where it could be shown that there was a pre-existing importation contract. Zeehandelaar emphasized to Brock that “a firm contract prior to listing” of the cheetah as an endangered species would thus be crucial. Brock placed an order on January 7, 1972. In a letter dated January 12, 1972, Zeehandelaar confirmed the order and included invoices for each of several species requested by Wild Kingdom. An invoice for twenty cheetahs indicated a purchase price of $35,000 duty paid, and a required advance payment of 25% or $8,750.

On February 1, 1972, Zeehandelaar attended a meeting of the National Council of Animal Transportation in Washington, D.C. While there, he inquired of Bernolt Palas, the Chief of Permits of the Bureau of Sport Fisheries and Wildlife, whether there was “anything new on the matter of endangered species.” Palas informed Zeehandelaar that the Secretary of the Interior was about to sign a Notice of Proposed Rule-Making, which would declare the Department’s intention of placing the cheetah on the Endangered Species List after a brief period of public comment.

According to Palas, a government witness at the trial, the Notice of Proposed Rule-Making was itself quite significant because permits were generally not issued even in cases in which an importation contract was entered into prior to the placing of an animal on the Endangered Species List, if this occurred after the publication of the Notice of Proposed Rule-Making. Such a policy had the function of discouraging massive efforts to circumvent the regulation once the Department’s intention became known and at the same time served to put importers on notice not to enter into any further importation agreements.

Palas testified that after speaking with Zeehandelaar he called the Department of Interior and was informed that the Secretary had already signed the Notice of Proposed Rule-Making. He then relayed this information to Zeehandelaar. On February 3, he met again with the appellant and supplied him with the Notice, which was published that same day in the Federal Register. The government also introduced into evidence a letter dated February 22, 1972, sent by the appellant to Palas regarding a permit for the importation of snow leopards, also listed in the February 2 Notice as a soon to be declared endangered species. In the letter, Zeehandelaar wrote that the dates of the orders for snow leopards “needless to say . . are prior to February 3, 1972 (date proposed amendment was published in the Federal Register).”

When Zeehandelaar took the stand, he denied that Palas had on February 1 told him anything more than that a Notice of Proposed Rule-Making would shortly be signed. He claimed not to have learned of the signing of the Notice until February 7. Further, he denied having met with Palas on February 3. Documentary evidence was introduced which established that on that date, the appellant was in Orlando, Florida. Indeed, Zeehandelaar testified that after the meeting in Washington, D.C. on February 1, he immediately flew to Florida to complete the deal with Wild Kingdom. Either on February 2 or February 3, he met with Brock and typed a letter which he had Brock sign. This letter, back dated to January 17, purported to be a “firm order” by Wild Kingdom for twenty cheetahs. The letter stated that a check was enclosed for “advance financing as agreed.” In fact, it was not until February 9 that a check was actually drawn payable to Zeehandelaar. This check was also back dated to January 17.

On February 7, several days after this meeting with Brock and before the check had been drawn, Zeehandelaar wrote Palas, declaring an intention to apply for a commercial permit to import cheetahs. In his letter, the appellant noted that “[o]n January 17, 1972 the order [for the cheetahs] was confirmed in writing with a check for 25 % of sales value as deposit.”

Zeehandelaar testified that the letter and check had been back dated to January 17 because on or about that date Brock received the appellant’s confirmation letter of January 11 with invoices enclosed and because on Januáry 17 they had reconfirmed the order over the phone. As for the letter of February 22 relating to the importation of snow leopards, in which he indicated knowledge of the significance of the February 3 date, the appellant testified that only after February 7, 1972, in a conversation with Palas, did he first learn the importance of having a contract before February 3.

On March 30, 1972, the cheetah was officially placed on the Endangered Species List and its importation was prohibited. Melvin Lovell, a government witness, testified that shortly thereafter, on April 15, he met with Zeehandelaar for about fifteen minutes at the Arizona Inn, in Tucson, Arizona, and was told that although importation of the cheetah had been banned, “we could back date the order” and thereby come within the economic hardship exception for cases involving pre-existing contracts.

Zeehandelaar denied categorically that any such meeting had taken place. Instead, he testified to a telephone call from Lovell, during which the latter broached the question of back dating, to which Zeehandelaar responded: “Sorry, that can’t be done.” In rebuttal, the government called Frank Gilbert and Suzanne Pressman. Gilbert testified that he had been present in Tucson when Zeehandelaar met with Lovell and he corroborated Lovell’s account of his conversation. Suzanne Pressman; an employee of the Humane Society of the United States, also corroborated Lovell’s testimony, although she had not been present and had only heard about the meeting with Zeehandelaar second hand from Lovell later in the day on April 15 while riding in an automobile with Lovell, Gilbert, and their wives.

In a letter dated June 8, 1972, Zeehandelaar formally applied for a permit to import twenty cheetahs from Southwest Africa. Attached to his application were the letter he had typed and Brock had signed on February 2 or February 3, and the deposit check drawn February 9, both back dated to January 17. Although Zeehandelaar at no time in his letter expressly stated that these documents had actually been completed on January 17, he did state that, “[w]e were holding a bona fide order . . . confirmed in writing on January 17, 1972.” Zeehandelaar further indicated that he had held a bona fide order “as described in our letter of 7 February 1972. . . . ” As has been noted, the February 7 letter, which was enclosed with Zeehandelaar’s application for a permit and the back dated letter and check, stated that “[o]n January 17, 1972 the order was confirmed in writing with a check for 25% of sales value as deposit.”

The Bureau never acted on Zeehandelaar’s application. On October 11, 1972, due to alleged financial considerations, he withdrew his application. Wild Kingdom’s deposit was applied to the purchase price of the other animals which it had ordered and about whose importation no question of illegality had ever been raised. On December 6, 1972, Zeehandelaar was indicted and charged with knowingly making and using a false writing and document in violation of 18 U.S.C. § 1001 by enclosing with his application of June 8,1972

a photocopy of a check and letter both dated January 17, 1972, relating to an order from Wild Kingdom, Inc., for the purchase of said cheetahs and a 25% deposit on said order, and [representing] that said documents confirmed that he held a bona fide order on January 17, 1972, for the sale of said cheetahs, whereas in truth and in fact, as the defendant then and there well knew, the said check dated January 17, 1972, had not been drawn until February 9, 1972, and he did not on January 17, 1972, have the contract as described in said application.

I.

Interpreting the indictment as charging that he misrepresented to the Bureau of Sport Fisheries and Wildlife that a bona fide contract was in existence on January 17, 1972, Zeehandelaar argues that insufficient evidence was presented at trial to sustain his conviction. He maintains that the undisputed evidence establishes that as of January 17, there was, in fact, a bona fide contract. In particular, he points to Stanley Brock’s admission on cross-examination that as early as December 14, 1971 Wild Kingdom considered that it had entered into a firm commitment to purchase the twenty cheetahs, and that the deposit check drawn on February 9, 1972 actually represented a payment on account of the purchase price. Zeehandelaar’s letter of January 11, 1972 confirming an order by Brock four days earlier, and accompanied by invoices setting forth purchase price and payment terms, is also relied upon as further support for appellant’s assertion that there was a bona fide contract on January 17.

The government argues, however, that the indictment should be read as charging Zeehandelaar with not having had a contract “as described in [the] application” of June 8, 1972, even though he may have had a contract of some sort on that date. The government particularly emphasizes Zeehandelaar’s statement in his application for a permit that on January 17 he had a contract evidenced by a “firm order” letter and a deposit check, although neither of these were actually in existence at the time.

Rule 7(c) of the Federal Rules of Criminal Procedure provides that an indictment should contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” The rule reflects the oft-stated principle that an indictment is defective if it fails to apprise the accused “with reasonable certainty, of the nature of the accusation against him.” United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819 (1877). See also United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Lamont, 18 F.R.D. 27 (S.D.N.Y.1955), aff’d, 236 F.2d 312 (2d Cir. 1956). The indictment here clearly failed to do this.

Indeed, the confusion regarding the offense charged resulted in the government and appellant trying their cases based on quite distinct theories of the crime charged. This confusion regarding the indictment, however, was not limited to the parties, but infected the court and jury as well. Thus, although the court generally interpreted the indictment along the lines urged by the government, at the pretrial hearing on a defense motion to dismiss the indictment, the court endorsed defense counsel's characterization of the indictment as charging, in essence, that Zeehandelaar had misrepresented that he had a bona fide contract on January 17. Relying on this statement by the court, Zeehandelaar prepared and presented his defense accordingly. Moreover, in its charge to the jury, the court failed to define precisely the offense charged and even suggested that Zeehandelaar could be convicted simply for having back dated the letter and the check attached to his application.

The court’s confusion carried over to the jury, which throughout its deliberations evidenced considerable uncertainty as to the issue before it. Thus, at one point, jury note #6 was sent to the court asking whether the jury could “acknowledge the existence of a bona fide contract while still finding guilt in the application letter?” The court responded in the affirmative over the-objection of Zeehandelaar’s counsel.

Later, another question from the jury was addressed to the court, asking: “Can we separate guilt of predating January 17 letter stipulated February 3rd by attorney from application of permit.” Because neither the court nor counsel fully understood this question the court requested clarification from the jury. Instead, the jury sent another note which appeared to be a verdict:

We find Mr. Zeehandelaar guilty only of misrepresenting dates of contract and check submitted with his application — “but” we, do believe he had a bona fide contract.

