author: LUCAS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Edward WALLING, Defendant-Appellant.
    No. 72-2834.
    United States Court of Appeals, Ninth Circuit.
    Sept. 17, 1973.

      Charles R. Khoury, Jr., Cal. (argued), Michael McCabe, La Jolla, for defendant-appellant.
    Donald F. Shanahan, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before DUNIWAY and TRASK, Circuit Judges, and LUCAS, District Judge.

       The Honorable Malcolm M. Lucas, United States District Judge, Central District of California, sitting by designation.

   LUCAS, District Judge:

Walling was indicted along with Patricia Schell and Michael Smith for violation of the Dyer Act, 18 U.S.C. § 2312. Walling and Smith pled guilty to the Dyer Act offense, Schell pled guilty to a less serious offense. Subsequently, Walling was granted the right to withdraw his guilty plea, and to change counsel. The Government reindicted him, including an additional count of conspiracy. In deference to counsel’s request for additional time to prepare for the new count, the district court was willing to continue the entire case, but Walling refused to waive his right to a speedy trial. Over Walling’s objection to consolidation, the trial as to both counts proceeded. Walling was convicted on both counts and sentenced to three years on each count to be served concurrently.

The following is a summary of the facts constituting the case. On or about February 6, 1972, Walling approached the proprietor of a gasoline station in Pampa, Texas, and inquired as to the ownership and availability of a gold and white, late-model Cadillac. The following day, the proprietor discovered that the car was missing, and that some money had been taken from a secret hiding place in a storage room. Apparently only the proprietor, his station attendant, and Walling had known of the money’s location. (Walling had been seen around the station on other previous occasions.) Walling had been staying at his uncle’s residence in Pampa. The last time he was seen by his uncle was late on the night of February 6, 1972. Schell testified that, on the sixth, Walling had asked her if she wanted to go to California, and had asked Smith if he was ready to go pick up the car. Later, the three loaded the gold and white Cadillac with their personal effects, including a tool box taken from Walling’s car, and his car’s Virginia license plates. On February 8, 1972, they arrived in El Cajon, California. The following evening, at approximately 11- p. m., the three drove to Wildcat Canyon Road, Walling driving his grandmother’s white Cadillac, and Smith driving the gold and white Cadillac.

The two men removed some tires from the gold and white Cadillac’s trunk, and siphoned gas from its tank which was then poured over its interior. At about this time, San Diego County Deputy Sheriff Swink was driving up the canyon in his personal vehicle, and noticed the Cadillac stopped in the middle of the road with its front end pointing toward the edge of the cliff. He noted that its trunk was open, and that some figures were visible. Driving past the first Cadillac, he came upon the white Cadillac with Schell sitting inside. He stopped, and inquired if anything was happening, to which Schell replied, “Not much. We’re just out here driving.” Continuing on, Swink flagged down a sheriff’s patrol unit, and related his observations of the two stopped vehicles. The two deputies in the patrol car then proceeded up the canyon, and passed the white Cadillac traveling in the opposite direction. They turned around, and sig-nalled the white Cadillac to pull over to the shoulder of the road.

Deputy Sheriff Fisher, the officer conducting the stop of the white Cadillac, testified to the following at the pretrial motion to suppress and at the trial. (Swink was present at the pretrial hearing, and also testified at trial.) At his initial glance into the car, Fisher noticed a large mounted tire placed on the floorboard of the right rear seat, a tool box on the rear seat, and several tools on the floorboard of the driver’s seat. Walling was at the wheel of the white Cadillac. He said that he did not have a driver’s license when Fisher asked him for identification. Fisher then unsuccessfully sought some form of identification from all three of the occupants. He inquired as to their destination, to which Walling replied that they were returning from his relatives, but he was unable to remember their address. Finally, when questioned Over the vehicle’s ownership, Walling became visibly nervous and shaken. He stated that it belonged to his father or grandfather, but he was uncertain in this respect. Fisher then asked for proof of the title, and Walling retrieved the registration slip, glanced at it, and then gave it to Fisher. With the exception of the surname, the names of the relatives Walling gave did not correspond to the name on the registration slip. When inquired as to the location of the address of his relatives, Walling first stated it as being in San Diego, and then he corrected himself referring to it as being in El Cajon. The address given by Walling did not correspond to the one on the registration card.

Fisher then ordered the three to sit in the patrol car while the officers inspected the car’s trunk. Fisher found the usual spare tire placed in the wheel well, but also found two unmounted tires, a metal suitcase, another tool box, a green garden hose (which smelled of gasoline), and two Virginia license plates. Fisher then went over to the three occupants, and informed them of their Miranda, rights. At about this time, Fisher received a radio communication that a vehicle approximately three to four miles away had gone over a cliff embankment, and was on fire. (The burning vehicle was subsequently identified as the gold and white, late-model Cadillac taken from the Pampa, Texas service station. An arson expert from the sheriff’s office concluded that the vehicle had been intentionally set on fire with gasoline.)

Deputies Swink and Fisher had been previously aware of a high incidence of criminal activity in the area where the three had been arrested, specifically, cattle poaching, car stripping, and thefts from neighboring residences. It was a lonely, dark and wooded area, infrequently traveled at the hours in question.

At trial, Walling made an offer of proof that Pat Johnson, a fellow inmate of Smith’s at the county jail, could testify that Smith had told him that Walling did not know that the Cadillac was stolen until the three arrived in California; that Smith had told Walling he wanted to abandon the Cadillac and that the latter had agreed with the idea that they would notify the police with an anonymous phone call; and that he had also told Walling that the car was stolen for the first time after they arrived in California. The district court refused to allow Johnson to testify when he was available. Walling’s testimony at trial was impeached by the introduction into evidence of two prior convictions in Virginia-grand theft of a tape recorder in May 1970, and attempted auto theft in November 1971.

Walling presented four questions for review by this Court:.

(1) whether the stopping of the white Cadillac by Deputy Fisher, based in large measure upon the observations of Deputy Swink, was a lawful temporary detention, and, irrespective of the validity of the stop, whether the subsequent search of the vehicle was proper under the circumstances;
(2) whether the district court erred in not granting Walling a continuance, only ten days prior to trial on the substantive count under the Dyer Act, upon the return of the second indictment with the new conspiracy count;
(3) whether the district court erred in admitting the impeachment evidence pertaining to the two prior State convictions; and
(4) whether the district court erred in precluding an opportunity to present the witness on Walling’s behalf by refusing to continue the case so that the witness could be called, once it had reversed its earlier decision to disallow his testimony.

With respect to the temporary detention issue, Walling contends at the outset that the district court erred in allowing Fisher, at a pretrial suppression hearing, to testify to the information Swink had communicated to him, instead of requiring Swink to testify directly as to his own observations. This preliminary point is without merit. The purpose of offering Swink’s extrajudicial statements through Fisher was not to prove the truth of that which Swink had observed, but to demonstrate those circumstances which served as a foundation for Fisher’s own observations and actions immediately prior to and during the detention of the Cadillac. Thus, Fisher was not communicating to the jury the substance of that which was reported to him by Swink. Rather he was merely furnishing the basis in fact for ' those circumstances (which facts were derived from a highly reliable source, Swink) which resulted in an investigative lead. These relayed facts prompted him and his companion to cruise up Wildcat Canyon Road, and, ultimately, compelled him to pull over the Cadillac for a limited investigatory inquiry into the presence of its occupants at that time and place, and their relationship, if any, to the earlier unusual chain of events observed by Swink. Accordingly, there was no error in allowing him to so testify in this fashion. See Davis v. United States, 411 F.2d 1126, 1127-1128 (5th Cir., 1969); United States v. Campbell, 466 F.2d 529, 531 (9th Cir., 1972); cert, denied 409 U.S. 1062, 93 S. Ct. 571, 34 L.Ed.2d 516 (1972); see also Busby v. United States, 296 F.2d 328, 332 (9th Cir., 1961).

