author: LARAMORE, Senior Judge.

text:
    AMERICAN DIVER’S SUPPLY AND MANUFACTURING CORPORATION, a Colorado corporation, Bankrupt, Pacific Indemnity Company, Petitioner on Review-Appellee, v. Jon D. BOLTZ, Trustee, Respondent on Review-Appellant.
    No. 72-1786.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 24, 1973.
    Decided July 9, 1973.
    John R. Trigg, and William J. Kirven, III, of Yegge, Hall & Evans, Denver, Colo., for petitioner on review-appellee.
    Robert W. Caddes, Denver, Colo., for respondent on review-appellant.
    Before SETH and HOLLOWAY, Circuit Judges, and LARAMORE, Senior Judge.

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

   LARAMORE, Senior Judge.

Appellant seeks review of the District Court’s holding that their entire fire loss insurance claim is barred by the unsuccessfully inflated, fraudulent claims of the insured’s former agents. The principal issue presented herein is whether reliance is a necessary element of a policy defense based on fraud, or is the entire policy, in fact, voided when the insured attempts to present fraudulent claims which the insurance company detects prior to payment and thus before having detrimentally acted upon the misrepresentations.

The loss claims of American Diver’s Supply & Manufacturing Corporation (“ADS&M”) stem from a major warehouse fire which it suffered in February 1970, at which time a valid, eomprehen-sive-multi-peril insurance policy was in effect with Pacific Indemnity Company (“Pacific”). After the fire, but before the insurance adjuster arrived, a considerable amount of undamaged or slightly damaged inventory was moved, at the direction of the insured’s sole shareholder, from the scene of the fire to another warehouse across the street. According to testimony of the insured’s employees, this was done with the express intent of claiming these items as having been destroyed in the fire and thereby facilitating an unjustified increase in the insurance recovery.

Neither Donald Wilkerson, President of ADS&M, nor Jim Sexton, the inventory control clerk, apprised the insurance adjuster, Mr. Palmer, that this large amount of undamaged goods had been removed from the premises, but instead gave him the inventory control cards and indicated that any listed items not present in the amounts recorded on the cards were either destroyed by the fire or stolen. (There had been a certain amount of pilferage immediately after the fire.) Mr. Palmer apparently used these cards to compile his initial damage-loss list, but he and his assistants also proceeded to sift thru the debris to determine what corresponding charred residue remained. After so proceeding, Mr. Palmer compiled a second list which evidently enumerated fewer loss items than the original list. However, in some cases the adjuster still relied on the employees’ claims that the insured had lost certain amounts of particular items, even though no residue for said items was to be found — since they had, in fact, been removed undamaged. Notwithstanding this method of derivation, the total amount of loss arrived at by Mr. Palmer was apparently less than what Mr. Wilkerson believed to be the actual damage loss. No proof of loss or official written claim of any kind was ever filed by the insured, except for the aforementioned written and verbal misleading assistance given to Mr. Palmer.

Following the adjuster’s investigation, differences apparently arose over the coverage of certain items and Pacific filed suit for declaratory judgment in the District Court in and for the City and County of Denver, Colorado. On March 8, 1971, ADS&M, having been in financial straits even before the fire, was adjudicated bankrupt. Thereafter, the Trustee filed a petition for Order to Show Cause directed to Pacific as to why it should not pay over the value of the actual damage loss sustained by the insured. After abandoning its declaratory judgment action, Pacific resisted the Bankruptcy Court’s show cause order on the grounds of fraud and no coverage. Following a hearing at which the foregoing facts were established, the Referee in Bankruptcy entered an order favorable to the Trustee. Pacific appealed to the U.S. District Court which subsequently reversed the Referee’s order on the grounds that fraud had been established, as a matter of law, since reliance was not a necessary element in a defense of fraud under an insurance policy. The Trustee in Bankruptcy, Jon D. Boltz, has in turn perfected this appeal.

Appellant contends on this appeal, as he has earlier, that all of the elements of common law fraud as set forth in the landmark Colorado Supreme Court case of Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 462 (1937), must be proven and, as a result, Pacific’s defense must fall for failure to establish that they relied or acted upon insured’s conceal-ments and misrepresentations to their detriment. Pacific maintains, on the other hand, that such reliance is not necessary here since the insurance contract provides:

This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relative thereto. [Emphasis added.]

Both parties have admittedly bound themselves to the terms of the fire insurance contract, including the above “fraud clause,” and thus we believe that this clause, on its face, should be dispos-itive of the appellant’s allegations, for it is apparent that the provision not only prohibits “fraud” in the ordinary sense, but also willfully concealed or misrepresented material facts or circumstances concerning the subject of the insurance, i. e., the damaged or destroyed property, regardless of whether there has been detrimental reliance thereon.

However, the appellant further contends that it would be inequitable and unjust to require reliance in the “ordinary fraud” case, yet not in an insurance case. Although we consider the very existence of the “fraud clause” evidences the grounds for distinction, we shall elaborate on the justification and equity of the difference in requisites since this court and the 'Colorado courts, whose law is applicable here under Erie, have not previously addressed this issue.

As we have already indicated, we find the common law, pre-contract cases such as Morrison v. Goodspeed, supra,, to be inapplicable, because the fraud clause intentionally imposes different standards of responsibility and damages — absolute honesty and forfeiture of all benefits of the policy and not merely unintended benefits — which removes this case from situations where a party seeks to rescind a contract without such a clause and thus must meet all of the requisites of common law fraud. Judicial approval of this distinct standard appears to have first been explicitly received in Chaa-chou v. American Central Insurance Co., 241 F.2d 889 (5th Cir. 1957), which dealt with the same provision of the New York Standard Form Fire Insurance Policy as we are concerned with herein. The Fifth Circuit specifically held in that case that, under Florida law, prejudicial reliance was not a necessary element of a policy defense based on fraud. Since we can find nothing in the Colorado law which would suggest a contrary conclusion, we find the cogent reasoning of Chaachou equally applicable herein. The Fifth Circuit clearly demonstrates the justification for the necessary distinctions in stating:

The contract does not spell out that it is only false swearing, misrepresentation, concealment or fraud which is successful that avoids the policy. Nor is there any reason why any such condition should be read into it. Clearly, in the absence of a statute, the law, which is founded on truth and justice, will not regard it as unsound that a person has lost the benefit of the contract by wilful, immoral, dishonest acts which the contract itself condemns.
Moreover, if the law out of some misgivings about forfeitures, were to require that the insurer demonstrate that it has been misled to its prejudice by the fraud, the policy provision would be virtually worthless and put a premium on dishonest dealings by the assured. For if, by its own investigation, inspired perhaps by suspicions of the assured’s efforts to misrepresent, the insurer satisfied itself that a fraud had been attempted and declined to pay, such a rule would mean that the assured’s claim would then stand as though no dishonest acts whatsoever had been practiced. The mendacious assured, surveying the possibilities and contemplating prospective tactics and strategy in the handling of his claim, would sense immediately that vis-a-vis himself and the underwriter, there would be no risk at all in his deceit. If it worked, he would have his money and, at worst, could be compelled to disgorge only by affirmative suit by the insurer if the fraud were discovered in time to be legally or practicably effective. If it didn’t work — if, before consummation, fraud was detected — he would suffer no disadvantage whatsoever. It would be an everything-to-win, nothing-to-lose proposition. [Id., 892, 893]

In addition to the foregoing policy reasons, the following factors also justify the distinctions. In the ordinary case of fraud, reliance is necessary because it must be shown that the misrepresentations or unjustified concealments were the cause of the duped party’s action, e. g., entering into a contract to his detriment, which he would not have otherwise done but for the false representations. If reliance was not required, then anyone entering a contract fully aware of misrepresentations might later seek rescission of the contract if it did not work out as envisioned — even though the party entered into the agreement for independent reasons which he expected would offset the unbelieved false representations.

However, in the case of an insurance policy — or any other contract for that matter — which has a strict prohibition against misrepresentations with the stated penalty for a violation of said clause being a complete denial of policy benefits, to require detrimental reliance would have the practical effect of requiring the insurance company to always pay the damage claim first, even though it may have cause to suspect that it is false, and, if the subsequent investigation proved the claim to be false, then attempt to recover the entire payment at a later time from an insured who has already shown himself to be unreliable. To force such an Ostrich-like approach on the insurance companies would be inconsistent with the normal expectation of thorough investigation before action. We would not expect a man to buy a business based on representations which he knew or suspected to be false, nor should we expect an insurance company to knowingly pay an unjustified claim. There is no need for the insurance company to wait to be damaged when the deceit itself is the proscribed activity, and the stated penalty is forfeiture of all benefits.

While discovered misrepresentations do not normally result in penalties to the unsuccessful defrauder — other than losing the unjustified benefits of whatever action he sought to induce — that situation is unlike the case where the attempted defrauder is also expecting the insurance company to comply with the reimbursement provisions of a contract which they have entered into. The penalty for attempted fraud in an insurance case where a fraud clause exists, on the other hand, is not simply forfeiture of the excess or inflated recovery amount but the voiding of all actual loss benefits as well. But we cannot accept that this is too harsh a consequence in view of the insured’s being put on notice and the alternative of encouraging “an everything-to-win, nothing-to-lose proposition” for the insured. Thus we must conclude that the lack of detrimental reliance as a necessary element of a policy defense based on fraud, under Colorado law, is well-founded and the differences between this situation and common law fraud justify the distinctions in requisites and results.

The appellant also endeavors to distinguish the Chaachou case on the basis that a claim and proof of loss were filed in that case but not in the case at bar. While the majority of eases admittedly deal with false statements made in proofs of loss or sworn claims, neither the terms of the “fraud clause,” nor the case law suggest that the fraudulent concealments or misrepresentations must necessarily be under oath to be actionable. Mercantile Trust Co. v. New York Underwriters Insurance Co., 376 F.2d 502 (7th Cir. 1967); Buffalo Insurance Company v. Amyx, 262 F.2d 898 (10th Cir. 1958). Notwithstanding appellant’s untenable assertions to the contrary, the record is replete with evidence that insured’s employees and agents deliberately and intentionally concealed and misrepresented material matters regarding the items which were destroyed in the fire. The effect of these fraudulent representations is the same whether they are made in a sworn proof of loss or an informal verbal discussion; that is, they violate the fraud clause and destroy the intended atmosphere of honest, good faith dealing in either case.

Although the insurance adjuster allegedly arrived at a total dollar amount of loss that was less than the insured expected, this does not mitigate the existence of the insured’s fraudulent representations. Furthermore, the fact that a portion of the removed, undamaged inventory was not covered does not vitiate insured’s conduct, since covered items such as j-valves, fish-finders, spear guns, underwater lights, oars and sunglasses were also removed with the express intent of concealing their existence. From a complete review of this record, we must conclude that the District Court did not err in finding that fraudulent representations and conceal-ments in violation of the insurance policy had been made. In view of the foregoing, judgment is hereby affirmed.

      . Chaachou has previously been cited with approval by this court in Buffalo Insurance Co. v. Amyx, 262 F.2d 898 (10th Cir. 1958), although the specific issue of reliance was not raised therein and we dealt with Oklahoma law.


source: Caselaw Access Project

author: WEICK, Circuit Judge.

license: Public Domain

text:
    Lewis V. SMITH and Cleo Smith, Plaintiffs-Appellants, v. Elizabeth Ann PETERS, Defendant-Appellee.
    No. 72-1746.
    United States Court of Appeals, Sixth Circuit.
    Argued June 9, 1973.
    Decided Aug. 7, 1973.

      Stephen G. Danko, Southgate, Mich., for plaintiffs-appellants; D’Avanzo & Danko, Southgate, Mich., on brief.
    Boyd F. Taylor, London, Ky., for defendant-appellee; Hamm, Taylor, Milby & Farmer, London, Ky., on brief.
    Before WEICK, EDWARDS and Mc-CREE, Circuit Judges.
   WEICK, Circuit Judge.

This appeal presents the question whether federal courts are required to apply the Federal Rule of Civil Procedure (Rule 3) or a state statute which conflicts therewith, to determine the issue as to when an action is commenced in the federal courts.