Defense counsel moved for a mistrial on the basis of an imperfect verdict. Although the jury’s communication clearly revealed confusion and the misconception that Zeehandelaar could be convicted simply for knowingly back dating the letter and deposit check, the court denied defense counsel’s motion and sent back a note to the jury, asking: “Do you find the defendant guilty or innocent of the charges contained in the indictment?"

Once again, the jury returned an ambiguous, qualified verdict: “Yes, the defendant is guilty of the charge of falsifying application.” The jury was then ordered back into the courtroom and a poll taken. Juror #3 answered in the negative in response to the question whether “the defendant [was] guilty as charged." Upon questioning, the juror revealed his confusion over the wording of the indictment. Only after persistent questioning in front of the other jurors and a suggestion that the jury be sent out for further deliberations did the juror change his vote back to “yes” on the question of Zeehandelaar’s guilt.

In light of the substantial uncertainty as to the offense charged in the indictment, which pervaded the trial and the deliberations and verdict of the jury, we cannot say that Zeehandelaar had a fair trial.

II.

Additionally, the court erred in failing to give a limiting instruction with regard to the highly prejudicial hearsay testimony of Suzanne Pressman. On its direct case the government called Melvin Lovell, who testified to a meeting with Zeehandelaar in Tucson, Arizona on April 15 during which appellant allegedly suggested back dating an order as a means of obtaining a permit to import cheetahs. The defense raised on cross-examination the possibility that Lovell’s testimony had been recently contrived in cooperation with the prosecution. After Zeehandelaar denied during the defense’s case-in-chief that any meeting had occurred, the government called as a rebuttal witness, Frank Gilbert, who claimed to have been present at the April 15 meeting and to have heard Zeehandelaar suggest back dating. Once again, the defense suggested on cross-examination that testimony as to an April 15 meeting was a recent fabrication. The government then called a second rebuttal witness, Suzanne Pressman. Over the objection of defense counsel, Pressman was permitted to testify that on April 15 Lovell had recounted to her the conversation he had had with Zeehandelaar earlier that day, and that he had told her that the appellant had suggested back dating in the course of their conversation. Although the record shows that even the prosecution had recognized the need for a limiting instruction indicating to the jury that this testimony was being admitted solely as proof of prior consistent statements regarding the April 15 meeting, the court failed to give such an instruction. Moreover, in its summation of the evidence during its charge to the jury, the court treated Pressman’s testimony as though it could be given the same testimonial effect as the testimony of Lovell and Gilbert. Again, no instruction was given as to the limited purpose for which it was admitted into evidence.

Although we have recognized the prior consistent statement exception to the hearsay rule when on cross-examination an attempt has been made to show that a witness’ testimony is a recent fabrication, United States v. Zito, 467 F.2d 1401 (2d Cir. 1972), the court should give a proper limiting instruction with regard to such testimony. United States v. Lipton, 467 F.2d 1161, 1168 (2d Cir. 1972); United States v. DiLorenzo, 429 F.2d 216, 220 (2d Cir. 1970). Here, no such limiting instruction was given.

For the reasons stated, we reverse.

III.

Our reversal, however, in no way rests on one other argument made by Zeehandelaar, that the trial court improperly intruded into the deliberations of the jury. The appellant specifically contends that the court’s interrogation of three jurors, two of whom had expressed an unwillingness to reconvene for a second day of deliberations at the hour suggested by the court and one of whom was opposed to reconvening at all, was improper. Each of these jurors was questioned individually in the robing room and in the course of the interrogation of one of them, juror #3, it was revealed to the court that the jury was deadlocked, with eleven jurors favoring a verdict of guilty and one juror opposed. Zeehandelaar maintains that these interrogations were coercive and that, in any event, once the court was informed of the division in the jury, it was required to declare a mistrial.

We have previously held that it is not improper for the trial court, in the exercise of its discretion, to interview individual members of a jury so long as counsel are present, as was the case here. See United States v. Berger, 433 F.2d 680, 686 (2d Cir. 1970), cert. denied, 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246 (1971). In light of the fact that one of the three jurors here was extremely agitated, the court’s decision to question the jurors privately was a prudent decision. Cf. United States v. Colabella, 448 F.2d 1299, 1303-1304 (2d Cir. 1971), cert. denied, 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 803 (1972). Moreover, we are not persuaded that the comments made to the jurors in the robing room were coercive or prejudicial. The fact that juror #3 revealed the division in the jury was not by itself a ground for a mistrial, since this information had not been solicited in any way by the court. See United States v. Jennings, 471 F.2d 1310, 1313-1314 (2d Cir.), cert. denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973); United States v. Meyers, 410 F.2d 693, 697 (2d Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86 (1969).

Reversed.

      . An indictment drawn with reasonable certainty assures that the defendant will not be tried or convicted for an offense other than the one for which he was indicted by the grand jury, that the defendant will be able to prepare an adequate defense and to address himself to the relevant questions of fact and law, that the trial court will be able to determine that the jury’s verdict rests on substantial evidence, that an appellate court’s affirmance will not be for a crime other than the one for which defendant was convicted, and that the defendant will not face the prospect of being placed twice in jeopardy. See generally Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed. 2d 240 (1962).


source: Caselaw Access Project

author: CHRISTENSEN, Senior District Judge:

license: Public Domain

text:
    SPENCER, WHITE & PRENTIS INCORPORATED OF CONNECTICUT, Plaintiff-Appellee, v. PFIZER INCORPORATED, Defendant-Appellant.
    No. 839, Docket 73-2810.
    United States Court of Appeals, Second Circuit.
    Argued April 5, 1974.
    Decided June 3, 1974.

      Edward L. Sadowsky, New York City, with whom Tenzer, Greenblatt, Fallon & Kaplan, New York City, were on the brief, for appellant.
    Richard H. Tunstead, New York City, with whom Tunstead & Schnechter, New York City, were on the brief, for appellee.
    Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, Senior District Judge.

       Of the District of Utah sitting by designation.

   CHRISTENSEN, Senior District Judge:

This is an appeal from a summary judgment entered by the district court in favor of a contractor for the balance on a construction agreement. The stated ground was that the owner’s counterclaims for damages suffered in the execution of the work by the contractor constituted “the only defense asserted by the defendants” but that such defense was without merit. As a part of the same order, the district court had “severed” plaintiff’s claim from these counterclaims, presumably because the latter required separate future adjudication, upon a finding that “a severance will both serve the ends of justice and further an efficient disposition of the litigation.” And the case comes to us with/out certification for an interlocutory appeal, or any express determination by the court below that there was no just reason for delay in the entry of a “final” judgment on plaintiff’s claims.

We have looked into this tangle of Rules 21, 42(b), 54(b), and 56, Fed.R. Civ.P., and Rule 5(a), (b), Fed.R.App.P. and their overlay of 28 U.S.C. §§ 1291 and 1292(b) only so far as seems necessary to ascertain our lack of appellate jurisdiction — an obstacle which may prove of little surprise to anyone reading this synthesis of the record except possibly the parties, but yet confirmed only after unraveling some interesting twists in the exercise of our jurisdiction to determine that we have no jurisdiction.

The appellee-plaintiff, Spencer, White & Prentis Incorporated of Connecticut, was employed as contractor by appellant-defendant, Pfizer Incorporated, to install foundation caissons at Pfizer’s plant at Groton, Connecticut. The written contract between the parties provided that Spencer would be paid on a “cost plus fixed fee basis”. The contract proper contained the following definition of cost:

“The cost includes labor, including job supervision and engineering staff, yard expense, insurance, welfare and pension funds, losses not covered by insurance . '. . materials . . . and all incidental expense required for the work. . . . ”

. The “general conditions” attached to and “made a part of this contract with the same force and effect as if the same were set forth at length” provided among other things that “compliance by contractor with the foregoing requirements with respect to carrying insurance shall not relieve the Contractor from liability under the indemnity provisions hereinafter stated.”

On the last-mentioned subject, paragraph 9 (i) of the General Conditions provided so far as material here that “Contractor assumes the entire responsibility and liability for and agrees to hold Owner harmless from any and all damage or injury of any kind or nature whatsoever ... to all property . arising out of or occurring in connection with the execution of its Work hereunder and all damage . . . of whatsoever nature resulting from the performance of its Work . . . or resulting to the Work . . . shall be borne by Contractor and all Work hereunder shall be solely at its risk. . . . ”

The contractor installed the caissons and brought suit for an unpaid contract balance of $59,912.50. The owner Pfizer in an amended answer and counterclaims admitted that the $59,912.50 had not been paid but alleged by way of defense and counterclaim that it was entitled to at least $61,000 from the contractor on the theory of absolute liability of the contractor by virtue of the last quoted provisions, or on an alternate theory of negligence, for damage which had been caused in the execution of the work to an underground salt water line.

The contractor moved for severance of its unpaid balance claim from the counterclaims for damages, and for summary judgment on its claim. The district court granted the motion in all respects, and pursuant to direction in its memorandum and order a judgment in the sum of $59,912.50 was entered by the clerk in favor of the contractor and against the owner, which judgment later was amended to include interest pursuant to a supplemental order. The owner has appealed from this judgment as so amended, and states the issues to be determined upon this appeal as follows:

1. Does a cost plus fixed fee construction contract, which provides that the contractor shall be strictly responsible for any damage caused to property during the course of construction excuse the contractor from damage resulting from its own acts solely because “cost” is defined in the contract as including losses not covered by insurance?

2. Did the district court abuse its discretion by directing the entry of judgment on the complaint prior to the adjudication of the compulsory counterclaims?