Walling contends that this Court is bound by the decision in Remers v. Superior Court of Alameda County, 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11, (1970) (en banc) which held that where an arrest by one officer is based upon information furnished by another officer, the State must adequately demonstrate that basis in fact, furnished by the latter officer, which allowed the former to conduct the arrest; otherwise, in theory, manufactured probable cause, fictional and unsubstantiated, could be applied to sustain the propriety of the arrest of any person without an opportunity to test those basic facts upon which the purported probable cause for arrest was based. Even if this State standard were controlling in this Circuit, the factual circumstances and legal implications raised in Remers can be distinguished from those in the instant case. First, the deprivation of liberty in Remers was an arrest based upon the conducting officer’s mere knowledge of distant hearsay of the most general nature, and unspecific in source, coupled with his own highly subjective interpretations of seemingly innocent street behavior. In contrast, the deprivation of liberty in the instant case was only a reasonably conducted limited investigatory response —a temporary detention — based upon highly reliable information received, directly and immediately, from another specifically identifiable law enforcement officer. Second, the State in Remers was totally unable to identify and produce at trial the source of the background knowledge which prompted the arresting officer to confront the petitioner. In contrast, the Government in this case was not only able to identify and produce Swink as the prime source of the information, but Walling had uncompromised opportunities to either call him as a witness at the pretrial motion to suppress, or to subject him to vigorous cross-examination at trial. Swink’s testimony at trial certainly cured any procedural deficiencies which might have been latent in the Government’s case as of the pretrial suppression hearing, even under Remers, particularly in light of the distinguishing characteristics of the two cases in matters of fact and law. See discussion, supra. Accordingly, there was no prejudice even under the State standard, were it deemed to be authoritative, in allowing Fisher to testify as to those facts supplied by Swink which prompted him to temporarily detain the Cadillac.

Thus disposing of the procedural questions raised by the manner of presenting the observations gathered by Swink, the substance of those observations can now be tested to determine the propriety of the detention under State and Federal law. Since the temporary detention of the Cadillac was accomplished by State officers acting under authority of California law, the initial inquiry as to its validity will be under standards of California State law, subject to subsequent application of the appropriate Federal standards. The State standards for testing the validity of the Cadillac’s temporary detention are set forth in People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545, 547 (1967). The peace officer must have a “rational suspicion” that “some activity out of the ordinary is or has taken place” which, in some fashion, is connected with the subjects under scrutiny and which, in some manner, suggests that the activity was criminal. The Federal constitutional standards expressed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) provide an opportunity for an intermediate response and detention of any person by a peace officer if that response and detention was “reasonably prudent” under the circumstances, meeting the test of specific reasonable inferences which the officer is entitled to draw from the facts based upon his own experience. Terry, supra 392 U.S. at 27, 88 S.Ct. 1868. Thus defined, the two standards can be applied to the specific circumstances of the temporary detention in this case.

Some analytic guidelines which may be imposed in a temporary detention situation were set forth by this Court in the pre-Terry case of Arnold v. United States, 382 F.2d 4, 7 (9th Cir., 1967). Of those guidelines, three appear to be particularly helpful in discussing this case: (1) the seriousness of the possible offense; (2) the degree of likelihood of the involvement in such offenses by the persons detained; and (3) the nature and extent of the detention itself.

The overall circumstances of this case indicated the presence of two vehicles on a remote rural road late at night, which vehicles were stopped in the roadway on a curve at the top of a grade; the positioning of one vehicle such that it pointed toward the edge of a cliff embankment, with its lights on and trunk lid open; the presence of a single female in the other vehicle who appeared nervous, yet denied anything unusual was happening; and the combined knowledge of the two deputies that that remote wooded area had been used in the past for various criminal activity. The inferences reasonably available for the deputies to conclude were that the occupants of the white Cadillac driving down the canyon might have been involved in cattle poaching, car stripping, or alien smuggling (the latter inference in no manner establishes a foundation for treating the stop under the border search doctrine in light of the locale and the total circumstances, see generally United States v. Majourau, 474 F.2d 766, 769-770 (9th Cir., 1973).) That some of the factual conclusions were taken from information supplied by Deputy Swink does not preclude its usage by Deputy Fisher to form his own conclusions or its application under the Terry standard. Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Based upon the above factual circumstances, this Court cannot conclude that, either under the State or the Federal standard, the temporary detention of the Cadillac for a limited investigatory inquiry was based upon either an unfounded suspicion or was otherwise arbitrary or harassing. Wade v. United States, 457 F.2d 335, 336-337 (9th Cir., 1972); Wilson v. Porter, 361 F.2d 412, 415-416 (9th Cir., 1966); cf. United States v. Davis, 459 F.2d 458 (9th Cir., 1972). Accordingly, the stop of the white Cadillac was a lawful temporary detention.

The final aspect of the temporary detention issue as to the impropriety of the subsequent search is also without merit. At trial, Deputy Fisher testified that Walling had given his consent to a search of the Cadillac’s trunk. On review, this Court is obligated to make that construction of the evidence presented in a light most favorable to the verdict delivered. United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir., 1969). The temporary detention having been proper, Walling’s consent to the search of the car trunk was effective under the circumstances. However, in any event, probable cause lay as to the search of the vehicle. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (search of vehicle was based wholly on consent with no probable cause present). When Deputy Fisher approached the vehicle, he noticed several objects within plain view, or readily revealed by the illumination of his flashlight. See discussion, supra. The deployment of a flashlight in this manner is not a search for purposes of determining probable cause. See Cotton v. United States, 371 F.2d 385, 393-394 (9th Cir., 1967); see also United States v. Capps, 435 F.2d 637, 641 (9th Cir., 1970); rehear, denied (1971). Objects within the plain view of an officer conducting a lawful temporary detention are properly subject to seizure if warranted. United States v. Davis, 423 F. 2d 974, 976-977 (5th Cir., 1970); rehear. denied (1970); cert, denied 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970). Probable cause is concerned with probabilities which, in nature, are not technical forms, but are those “factual and practical considerations” upon which reasonable men base their actions, Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); rehear, denied (1949), and is dependent upon those facts and circumstances within an officer’s knowledge, based upon “reasonably trustworthy information,” which would warrant a reasonably prudent man to conclude that an offense was committed. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed. 142 (1964). Coupled with the information gathered from the three suspects and the deputy’s own personal knowledge and experience as to the locale’s history of criminal activity, see discussion, supra, the discovery of the objects within the Cadillac sufficiently established probable cause to conduct a further search of the car trunk in order to implement a more thorough investigation of the car itself and the activities of its occupants. Accordingly, the search of the car and the seizure of its contents were constitutionally unobjectionable. The products of the search were properly admissible at trial.

The second contention involving the putative error in not granting a continuance to allow trial counsel time to prepare for the additional conspiracy charge is at best tenuous. This count arose out of the same operative facts, involved identical persons, and dealt with the same vehicle under the same circumstances as the substantive count under the Dyer Act. Since the nature of this charge, and the intricacies of its defense were rationally related to the amount of time counsel actually had for trial preparation on . the substantive charge, this Court concludes that there was no abuse of discretion in denying a continuance. Joseph v. United States, 321 F.2d 710, 711 (9th Cir., 1963). Walling’s contention that the conspiracy count was punitive is utterly without merit. Its frivolity may be measured by the fact that he failed to challenge his conviction on that charge.

Walling’s argument on the third question is three-pronged: (1) the Virginia grand larceny conviction as an adult while still a minor was excessive punishment, and is not binding upon a Federal court for mere impeachment purposes; (2) the records of the two Virginia convictions did not sufficiently demonstrate a knowing and intelligent entering of the guilty pleas, thus demonstrating an imperfect waiver of constitutional rights; and (3) the usage of the attempted auto theft conviction was error in that the district court limited its examination of same to the fact of the Virginia record, not inquiring into the waiver of the jury trial.

The introduction into evidence of the Virginia State convictions was for the limited purpose of impeachment of the credibility of the defendant as a witness on his own behalf. There are two schools of thought as to the proper role of the district court in allowing the introduction of such impeachment evidence before the jury. One doctrine teaches that the impeachment evidence is not automatically admissible as a general rule, but that it should be allowed only as a result of the district court’s informed discretion after carefully balancing a variety of factors which may vary in an individual case. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763, 768-769 (1965) ; rehear, denied (1965) ; see generally Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269, 1274-1276 (1969); rehear, denied (1969); cert, denied 395 U.S. 927, 89 S. Ct. 1785, 23 L.Ed.2d 245 (1969). The opposing doctrine simply follows the general rule that evidence of prior convictions is admissible to impeach the testimony of a witness. There is a division of opinion in this Circuit as to the applicability of the two doctrines, however, the particular resolution by the district court in this case appears to have obviated any necessity for an unequivocal adoption of either of the two doctrines at this juncture. The district court appeared to proceed on the assumption that it possessed the discretionary power to exclude the evidence of Walling’s two prior convictions as impeachment evidence. See Allison, supra 414 F.2d at 411. Such an approach is certainly within the district court’s broad range of discretion, and such impeachment evidence is admissible in this Circuit under those circumstances, but there is also authority that evidence of prior convictions should be excluded if, in the district court’s opinion, a balancing of factors disfavors the evidence’s probative value in light of its potential prejudicial effect. Allison, supra 414 F.2d at 411-412.