The question arose in an action for damages in excess of $10,000, for personal injuries resulting from an automobile accident which occurred in Kentucky on May 3, 1970. The action was filed on April 23, 1971, by the plaintiffs against the defendant, in the United States District Court for the Eastern Distl’ict of Michigan. Plaintiffs were residents of Michigan; the defendant was a resident of Kentucky; and jurisdiction was based on diversity of citizenship. Summons on the complaint was issued and served on the defendant by the United States Marshal in Kentucky, on April 28, 1971.

Defendant filed a motion to dismiss for lack of jurisdiction since she had been served in Kentucky, rather than in Michigan. Plaintiffs then filed a motion to transfer the case to the Eastern District of Kentucky (where defendant resided), which motion was granted by the Court as being “in the interest of justice,” as provided by 28 U.S.C. § 1404(a). After the transfer, plaintiffs caused another summons to issue on August 3, 1971, which summons was served on the defendant on August 10, 1971.

Defendant, after the transfer, renewed her motion to dismiss the action and filed motions to quash the Marshal’s return of service issued by the District Court in Michigan, and also in Kentucky. The District Court granted the motion to dismiss, holding that Kentucky’s one-year statute of limitations was a bar, and that the timely filing of the action in the District Court in Michigan did not toll the operation of the Kentucky statute of limitations.

It was the view of the District Court that Rule 3 of the Federal Rules of Civil Procedure, which provides:

“A civil action is commenced by filing a complaint with the court.”

was not controlling over Kentucky’s statute with respect to the time of commencement of an action. The Kentucky statute provided:

“An action shall be deemed to commence on date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.” (KRS 413.250)

A saving clause is provided in KRS 413.270(1), as follows:

“If an action is commenced in due time and in good faith in any court of this state and the defendants or any of them make defense, and it is adjudged that the court has no jurisdiction of the action, the plaintiff or his representative may, within ninety (90) days from the time of that judgment, commence a new action in the proper court. The time between the commencement of the first and last action shall not be counted in applying any statute of limitation.”

The District Court was of the view that the decision of the Supreme Court in Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), required the Court to decide all “outcome determinative questions” according to state law, and it held that Rule 3 of Federal Rules of Civil Procedure, which conflicts with KRS 413.250, was not controlling. The effect of the District Court’s holding was to render inapplicable Rule 3. We reverse.

The complaint was timely filed in the United States District Court for the Eastern District of Michigan, within the one-year period required by the Kentucky statute of limitations, and defendant was served in Kentucky within that period, although such service was not authorized. The Michigan statute of limitations was three years. M.S.A. 27A 5805, M.C.L.A. § 600.5805. Thus plaintiffs’ complaint was timely filed under the laws of both Michigan and Kentucky.

In our opinion, the District Court erred in holding that the manner of commencement of an action in the federal courts is an “outcome determinative question” which a federal court, under Erie R. R. v. Tompkins, supra, is required to determine under state, rather than federal, law. In our view the decision as to when the action was commenced determines only whether the action is to continue; it is purely procedural, and does not relate to the substantive issues of the case.

This question, however, was set to rest by the Supreme Court in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), which case was not considered by the District Judge in his Memorandum Opinion. Hanna, like the present case, was a diversity action for damages in excess of $10,000, for personal injuries, the action having been filed in the federal court against an executor of an estate. Rule 4(d) (1) of the Federal Rules of Civil Procedure required service of process to be made on the defendant personally, or by leaving copies at his dwelling house with some person of suitable age and discretion, residing therein. The summons was left with defendant’s wife at his residence, concededly in compliance with Rule 4(d)(1). The service, however, did not comply with a Massachusetts statute which required summons to be - served personally on the defendant in an action against an executor or administrator. The defendant filed a motion to dismiss on the ground that Massachusetts’ one-year statute of limitations barred the action since the defendant had never been served as required by the Massachusetts statute. The District Court, relying on Ragan v. Merchants Transfer & Whse. Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), and Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), dismissed the action. The Court of Appeals affirmed. The Supreme Court, in a unanimous decision, reversed, holding that Rule 4(d)(1) was “designed to control service of process in diversity actions . . .,” and it was a valid rule. (380 U.S. at 463, 85 S.Ct. at 1140).

The Court said:

“In the first place, it is doubtful that even if there were no Federal Rule making it clear that in-hand service is not required in diversity actions, the Erie rule would have obligated the District Court to follow the Massachusetts procedure. ‘Outcome-determination’ analysis was never intended to serve as a talisman. Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 537, 78 S.Ct. 893, 2 L.Ed.2d 953. Indeed, the message of York itself is that choices between state and federal law are to be made not by application of any automatic, ‘litmus paper’ criterion, but rather by reference to the policies underlying the Erie rule. Guaranty Trust Co. v. York, supra, 326 U.S. at 108-112, 65 S.Ct. 1464.” (Id. at 466, 467, 85 S.Ct. at 1141).

The Court further said:

“The difference between the conclusion that the Massachusetts rule is applicable, and the conclusion that it is not, is of course at this point ‘outcome-determinative’ in the sense that if we hold the state rule to apply, respondent prevails, whereas if we hold that Rule 4(d)(1) governs, the litigation will continue. But in this sense every procedural variation is ‘outcome-determinative.’ For example, having brought suit in a federal court, a plaintiff cannot then insist on the right to file subsequent pleadings in accord with the time limits applicable in the state courts, even though enforcement of the federal timetable will, if he continues to insist that he must meet only the state time limit, result in determination of the controversy against him. So it is here. Though choice of the federal or state rule will at this point have a marked effect upon the outcome of the litigation, the difference between the two rules would be of scant, if any, relevance to the choice of a forum. Petitioner, in choosing her forum, was not presented with a situation where application of the state rule would wholly bar recovery; rather, adherence to the state rule would have resulted only in altering the way in which process was served. Moreover, it is difficult to argue that permitting service of defendant’s wife to take the place of in-hand service of defendant himself alters the mode of enforcement of state-created rights in a fashion sufficiently ‘substantial’ to raise the sort of equal protection problems to which the Erie opinion alluded.” (380 U.S. at 468, 469, 85 S.Ct. at 1142).