The appellee in its counter-statement would have us resolve these issues by the proposition embraced in the lower court’s memorandum that “any losses arising from Spencer’s acts are either covered by insurance procured for Pfizer’s benefit or payable by Pfizer as reimbursable items of cost under the contract.”

We begin our consideration of jurisdiction with recognition that a claim or counterclaim properly severed from another by virtue of Rule 21 “may be proceeded with separately”; that justification for severance is not confined to misjoinder of parties; that the fact that a counterclaim is a compulsory one does not per se preclude its severance under the current rule; that appeal from a judgment on a validly severed single claim may be timely taken as of right notwithstanding the pendency of the remaining claims or counterclaims, and that other possible basis for appellate jurisdiction would have to be sought only if the severance constituted an excess or abuse of discretion on the part of a district eourt.

Facially the court’s order of severance in reliance upon Rule 21 is suspect when it is read with its grant also of summary judgment on plaintiff’s claims, especially in light of the assigned reasons. While application of Rule 42(b) involves primarily the consideration of convenience and fairness, that of Rule 21 also presupposes basic conditions of separability in law and logic. The terms of the court’s memorandum and order negate the latter conditions and indicate that what it said in attempted justification for severance was self-defeating or at best would relate only to the matter of separate trials. We therefore conclude that the “severance” was so transparently a confusion of Rule 21 with 42(b), or an attempt to separate an essentially unitary problem, that it should be disregarded out of hand as devoid on its face of any foundation for appellate jurisdiction or, at least, an abuse of discretion with the same result.

This notwithstanding, we understand appellee to argue that the counterclaims, being patently without merit, may be disregarded along with, consequently, any abortive severance, to leave plaintiff’s claim in substance unencumbered and final. Or, taking the court’s memorandum supporting the attempted severance as the basis for the entry of a final judgment on one of multiple claims or counterclaims and treating the court’s direction for the entry of “summary judgment” as a direction for the entry of “final judgment” pursuant to Rule 54(b), Fed.R.Civ.P., the argument appears to be that there still can be found compliant or de facto finality. To determine whether appellate jurisdiction thus can be rescued, the justification for and substance of the summary judgment must be examined in the conceded absence of any certification by the trial court for interlocutory appeal, and in view of the concept of finality embraced in 28 U.S.G. § 1291.

The district court held that since “the damage done to the water line is either covered by insurance or it is a loss not covered by insurance, and that in either event it was a cost for which the plaintiff was entitled to reimbursement under the contract” the damage done to the water line was thus invalidated as a defense by the very terms of the contract.

If paragraph 9 (i) of the General Conditions was not as a matter of law controlling over the preceding more general reference to “cost,” at least there would have been a material ambiguity or inconsistency not subject to resolution by summary judgment. The “damage ... is either covered by insurance or it is a loss not covered by insurance” gambit is simply too pat. Confessing in effect an ambiguity, the attempted avoidance on the ground of inescapable immateriality completely fails:

While the meaning of an unambiguous contract is a question of law, the meaning of an ambiguous one presents a question of fact on which resort may be had to extrinsic aids of construction throwing light upon the intent of the parties. The intent of the parties to an ambiguous contract is a question of fact which cannot be resolved on summary judgment. It is true that the amount due on the contract independent of the counterclaims was not disputed. The amount for which plaintiff was entitled to judgment, however, was disputed and depended upon contractual provisions which, if not supporting the counterclaims as a matter of law, were ambiguous as a matter of fact.

What we have said about the impropriety of granting summary judgment in favor of plaintiff-appellee confirms the inseparable relationship between the counterclaims and plaintiff’s claim, and further demonstrates the invalidity of the order of severance.

We reject appellee’s contention that the district court’s statement of reasons for granting the purported severance, coupled with its direction that summary judgment be entered, should be construed as compliance with the requirements of Rule 54(b). However broadly interpreted there was no direction of “final judgment” upon “an express determination that there is no just reason for delay.” Moreover, because the contested issues of the claim and the counterclaim were essentially the same, it is doubtful that any purported certification pursuant to Rule 54(b) could be valid. There is a certain implausibility in a white blackbird, a two-year-old yearling, or separated inseparables.

In Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), it was held that amended Rule 54(b) does not constitute an unauthorized extension of 28 U.S.C. § 1291, since the District Court cannot, in an exercise of its discretion, treat as “final” that which is not “final” within the meaning of § 1291, and any abuse of its discretion would be reviewable by the court of appeals. Within the principle of that case we hold that the granting of the summary judgment, any attempt to make that judgment final for the purpose of appeal, and the purported severance of the counterclaims, amounted at least to abuses of discretion, if not to action outside the powers of the district court. Appellate jurisdiction cannot be so manipulated or controlled through misapplication of rules of procedure in derogation of the finality requirements of 28 U.S.C. § 1291, supra.

For the reasons above stated this appeal sua sponte is dismissed.

      . No notice was taken of any jurisdictional problem in oral argument. Appellant’s brief contained the reference in passing that “since the District Court erroneously treated what should have been at best an interlocutory adjudication as a final judgment, as it clearly did in this case, an appeal will lie”, citing Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir. 1946) [a case decided before a significant amendment to Rule 54(b) Fed.R.Civ.P. and one recently criticized by this court in Cinerama, Inc. v. Sweet Music, S. A., 482 F.2d 66, 71 (2d Cir.)] and 6 Moore’s Federal Practice (2d Ed.) ¶ 56.60[4] (citing Oltmer in a context not indicated by appellee is in the last few lines of its brief where it “agrees” that an appeal may be taken from the district court’s finding that severance would both serve the ends of justice and further an efficient disposition of the litigation, and its direction for the entry of “judgment”. Of course jurisdiction cannot be conferred by agreement; it is our duty to notice the absence of it even though the parties have not raised the question. United States for Use and Benefit of Charles R. Joyce & Son, Inc. v. F. A. Baehner, Inc., 309 F.2d 154 (2d Cir. 1962); Flegenheimer v. Manitoba Sugar Co., Ltd., 182 F.2d 742 (2d Cir. 1950); Audi Vision, Inc. v. RCA Mfg. Co., Inc., 136 F.2d 621 (2d Cir. 1943).

      . Rather than to remand summarily, we have recorded this process, among other reasons, so that certain misconceptions below may not persist or, indeed, be thought to have become implanted as the law of the ease. We trust that this may not be considered, and we have endeavored to avoid, a gratuitous decision of issues beyond our jurisdiction ; e. g., the definitive and ultimate interpretation of the contract in question. Cf. Cram v. Sun Insurance Office, Ltd., 375 F.2d 670 (4th Cir. 1967).

      . While the work was done prior to the time the written agreement between the parties was signed, the parties have not questioned here that the writing reflects the terms under which the work was accomplished, nor do we.

      . “9. Insurance, (a) Until completion and Final Payment provided for hereunder, Contractor and its Sub-Contractors shall pro-, cure and keep in force the following insurance coverages with limits in the respective amounts indicated.” (Then follows a schedule of risks and amounts which includes as item (4), “Property Damage Liability Insurance and Completed Operations Insurance, including Contractor’s Protective Liability Insurance and coverage for Explosion, Collapse and Underground Hazards” in the sum of one million dollars each accident and one million dollars in aggregate. A footnote reference stated that the Contractor’s Protective Liability Insurance was intended to include “insurance against liability assumed under paragraphs nine (f) and nine (i) [of the General Conditions] to the extent covered by the Policy” which enigmatic qualification we do not find necessary to pursue except by keeping in mind this indication that the parties may have thought the insurance coverage might be narrower than plaintiff’s liability under 9 (i).)

      . “Misjoinder and Non-Joinder of Parties
      “Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.”

      . Wyndham Associates v. Bintliff, 398 F.2d 614 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Sporia v. Pennsylvania Greyhound Lines, Inc., 143 F.2d 105 (3d Cir. 1944); General Tire & Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112 (S.D.N.Y.1970). Cf. First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 635 (2d Cir. 1972). Cf. Garber v. Randell, 477 F.2d 711 (2d Cir. 1973).

      . Wyndham Associates v. Bintliff, supra. See 3A Moore’s Federal Practice ¶ 21.-05(2).

      . Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956).

      . The dearth of authorities expressly making this point is explainable no doubt, by the unavoidable implicitness of the result in the very concept of severance under Rule 21. Use of the term “severance” to denote separation of trials under Rule 42(b), not resulting in discrete, separately appealable actions, sometimes masks the point. An attempt to articulate the distinction but with only general success is made in Lusk v. Pennzoil United, Inc., 56 F.R.D. 645, 646 (N.D.Miss.1972) : “ ‘A separate trial’ .... always results in a single judgment, while a ‘severance’ creates independent actions which may result in different judgments.” Without specifically reaching the point, 3A Moore’s Federal Practice § 21.05 [2] notes the “separate and distinct” conditions and consequences of the two rules, as well as their possible interplay with Rule 42(a) concerning consolidation. See also Garber v. Randell, 477 F.2d 711 (2d Cir. 1973), supra; Transmirra Prods. Corp. v. Monsanto Chem. Co., 27 F.R.D. 482 (S.D.N.Y.1961).

      . Cf. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).

      . “ (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim or third-party claim.

      . After holding that it had the power to sever plaintiff’s claim and the counterclaims and that a severance “will both serve the ends of justice and further an « efficient disposition of the litigation”, the court stated: “The contract between the parties specifically provides that the plaintiff will be reimbursed for costs and it defines the term ‘costs’ to include both insurance and losses not covered by insurance. . . . The damage done to the water line is either covered by insurance or it is a loss not covered by insurance. It does not matter which it is, for in either case, it is a ‘cost’ for which plaintiff must be reimbursed under the contract.
      “Since the damage done to the water line is the only defense asserted by the defendants and since that defense is invalidated by the very terms of the contract, I find that plaintiff is entitled to summary judgment on its severed claim for $59,912.50.”