In the instant case, the district court appeared to consider not only the relatively recent date of the prior convictions, the very nature of the offenses in question, and the age of the defendant, but most critically, the potential for prejudice inherent in the prior convictions as impeachment matter in relation to its probative value on the crucial issue of his credibility in delivering his account of the acts in question. See Luck, supra 348 F.2d at 768. Under these circumstances, therefore, without holding whether an exercise of informed discretion by the district court is mandatory before deciding to admit evidence of prior convictions for impeachment purposes, this Court concludes that the discretion in fact exercised by the district court to allow the evidence of the prior Virginia State convictions as impeachment material was not an abuse of authority, rather it was a carefully measured response to several conflicting considerations in this particular case. See United States v. Stroud, 474 F.2d 737, 739 (9th Cir., 1973).

The remainder of Walling’s collateral attack argument is of no merit. He testified that counsel was present at the Virginia proceedings, and his trial counsel below stipulated as to the record of those two convictions, which, on their face, demonstrated to the district court that he had been duly informed of his constitutional rights. There is no error as to the district court’s examination of the two prior Virginia State convictions, and as to its allowance into evidence of those records for impeachment purposes.

Finally Walling contends that the district court erred in not allowing into evidence the extrajudicial statements of Smith conveyed to a fellow county inmate, Pat Johnson, to the effect that Walling’s complicity in the crime was far less involved, and that Smith was, in some sense, the primary culprit in the case. See discussion, supra. Thus, the theory under which the hearsay would be admitted would be a declaration against Smith’s penal interest. The current law in this Circuit does not recognize the declaration against penal interest exception to the hearsay rule. Scolari v. United States, 406 F.2d 563 (9th Cir., 1969); cert, denied 395 U.S. 981, 89 S.Ct. 2140, 23 L. Ed.2d 769 (1969) adopted the rule expressed in Donnelly v. United States, 228 U.S. 243, 272-277, 33 S.Ct. 449, 57 L.Ed. 820 (1913) which disallowed that exception, and that posture has been reaffirmed recently in United States v. Lopez-Cruz, 470 F.2d 193 (9th Cir., 1972). The proposed Federal rules of evidence provides for the recognition of this exception, see Rule 804(b)(4), Rules of Evidence for United States Courts and Magistrates, but those rules were not to become effective until July 1, 1973, and recent developments suggest that their entering into force will be delayed even longer.

Notwithstanding the position in this Circuit on the penal interest exception, Walling suggests that the recent decision in Chambers v. State of Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L. Ed.2d 297 (1973) requires the invocation of this exception in this particular case. However, that case, on matters of law and fact, can be distinguished from the instant case. First, the Supreme Court expressly noted that its holding was to be limited to the “facts and circumstances” of that case, Chambers, supra 410 U.S. at 301, 93 S.Ct. at 1049, and it expressly refrained from deciding “whether, under other circumstances [the exclusion of some declaration against penal interest statements] might serve some valid state purpose by excluding untrustworthy testimony.” Chambers, supra 410 U.S. at 300, 93 S. Ct. at 1048. Second, the facts and circumstances of that case are in substantial variance with those in the instant case. The declarant in Chambers, McDonald, orally admitted, on three separate occasions to different friends shortly after the homicide in question, his direct responsibility for that crime. In contrast, the declarant here, Smith, orally admitted, on only one occasion to a fellow inmate long after the commission of the criminal act and prior to his own sentencing, of certain actions which only served to substantiate his own, already established, culpability, and which only mitigated, in part, the complicity of Walling in the offenses charged. Furthermore, McDonald also made a written confession as to his responsibility, and the Supreme Court was disturbed by the additional factor that Chambers was not allowed to examine McDonald as an adverse witness as to his past actions. These elements are noticeably absent in the instant case. Additionally, the Supreme Court noted that McDonald’s confessions were corroborated by other evidence in the case (including eyewitness accounts as to his complicity in the shooting); that the confessions were, in a very real sense, self-incriminatory, and unquestionably against interest; that the truthfulness of the extrajudicial statements could have been tested by cross-examination of McDonald who was available in the courtroom (comparing the situation in Donnelly, supra); and, finally, that McDonald’s testimony was “critical to Chambers’ defense.” Chambers, supra 410 U.S. at 310, 93 S.Ct. at 1049. Analogous factors of equally compelling weight were not present in the instant case, with the possible exception that Smith’s declaration might have been against his interest to an uncertain degree (however, in any event, the testimony of Schell and Deputy Fisher provided a substantial foundation for demonstrating Walling's complicity in the two offenses charged). Accordingly, this Court concludes that the facts and circumstances of this case are not such as to necessitate a departure from the Donnelly doctrine, and to require application of the narrow holding in Chambers, The background and development of the hearsay question in Walling’s case are not such that the hearsay rule’s application raises constitutional issues directly affecting the ascertainment of his guilt. Cf. Chambers, supra, 410 U.S. at 299, 93 S.Ct. at 1048-1049. Therefore, the district court did not err in initially precluding Johnson’s statements, or in refusing to continue the case until he could appear to testify.

The judgment of conviction as to both the conspiracy and the substantive counts is affirmed.

      . For a comparative discussion of the lines of decisions, see United States v. Allison, 414 F.2d 407, 411-412 (9th Cir., 1969) nn. 11 and 12; cert, denied 396 U.S. 968, 90 S. Ct. 449, 24 L.Ed.2d 433 (1969) ; cf. also United States v. Harper, 443 F.2d 911 (9th Cir., 1971) ; cert, denied 404 U.S. 851, 92 S. Ct. 87, 30 L.Ed.2d 90 (1971) with United States v. Haili, 443 F.2d 1295, 1298-1299 (9th Cir., 1971) ; United States v. Michaelson, 453 F.2d 1248, 1249 (9th Cir., 1972) ; and United States v. White, 463 F.2d 18, 20 (9th Cir., 1972) ; rehear, denied (1972) ; cert, denied 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 316 (1972).

      . On March 30, 1973, Congress declared that these rules shall have “no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress.” Pub.L.No.93-12, March 30, 1973.

      . Notwithstanding the erosion of the stance taken by this Court in Soolari, and the weakened character of Donnelly in general, a rejection of the doctrine expressed in the latter case would seem to be a disfavored resolution of the instant case for the following reasons: (1) the very limited and somewhat equivocal nature of Chambers on the declaration against penal interest exception to the hearsay rule; (2) the very obvious failure of the Supreme Court in Chambers to overrule Donnelly; (3) the suspended state of the proposed Federal rules of evidence which provide for the recognition of that exception; and (4) the nature of the instant case being such that the admissibility of the particular declaration against penal interest at issue would not be dispositive to the final outcome on appeal. Specifically, with respect to this last point, this case can be distinguished from Chambers in two particulars : (1) McDonald’s confessions were “corroborated by some other evidenceand (2) the Supreme Court found “persuasive assurances of trustworthiness” in the rejected testimony. 410 U.S. at 299 and 301, 93 S. Ct. at 1048 and 1049. Also, there is a very real question in this case as to the “availability” of Smith, as a declarant against penal interest, since there was at least a remote possibility that he might not consent to testify, as to any of his prior statements, prior to his sentencing. In sum then, the particulars of this case do not lend themselves to a ready disposition of the viability of the Donnelly doctrine in light of the overall impact of Chambers.


source: Caselaw Access Project

author: CLARK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie Fred BATY, Defendant-Appellant.
    No. 73-2391
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1973.
    Rehearing Denied Nov. 19, 1973.

      C. Lawrence Jewett, Atlanta, Ga. (Court appointed), for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Gale McKenzie, Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

      Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   CLARK, Circuit Judge:

Willie Fred Baty was tried before a jury and found guilty on two counts of unlawfully possessing material stolen from the mails with knowledge of its felonious character, in violation of 18 U.S.C. § 1708 (1970). The district court imposed concurrent three-year sentences. We affirm.

On the afternoon of September 8, 1972, Sgt. Larry West and his partner, Sgt. Gordon, both of the East Point, Georgia Police Department, were cruising in their patrol car when they received a radio dispatch reporting a residential burglary in progress and a companion look-out bulletin for two black males, one on foot and one in a car. As the officers arrived on the scene, they observed one black man at the wheel of an automobile that was leaving the driveway of the reported burglary site and another black man running away on foot. The latter, apprehended one block away, was the defendant, Willie Fred Baty. Sgt. West stopped the vehicle and asked the driver, Gary Williams, to step out and identify himself. As this was done, West saw a gun barrel protruding from beneath the armrest in the vehicle’s front seat. After retrieving this pistol, Sgt. West then proceeded to conduct a more thorough search, which uncovered another pistol beneath the driver’s seat. The search also produced, among other items, a driver’s license and the automobile’s registration in the name of Willie Fred Baty and two stolen checks, which lay partially exposed in opened envelopes beneath the vehicle’s floor mat. Baty was tried on a two-count indictment charging: (1) unlawful possession of a United States Treasury check, which had been stolen from the mail, knowing the same to have been stolen, and (2) unlawful possession of a commercial check, also stolen mail matter, knowing it to have been stolen from the United States Mail (emphasis added).