The Court further said:

“There is, however, a more fundamental flaw in respondent’s syllogism: the incorrect assumption that the rule of Erie R. Co. v. Tompkins constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure. The Erie rule has never been invoked to void a Federal Rule. It is true that there have been cases where this Court has held applicable a state rule in the face of an argument that the situation was governed by one of the Federal Rules. But the holding of each such case was not that Erie commanded displacement of a Federal Rule by an inconsistent state rule, but rather that the scope of the Federal Rule was not as broad as the losing party urged, and therefore, there being no Federal Rule which covered the point in dispute, Erie commanded the enforcement of state law.” (Emphasis added.) (380 U.S. at 469-470, 85 S.Ct. at 1143).

Like the Massachusetts statute in Hanna, the Kentucky statute, KRS 413.250, clashes with Rule 3. In closing, the Court in Hanna said:

“To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution’s grant of power over federal procedure or Congress’ attempt to exercise that power in the Enabling Act. Rule 4(d)(1) is valid and controls the instant case.” (Id. 380 U.S. at 473-474, 85 S.Ct. at 1145).

The decision in Hanna is somewhat in conflict with the Court’s decision in Ragan v. Merchants Transfer & Whse. Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). However, Mr. Justice Harlan, in his concurring opinion, in referring to Ragan, stated with characteristic simplicity: “I think that the decision was wrong.” 380 U.S. at 477, 85 S.Ct. at 1147.

The fact that the District Court in Michigan had no personal jurisdiction over the defendant does not militate against its right to transfer the case. As well stated by Mr. Justice Black, who wrote the opinion for the Court in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962):

“Section 1406(a), under which the Pennsylvania District Court transferred this case, provides:
‘The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.’
Nothing in that language indicates that the operation of the section was intended to be limited to actions in which the transferring court has personal jurisdiction over the defendants. And we cannot agree that such a restrictive interpretation can be supported by its legislative history — either that relied upon by the Court of Appeals or any other that has been brought to our attention. The problem which gave rise to the enactment of the section was that of avoiding the injustice which had often resulted to plaintiffs from dismissal of their actions merely because they had made an erroneous guess with regard to the existence of some elusive fact of the kind upon which venue provisions often turn. Indeed, this case is itself a typical example of the problem sought to be avoided, for dismissal here would have resulted in plaintiff’s losing a substantial part of its cause of action under the statute of limitations merely because it made a mistake in thinking that the respondent corporations could be ‘found’ or that they ‘transact . . . business’ in the Eastern District of Pennsylvania. The language and history of § 1406(a), both as originally enacted and as amended in 1949, show a congressional purpose to provide as effective a remedy as possible to avoid precisely this sort of injustice.
“The language of § 1406(a) is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not. The section is thus in accord with the general purpose which has prompted many of the procedural changes of the past few years — that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits. When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to begin his case and thereby toll whatever statutes of limitation would otherwise apply. The filing itself shows the proper diligence on the part of the plaintiff which such statutes of limitation were intended to insure. If by reason of the uncertainties of proper venue a mistake is made, Congress, by the enactment of § 1406(a), recognized that ‘the interest of justice’ may require that the complaint not be dismissed but rather that it be transferred in order that the plaintiff not be penalized by what the late Judge Parker aptly characterized as ‘time-consuming and justice-defeating technicalities.’ It would at least partially frustrate this enlightened congressional objective to import ambiguities into § 1406(a) which do not exist in the language Congress used to achieve the procedural reform it desired.” (369 U.S. at 465-467, 82 S.Ct. at 915-916).

We followed Goldlawr in Taylor v. Love, 415 F.2d 1118 (6th Cir. 1969); cf., Carson v. U-Haul Co., 434 F.2d 916 (6th Cir. 1970).

In Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956), Chief Judge Simons, writing for the Court, stated:

“This does not, however, answer the question as to when the appellant’s action was begun. In a well considered opinion in Isaacks v. Jeffers, [10 Cir., 144 F.2d 26] supra, it was held that where a complaint was filed in the Federal District Court before the expiration of the statute of limitations, the action was commenced and the running of the statute was interrupted by the filing of such complaint although process was not actually served until more than 60 days after the expiration of the limitation period. While state law controls the time within which an action must be begun, the manner in which an action is commenced and when it is deemed to have begun, are governed by the law of the forum. These matters are procedural and not substantive. This reasoning was approved and followed by Judge Learned Hand in Bomar v. Keyes, supra [2 Cir., 162 F.2d 136, 140], wherein it was explicitly held: ‘However, we now hold that it is the filing of the complaint which tolls the statute. We think that Rules 3 and 4(a) of the Rules of Civil Procedure, 28 U. S.C.A. * * * have made no longer applicable § 17 of the New York Civil Practice Act, which fixes the beginning of the action at the date when the writ is served, or is put into the sheriff’s hands for service.’ ” (Id. at 155).

He further stated:

“Nor is this a case where ‘the limitation is annexed as a condition to the very right of action created. The Civil Rights Act is not cast in that form; and when a right is not so conditioned, the statute of limitations is treated as going to the remedy.’ Bomar v. Keyes, supra, 162 F.2d at page 140. There is no such condition in the Michigan statute.” (Id. at 155-156).

The judgment of the District Court is reversed, and the cause is remanded for trial.


author: CHOY, Circuit Judge:

text:
    Louis Douglas McNEARY, Petitioner-Appellant, v. Walter T. STONE and People of the State of California, Respondents-Appellees.
    No. 73-1216.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1973.
    Rehearing Denied Sept. 5, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 584.

      Louis D. McNeary in pro. per.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Deraid E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, Cal., for respondents-appellees.
    Before MERRILL, WRIGHT and CHOY, Circuit Judges.
   OPINION

CHOY, Circuit Judge:

Louis McNeary was convicted of armed robbery after a jury trial in 1969 in a California state court and was sentenced to a term in state prison. After exhausting his available state remedies, Mc-Neary sought .federal habeas corpus relief under 28 U.S.C. § 2254. The district court, after reviewing the state trial record, denied the petition without a hearing in August, 1972. We affirm.

Two bars were robbed in August and October 1968. The first robbery was executed by three black males armed with handguns at approximately 1:00 a. m. The bar was well-lighted and no disguises were worn. One of the robbers vaulted the bar and rifled the cash register while a second covered the door and the patrons. The third robber located a safe and attempted to force the bartender, Sasser, to open it. Sasser said he didn’t know the combination and the three men fled shortly thereafter. This sequence of events consumed ten to fifteen minutes.