      . Cf. Garber v. Randell, 477 F.2d 711 (2d Cir. 1973), particularly with reference to the unwarranted amalgamation of separate actions under the guise of “consolidation” for trial.

      . “Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

      . “1292(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its'discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. ...”

      . “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States. it

      . Cf. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437-438, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), supra; Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 453, 76 S.Ct. 904, 100 L.Ed. 1311 (1956), supra, it being indicated that the application of a rule of procedure constituting an abuse of discretion cannot afford appellate jurisdiction contrary to the finality requirement of § 1291.

      . See supra, p. 361.

      . We do not mean to indicate that this may not be the ultimate result; the point need not be reached in this exploration of jurisdiction.

      . See supra, p. 360. Cf. First Nat. Bank of N.Y. v. Bankers Trust Co., 151 Misc. 233, 271 N.Y.S. 191 (1934).

      . Appellee offers to sacrifice as the pawn an assumed alternate liability of some non-party insurance company.

      . The insurance policy with conditions, exceptions, or limitations to be expected was not before the court. Even had it been established, the liabilities of the insurance company and that of the contractor would not be mutually exclusive, nor would there be any assurance when settlement would be made. The court’s formula itself begged the central question by assuming that if the damage was not covered by. insurance it necessarily would comprise a “cost” to be paid by the owner anyway and that the “cost” and “damage” referred to in the respective paragraphs necessarily related to the same thing. There is another provision of the contract which the district court seems to have overlooked completely: “The compliance by contractor with the foregoing requirements with respect to carrying insurance shall not relieve the Contractor from liability under the indemnity provisions hereinafter stated.” 9(d) of General Conditions.

      . Appellee relies upon the rule “that ambiguous language in a contract is to he construed most strongly against the party who drew the contract or selected the language,” 17A C.J.S. Contracts § 324, at 226 (appellant having prepared or at least submitted the form of written contract used). However this rule is not helpful in resolving the difficulty. Appellee’s construction would require disregarding express language in the contract and would violate the more fundamental rule of construction that “a contract must be construed as .a whole and, whenever possible, effect will be given to all of its parts.” Furthermore, it would not foreclose the use of parol evidence to resolve the ambiguity. Union Ins. Soc. of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 951 (2d Cir. 1965).

      . Painton & Company v. Bourns, Inc., 442 F.2d 216 (2d Cir. 1971); Union Ins. Soc. of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946 (2d Cir. 1965), supra; Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 674 (4th Cir. 1967). See also Evensen v. Pubco Petroleum Corp., 274 F.2d 866 (10th Cir. 1960).

      . See Western Geophysical Co. of Am., Inc. v. Bold Associates, Inc., 463 F.2d 101 (2d Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 523, 34 L.Ed.2d 489 (1972); Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir. 1946); Audi Vision Inc. v. RCA Mfg. Co., Inc., 136 F.2d 621, 147 A.L.R. 574 (2d Cir. 1943); Gaetano Marzotto & Figli, S.P.A. v. G. A. Vedovi & Co., 28 F.R.D. 320 (S.D.N.Y\.1961).

      . “In fine, the trial court cannot by a 54(b) certificate make final and appealable a ruling that is not final and appealable within the meaning of 28 U.S.C. § 1291.” 6 Moore’s Federal Practice ¶ 54.30 [1]. See also Painton & Co. v. Bourns, Inc., 442 F.2d 216 (2d Cir. 1971); Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 243 F.2d 795 (2d Cir. 1957); Zwack v. Kraus Bros. & Co., 237 F.2d 255, 262 (2d Cir. 1956).
      With a significantly more valid basis for separation, this court in International Terminal Op. Co. v. Waterman S.S. Co., 272 F.2d 15, 16, n. 2 (2d Cir. 1959), observed in accepting jurisdiction that “[t]he entry of final judgment on plaintiff’s claim for reimbursement, while postponing adjudication of the counterclaim, would seem to approach the limits of a district judge’s discretion.”


author: PER CURIAM:

text:
    Jerry D. BRANTLEY et al., Plaintiffs-Appellants, v. UNION BANK & TRUST COMPANY et al., Defendants-Appellees. Grant BAKER, Clinton Grady and Essie Leefelton, etc., Plaintiffs-Appellants, v. R. Frank KEEBLE, Individually, and Town Finance Corporation, Defendants-Appellees.
    Nos. 73-3625, 73-3631
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 5, 1974.
    John B. Crawley, Troy, Ala., Joseph J. Levin, Jr., Charles F. Abernathy, Montgomery, Ala., for plaintiffs-appellants in No. 73-3625.
    John M. Milling, Jr., Charles P. Miller, Montgomery, Ala., for Union Bank Bldg.
    A. Ted Bozeman, Wayne P. Turner, Montgomery, Ala., for Goodwin & Lang-ford Inv.
    Cleveland Thornton, Tuskegee, Ala., Charles F. Abernathy, Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs-appellants in No. 73-3631.
    Frank M. Gleason, Rossville, Ga„ Samford, Torbert, Denson & Horsley, Opelika, Ala., for Town Finance.
    Philip H. Butler, Montgomery, Ala., for Frank Keeble.
    Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., for amicus curiae.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

      Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The appellants in this ease seek to challenge the constitutionality of §§ 9-503, 9-504, Title 7A of the Alabama Code (§§ 9-503, 9-504 of the Uniform Commercial Code) on due process grounds. These statutes permit limited peaceful self-help repossession without prior notice or hearing by a private party acting under authority of a private agreement.

Our decision in this case is squarely controlled by our recent decision in James v. Pinnix, 495 F.2d 206, p. 207, n. 5a [1974] in which we found such statutes to be free from Federal due process scrutiny for lack of requisite state action. The judgments of the district court dismissing the appellants’ complaints were correct.

Affirmed.

      . Section 9-503 and 9-504 read in pertinent part:
      § 9 — 504 Secured party’s right to dispossession after default. — Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
      § 9 — 504 Secured party’s right to dispose of collateral after default; effect of disposition. — (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Henry BRYAN, Defendant-Appellant.
    No. 74-1347
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 5, 1974.
    Rehearing Denied Sept. 4, 1974.
    Richard Henry Bryan, pro se.
    H. M. Ray, U. S. Atty., Alfred E. Moretón, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Bryan and his codefendant Ballard were tried and convicted of armed robbery of a federally insured bank. We affirmed their convictions. United States v. Ballard, 5 Cir. 1970, 423 F.2d 127. The mandate from this court issued on April 9, 1970, and was filed in the district court on April 10, 1970. On December 9, 1972, Bryan filed his first motion for modification of his sentence, which the district court denied for want of jurisdiction since the motion had not been filed within 120 days of receipt of the mandate of affirmance as required by Rule 35, F.R.Crim.P. On December 5, 1973, Bryan wrote the sentencing judge a letter again requesting modification. Treating the letter as a petition for reduction of sentence pursuant to Rule 35, the court again denied relief for want of jurisdiction, and Bryan appealed. We affirm.

Bryan seeks to have his sentence modified pursuant to 18 U.S.C.A. § 4208(a) (2). This would make him eligible for parole at such time as the board of parole may determine. Such a modification would make the sentence less onerous, since he would otherwise be eligible for parole only after serving one-third of his twenty-two year sentence. 18 U.S.C.A. § 4202.

Rule 35 provides in pertinent part: The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment ....

Bryan argues that the 120 day time limit should not be applied, since he is not asking for a reduction of the sentence but rather a modification to make him eligible for parole sooner. We agree, as did the district court, with Chief Judge Keady’s analysis in Banks v. United States, N.D.Miss.1973, 365 F.Supp. 594. In that case Banks made the same argument Bryan makes here, but Chief Judge Ready held that “the alteration of a sentence to include the provisions of 18 U.S.C.A. § 4208(a)(2) is in effect a reduction in sentence,” so that the sentencing court is without jurisdiction to make the modification more than 120 days after the receipt of the mandate of affirmance. See also United States v. Granville, 5 Cir. 1972, 456 F.2d 1073; United States v. Gorman, 5 Cir. 1970, 431 F.2d 632; United States v.Mehrtens, 5 Cir. 1974, 494 F.2d 1172.

Affirmed.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leonard B. RICKETSON, Defendant-Appellant.
    No. 73-1618.
    United States Court of Appeals, Seventh Circuit.
    Heard Feb. 26, 1974.
    Decided May 30, 1974.
    Certiorari Denied Oct. 29, 1974.
    See 95 S.Ct. 227.

      George E. Faber, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
    Before FAIRCHILD and CUMMINGS, Circuit Judges, and JAME-SON, Senior District Judge.

       Senior District Judge William J. Jameson of tion. the District of Montana is sitting by designa-

   CUMMINGS, Circuit Judge.

In February 1972, a 3-count indictment was returned against defendant and Leo Rugendorf, Francis Hohimer and Colin Green. The charges involved a jewelry theft that took place in Indianapolis, Indiana, on June 16, 1967. The first count charged the four defendants with a conspiracy to transport in interstate commerce jewelry worth more than $5,000, and to receive it and sell it —all in violation of 18 U.S.C. § 371, the general conspiracy statute. Count II charged them with transporting the jewelry from Indianapolis to Chicago in violation of 18 U.S.C. §§ 2 and 2314. The final count charged that defendant Rugendorf received the same jewelry in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. §§ 2 and 2315. Sections 2314 and 2315 forbid the transportation and sale or receipt of stolen goods with a value of $5,000 or more; Section 2 is the general aiding and abetting statute.