At the trial, James Therrell, the designated payee on the Treasury check, testified that he had received similar retirement checks through ' the mail every month for ten years until August 31, 1972, the date printed on the check described in Count I. The other check had been sent by certified mail to Alice G. Glover, who testified that she regularly received similar paychecks from Kelly Girl Services through the mail. Both payees confirmed that they had been expecting but never received these checks and that it was beyond the realm of possibility for the envelopes to have arrived at .their respective post office boxes and been mislaid thereafter. Both checks were found in envelopes bearing U.S. post marks and the envelope containing the cheek involved in Count II clearly disclosed its certified mail status.

Several days after the arrest, Anthony M. Cumberworth, a special investigator for the Postal Service, interviewed the defendant, who was incarcerated on burglary charges, in the detective’s office at the East Point Police Department. Cumberworth testified that, after he had identified himself and his mission and advised the defendant in detail of his Miranda rights, Baty voluntarily admitted his custody of the checks and stated Williams, his partner, knew nothing about them. Baty gave the postal investigator this story. He first encountered the checks when they fell out of the purse of a young female who had been in his car. At that time the checks were in unopened and sealed envelopes. The young woman, with whom Baty was only slightly acquainted, disclaimed ownership of the letters and told him to keep them. Because he knew that his passenger was not the addressee on either of the unopened envelopes, Baty surmised that they must have come from the mails. Although he originally intended to return them to the mails he confessed that, overtaken by greed, he had opened the envelopes in order to see if the checks could easily be cashed.

Before this court, Baty claims that the district court erred in (1) denying his motion to suppress the evidence seized from the automobile, (2) determining that his admissions were voluntary, (3) charging the jury about the facts that could properly be inferred from unexplained possession of recently stolen property, and (4) overruling defendant’s motion for directed verdict of acquittal.

Not only does Baty argue that the warrantless search of the automobile was unreasonable, but also that the officers’ failure to provide him with an inventory of items seized during the search, as required by Ga. Code Ann. § 27-302 (1972), rendered such fruits inadmissible at trial. In view of the burglary report and the officers’ personal observation of the automobile being driven from the reportedly burglarized premises by a driver meeting the general description of the burglars, the policemen were faced with the conditions precedent — probable cause and exigent circumstances — that validated and justified their subsequent actions in stopping the fleeing vehicle and investigating the suspicious circumstances. United States v. Allen, 472 F.2d 145 (5th Cir. 1973); United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972). Moreover, when confronted with the pistol barrel in plain view, Sgt. West was clearly warranted in entering the vehicle to retrieve the weapon. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Gulledge, 469 F.2d 713 (5th Cir. 1972); United States v. West, 460 F.2d 374 (5th Cir. 1972). Finally, the confirmed observation of the weapon supplied the officers with additional cause to suspect that the vehicle was linked to the reported crime and to conduct a more thorough search of its interior and trunk. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 41 (1970); United States v. Ragsdale, supra.

Assuming without deciding that a state fashioned exclusionary rule would bind a federal court to forestall the search for truth, there can be no error in admitting the subject evidence since Georgia courts have never held that a failure to furnish the defendant with the inventory required by Section 27-302 would operate to exclude the recovered evidence from the trial. Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972); Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971). Such an after-the-search procedural deficit is certainly not a violation of any Fourth Amendment right.

Baty next raises the incongruous contentions that the trial court erroneously found defendant’s admissions to be voluntary and admissible as evidence, and that if such admissions were properly received, they rendered the trial court’s jury charge improper. At a Jackson v. Denno hearing, Cumberworth testified that he advised Baty in detail as to his Miranda rights and that the defendant willingly entered into a discussion of the checks. Although Baty may have understandably been upset at his predicament, the trial court correctly determined from all the evidence that the admission was voluntary and that the jury should be allowed to hear the statements. United States v. Harvey, 483 F.2d 448 (5th Cir. 1973). Furthermore, Baty contends that the trial judge erred when he charged the jury it could infer that Baty had knowledge of the check’s illicit character from his unlawful and unexplained possession of them while they were recently stolen. This contention is wholly without merit under Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Following the command of Barnes, this court has unequivocally upheld use of an “unexplained possession” instruction where the fact of possession of recently stolen property is left inadequately explained. United States v. Jiminez, 484 F.2d 91 (5th Cir. 1973); United States v. Howard, 483 F.2d 229 (5th Cir. 1973). Baty’s possession of the checks was undisputed and such possession was explained only in the sense that his admission established that he knew them to have been stolen. While it is true that the portion of the court’s instruction informing the jury that participation in the larceny could be inferred from unexplained possession is not usually found in such directions, it was harmless here. It did not ascribe any greater guilty knowledge to Baty than would the usual charge of knowing possession. The jury was still left free to draw its own inferences from all the evidence. United States v. Roberts, 483 F.2d 226 (5th Cir. 1973).

Baty finally argues that the district court erred in rejecting his motion for a directed verdict of acquittal. On review of such motion, “the test is whether, taking the view most favorable to the Government, a reasonably minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” United States v. Hill, 442 F.2d 259, 261 (5th Cir. 1971). In United States v. Martinez, 466 F.2d 679 (5th Cir. 1972), we held that guilt under 18 U.S.C. § 1708, the statute involved here, is established when the government proves that the mailed material has actually been stolen from the mail and that the accused possessed the matter, knowing it to have been stolen. These two elements are reflected in Count I of the indictment. The government admits, however, that the second count, which also describes an offense within the parameters of Section 1708, contains wording that imposes a more rigorous burden of proof on the prosecution, since it alleges not simply that the defendant knew the mailed material was stolen, but that he knew it “to have been stolen from the United States Mail.” See United States v. Davis, 461 F.2d 83 (5th Cir. 1972), cert, denied, 409 U.S. 921, 93 S.Ct. 250, 34 L.Ed.2d 180 (1973); compare United States v. Trexler, 474 F.2d 369 (5th Cir. 1973). Because we find that the district court properly refused to direct a verdict of acquittal as to Count I, we inyoke the concurrent sentence doctrine so as to pre-termit consideration of appellant’s contentions with regard to Count II, and focus our examination instead on Count I and the evidence adduced thereunder. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956); Hira-bayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed 1774 (1943); MeKlemurry v. United States, 478 F.2d 1185 (5th Cir. 1973); United States v. Stone, 472 F.2d 909 .(5th Cir. 1973).

That the Treasury check, which was the subject of Count I, was actually stolen from the mails was adequately established by the testimony of the payee, Therrell, and by the undisputed fact that the instrument was recovered in its postmarked envelope. “While it may be theoretically possible that the [check was] stolen . . . after receipt, the prosecution need not affirmatively disprove every conceivable alternative theory. Where, as here, a letter containing a [check] was properly mailed and never received by the addressee but the [check] was found in quite improper and misusing hands it can be found that the [check] had been stolen from the mail in the absence of any other explanation being proffered.” United States v. Matzker, 473 F.2d 408, 411 (8th Cir. 1973) (citations omitted). See Wade v. United States, 457 F.2d 335 (9th Cir. 1972). In addition, Baty’s admission, the trustworthiness of which was adequately corroborated by the other independent evidence, United States v. Abigando, 439 F.2d 827, 832-833 (5th Cir. 1971); United States v. Seckler, 431 F.2d 642 (5th Cir. 1970), coupled with his unexplained possession of the recently purloined property, were circumstances from which the jury could reasonably conclude that he knew the checks had been stolen. United States v. Liggins, 451 F.2d 577 (8th Cir. 1971). Consequently, there was more than sufficient evidence to support Baty’s conviction on Count I. United States v. Roberts, supra.

The decision of the district court is

Affirmed.


author: PER CURIAM: JAMES M. CARTER, Circuit Judge

text:
    Albert V. FRISBY, Plaintiff-Appellee, v. General Stanley LARSEN et al., Defendants-Appellants.
    No. 71-2771.
    United States Court of Appeals, Ninth Circuit.
    Aug. 31. 1973.
    Rehearing and Rehearing En Banc Denied Nov. 28, 1973.
    Capt. Stephen D. Petersen (argued), 6th U.S. Army Office of the Staff Judge Advocate, James L. Browning, Jr., U. S. Atty., Janet Aitken, John F. Cooney, Jr., F. Steele Langford, Frederic F. Tilton, Asst. U. S. Attys., San Francisco, Cal., for defendants-appellants.
    Richard L. Romano (argued), San Francisco, Cal., for plaintiff-appellee.
   OPINION

Before MERRILL and CARTER, Circuit Judges, and EAST, District Judge.