The particulars of the second robbery were identical. However, during the course of events, the bartender tripped two silent alarms and police converged on the area. Deputy Crouch arrived shortly after the alarm was sounded. He observed a lone vehicle proceeding toward him less than one block from the bar. Crouch made a U-turn and followed the vehicle into a service station. Crouch, who was alone, exited his patrol car and ordered McNeary, the only apparent occupant of the suspect vehicle, out of the car at gunpoint. Other officers arrived a few minutes later, peered into the suspect vehicle and observed two men hiding on the floor. The three were frisked and, after a report was received that the robbery suspects were three black males, placed under arrest. Mc-Neary’s car was taken to the police substation one block away and searched without a warrant. The search disclosed the handguns used in the robbery.

Prior to the consolidated trial, Sasser, the bartender in the first robbery, was shown photographs for identification purposes on three occasions. Shortly after his bar was robbed, he picked out three persons as the robbers. After the fall robbery, Sasser picked out Mc-Neary’s picture from a group of eight photographs. One month later, Sasser was shown only the photographs of the three men arrested after the fall robbery and again picked McNeary. At trial, Sasser identified McNeary.

Since we have separate convictions for the two robberies involved, and attacks on each conviction, we shall treat Mc-Neary’s contentions separately.

August Robbery

The standard for pretrial photographic identification is set out in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968):

. . . each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Id. at 384, 88 S.Ct. at 971.

In Simmons, the Court suggested two standards by which the permissibility of pretrial photographic identification should be judged: necessity for the use of photographic identification and the circumstances surrounding the identification. United States v. Baxter et al., (9th Cir. February 16, 1973).

The facts before us indicate that pretrial photographic identification was necessary. The first time Sasser was shown photographs was while the robbers were still at large. Courts have readily found a necessity for the use of photographic identification in such circumstances. Simmons, supra. The second and third showings were after Mc-Neary and his cohorts were in custody for the commission of the second robbery and the police were attempting to connect them with the August robbery. Photographic identification was necessary not only to discover whether Mc-Neary had been involved in the earlier robbery, but to locate additional suspects if that was required. Baxter, supra.

The factors utilized in evaluating the circumstances surrounding an identification were set out in Parker v. Swenson, 332 F.Supp. 1225 (E.D.Mo. 1971), and approved in Baxter, supra. The first is the length of time and the conditions under which a witness was able to observe the perpetrator during the crime. The robbery occurred in a well-lighted bar and the robbers did not attempt to disguise themselves. Sasser was personally ordered to accompany one of the robbers to the safe. The robbers were in the bar ten to fifteen minutes. The chance for misidentification was minimal.

Another factor is the conduct of the police tending to focus attention on a particular suspect. The first two showings to Sasser were properly conducted. Each time he was shown a number of photographs and Sasser picked out suspects. There is no evidence of suggestion by the police. The fact that Sasser picked out three other persons as the robbers of his bar at the first showing does not go to the propriety of the identification procedures, but was for the jury to evaluate in assessing Sasser’s testimony. The third showing where only pictures of the three suspects were presented was improper, but that alone is not sufficient for a determination that the procedures taken in toto were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. These pretrial photographic identification procedures did not violate the Simmons standard.

October Robbery

Crouch was entitled to stop McNeary’s vehicle for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Untermyer v. Hellbush, 472 F.2d 156 (9th Cir. 1973). Crouch’s suspicions had been aroused by the notification that a serious crime had taken place nearby, the late hour and his sighting of McNeary’s vehicle in close proximity to the robbery site. There was reasonable suspicion that criminal activity was afoot. United States v. Scheiblauer, 472 F.2d 297 (9th Cir. 1973); United States v. Fisch and Glasscock, 474 F.2d 1071 (9th Cir. 1973).

When the additional officers arrived, found two men hiding in the suspect vehicle and received a radio message that the robbery suspects were three black males, coupled with the surrounding circumstances, probable cause for arrest arose. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The facts present were sufficient to warrant a prudent man in believing that the arrested persons had committed an offense. United States v. Jit Sun Loo, 478 F.2d 401 (9th Cir. 1973); United States v. McDowell, 475 F.2d 1037 (9th Cir. 1973).

McNeary’s vehicle was taken to the police substation nearby and subjected to a warrantless search. The question is whether the search was justified under the “automobile exception” established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and extended in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In Chambers, the Court found that there was probable cause to search a car for guns and stolen money at the station house after the owner was safely in custody. The basic justification, originating in Carroll, was that a motor vehicle is readily movable. A search must be made immediately without a warrant or the car itself must be seized and held without a warrant until one is obtained. Perceiving little practical difference between the two alternatives, the Court held either course reasonable given probable cause to search. Chambers at 52, 90 S.Ct. 1975. The facts before us indicate that probable cause to search McNeary’s vehicle did exist at the moment of arrest and still obtained at the station house one block away. The warrantless search of McNeary’s car did not violate his fourth amendment rights. United States v. Beasley, 476 F.2d 164 (9th Cir. 1973).

We agree with the conclusion of the district court that McNeary was not denied his right to counsel on his state court appeal. The denial of habeas corpus relief was proper.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Wilson RAMIREZ et al., Appellants.
    Nos. 969-971, Dockets 73-1364, 73-1365 and 73-1396.
    United States Court of Appeals, Second Circuit.
    Argued June 14, 1973.
    Decided July 25, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 581.

      Phylis Skloot Bamberger, New York City (The Legal Aid Society, Robert Ka-sanof, New York City, on the brief), for appellant Ramirez.
    Donald E. Nawi, New York City, for appellant Gomez.
    Harry R. Poliak, New York City, for appellant Gutierrez.
    Nicholas Figueroa, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y. and Jay S. Horowitz and John W. Nields, Jr., Asst. U. S. Attys., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, SMITH, Circuit Judge, and BRYAN, District Judge.

       Of the United States District Court, Souther ■n District of New York, sitting by designation.