Early in the morning of June 16, 1967, the Indianapolis residence of Mr. and Mrs. Nicholas Noyes was burglarized by Ricketson, Green and Hohimer. Later that morning in Chicago, Rugendorf picked up the jewelry at Hohimer’s apartment. That afternoon an unidentified person gave Rugendorf $20,000 for the jewelry. Rugendorf turned the money over to Hohimer. The next day Rugendorf augmented the sum by giving Hohimer an additional $700. Hohimer paid his brother Wayne $50, Green $200 and Ricketson $700, retaining the balance.

Hohimer and Green pled guilty and became government witnesses. Rugendorf was severed due to ill health and testified from a hospital bed on behalf of Ricketson, who stood trial alone. After a jury trial, Ricketson was convicted on Counts I and II as charged and on May 2, 1973, received a 3-year sentence concurrent to his prior five to ten-year sentence on a state charge of burglary, theft and bribery. After receiving his federal sentence, Ricketson was paroled from the Illinois State Penitentiary and delivered to the Federal Correctional Institute at Sandstone, Minnesota on June 30, 1973.

Pre-indictment Delay

Defendant urges that his Sixth Amendment right to a speedy trial was violated because of the 56-month period between the June 1967 offense and the return of the indictment on February 22, 1972, four months before the expiration of the five-year statute of limitations (18 U.S.C. § 3282). However, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, the Supreme Court held that the Sixth Amendment speedy trial provision does not apply until a putative defendant becomes an accused. Targeting a suspect for investigation does not make him an accused for this purpose. United States v. Joyce, 499 F.2d 9 at 19-20 (7th Cir. 1974). Consequently, even if the Government knew of defendant’s involvement in the Noyes burglary at an early date, his right to a speedy trial did not accrue until indictment.

Although % the Sixth Amendment cannot be violated by pre-indictment delay, Marion indicated that the due process clause of the Fifth Amendment would be violated if pre-indictment delay caused substantial prejudice to a defendant’s right to a fair trial and was purposely occasioned by the Government to obtain a tactical advantage over him. 404 U.S. at 324. Defendant does not claim that his trial was prejudiced by the delay. His only claim of prejudice is that his state parole was affected and any advantage of concurrent sentencing was minimized. Although this could be prejudicial for speedy trial purposes (Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607), it did not prejudice defendant’s due process right to a fair trial. Nothing in United States v. Hauff, 461 F.2d 1061, 1067-1068 (7th Cir. 1972), or the pre-Marion case of United States v. Strauss, 452 F.2d 375, 377-378 (7th Cir. 1971), is to the contrary. Those cases rejected claims similar to defendant’s as “speculative, * * * almost fanciful,” “conjectural, if not frivolous * * They therefore had no occasion to consider whether a serious claim of prejudice to parole or concurrent sentencing rights would be legally relevant under the due process clause to pre-indictment delay. We hold that it is not.

Furthermore, defendant has shown no intentional delay by the Government to obtain an advantage over him. The Government has represented that “the facts and circumstances surrounding this crime did not come to its attention until Summer, 1971.” The FBI’s 1967 interview with Mrs. Marguerite Lilly Noyes, the victim, does not cast doubt on this representation, for her interview with the FBI disclosed no information as to the identities of the masked participants in the burglary. Since neither intentional delay nor prejudice to a fair trial have been shown by defendant, the pre-indictment delay did not violate the due process clause. United States v. Marion, swpra, at 325-326.

Post-indictment Delay

Defendant also urges that his Sixth Amendment right to a speedy trial was violated by the eleven-month delay between his motion for immediate trial and trial. As noted, defendant was indicted in February 1972. He filed a single motion for immediate trial in April 1972, but it is clear from his accompanying memoranda that he was really seeking relief in the form of dismissal for pre-indictment delay and a limitation on the Government’s proof at trial. This was the argument and request for relief under the heading “Motions to Dismiss and An Immediate Trial” in the first memorandum; immediate trial was not mentioned in defendant’s reply memorandum, after the Government had represented that it was ready for trial but that defendant had sought two continuances. The district judge denied the relief requested and never ruled on the motion for immediate trial; defendant did not complain that this was an oversight.

The four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, requires us to consider the length of delay, the reason for the delay, defendant’s assertion of right, and the prejudice to the defendant.

As to the length of delay, longer periods have been tolerated in speedy trial cases. For example, United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), involved a 19%-month pre-trial delay. But eleven months is substantial, and the reasons for the delay are unclear. The case is not particularly complex, although in fairness to the Government, we note that its problems of proof must have been much more difficult before Hohimer’s September 11, 1972, guilty plea. The Government speculates that “some delay was occasioned by Rugendorf’s health problems and the time necessary for Hohimer and Green to decide to change their pleas.” We can judicially note that the trial judge was newly appointed when this indictment was returned; he therefore had a number of cases older than this one reassigned to liim from other judges. The docket sheet shows that pre-trial motions were decided on May 5, 1972, and that thereafter there were status calls on May 24, June 22, September 15, and October 10. Mrs. Noyes’ deposition and Hohimer’s guilty plea are the only events of significance in this five-month period. Thereafter, trial dates of November 27, 1972, and February 20, 1973, were set and vacated; there was a status call on December 20, 1972. Trial commenced on March 5, 1973. During this five-month period, Rugendorf was severed, Green pled guilty, a pre-trial conference was held, and subpoenas were issued. The record before us does not indicate why progress was so slow. The proceedings at each status call and vacated trial date have not been transcribed. But at each session, Judge McLaren entered an order setting the date for the next. We must assume that he had sufficient reasons each time he vacated a trial date, or set the next status call relatively far into the future. Defendant’s speedy trial claim is in practical effect an attack on those orders. Appellant must therefore assume the burden of explaining why Judge McLaren’s reasons for delay were insufficient, and of providing a record on which his claims can be evaluated. He has not done so. It is also noteworthy that the docket sheet shows no Government requests for continuances. We conclude that adequate reason existed for the delay.

Although, as seen, defendant initially sought an early trial, there is no indication he pressed the point thereafter. His one pro forma demand is not entitled to great weight.

As noted, defendant’s only claim of prejudice is that his total period of incarceration might have been lengthened by the eleven-month delay, since he was paroled by the Illinois Parole Board the month after the district court imposed a three-year federal sentence concurrent with the state sentence. However, any prejudice was minimized because Judge McLaren sentenced defendant under 18 U.S.C. § 4208(a) (2) and said explicitly that he did so because of defendant’s lengthy state imprisonment. We do not suggest that sentencing under § 4208(a)(2) was a remedy for the lack of a speedy trial. United States v. Strunk, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. Rather, we hold that it is one factor which is relevant to whether a speedy trial was denied.

In light of our conclusions on length of delay, reasons for delay, and demand for speedy trial, we conclude that defendant has shown insufficient prejudice to establish a Sixth Amendment violation. See United States v. Cabral, 475 F.2d 715, 719-720 (1st Cir. 1973); United States v. Taddeo, 434 F.2d 228 (2d Cir. 1970), certiorari denied, 401 U.S. 944, 91 S.Ct. 957, 28 L.Ed.2d 226; United States v. Lebosky, 413 F.2d 280 (3d Cir. 1969), certiorari denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134. United States v. Strunk, 467 F.2d 969 (7th Cir. 1972), reversed on other grounds, 412 U.S. 434, does not require a contrary result. There the reasons for delay were unacceptable, and defendant had repeatedly demanded a speedy trial. As we pointed out in DeTienne in language applicable here, prejudice inferable from incarceration “unenhanced by tangible impairment of the defense function and unsupported by a better showing on the other factors than was made here, does not alone make out a deprivation of the right to speedy trial.” 468 F.2d at 158.

Impact of Interstate Agreement on Detainers Act

The Interstate Agreement on Detainers Act became a federal law in 1970 and is reproduced in Title 18 U.S.C.A. Appendix at pp. 136-141 of the 1974 Supplement. Illinois joined the Agreement in 1971. Ill.Rev.Stats.1971, ch. 38, § 157-31. The Illinois act is now codified at Ill.Rev.Stats.1973, ch. 38, § 1003-8-9. Before the oral argument, we asked counsel to be prepared to discuss their position with respect to the impact of this Agreement on pre-trial delay. We were told that the federal detainer was not lodged with the Illinois prison authorities until August 22, 1972. Defendant’s April 1972 motion for immediate trial and for dismissal because of pre-indictment delays of course did not rely on this Agreement, for no detainer had been filed. In any event, the 180-day requirement contained in Article III of the Act does not apply until the prisoner causes the written notice and certificate specified therein to be delivered to the court and prosecutor. Since this procedure was not followed, Article III is inapplicable.

Article IV requires commencement of the trial of a prisoner against whom a federal detainer has been lodged within 120 days of the arrival of the prisoner in federal custody pursuant to written request of the “appropriate” federal officer (presumably the United States Attorney), approved and transmitted by the district court. Article IV also requires trial before the prisoner is returned to state custody. We will assume that the Writs of Habeas Corpus Ad Prosequendum issued in this case are requests for purposes of the Agreement. According to the record and the representations at oral argument, the first time after August 22, 1972, that defendant was received into federal custody was March 1, 1973. His trial took place on March 5-7, well within the 120-day limit and before he was returned to state custody on May 4.