PER CURIAM:

The petitioner-appellee Frisby was inducted into the Army on June 8, 1970. He became conscientiously opposed to personal armed combat and applied for reassignment to non-combatant duties under (AR) 600-200. To support the application Frisby presented his statements and documentary evidence communicating and expostulating his religious belief in existence of and the Deity’s establishment and sanctification of all life. The Army officials found Fris-by’s religious beliefs to be “sincerely and deeply” held, speedily approved and reassigned him to training as a medical corpsman on November 25 following.

After some days of exposure to the reassignment duties and his readings of Army field manuals, Frisby concluded that he as a medical corpsman in combat would be involved not as a humanitarian helping the sick and wounded generally, but on the contrary he would be actively assisting the combat operations under order to favor “those patients who can be returned to immediate duty, rather than those more seriously injured.”

Frisby thereupon applied for discharge under (AR) 635-20 on the following December 14th. A hearing officer found Frisby to be “insincere” in his beliefs as asserted, and extended, and the Conscientious Objector Review Board (CORB) on April 12, 1971, accepted the hearing officer’s finding and rationale in denying the application for the reason that Frisby lacked the “depth of conviction to qualify for discharge.”

The hearing officer’s finding of “insincerity” of religious beliefs was based upon essentially the same evidence and is completely at variance with the Army officials’ findings and conclusions in granting the status of conscientious objector to Frisby only a few weeks before and cannot stand.

The extension of Frisby’s religious beliefs in opposition to personal combat duties to include the duties as a medical corpsman, involves a personalized reading of the Army field manuals and understanding of the duties required, and is a recognized permissible concept. United States v. Newton, 435 F.2d 671 (9th Cir. 1970).

Frisby’s statements and documentary evidence before the hearing officer presented a prima facie showing of his personalized rational extension of his religious belief. The record before the hearing officer and CORB is devoid of any evidence in opposition to Frisby’s statement and documentary evidence in support of the prima facie case. The hearing officer’s appraisal of Frisby’s presentation and appearance which caused him to disbelieve Frisby has no factual foundation in the record. The timing, or brief lapse of time between Frisby’s two applications is not viable or probative evidence in and of itself to support any inference adverse to Fris-by’s “sincerely and deeply” held religious beliefs. Newton, supra, at 674.

We conclude that the hearing officer’s findings of insincerity are not supported by any evidence and were arbitrarily made and further that CORB’s denial of Frisby’s application for discharge was unlawful and invalid. Newton, supra. The District Court’s order granting writ of habeas corpus entered on August 4, 1971, 330 F.Supp. 545, is affirmed.

JAMES M. CARTER, Circuit Judge

(dissenting):

This is an appeal from the district court’s grant of a writ of habeas corpus to an in-service conscientious objector. Frisby v. Larsen (N.D.Cal.1971) 330 F. Supp. 545. The majority has sustained the action of the district court.

Two principal questions are involved:

(1) Was there a basis in fact for the military’s decision not to grant appellee Frisby a I-O classification, within five months of granting him a I-A-O [noncombatant] classification ?

(2) May demeanor evidence alone provide a basis in fact?

Respectfully disagreeing with the majority, I dissent and would reverse, answering both questions in the affirmative.

Facts

Frisby was inducted into the Army on June 8, 1970. On August 9, 1970, he completed basic combat training and was assigned to another post for advanced infantry training. The next day, August 10, he applied for in-service noncombatant status as a I-A-O conscientious objector. This application was approved by the designee of the Secretary of the Army on November 25, 1970, and Frisby was so notified on or about December 1, 1970.

Frisby was then to be assigned for training as a medical corpsman. He looked through a manual for medics, and came to the position that he could not support the taking of lives through duty as a medic. As of December 9, 1970— eight days after he was notified of his I-A-O classification — Frisby had begun gathering letters in support of an application for a I-O classification [conscientious objection to any participation in war], which would, if granted, require his discharge from the Army.

During the processing of this new application, a psychiatrist found Frisby had no mental disorder, and a chaplain said Frisby’s objection to any form of service was sincere, and based on “personal moral persuasions.”

Captain Martin Heming, Judge Advocate General’s Corps, the O-3 hearing officer, after interviewing Frisby, rejected his application on four grounds: (1) lack of sincerity, based on observation of Frisby’s demeanor at the hearing, and his apparently rote-learned answers to difficult questions; (2) sudden change from his I-A-O beliefs; (3) the mechanical nature of his responses to questions, and lack of effort to answer; and (4) his apparently flippant attitude that it would be nicer to be out of the Army than in it. On administrative review, both Frisby’s company commander, Captain Newman, and his battalion commander, Lt. Col. Andersen, interviewed him, and endorsed the O-3 hearing officer’s strong recommendation for disapproval of the application.

Relying on the three officers’ views, the Conscientious Objector Review Board (CORB) denied the application on April 12, 1971. The CORB specifically set out the O-3 officer’s findings and relied upon them. Frisby filed this petition for a writ of habeas corpus on April 27, 1971, which was granted on August 4, 1971.

Basis in Fact

The district court stated that Frisby’s case “was one of unusual strength. . ” 330 F.Supp. at 547. It found that “ . . . his present beliefs . were expressed by his applications in a manner both simple and on occasion eloquent,” and quoted parts of the application. Id. at 546 and n. 2. The court proceeded to hold “ . . . that the ‘basis in fact’ [must] be ‘rational’, consist of ‘hard, provable, reliable facts’, and be evaluated with reference to the strength of countervailing evidence in the record.’’ Id. at 549 [footnotes omitted ; emphasis added].

It is in the italicized portion of this holding that the district court fell into error. It cited two district court cases, id. at n. 16, for this impermissible weighing of the evidence. One of those cases is reported. Shirer v. Hackel (N. D.Cal.1970) 330 F.Supp. 369. It is by the same district judge, and states:

“The ‘basis in fact’ required to uphold the agency finding must therefore vary in strength according to the persuasiveness of the prima facie case made by the applicant. Maynard v. United States, 9 Cir., 409 F.2d 505 (1969) [cert, den., 396 U.S. 834, 90 S. Ct. 91, 24 L.Ed.2d 85].” Id., 330 F. Supp. at 370.

The Maynard case, upon which the district court relied in this case, through Shirer, does not support the proposition for which it was used. Maynard correctly states that judicial review of selective service classifications is “the narrowest known to the law.” All that is required is that the agency determination have a “basis in fact” which “need not even rise to the level of ‘substantial evidence.’ ” Maynard, supra, 409 F.2d at 506. It then goes on to say that a basis in fact exists for the agency determination, where, although the registrant has made out a prima facie case for exemption, there is “some proof that is incompatible with the registrant’s proof of exemption.” Ibid., quoting Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132 (1953). Then comes the key statement, apparently misinterpreted by the district court below: “The nature of such proof depends upon the nature of the prima facie case.” Ibid.

The district court apparently read “nature” to mean that the level or weight, rather than type, of the evidence against the registrant, must vary with the strength, rather than type, of the registrants prima facie case. How else can one explain the district court’s statement that the basis in fact must “be evaluated with reference to the strength of countervailing evidence in the record” ? 330 F.Supp. at 549.

This interpretation is incorrect. Maynard cited Dickinson, which was a ministerial exemption case. Maynard then went on to quote from Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 99 L.Ed. 428 (1955), to the effect that objective evidence must appear to counter a ministerial exemption, because the question in those cases is an objective one, namely, whether or not the registrant is in fact a minister. But Wit-mer points out that in the conscientious objector cases such as ours, the question is a subjective one — whether or not the registrant is sincere. The following language from Witmer is quoted in Maynard, but ignored by the district court:

“Here [in C.O. eases] the registrant cannot make out a prima facie case from objective facts alone, because the ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. In these cases, objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question. In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant.” Witmer, supra, 348 U.S. at 381-382, 75 S.Ct. at 396.

Obviously, then, as Maynard held, if the administrative file in a conscientious objector case contains credible contradictory evidence concerning the registrant’s sincerity, the court must concede the agency’s findings based on that evidence. The court is not permitted to re-weigh the evidence, which is the exclusive province of the agency. Witmer, supra, 348 U.S. at 380-381, 75 S.Ct. at 395, so holds:

“It is well to remember that it is not for the courts to sit as super draft boards, substituting their judgments on the weight of the evidence for those of the designated agencies. Nor should they look for substantial evidence to support such determinations. The classification can be overturned only if it has ‘no basis in fact.’ ”

To similar effect is id. at 383, 75 S.Ct. 392; see Speer v. Hedrick (9 Cir. 1969) 419 F.2d 804, 806 (per curiam).

Further examination of the district court’s opinion below shows that it im-permissibly weighed evidence. For example, after referring to the conclusions and reasons of the O-3 hearing officer, which were adopted by the CORB, the court said:

“The written record tells us nothing of applicant’s demeanor, and shows nothing that is mechanical or rehearsed about petitioner’s expression of his own beliefs. See United States v. Jagla, 330 F.Supp. 962 (N.D.Cal. 1970); see also United States v. Newton, 435 F.2d 671 (9 Cir. 1970).” Frisby, 330 F.Supp. at 548.