   FREDERICK van PELT BRYAN, District Judge:

Wilson Ramirez, Hector Gomez and Inez Velez Gutierrez appeal from judgments of conviction entered in the Southern District of New York after a jury trial before Judge Pierce. All three were found guilty on Counts One and Two of an indictment charging them and Umberto Ramirez with distributing cocaine and possessing it with intent to distribute, and conspiring to do so in violation of 21 U.S.C. §§ 812, 841 and 846. Wilson Ramirez was also convicted on a third count of carrying a firearm unlawfully during the commission of the felonies charged in Counts One and Two, 18 U.S.C. § 924(c)(2). We affirm the convictions of all three appellants on Counts One and Two and reverse the conviction of Wilson Ramirez on Count Three, with a direction for the entry of judgment of acquittal on that count.

The main issues on this appeal are (1) whether the grand jury which returned the indictment was misled into believing it was receiving eyewitness testimony rather than the hearsay testimony it in fact received; and (2) whether the Wilson Ramirez conviction on Count Three must be reversed because of failure of proof and error in the charge. In addition, appellants raise several other minor points.

A brief recital of the facts concerning this sale of half a kilogram of cocaine to two undercover agents, Jose Guzman and Kenneth Bernhardt, will place the contentions in focus.

On August 1, 1972, Guzman met Um-berto Ramirez (Umberto) at La Princes-sa restaurant, at 100th Street and Broadway in Manhattan, and told him that he wanted to buy half a kilogram of cocaine for a friend, and, if the price was right, two ounces for himself. Um-berto quoted prices of $10,000 for the half-kilogram and $1,100 for the two ounces. The two agreed to meet the next day at the same place.

Guzman returned to La Princessa the next day but left when he could not find Umberto. Outside the restaurant Guzman then met Gomez. In reply to Guzman’s inquiry, Gomez told him that Um-berto had been at the restaurant earlier and would return soon. Shortly thereafter Guzman joined Umberto and Gomez in front of the restaurant. Umberto told Guzman that his “connection” had left. In reply to a question from Um-berto, Gomez stated that he had an “eighth” for sale. After consulting with Bernhardt, who was posing as his partner, Guzman said his partner was interested only in the purchase of half a kilogram.

Subsequently, Wilson Ramirez (Wilson) arrived and was introduced to Guzman by Umberto as the “main man” who could supply “three-eighths” which, added to Gomez’ one-eighth, would comprise the sought-after half.

Bernhardt, who remained seated in a car, displayed the $10,000 in bills for the purchase to Umberto, and then Guzman, Gomez and Umberto and Wilson went to Room 405 of the Whitehall Hotel. Wilson produced three plastic bags containing cocaine. He weighed them on a scale in the room; each weighed one-eighth of a kilogram. He then told Gomez to pick up his “eighth” and told Umberto to go with Guzman to the car to count the $10,000.

After Umberto counted the money, he left the car. He soon returned, accompanied by Wilson, Gomez, and Gutierrez. Gomez, referring to Gutierrez, told Guzman that “China” had the “stuff”. Gomez, Gutierrez and the two Ramirezes entered the back of the car, with Guzman and Bernhardt sitting in front. Wilson told Gutierrez to give Guzman “the coke.” Gutierrez took an opaque package containing the half kilogram of cocaine out of her handbag and handed it to Guzman. At this point, upon a signal, surveillance agents arrested Gomez, Gutierrez and the two Ramirezes, and simulated the arrest of the undercover agents. Wilson Ramirez was found with a Luger pistol in the waistband of his trousers.

I

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Supreme Court held that an indictment may permissibly be based solely upon hearsay. See also Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). That rule was qualified by this Court in United States v. Estepa, 471 F.2d 1132, 1136 (2d Cir. 1972), holding that where the grand jury is “ ‘misled into thinking it is getting eye-witness testimony from the agent whereas it is actually being given an account whose hearsay nature is concealed . . . .’ United States v. Leibowitz, 420 F.2d 39, 42 (2 Cir. 1969),” the convictions should be reversed and the indictment dismissed.

Dismissal of the indictment in Estepa was ordered in the wake of a substantial number of earlier cases in this circuit warning prosecutors that dismissal would ensue where the grand jury was misled as to the hearsay nature of the evidence before it. See United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969); United States v. Russo, 413 F.2d 432 (2d Cir. 1969); United States v. Carella, 411 F.2d 729 (2d Cir. 1969); United States v. Arcuri, 405 F.2d 691 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969); United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1598, 22 L.Ed.2d 780 (1969); United States v. Beltram, 388 F.2d 449, 451-452 (2d Cir.) (dissenting opinion) cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168, 391 U.S. 955, 88 S.Ct. 1860, 20 L.Ed.2d 869 (1968); United States v. Andrews, 381 F.2d 377 (2d Cir. 1967), cert. denied, 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968); United States v. Payton, 363 F.2d 996, 999-1000 (2d Cir.) (dissenting opinion), cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966). Appellants seek to bring themselves within the Estepa holding.

Neither Guzman nor Bernhardt, who naturally were the principal prosecution witnesses at the trial, testified before the grand jury. The sole witness before the grand jury was Patrolman Daniel J. Mullen, whose limited role as a surveillance agent prevented him from having personal knowledge of what transpired when the sale was negotiated and consummated. Mullen did not testify at the trial because of illness.

The trial in this case took place prior to the decision in Estepa. A pretrial motion for permission to examine the grand jury minutes on the ground that the indictment was based on insufficient and inadmissible testimony was denied by the trial judge. At the trial, defense counsel learned for the first time that Bernhardt and Guzman were the only officers present during the discussions leading to the purchase of the drug and at the purchase transaction and that Patrolman Mullen, who was merely a sur-veilling officer, was the only witness before the grand jury.

At the close of the Government’s case, the defense moved for dismissal of the indictment on the ground that there was insufficient legal evidence to support it. The trial court declined to examine the grand jury minutes or to permit defendants’ counsel to do so. He denied the motion to dismiss, citing Costello v. United States, supra, and Lawn v. United States, supra, holding that an indictment is valid even though based on hearsay.

The grand jury minutes were handed to us by the prosecution at the argument of the appeal and made available to defense counsel. Our examination of the minutes makes it quite plain that the grand jury was not misled into believing it was getting an eyewitness account. Thus, in developing before the grand jury what occurred in the hotel, the Assistant' United States Attorney first established that the appellants, Umberto, and the undercover agents were “out of . Mullen’s sight” at that time. The prosecutor then inquired whether Patrolman Mullen had “ascertained from them [the undercover agents who were present]” what happened and Mullen said he had. As to the crucial events in the automobile, the prosecutor specifically established that Mullen was not able to observe those events himself, and that the undercover agents had informed him about what occurred.