Defendant’s position at oral argument was based on the fact that he was in federal custody in March 1972 for arraignment, on July 14, 1972, for Mrs. Noyes’ deposition, and presumably on May 5, 1972, when he. was in court for disposition of pre-trial motions. The return on the May 5 writ does not indicate whether defendant was escorted to the courtroom by state or federal officials. On each of these occasions, he was returned to state custody without being tried, and each occasion was more than 120 days before trial. Article IV(c) permits continuances beyond the 120-day limit for good cause shown, and defendant has not successfully attacked Judge McLaren’s granting of continuances. But there are no exceptions to the requirement that defendant not be returned to state custody untried. However, each federal custody was before any detainer was filed, so that the Agreement is inapplicable.

Accordingly, we need not decide whether the Agreement is exclusive when it applies. We only note that it appears that the United States Attorney never intended to make a request under the Agreement in 1972; he wanted custody of defendant for short periods for particular purposes, but it clearly was not contemplated in March, May or July 1972 that defendant would be held in federal custody until tried.

The Noyes Deposition

The Government took the deposition of Mrs. Noyes pursuant to 18 U.S.C. § 3503. The transcript was read into the record after proof that Mrs. Noyes was too ill to come to Chicago for the trial. Defendant has made a broad-ranging attack on the admissibility of this deposition.

Mrs. Noyes testified that the jewelry stolen was worth $200,000. However, on cross-examination she admitted that the values to which she testified were set by her insurer and not by her. Defendant argues that even if she had testified in open court, this admission would make her testimony inadmissible hearsay. We disagree, for her testimony was not based on any idle expression of opinion by an insurance agent. Rather, it was based on an actual transaction: the amount the insurer paid for her jewelry. See III Wig-more on Evidence, § 719 (Chadbourn Rev.1970). Of course, the transaction was not between a willing buyer and a willing seller, so that it might be argued that the insurer’s conduct in paying for the jewelry is offered as evidence of its belief as to market value and is therefore an implied hearsay assertion. The trend of modern rules and decisions is to admit assertive conduct as outside the hearsay rule. McCormick on Evidence, § 250 (2d ed. 1972). We agree with this trend and hold that an insurance loss payment is admissible to prove market value of stolen goods. Even if the insurance value were hearsay, it would be admissible as a declaration against interest, since the insurer’s valuation was forty times the value defendant argues was not proven, and $10,000 more than Mrs. Noyes originally claimed.

Admitting the deposition did not violate defendant’s right to confrontation. In California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489, the Supreme Court said that previous testimony taken under circumstances approximating trial is admissible where the witness is unavailable despite good faith efforts of the Government to produce her. That statement controls here. Mrs. Noyes was under oath and Ricketson’s counsel was given full opportunity to cross-examine her. This opportunity came after notice that the deposition was being taken for use at trial —an advantage Green’s counsel did not have in California v. Green. The defendant was present at the deposition to assist his counsel. The passage from Green on which we rely is at best an alternative holding; it has been labeled dicta, and it has been criticized. See 8 Moore’s Fed.Prac. ¶ 15.02 (2d ed. 1973 Supp.); United States v. Singleton, 460 F.2d 1148, 1155-1157 (2d Cir. 1972, Oakes, J. dissenting). But it is not an off-hand comment buried in a footnote; it is a separate subdivision of a majority opinion, and we are not at liberty to depart from it. That the Supreme Court considers the passage correct is emphasized by its recent promulgation of amendments to Federal Rule of Criminal Procedure 15, authorizing for all defendants the deposition procedure followed here. 42 LW 4554. We agree with the Singleton majority that the issue is settled. 460 F.2d at 1152-1153.

Defendant raises several contentions related to the statutory requirement that before the Government may use a deposition, the Attorney General’s designee must certify that the prosecution “is against a person who is believed to have participated in an organized criminal activity.” 18 U.S.C. § 3503(a). The Supreme Court’s amendments to Rule 15 will probably render these contentions moot, but the amendments are not yet in effect, arid we must decide the case under present law. Defendant argues that he has been continuously imprisoned since the effective date of Section 3503, so that if the Assistant Attorney General’s certification refers to him, it must rely on organized criminal activity which pre-dates the Act, and thereby gives the Act an ex post facto effect. Since the deposition was admissible against defendants believed to have participated in organized criminal activity because they were more dangerous or harder to convict, and not to impose additional punishment for pre-Act crimes, there was no violation of the ex post facto clause. See Hawker v. New York, 170 U.S. 189, 196, 18 S.Ct. 573, 42 L.Ed. 1002. For similar reasons, Section 3503 is not a bill of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 319-323, 18 L.Ed. 356. Although United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, substantially expanded past notions of what is punishment for bill of attainder purposes, we see no way that this change in the rules of evidence can be considered punishment. Cf. Hopt v. Utah, 110 U.S. 574, 587-590, 4 S.Ct. 202, 28 L.Ed. 262.

Defendant also argues that there is no evidentiary support for the certification that he has participated in organized criminal activity. We agree with Singleton, 460 F.2d at 1154, that such certifications are not judicially reviewable absent a showing of bad faith. The statutory requirement is not that defendant actually have participated in organized crime; it is only that the Attorney General or his designee believe that he has so participated. Defendant has not contended that the Assistant Attorney General did not actually believe what he certified.

The deposition statute does not infringe defendant’s freedom of association, as claimed. The statute is based on his personal participation in organized criminal activity, not mere association with organized criminals.

Finally, defendant argues that he has been denied equal protection as embodied in the Fifth Amendment’s due process clause. The Supreme Court’s decisions create some difficulty in determining the appropriate standard of review. This classification “touches on” the right to confrontation, a fundamental right. Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600. As Justice Harlan pointed out in dissent, if the fundamental constitutional right were itself violated, there would be no need to reach the equal protection issue, so that the majority, he reasoned, must have meant that strict scrutiny applies when, as here, the fundamental right is affected but not violated. 394 U.S. at 661-662. However, that conclusion is undercut by Johnson v. Robinson, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389, 42 LW 4313, 4317, n. 14, which stated without explanation that strict scrutiny did not apply in that case because the fundamental right involved was not violated. As to the other criterion, being believed to have participated in organized criminal activity is plainly an unsuspect category. Considering both factors, we conclude that this classification should be upheld if it has a rational basis.

The House Judiciary Committee found that the need for Section 3503 was “most acute in cases involving organized criminal activity * * House Rep. No. 91-1549 (1970 U.S.Code Cong. & Admin.News, pp. 4007, 4025). Representative McCulloch explained on the floor that “organized criminals have no motive to kill or kidnap a witness if the damning testimony is recorded and admissible.” 116 Cong.Ree. 35197 (1970). See also remarks of Representative Poff at 35200. Congress could have concluded that organized criminals were more likely to intimidate witnesses, and that the longer the taking of testimony was delayed, the greater the opportunity for intimidation. This would be a rational basis for the statute, though not for its application here where the witness was ill but not alleged to be threatened. We are left with the mere fact that Congress considered organized crime to be a particularly dangerous and hard to prosecute form of crime, requiring extreme prosecutorial measures. Since persons who have voluntarily participated in organized illegal activity are such a peculiarly unsuspect category, we find this a sufficient rational basis for the classification. Accordingly, there is no denial of equal protection.

Jurisdictional Amount

Defendant’s contention that the jurisdictional amount was not proven is largely dependent on his contention that Mrs. Noyes’ deposition was inadmissible. Her testimony was of course sufficient. Hohimer’s testimony as to what he was paid on the “thieves’ market” was also sufficient. United States v. Ditata, 469 F.2d 1270, 1272 (7th Cir., 1972).

Admissibility of Burglary Tools as Weapons

Defendant next argues that the trial court improperly admitted into evidence certain handguns and burglary tools. Hohimer testified that these items were for use in the commission of this burglary. His testimony was partially corroborated by codefendant Green. Although defendant was not charged with burglary, the burglary was a key overt act in the conspiracy charge. The exhibits were taken to the Noyes’ home to be used if needed. Since the exhibits were for use in the conspiracy, their probative effect outweighed their prejudicial effect. Cf. United States v. Stone, 471 F.2d 170, 172 (7th Cir. 1972). Because these exhibits were identified by Hohimer as the actual objects about which he testified, the Government was not required to establish their chain of custody. United States v. Blue, 440 F.2d 300, 303 (7th Cir. 1971), certiorari denied, 404 U.S. 836, 92 S.Ct. 123, 30 L.Ed.2d 68.

Admissibility of Aerial Photographs

Although the defendant’s principal brief complains of the admission of two large aerial photographs of the burglarized Noyes home and grounds, the reply brief has apparently abandoned the point. Defendant did not object to their admissibility when they were finally admitted after the local sheriff identified them, so that we need not consider the matter. In any event, Hohimer and Sheriff Stout sufficiently authenticated the photographs. They were relevant to corroborate and/explain the testimony about the burglary and the difficult access to the residence.

For the foregoing reasons, the judgment is affirmed.

      . Rugendorf died before Ms trial took place.

      . Defendant’s brief states that the parole was in June of 1973 (Br. 4).

      . In Strunk, the Supreme Court required dismissal of the indictment because the Government did not cross-petition for certiorari as to whether defendant had been denied a speedy trial.

      . The record shows a Government motion for a “bench warrant and detainer,” and the issuance of a bench warrant on July 18, 1972. We need not explore whether there was a further delay in lodging the detainer or a mistake at oral argument, since defendant was never in federal custody between July 18 and August 22.


author: WATERMAN, Circuit Judge:

text:
    Robert Wayne GRANT, Appellant, v. Noah L. ALLDREDGE, Warden, Appellee.
    No. 838, Docket 73-2536.
    United States Court of Appeals, Second Circuit.
    Argued April 29, 1974.
    Decided June 10, 1974.