The district court apparently felt it could weigh demeanor evidence against the written record. This contrasts sharply with the following statement from Witmer, supra, 348 U.S. at 382, 75 S.Ct. at 396:

“If, as here [in C.O. cases], the issue is the registrant’s sincerity and good faith belief, then there must be some inference of insincerity or bad faith.
“Since Witmer stated his beliefs with apparent sincerity, and since we find no indication anywhere in the record that his demeanor appeared shifty or evasive or that his appearance was one of unreliability, we must examine the objective facts before the Appeal Board to see whether they cast doubt on the sincerity of his claim.”

Such language makes clear that demean- or evidence can suffice to negate a registrant’s C.O. claim. Furthermore, once such evidence appears, a court may not proceed to weigh it against other evidence, and need not search into the written record for objective facts indicative of insincerity. Credibility and demean- or are for the agency to pass on. United States v. Evans (9 Cir. 1970) 425 F. 2d 302, 305, cert, den., 402 U.S. 987, 91 S.Ct. 1648, 29 L.Ed.2d 153 (1971). The district court therefore improperly broadened the scope of its review.

Demeanor Evidence

The use of demeanor evidence on the sincerity question is proper. White v. United States (9 Cir. 1954) 215 F.2d 782, 786-787, cert, den., 348 U.S. 970, 75 S.Ct. 528, 99 L.Ed. 755 (1955); United States v. Evans, supra. However, the agency may not merely state that it found the applicant insincere. United States v. Haughton (9 Cir. 1969) 413 F. 2d 736, 739, 742-743; United States v. French (9 Cir. 1970) 429 F.2d 391. At the minimum, the objective record must state that the hearing officer expressly rejected testimony on demeanor grounds. United States ex rel. Checkman v. Laird (2 Cir. 1972) 469 F.2d 773, 785 n. 17; see United States v. Newton (9 Cir. 1970) 435 F.2d 671, 674. Reasons must be stated — at least the grounds indicating the conclusion reached. Laird, supra, 469 F.2d at 781; Witmer, supra, 348 U.S. at 381-382, 75 S.Ct. 392. See United States v. Guaraldi (9 Cir. 1972) 468 F.2d 774, 776 (hardship grounds).

In denying Frisby’s I-O application, each of the three interviewing officers rested his decision upon demeanor grounds. The CORB itself specifically relied upon the O-3 officer’s findings, including demeanor, method of presentation of answers, rote learning, and flippant attitude. The Army thus met and exceeded all the above requirements. The CORB cited United States v. Corliss (2 Cir. 1960) 280 F.2d 808, cert, den., 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105, where it was said:

“[D]enial may also rest on a disbelief in the sincerity of the claim, unaccompanied by any inconsistent facts, provided the disbelief is honest and rational.” Id. at 814.

This clearly is the proper interpretation of Witmer, supra. Nothing in the record indicates any lack of honesty or rationality in the Army’s decision herein. Denial was based upon insincerity, expressly grounded on specified demean- or evidence.

Agencies have some power to reject testimony on demeanor grounds, else why would Congress empower them to make findings of fact? Patently, demeanor cannot be easily reflected in the written record. It is observation of a witness by the trier of fact. Such observation is at best very difficult to describe in writing; the hearing officer here did his best, we must assume, to indicate why he disbelieved Frisby.

The district court could have granted the writ only by completely ignoring the Army’s findings based on demeanor evidence. Such a result is contrary to the Supreme Court’s mandate that courts do not sit as “super draft boards.” Wit-mer, supra, 348 U.S. at 380, 75 S.Ct. 392. The majority’s affirmance means that credibility in C.O. cases is now to be judged solely on a written record, thus emasculating one of the central purposes for which classification hearings in C.O. cases are held.

Accordingly, I would reverse the granting of the writ.

       Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

      . The two eases cited here by the district court do not support its position. In United States v. Jagla (N.D.Cal.1970) 330 F. Supp. 962, 964-965, a district court found that it could not properly review a record denying conscientious objector status based on the draft board’s review of the file and “registrants [sic] demeanor and responses to questions at the personal appearance . .” Id. at 964. It noted that the board did not say that the registrant’s statements were inconsistent “or that he was unduly shifty or evasive, or otherwise left the board with the firm conviction that he was insincere . . . . ” Id. at 965. The court went on to say that a local board’s evaluation of a registrant’s demeanor is suspect because it may misinterpret the registrant’s demeanor. Clearly Jagla goes beyond Witmer, supra, to an impermissible re-evaluation of the evidence, and should not be followed. Moreover, Jagla is inapposite here, where Frisby’s hearing officer expressly gave reasons for his demeanor determination.
      The district court also relied upon United States v. Newton (9 Cir. 1970) 435 F.2d 671. In that case, the hearing officer found the registrant insincere, but “made no statement whatsoever regarding [the 'registrant’s] demeanor or even that the demeanor influenced him in any way.” Id. at 674. Newton is clearly inapplicable to our case, where the hearing officer expressly rested his decision upon described elements of demeanor evidence.

      . In Corliss, supra, the Second Circuit noted the problem with these words :
      “The Court in effect must determine, as best it can, whether the Local Board or the hearing officer and, ultimately, the Appeal Board were rational and sincere in disbelieving the sincerity of registrant’s belief in the absence of conduct inconsistent with the registrant’s assertion, and this on a record always cold and often thin. The dilemma is a cruel one . ” (Conviction affirmed.) 280 F.2d at 814-815. [Footnote omitted.] Congress and the Supreme Court have entrusted the weighing of facts, including demeanor, to the agency. Witmer, supra. Only by honoring agency determinations of demeanor can the courts avoid exceeding their mandate by second-guessing the agency.


author: WALLACE, Circuit Judge: ALFRED T. GOODWIN, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. SYSTRON-DONNER CORPORATION, Defendant-Appellant.
    No. 71-1455.
    United States Court of Appeals, Ninth Circuit.
    Sept. 27, 1973.

      Harold C. Nachtrieb (argued), of Miller, Groezinger, Pettit, Evers & Martin, San Francisco, Cal., Lingel H. Winters, Gen. Counsel, Systron-Donner Corp., Concord, Cal., for defendant-appellant.
    Walter H. Fleischer (argued), L. Patrick Gray, III, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., Peter R. Goldschmidt, Asst. U. S. Atty., San Francisco, Cal., Thomas J. Press, Michael C. Farrar, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before GOODWIN and WALLACE, Circuit Judges, and CURTIS, District Judge.

       Honorable Jesse W. Curtis, Jr., United States District Judge, Los Angeles, California, sitting by designation.

   WALLACE, Circuit Judge:

The United States brought suit against Systron-Donner Corporation, a California corporation, alleging common-law fraud, charging violations of the False Claims Act, and seeking recovery of money paid by mistake. The district court dismissed the fraud and False Claims Act counts but, after a court trial, allowed the United States to recover $39,681.46 under the common-law doctrine of payment by mistake. Systron-Donner appeals and we reverse.

During 1959 and 1960, the Department of the Navy awarded to the Lockheed Aircraft Corporation, Missiles and Space Company (Lockheed) four cost-plus-fixed-fee contracts for the production of the Polaris missile. Thereafter Lockheed awarded Systron-Donner three subcontracts for the production of 206 ignition programmers. Unlike the cost-plus prime contract, these subcontracts were for a fixed price. Systron-Donner submitted a price proposal or offer to Lockheed during the formation of the subcontracts. After a period of negotiation, a reduced unit price was agreed upon.

The original price proposal contained cost breakdowns for various items. These breakdowns included certain erroneous double entries for material and hardware, aggregating $39,681.46 for the 206 programmers. Lockheed did not know of this mistake inclusion when it entered into the fixed unit price subcontracts although it had reviewed the proposal before awarding them to Systron-Donner. Thus the final unit price agreed upon may have included the, value of the double entries and the United States would have paid Lockheed that additional amount, as part of its cost, plus a fixed fee.

The district court entered judgment for the government for the full amount of $39,681.46. It reasoned that the United States labored under an erroneous belief that the unit price did not include double charges, that this mistake was material to the payment of the contract price because the government would not have paid had it known the true facts, and that, therefore, the United States should recover the amount paid due to mistake. Although Sys-tron-Donner questions the factual findings of the trial court as not supported by the evidence, it did not sustain its burden to show them to be clearly erroneous. The only remaining question is one of law.