Accordingly, while we adhere to Este-pa, we find that the government has not violated the rule of that case here.

In the light of Estepa, where it appears that the grand jury has heard only hearsay testimony, upon appropriate motion, the proper course for the trial judge to follow is to examine the grand jury minutes in camera to determine whether or not the grand jury was misled into believing it was given eyewitness testimony when in fact it was not. Here no Estepa claim was made before the trial court. It is apparent, however, that defendants were not prejudiced in any way by the fact that the trial court did not examine the grand jury minutes, since, as our reading of the minutes demonstrates, the Estepa ruling was not violated. Defendants are, therefore, not entitled to reversal on this ground.

In his reply brief, Ramirez complains, for the first time, that counsel was entitled to examine the grand jury testimony of Mullen, who repeated the information given him by the officers with personal knowledge of the events involved. In United States v. Borelli, 336 F.2d 376, 391 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), this Court stated,

“The Government ought not be allowed, by having its principal witness speak to the grand jury through the voice of another, to deprive a defendant of [the] right to impeach by contradiction.”

The 1970 amendment to the Jeneks Act, 18 U.S.C. § 3500(e)(3), which codified this Court’s holding in United States v. Youngblood, 379 F.2d 365 (2d Cir. 1965) , entitles a defendant to the grand jury testimony of a government trial witness without any preliminary inspection for usefulness by the trial judge. Reading Borelli, Youngblood, and § 3500 together, it appears that defendants would have been entitled to examine Mullen’s grand jury testimony. However, since no request for such an examination on this ground was made below, Ramirez cannot raise the point now. United States v. Andrews, 381 F.2d 377, 378 (2d Cir. 1967), cert. denied, 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968).

II

Ramirez challenges the sufficiency of the evidence and the correctness of the charge, on the third count of the indictment. This count charged him with violating 18 U.S.C. § 924(c)(2), which provides in pertinent part:

(c) Whoever—
(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States.
shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year or more than ten years. .

Section 924(c) was enacted by Congress as part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1224. This section creates a separate crime, rather than merely providing an additional penalty. United States v. Vigil, 458 F.2d 385 (10th Cir. 1972); United States v. Sudduth, 457 F.2d 1198 (10th Cir. 1972); 114 Cong.Rec. (Part 17 11121) (1968) (Remarks of Representative Poff).

Where Ramirez and the Government part company is over the meaning of “unlawfully” as used in section 924(c)(2). Ramirez contends that an essential element of a violation of section 924(c)(2) is that the possession (or “carrying”) of the firearm must itself be unlawful. We agree.

The language of the statute plainly supports the Ramirez position. The location of the adverb “unlawfully” signifies a manifest intention on the part of Congress to modify the phrase “carries a firearm.” A common sense reading of the statute, therefore, leads directly to the conclusion that there is no violation of section 924(c) (2) unless the carrying of the firearm is unlawful.

Moreover, the legislative history of the statute conclusively demonstrates that an essential element of the crime is that the possession be unlawful.

Section 924(c), as originally proposed, did not make it a federal crime to carry a firearm unlawfully in the commission of a federal felony. Instead, both the House and Senate bills merely provided for the forfeiture of any firearm or ammunition used in such a crime. H.R. 17735, 90th Cong., 2d Sess. (1968); H. R.Rep.No.1577, 90th Cong., 2d Sess. (1968); S.3633, 90th Cong., 2d Sess. (1968); S.Rep.No.1501, 90th Cong., 2d Sess. (1968).

Representative Casey proposed an amendment to the bill to punish any person who “uses or carries” a firearm, during the commission of certain violent crimes, if the firearm had been transported in interstate commerce. 114 Cong.Rec. 21061-63, 21765-66 (1968).

Concern developed among various congressmen as to whether a person carrying a gun, who is authorized by law to do so, such as a policeman or a licensee, would violate the proposed law if he committed an assault without using the gun. Id. 21788-89. Indeed, Representative Scheuer was concerned that the bill might apply to him, since he had a pistol permit, if he committed an assault while lawfully carrying a pistol, even though he did not in any way utilize it in the assault. Id. Representative Casey agreed that such a person should not be within the statute. Id. 21792, 22231. For this purpose, a proposal by Representative Dowdy was adopted and the words “or carries” were stricken from the bill, so that only usé of a firearm was to be proscribed. Id. 22235-37.

Representative Poff had previously offered an alternative amendment which ultimately became section 924(c). The Poff amendment based jurisdiction on the commission of a federal felony, rather than upon the-fact of a gun traveling in interstate commerce. This amendment, reflecting the above debates, provided that carrying a gun unlawfully during the commission of such a felony was a crime. Id. 22231. A proposal to eliminate the word “unlawfully” was defeated, and the word remained in the Poff amendment. Id. 22236 (Remarks of Representative Meskill), 22245.

Subsequently, the Poff amendment was preferred over the Casey amendment, id. 22248, agreed to, id. 23094-95, and passed as part of the bill. Id. 23095. The Senate thereafter adopted the House bill. Id. 27492.

Thus, the legislative history plainly shows that carrying a firearm, without using it, during the commission of a federal felony, violates section 924(c)(2) only if possession of the firearm is itself unlawful.

The Government’s contention to the contrary, that the statute only exempts police officers, has no support in either the language of the act or the legislative history.

The trial Judge did not instruct the jury that, before they could find Ramirez guilty on this count, they must find that Ramirez’ possession of the pistol was itself unlawful. The failure to instruct the jury on this essential element of the crime requires reversal of Wilson Ramirez’ conviction on Count Three, Screws v. United States, 325 U.S. 91, 101-107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Clark, 475 F.2d 240, 248-249 (2d Cir. 1973); United States v. Fields, 466 F.2d 119 (2d Cir. 1972); United States v. Byrd, 352 F.2d 570, 572-574 (2d Cir. 1965), even though no objection was lodged below. Screws v. United States, supra, 325 U.S. at 107, 65 S.Ct. 1031; United States v. Clark, supra, 475 F.2d 574 at 250; United States v. Fields, supra; United States v. Byrd, supra, 352 F.2d at 574.