      Hubert J. Santos, Asst. Federal Public Defender, Hartford, Conn., for appellant.
    Albert S. Dabrowski, Asst. U. S. Atty., Stewart H. Jones, U. S. Atty., for appellee.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   WATERMAN, Circuit Judge:

This is an appeal from the denial of motions pursuant to 28 U.S.C. § 2255 and Rule 33 of the Federal Rules of Criminal Procedure, in which the petitioner Robert Wayne Grant sought the vacation of his judgment of conviction and the grant of a new trial. For the reasons developed below, we believe that the motions should have been granted. Accordingly, we reverse the district court’s denial of the motions and order that the judgment of conviction be vacated and a new trial be granted.

Petitioner-appellant Grant was one of five persons originally jointly indicted for the September 8, 1970 armed robbery of the East Hartford branch of the Glastonbury Bank and Trust Company. Subsequently this initial indictment was dismissed and, on December 14, 1970, only the petitioner was reindicted. In a one-count indictment he was charged with being an armed man who singlehandedly had entered and robbed the bank. In the jury trial which followed Grant was found guilty and received a sentence of fifteen years in prison. The judgment of conviction was summarily affirmed upon appeal.

From our vantage point the Government’s case against petitioner at trial does not appear to have been overwhelming. There were two principal offerings upon which the Government attempted to substantiate its theory that Grant was the lone gunman who had robbed the bank. First of all, it was shown that immediately after the robbery Grant and four associates, one of whom was an Anthony Greenhalgh, to whom we shall return shortly, were in possession of a large sum of money under circumstances which might be characterized as suspicious. Secondly, the Government offered the testimony of three bank employees who had been eyewitnesses to the commission of the crime. Of the three, however, only one, bank teller Karen Hull, was able to make a positive identification of Grant as the perpetrator.

Grant maintained at trial, as he continues to maintain now, that he was not the armed man who had robbed the bank. In support of this position, Grant’s attorney emphasized the gross discrepancies between Grant’s physical characteristics and those of the armed robber, as the latter’s composite features were developed through the testimony of the eyewitnesses and the pictures taken by the bank camera while the robbery was in progress. The robber was a large man, standing six feet to six feet two inches in height, weighing over 200 pounds, and having a “muscular back.” He held his pistol in his left hand throughout the course of the holdup and would therefore appear to be left-handed. Grant does not fit this description of the robber. Grant is somewhat shorter, much lighter in weight, and less muscular than the man who was described as the robber of the bank. Moreover, Grant is right-handed. Although Grant’s attorney argued to the jury that Grant could not conceivably have been the man described by the witnesses, he did not go so far as to suggest who, if not Grant, the armed robber might have been.

Despite the Government’s argument to the jury that Grant was the armed robber, this ultimate trial position did not apparently reflect the prosecution’s initial theory of the case. Before trial the Assistant United States Attorney in charge of the case had offered Grant immunity from prosecution if he would cooperate with the Government by testifying that Anthony Greenhalgh, one of the four people with whom Grant had been arrested, was in fact the armed robber. The Government’s apparent belief that it was Greenhalgh, and not Grant, who had committed the crime charged in the indictment rested on more than idle speculation, for in every obvious respect Greenhalgh matched the physical description of the robber. Grant refused the offer of immunity in exchange for implicating Greenhalgh, went to trial, and was convicted.

Startled by the jury’s verdict, a distraught Grant immediately arranged to speak to agents of the Federal Bureau of Investigation. The agents filed a report of the ensuing interview and, according to the report, Grant, who did not sign a formal statement, gave a comprehensive explanation of the events surrounding the robbery of the bank. Significantly, Grant confirmed the suspicions of others that Greenhalgh, and not he, had been the lone armed man who had been inside the bank. In his statement, Grant admitted being with Greenhalgh immediately before the robbery and driving him away from the bank afterwards. Except for this isolated moment of candor, however, Grant has steadfastly refused to give accusatory testimony against Greenhalgh. Indeed, at the § 2255 hearing before Judge Clarie, Grant resisted the efforts of his present attorney, Federal Public Defender Santos, to persuade him to name Greenhalgh, although Santos there freely pursued the “Greenhalgh theory,” and has continued to do so in his brief and oral argument before us. Presumably, then, Grant does not now object to his attorney’s use of the “Greenhalgh theory” but instead prefers that that thesis be established by means other than by his own direct incriminating testimony.

On this appeal, Grant raises three grounds which he maintains require that his conviction be vacated and that he be granted a new trial. In brief, his first claim is that, after he requested it, the Government failed to provide him with exculpatory information which, under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), it was required to produce and to provide to him. His second “claim” is that Anthony Greenhalgh, and not he, was the armed bank robber. And he asserts as a final argument that his privately retained trial attorney was laboring under a pernicious conflict of interest which deprived him of his right to effective assistance of counsel. We have already related some of the reasons for believing that it could well have been Greenhalgh, rather than Grant, who was in the bank. There are other indications which support this view. Despite this, the defense that Greenhalgh could have been the perpetrator of the crime was not raised at Grant’s trial. Of course the claim that his trial attorney had a conflict of interest is an attempt to explain why the defense did not rely upon the “Greenhalgh theory” at trial. A decision favorable to Grant on this second point would require us first to decide in his favor on the third. However, the merit which we discover in Grant’s first claim, his argument based upon the teaching in Brady v. Maryland, supra, obviates the need to reach the argument based upon the claim of the ineffective assistance of counsel.

We hold that the Government’s failure upon pretrial request fully to disclose information which could have led trial counsel to uncover additional exculpatory evidence so pertinent that its presentation at trial might have induced a reasonable doubt of defendant’s guilt in the minds of the jurors constituted a violation of the rule of Brady v. Maryland, supra. This governmental omission requires that we vacate the judgment of conviction and order that a new trial be granted.

The Brady claim, which more accurately involves two separate but related claims, concerns the possible connection of one John Patrick Walsh with the robbery of the East Hartford branch of the Glastonbury Park and Trust Company. One of the eyewitnesses to the crime, bank manager Harold Field, alerted the local East Hartford police that after the robber left the bank Field had observed a “dark blue car possibly a 1965 Chevrolet, last three numbers are 121, letters unknown,” leaving the area. A local police officer was ordered “to look over ‘[the] area for a beat up Chevrolet car, dark blue color, letters of registration was not gotten but the numbers were 121 Connecticut as the person that held up the bank was seen driving out of the bank yard in this car.’ ” The FBI was also involved in the search for the supposed robber’s ear. FBI agents Stiles and Santacroee, together with Police Detective Flaherty, asked two local police officers whether they were familiar with a “Joseph Walsh.” One of the local officers replied that he was, and this officer was then told that a blue 1965 Oldsmobile, possessing only one license plate, was parked in the wrong direction in front of a house on a nearby street. Proceeding to investigate, the officers discovered it. It was of 1965 vintage and its license number was HV-1214. The officer then rang the doorbell of the house. Although this investigation was being conducted in the middle of the day, the owner of the vehicle, John Patrick Walsh, was found at home there. When questioned by the officers he admitted that the automobile was his, but he became decidedly belligerent when the officers were presumptuous enough to ask him where he was employed and why he was not at work.

It is conceded by the Government that, although the investigation just described was carried out by the local officers, the FBI agents who were also assigned to investigate the bank robbery were aware of the information developed by the East Hartford police concerning Walsh. But, most significantly, Walsh’s connection to the ease did not cease with this preliminary investigation. The FBI subsequently displayed a picture of Walsh, who, by the way, had previously been in trouble with the law, to bank teller Barbara Harris. The photograph was presented in a “spread” which included pictures of Grant and nine other men. The bank teller selected Walsh, and not Grant, as the person most closely resembling the bank robber. Incidentally, it is reasonable to believe that the FBI must have known that Walsh’s physique approximated the robber’s for 'Walsh’s height and weight had been marked on the back of the picture exhibited to the bank teller.

Eight months prior to trial the defense moved for the production of all evidence favorable to the accused. The Government’s response to the request was a revelation that Miss Harris “was not able to pick a photograph of this defendant [Grant] from a spread of fourteen photographs, as the man who robbed the bank.” What the Government deliberately, and inexplicably, did not disclose was that Miss Harris had selected Walsh’s picture as the photo most resembling the robber. After Miss Harris testified at trial, the FBI file which revealed her selection of Walsh was, in compliance with the Jencks Act, turned over to defense counsel. This file, however, contained none of the other information regarding the significant coincidences uncovered in the investigation of Walsh. The Government asserts that this additional information was not recorded in the file because the investigators were satisfied to “wash out” Walsh as a suspect. Yet no one has satisfactorily explained why such an apparently promising suspect as Walsh was so washed out.

Contained within the Brady claim which petitioner raises are two separable issues. First, upon Grant’s pretrial request for all evidence favorable to the accused, did the Government’s limited response that bank teller Harris was unable to select Grant satisfy the Government’s Brady obligations? Second, was-the United States Government required under Brady to disclose the other Walsh information, most of which was contained in the East Hartford Police Department report and, though concededly known to the FBI agents investigating .the case, had never been incorporated into any written Government reports because Walsh had been “washed out” as a suspect? We hold that the Government’s pretrial failure to transmit to the defense the information, indisputably within its possession, that bank teller Harris had selected Walsh’s photograph, constituted a violation of the rule of Brady v. Maryland, supra. It is therefore unnecessary to reach the second, and more difficult, facet of the Brady claim, and to decide the extent to which under the circumstances of this case the United States Government was responsible under Brady for the information contained in the East Hartford Police Department report.