Undoubtedly the common-law remedy of payment by mistake is available to the United States independent of its statutory remedies. “The Government by appropriate action can recover funds which its agents have wrongfully, erroneously, or illegally paid.” United States v. Wurts, 303 U.S. 414, 415, 58 S.Ct. 637, 638, 82 L.Ed. 932 (1938). “If the government made these payments under an erroneous belief which was material to the decision to pay, it is entitled to recover the payments.” United States v. Mead, 426 F.2d 118, 124 (9th Cir. 1970). However, the payments in Wurts were income tax refunds and those in Mead were made to farmers pursuant to a conservation program. Here we are concerned with payments under the terms of negotiated contracts. The question is whether the result should be different.

The right of restitution due to a mistake in payment prevents the unjust enrichment of the payee at the expense of the payor. Thus a payment made pursuant to the terms of a supposed contract or a mistaken belief in the existence of a non-contractual duty can be recovered. See Restatement of Restitution §§ 15, 19 (1937). However, that theory does not apply here because these contracts are not supposed or non-existent. The parties did not lack the capacity to contract and the objects of the contracts were not illegal. The critical point is that unless Systron-Donner was unjustly enriched, the United States cannot recover in restitution. See Restatement of Restitution §§ 1, 12, 60 (1937). Therefore, we must first determine whether Systron-Donner was unjustly enriched.

The claimed injustice derives from Systron-Donner’s non-fraudulent duplication of cost entries in the computation of its offer for a fixed-price contract. In other words, the company made a unilateral mistake in the formation of its bid. The mistaken calculation of a subcontractor’s bid does not of itself render a contract voidable. There is still an objective agreement as to the terms of the contract. See Restatement of Contracts § 503 (1932); 3 Corbin on Contracts § 609, at 679 (1960). Under similar circumstances, courts have enforced a contract against the mistake maker, holding him to the terms of his low bid on construction contracts or his high bid for the sale of scrap or surplus property. Where the contractual bid has been accepted, the courts have allowed the offeree the benefit of the bargain to the detriment of the bidder.

Systron-Donner presents the opposite problem: should the bidder be allowed the benefit of the bargain when he mistakenly overbids rather than underbids? The government contends this is a one-way street. If the subcontractor’s mistake results in an accepted bid too low, he may not complain; but if his mistake results in an accepted bid too high, the contractor may recover from the subcontractor. When equitable powers are involved, close scrutiny must be given to a result which appears to be inequitable.

Not unexpectedly, we have found no reported cases where someone attempted to rescind an overbid subcontract, probably because the overbid would not be the lowest bid and would seldom be accepted. But if someone offers to do a $300 job for $500 and that bid is accepted, there seems to be no basis in law or logic, absent fraud, for denying the bidder his profit. He may be enriched, but not unjustly so. The presence of the government as a party to the prime contract should not affect that result.

Reversed and remanded.

ALFRED T. GOODWIN, Circuit Judge

(dissenting):

Because the case is not one likely to occur again (Congress has closed the gate) I have been reluctant to record my dissent. But I believe the district court correctly perceived the problem and reached the right result. I would affirm.

Here there was no competitive bidding between Lockheed’s suppliers, so the usual safeguards of the market place do not even in theory protect Lockheed’s ultimate purchaser against overcharges. Systron-Donner’s argument is that its bid to Lockheed became a contract, and that when Lockheed agreed to pay the contract price, that price, with all its faults, became the “cost” item to be calculated in the cost-plus statement Lockheed rendered to the United States.

The majority accepts too easily the argument that Lockheed could not recover the overcharge from Systron-Donner, and that therefore the cost item is immutable when passed along to the government. I might be willing to accept this argument if Systron-Donner had been the winner of a bidding competition with other subcontractors. There would then be some reason to say that Lockheed was not injured by the overcharge because the next lowest bidder would have charged even more. But here, Lockheed would have been injured by the overcharge but for the willingness of the government to buy hardware on a cost-plus basis. The majority’s decision not only provides no incentive to contractors and subcontractors to audit their bids carefully, but it tends to reward the careless with unanticipated profits as the result of a want of attention to detail. If, as a result of a misunderstanding on the part of Lockheed, Lockheed had overcharged the Government because of Lockheed’s error in computing the amount due Systron-Donner rather than Lockheed’s actual cost, the Government could recover this overpayment, presumably even following it into the hands of Systron-Donner if the payment had been erroneously passed on. See, United States v. Mead, 426 F.2d 118 (9th Cir. 1970).

Unless the interest, which would be protected by enforcing contracts outweigh society’s interests in the public treasure, the burial of a cost item erroneously in a contract should not be permitted to displace the equitable remedy of restitution for payment made by mistake. Here, I believe the equities lie with the government.

Systron-Donner asserts that its expectation interests, i.e., that it receive the full contract price, including the $39,000 which the district court found to be attributable to double counting, are protected by and should prevail under the rule of law which holds that a unilateral mistake in the formation of a contract bid does not affect the enforceability of an otherwise valid contract. But few rules of law are so well-established that they may not be called upon to justify their existence when the reason for the rule may no longer exist.

Where the ultimate victim of the mistake has agreed to pay cost, equity should require that the costs be genuine and that the party who made the mistake not be allowed to profit from it.

      . 31 U.S.C. § 231 et seq.

      . The district court had jurisdiction under 28 U.S.C. § 1345. We have jurisdiction of the appeal from its final judgment. 28 U.S.C. § 1291.

      . The reduction in the contract price for the 206 units ($93,925.70) was more than twice as large as the duplicate charges in Systron-Donner’s proposal for which the government seeks repayment. There is no indication whether or not this reduction may have compensated for the duplication.

      . Systron-Donner also raised a standing or privity question. As the government was not a party to the Lockheed contract with Systron-Donner, the question is properly raised as to whether the government can maintain this action. It did not preserve the right by appropriate requirements in its prime contract with Lockheed. It did not join Lockheed in this action.
      It may well be that the government can find a basis for standing due to the expenditure of government funds through another party. See Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 120-122, 74 S.Ct. 403, 98 L.Ed. 546 (1954) ; United States ex rel. Marcus v. Hess, 317 U.S. 537, 544, 63 S.Ct. 379, 87 L.Ed. 443 (1943). It may also be that application of third-party beneficiary law would be of assistance to the government. However, we are not disposed to reach that question because we choose to reverse on other grounds.

      . See, e. g., False Claims Act, 31 U.S.C. § 231 et seq. The pricing-mistake provisions of 10 U.S.C. § 2306(f) (as amended by Act of Sept. 10, 1962, Pub.L. No. 87,653, § 1(d), 76 Stat. 528) are not applicable to these contracts which were formalized prior to the effective date of the amendment.

      . The unilateral mistake was one of computation. It was entirely antecedent to the offer communicated to Lockheed. The actual offer made was the one Systron-Donner actually intended, and the negotiations concerned this superseding offer. If either Lockheed or the government mistakenly paid too much, there was no mutual mistake, but rather differing mistakes. Mistakes of both parties do not render a contract voidable if they relate to different matters.

      . See, e. g., Allied Contractors, Inc. v. United States, 310 F.2d 945, 946, 159 Ct.Cl. 548 (1962) ; United States v. Conti, 119 F.2d 652, 656 (1st Cir. 1941).

      . See, e. g., Wender Presses, Inc. v. United States, 343 F.2d 961, 962, 170 Ct.Cl. 483 (1965) ; United States v. Sabin Metal Corp., 151 F.Supp. 683, 688 (S.D.N.Y.1957), aff’d, 253 F.2d 956 (2d Cir. 1958).


author: GERALD McLAUGHLIN, Circuit Judge. ROSENN, Circuit Judge

text:
    Frank R. CICCARONE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-2043.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 11, 1973.
    Decided Oct. 18, 1973.
    As Amended Nov. 19, 1973.

      See also, D.C., 52 F.R.D. 142.
    N. Carl Schwartz, Merion, Pa., for plaintiff-appellant.
    Robert E. J. Curran, U. S. Atty., James C. Sommar, Asst. U. S. Atty, Philadelphia, Pa., for defendant-appellee.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This is an appeal from a judgment of the district court for the Eastern District of Pennsylvania denying plaintiff’s claim for relief under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b) and 2671-2680 for alleged medical malpractice on the part of certain physicians employed by the United States of America at the Veterans Administration Hospital, Coatesville, Pennsylvania (V. A. Hospital). The facts which are pertinent to this appeal are as follows.

In September of 1945, plaintiff-appellant (appellant) was on active duty with the United States Army. On one occasion during this time while appellant was travelling in an army jeep, an accident occurred and he was thrown from the vehicle. Shortly thereafter, he developed a case of acute meningitis which resulted in his hospitalization until December 8, 1945. In 1956, 1961 and 1962 he was confined as an inpatient for approximately thirty days in non-governmental hospitals for recurrent bacterial meningitis. On May 8, 1963, he was admitted to the above mentioned V. A. Hospital for observation and evaluation. The purpose of that hospital stay was to determine possible causes of the recurrence of meningitis and to develop a course of treatment which might have prevented such recurrences.