The initial question which we must resolve, of course, is whether the teller’s selection of Walsh’s photograph constitutes exculpatory information to which the defense was entitled upon request. The primary exposition of constitutional dogma on this issue is the teaching of Brady v. Maryland, supra at 87, that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Of crucial importance is, of course, the meaning of the term “material.” The standard by which we measure “materiality” is a variable one, dependent on the degree of the prosecutor’s culpability in the non-disclosure. In concluding that a prosecutor who had in his files a certain memorandum arguably useful to the defense “should have” located that document, this court has declared that “negligence of the prosecutor in failing to make evidence available to the defense reduces the standard of materiality needed to require the granting of a new trial below the formulations applicable where no prosecutorial misconduct exists.” United States v. Miller, 411 F.2d 825, 832 (2 Cir. 1969) (Friendly, J.) The test articulated there, and recently reaffirmed in United States v. Pfingst, 490 F.2d 262, 277 (2 Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3451 (U.S. Feb. 4, 1974), is that when the prosecution has been negligent in failing to make constitutionally mandated disclosures a new trial should be granted if “there was a significant chance that this added item, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” United States v. Miller, supra at 832. Of course, as the prosecutor’s culpability increases from unavoidable nondisclosure to negligent nondisclosure to deliberate suppression, “prophylactic considerations,” United States v. Pfingst, supra at 277, designed to deter future prosecutorial misconduct begin to assume ascendant, and eventually paramount, importance.

We have not been able to fathom why the Government’s response to the defense’s pretrial Brady motion -• was phrased as it was. At oral argument, the Assistant United States Attorney, who, incidentally, was not connected with this case at the trial stage, was unable to explain to us the Government’s motivation. Petitioner Grant charitably suggests that the omission may have resulted from the fact that three different federal prosecutors handled the ease in the pretrial stages. In any event, we think it fair to conclude that, at the very least, the failure to reveal the selection of Walsh’s photograph, inasmuch as that disclosure was, as we shall soon see, necessary, should be regarded as so negligent on the Government's part as to reduce the threshold of materiality to that set forth in United States v. Miller, supra. Applying that standard, we believe that the pretrial disclosure that the teller had selected Walsh’s picture probably would have enabled trial counsel to uncover the Walsh information contained in the East Hartford Police Department report, and thereby would have created “a significant chance that this added item, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” Id. at 832. It is instructive to note that the phrase “developed by skilled counsel as it would have been” does not necessarily restrict the scope of our inquiry to show how the “added item” would have been used at the trial itself but would rather seem to be of sufficient latitude to permit us to examine how defense counsel might have utilized his knowledge of the “added item” in preparation for the trial.

We are confident that the Government should have known, if it did not in fact know, that the disclosure of Miss Harris’s selection of the Walsh photograph would have in all likelihood caused Grant’s attorney in preparing Grant’s case for trial to make further inquiries which would have led to most, if not all, of the information pertaining to Walsh in the local police report. The fact that not only Grant’s photo was not selected by Miss Harris but that of another man was might have been ¿significant enough for counsel to investigate further; pictures of those appearing in photographic spreads are often those of people who have had previous contacts with the authorities and perhaps even some suspected connection with the criminal acts under investigation-. Presumably, given the time for such an investigation, defense counsel here might have contacted Walsh himself. Also, counsel might have made more specific demands of the federal prosecutors for disclosures concerning Walsh, and the prosecutors may have then made concrete inquiries of the investigating FBI agents who, it seems at that point anyway, might have had a Brady responsibility to reply to any particularized defense motion for information concerning Walsh. Although we do not reach the issue of the responsibility of the United States Government for the information contained in the local police report, information concededly known to the FBI agents, that information, at least in retrospect, illustrates precisely why in this case the Government’s “half disclosure” of the Harris identification made prior to trial was so grossly unsatisfactory. A full disclosure could have, indeed probably would have, led to defense discovery of all the information involving Walsh. That information, in the aggregate, could then have been used by Grant’s attorney to support a theory that it was likely that Walsh had committed the crime. Such a defense, it seems to us, could have “induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” United States v. Miller, supra at 832. We thus hold that, even assuming that the Government’s response was only negligent, and not wilful, the evidence withheld possessed sufficient materiality to require the grant of a new trial.

Here it was imperative that upon request prior to trial the complete details of the Walsh identification by Miss Harris be disclosed. Although it well may be that marginal Brady material need not always be disclosed upon request prior to trial, the fact that Miss Harris had selected Walsh as a suspect was without question “ ‘specific, concrete evidence’ of a nature requiring pretrial disclosure to allow for full exploration and exploitation by the defense.” United States v. Gleason, 265 F.Supp. 880, 885 (S.D.N.Y. 1967) (Frankel, J.). This information, so withheld by the Government, would have had a “ ‘material bearing on defense preparation.’ ” United States v. Eley, 335 F.Supp. 353, 357 (N.D.Ga.1972), quoting United States v. White, 50 F.R.D. 70, 73 (N.D.Ga.1970), aff’d, 450 F.2d 264 (5 Cir. 1971), cert. denied, 405 U.S. 1072, 92 S.Ct. 1523, 31 L.Ed.2d 805 (1972), and therefore should have been revealed well before the commencement of the trial. The district court thought that “disclosure of [Walsh’s] identity would not have materially aided in the preparation of a defense.” But, as we have said, the particular disclosure might have led, had it been made well in advance of trial, to the other significant information concerning Walsh. It was the district court’s belief, however, that such an assumption is unwarranted for, when the information was eventually revealed at trial, the defense did not, on the ground of surprise, seek a continuance for the purpose of gathering additional material on Walsh. We refuse, however, to infer from the failure of defense counsel, when surprised at trial, to seek time to gather other information on Walsh, that defense counsel would have by-passed the opportunity had the prosecutor apprised him of the Harris selection of Walsh at a time when the defense was in a reasonable pre-trial position to evaluate carefully all the implications of that information. Given the time for preparation which counsel was denied by the belated disclosure, it seems to us counsel might have pursued a course of inquiry which would have resulted in ferreting out the relevant Walsh information. Inasmuch as we find that, at a minimum, the prosecution was negligent in initially withholding the specifics of the Harris identification, the granting of a new trial is by no means contingent on our being absolutely positive that defense counsel would have unearthed the details which pertained to Walsh’s possible involvement in this crime for, although “we cannot confidently say,” United States v. Miller, supra at 832, for certain, that the defense would have discovered the other Walsh information and then used those facts successfully in its argument to the jury, we can and do say that, in view of the serious doubts we entertain about whether the right person was convicted here, we adopt the position we took in Miller, supra at 832, that “[u]nder all the circumstances, as Judge Swan wrote in United States v. Consolidated Laundries, supra, 291 F.2d [563] at 571, ‘we are content to rest our decision on our conviction that the denial of a new trial here is inconsistent with the correct administration of criminal justice in the federal courts, which it is our duty as an appellate court to supervise.’ ”

The judgment of conviction is vacated and a new trial is ordered.

      . It is also appropriate to mention that we are not the only ones who are dubious about Grant’s guilt. The federal prosecutor who handled the trial in this ease, Mr. F. Mac Buckley, is now of the opinion that Grant was not the armed man who entered the Glastonbury Bank and Trust Company when that bank was robbed.

      . For instance, at the hearing below, Greenhalgh invoked the fifth amendment in refusing to answer several questions, one of which was an inquiry as to whether he, Greenhalgh, was the person depicted in the photographs taken by the camera located in the bank.

      . The conflict of interest under which Grant claims Ms trial counsel was laboring emanated from that attorney’s representation of Greenhalgh in a matter unconnected with the robbery involved in this case. Involved in an examination of the question are a number of interesting issues of fact and law, including whether the attorney represented Grant and Greenhalgh contemporaneously and whether the attorney’s representation of Greenhalgh’s girlfriend at Greenhalgh’s beliest constituted such a representation of Greenhalgh himself as to create a conflict prejudicial to Grant. As shall be noted, we do not reach these questions.

      . Of course, at the new trial Grant can, if he so desires, not only present a defense based on the improperly withheld Brady material but also may present the “Greenhalgh defense” which was not pursued at his first trial.

      . In United States v. Polisi, 416 F.2d 573, 577 (2d Cir. 1969) (emphasis inserted), we viewed the significance of Brady, which was not cited in Miller but concerns the identical problem of prosecutorial nondisclosure, as “its holding that the concept out of which the constitutional dimension arises in these cases, is prejudice to the defendant measured by the effect of the suppression, upon, defendant’s preparation for trial, rather than its effect upon the jury’s verdict.”

      . We are assuming here that the federal prosecutors were, in truth, ignorant of any other Walsh information, and so our text discussion involves some use of hindsight. Nevertheless, the disturbing prosecutorial omission in the Government’s initial disclosure of the Harris photograph identifications is, viewed in the most favorable light, at least a negligent omission to furnish favorable evidence and perhaps could be an intentional one. Therefore, we are not reluctant to use hindsight to view the possibilities to which the improperly omitted material could have been used by the defense.

      . “[T]here may be instances where disclosures of exculpatory evidence for the first time during trial would be too late to enable the defendant to use it effectively in his own defense, particularly if it were to open the door to witnesses or documents requiring time to be marshalled and presented.” United States v. Cobb, 271 F.Supp. 159, 163 (SDNY 1967) (Mansfield, J.).