Following appellant’s temporary discharge from the V. A. Hospital on June 28, 1963, a V. A. Hospital staff neurologist prepared an elaborate and detailed written plan which purported to ascertain the causes of the meningitis attacks. In view of the fact that appellant had suffered numerous attacks of sinusitis, the neurologist deemed it essential to explore the possibility that bacteria was being transmitted from the sinuses to the area where meningitis is found by way of a cerebro-spinal fluid leak. In order to make such a determination, the neurologist’s plan suggested a three-phase diagnostic procedure: (1) the appellant’s nose was to be packed with surgical gauze; (2) a methylene blue dye was to be injected into his spinal column; and (3) if the blue dye were subsequently to appear on the gauze, it would have indicated the existence of a passage through which bacteria was entering the spinal column and corrective surgery would then be used in order to block the passage. The plan was submitted to and approved by the V. A. Hospital’s Chief of Staff.

On July 14, 1963, the proposed plan of treatment was explained to appellant and his wife and they consented to have the procedure performed although they did not execute any formal written authorization. On the morning of July 16, 1963, the diagnostic procedure was carried out in accordance with the approved plan. Appellant rested on the operating table for a short period of time following the completion of the procedure. He then was helped off the operating table, stepped on to the floor, reached for his shoes, fell and struck the bridge of his nose on the floor causing bleeding and a mild fracture of the left nasal bone. At approximately 4:00 P.M. on July 16, 1963, appellant complained of a back pain at the site of the injection of the methylene blue dye and numbness of his legs. He also stated that he was unable to walk because of the severity of the pain. The next day, appellant was unable to walk or stand. He had a feeling of “heaviness” and a burning sensation throughout the lower portions of his body. His lower extremities were flaccid and he could not raise either foot. His condition persisted until September 15, 1963 at which time some improvement was noticed. Thereafter, on November 1, 1963, he was discharged from the V. A. Hospital and he was advised to continue physical therapy at home.

Following appellant’s discharge from the V. A. Hospital on November 1, 1963, he sporadically visited its outpatient department for treatment. Between November 1, 1963 and July 8, 1965, he also consulted several government and non-government physicians concerning his condition. On July 7, 1965, appellant informed the V. A. Hospital neurologist then assigned to his case that he was dissatisfied with the methylene blue dye procedure performed on him and that the procedure had caused a drastic change in his physical condition. Although the neurologist assured appellant that the methylene blue dye method was an accepted diagnostic procedure which had been performed for many years, the neurologist never claimed that appellant would recover completely.

On September 29, 1967, appellant filed suit. A nonjury trial was held to determine the issue of liability. The trial court held, inter alia, that (1) the Federal Tort Claims Act, 28 U.S.C. § 2401(b) which provides for a two year period of limitations barred appellant’s claim for relief because of his failure to institute his cause of action within the statutory period and that any circumstances which occurred after July 16, 1963 were plainly insufficient to justify the tolling of the statute of limitations; and (2) there was no malpractice or negligence on the part of the United States acting through its agents, servants and employees at the V. A. Hospital.

The threshold question presented for review by this court is whether the limitation of actions provision of the Federal Tort Claims Act barred recovery for alleged medical malpractice by the agents, servants or employees of the United States at the V. A. Hospital. Section 2401(b) of the Federal Tort Claims Act provides that “a tort claim against the United States shall be forever barred unless it is presented to the appropriate Federal agency within two years after such claim accrues * * The allegedly negligent act of the United States occurred on July 16, 1963 when methylene blue dye was injected into appellant’s spinal column. His suit was commenced on September 29, 1967, more than four years after the date of his alleged injury.

In a cause of action founded on alleged medical malpractice, it is incumbent on the trier of fact to determine the point in time when the “claim accrues”. In making such a determination, principles of federal law, not state law, are to be applied. Mendiola v. United States, 401 F.2d 695 (5th Cir. 1968); Kossick v. United States, 330 F. 2d 933 (2d Cir. 1964); Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962). The two year statute of limitations begins to run when a trauma coincides with the negligent act and some damage is discernible at the time, even though the ultimate damage is unknown or unpredictable. Beech v. United States, 345 F.2d 872 (5th Cir. 1965); Keleket X-ray Corporation v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167 (1960); Tinkoff v. United States, 211 F.2d 890 (7th Cir. 1954). Damages are discernible when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice. Quinton v. United States, 304 F.2d 234, 236 (5th Cir. 1962).

However, there are .instances where the statute will be tolled. For example, in Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1963), it was held that “blameless ignorance” on the part of the claimant would justify the tolling of the statute. And it has been held that as long as the physician-patient relationship continues, the statute will be tolled. Ashley v. United States, 413 F.2d 490 (9th Cir. 1969); Brown v. United States, 353 F.2d 578 (9th Cir. 1965). The rationale for this latter proposition is that the claimant is entitled to place trust and confidence in his physician and that this relationship excuses the claimant from challenging the quality of care he is receiving from his physician until this confidential relationship terminates. Brown v. United States, supra at 580.

The trial court found that appellant was aware of the deterioration in his health immediately following the methylene blue dye procedure. It also found that he had discussed the procedure and its after-effects with competent legal counsel at some point during the two years following July 16, 1963. These findings, coupled with the fact that appellant’s medical history clearly demonstrates that he was not unskilled in matters of ill-health and their effects on his physical condition, substantiate the trial court’s rejection of appellant’s contention that the statute of limitations should have been tolled because of his blameless ignorance.

In the alternative, appellant has suggested that by virtue of the continuous treatment he received at the V. A. Hospital during the period of time following July 16, 1963 and the nature of his confidential relationship with the government physicians, the statute of limitations was tolled. We disagree with these propositions.

On July 16, 1963, a certain staff neurologist at the V. A. Hospital injected appellant with methylene blue dye. On August 6, 1963, not only did the personal treatment of appellant by this individual physician cease but there was no allegedly negligent activity by any government physician after that date. Therefore, August 6, 1963 was the date on which appellant’s continuous treatment terminated and his duty to diligently investigate the deleterious consequences of that treatment arose. His failure to pursue his remedy within two years of that date operates as bar to recovery.

In Ashley v. United States, supra at 493, the court stated that the continued existence of the physician-patient relationship tolls the statute of limitations “because it was thought that a private physician, knowing of his actionable mistake, might be able to conceal it from his patient or continuously to lull the patient into failing to institute suit within the ordinarily permissible time period.” This concept is applicable to malpractice causes of action, but not to the instant case. For, “to apply such a rationale [concept] in this case would be unrealistically to imagine that a government physician in a Veterans hospital would be able to conspire successfully with all other government physicians and medical attendants who direct their attention to patients * * *.” Ashley v. United States, supra at 493.

As we stated above, it is the continued existence of the physician-patient relationship which tolls the statute of limitations. Once this personal, confidential relationship terminates, the patient must exercise diligence in seeking a remedy for any suspected wrongdoing on the part of his physician. The trial court found that appellant had consulted with and confided in several government and private physicians after the events of July 16, 1963. It was therefore proper for the trial court to infer that appellant had knowingly and voluntarily terminated the physician-patient relationship and that the statute of limitations was not tolled.

The remaining issue before us may be dealt with briefly. Although we stated above that principles of federal law govern the statute of limitations provision of the Federal Tort Claims Act, it is the substantive law of the State wherein the cause of action accrues which governs the liability of the United States on claims brought under the Federal Tort Claims Act. The court below, in applying the substantive law of the Commonwealth of Pennsylvania, found that, notwithstanding the statutory bar created by the running of the statute of limitations, there was no negligence on the part of the United States. There is nothing in the record to persuade us that the trial court’s findings were clearly erroneous. See Ciccarone v. United States, 350 F.Supp. 554 (E.D. Pa.1972).

For the reasons set forth herein, the judgment of the district court will be affirmed in its entirety.

ROSENN, Circuit Judge

(concurring) .

I have grave reservations that the findings of the district court with respect to the absence of malpractice in the intrathecal injection of methylene blue into the appellant’s spinal column and the presence of an informed consent by him to the surgical procedure were not clearly erroneous. I would not reach these issues in the disposition of this case, however, since the appellant’s action for damages is unfortunately barred by the two year statute of limitations of the Federal Tort Claims Act. Like the majority, I am persuaded that before September 29, 1965, appellant discovered or reasonably should have discovered the acts constituting such alleged malpractice. Cf. Tyminski v. United States, 481 F.2d 257 (3d Cir., 1973). I therefore concur.

      . Although the Supreme Court applied the “blameless ignorance” theory to the then-in-effect three year statute of limitations on claims brought under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., this theory is applicable to the limitation of actions provision of the Federal Tort Claims Act.