Moreover, Wilson Ramirez’ conviction on Count Three cannot stand for an additional reason; the Government did not introduce any evidence whatsoever tending to show that his possession of the pistol was unlawful. Accordingly, denial of Ramirez’ motion for a judgment of acquittal was error. Forman v. United States, 361 U.S. 416, 425-426, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960) (dictum); Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955); United States v. Kearse, 444 F.2d 62 (2d Cir. 1971). See also Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).

Ill

Appellants Gomez and Gutierrez contend that the trial court erroneously failed to charge the jury on entrapment. We see no merit in this claim.

At the trial, no request for an entrapment charge was made, and no objection was taken to the failure so to charge. An entrapment defense would have been inconsistent with the defenses these defendants offered at trial. For the trial Judge, under such circumstances, to have sua sponte charged entrapment, might have cast doubt upon the defense proffered. Accordingly, the failure to charge entrapment was not error, to say nothing of plain error. United States v. Nolan, 420 F.2d 552, 555 (5th Cir. 1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 47 (1970); Chavira Gonzales v. United States, 314 F.2d 750 (9th Cir. 1963); Jones v. United States, 299 F.2d 661 (10th Cir.), cert. denied, 371 U.S. 864, 83 S.Ct. 123, 9 L.Ed.2d 101 (1962); Moore v. United States, 104 U.S.App.D.C. 327, 262 F.2d 216 (1958), cert. denied 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959).

Moreover, denial of a request to charge entrapment, had one been made in the district court, would have been proper because considering the trial testimony in the light most favorable to the defendants, there was no evidence negating propensity. See United States, v. Greenberg, 444 F.2d 369 (2d Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971); United States v. Cohen, 431 F.2d 830 (2d Cir. 1970); United States v. Bishop, 367 F.2d 806, 810 (2d Cir. 1966); United States v. Riley, 363 F.2d 955, 959 (2d Cir. 1966).

IV

Gutierrez also contends that a post-arrest statement made to an Assistant United States Attorney, prior to the time counsel was actually appointed to represent her, was erroneously admitted at trial. The trial Judge, after holding a hearing out of the presence of the jury, determined that Gutierrez was advised of her constitutional rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including her right to counsel, waived them, and voluntarily made the statement which was a denial of possessing or transferring cocaine.

On the day in question, prior to 2:00 P.M., counsel eventually appointed to represent Gutierrez received a telephone call directing him to appear before the magistrate at 2:00 P.M. for “possible” or “actual” assignment. He was not given the name of any particular defendant, and was not actually appointed to represent Gutierrez until sometime after 2:45 P.M., when Gutierrez was brought before the magistrate and, presumably, Gutierrez’ financial means were ascertained. Between 2:00 and 2:45 P.M., Gutierrez had made the statement at issue.

Counsel has cited no case supporting the claim that, under these circumstances, the statement was not admissible. We see no warrant for extending Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) to cover the situation before us, since the statment was made prior to indictment as well as before the actual appointment of counsel. See Collins v. Wilson, 368 F.2d 995 (9th Cir. 1966). Nor would the fact that the questioning by an Assistant United States Attorney occurred just prior to arraignment, when it might be anticipated that counsel will be appointed at the arraignment, furnish a basis for excluding the statement. Cf. United States v. Ortega, 471 F.2d 1350, 1362 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Marrero, 450 F.2d 373 (2d Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972). But cf. id. at 379 (Friendly, C. J., concurring).

V

The remainder of appellants’ contentions require little, if any, discussion.

Gutierrez’ contention that the evidence was not sufficient to support her conviction is devoid of merit. Considering the evidence in the light most favorable to the prosecution, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Christophe, 470 F.2d 865, 869 (2d Cir. 1972), cert. denied, 411 U.S. 684, 93 S.Ct. 2140, 2162, 36 L.Ed.2d 684 (1973), the jury plainly could have inferred that Gutierrez knew what she was doing when she handed the package containing the cocaine to one of the undercover agents after Wilson Ramirez instructed her, “Give the man the coke.”

While Gutierrez’ participation may have been limited to “a single act,” as she contends, that act was the consummation of the crimes charged and the jury could reasonably have inferred that Gutierrez knowingly and intentionally participated in the conspiracy. United States v. Aviles, 274 F.2d 179, 189 (2d Cir.), cert. denied, 362 U.S. 974, 982, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Carminati, 247 F.2d 640 (2d Cir.), cert. denied, 355 U.S. 883, 78 S.Ct. 150, 2 L.Ed.2d 113 (1957).

Gutierrez also complains that the prosecutor indicated to the jury, in his summation, that they should not be swayed by sympathy. There is nothing improper or prejudicial in this. One of the standard jury charges in a criminal case contains such an admonition, see 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 10.17 (1970), as did the charge in this case. Such a reference in the prosecution’s summation was especially apt here in light of Gutierrez’ manifest pregnancy, and defense counsel’s reference, in his summation, to that fact, and to the father’s abandonment of her.

There is no merit in Gomez’ contention that the District Judge erred in admitting against him hearsay statements made by co-conspirator Umberto Ramirez prior to the time Gomez was proven, by non-hearsay evidence, to have joined the conspiracy. Not only was Gomez a member of the conspiracy virtually from its inception, but an otherwise admissible declaration of one co-conspirator is admissible against members of the group who joined after the statement was made. United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970).

Count Two of the indictment charged that the defendants “did distribute and possess with intent to distribute” 507.55 grams of cocaine hydrochloride (emphasis supplied). The trial court charged, in accordance with the statute, 21 U.S.C. § 841(a)(1), that either distribution or possession with intent to distribute could be the basis for a conviction. There is no merit in Gomez’ claim that this charge was improper. United States v. Carter, 454 F.2d 525 (9th Cir. 1972); Arellanes v. United States, 302 F.2d 603, 609 (9th Cir.), cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962). See United States v. Conti, 361 F.2d 153, 158 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); United States v. Cioffi, slip op. 4845, 4854 (2d Cir. July 16, 1973).

Nor is there any merit in Gomez’ claims that there were variances between the indictment and proof, or a failure of proof, in that (a) the conspiracy proven was not of as long duration as that charged in Count One, although it fell within the period charged, United States v. Postma, 242 F.2d 488, 496-497 (2d Cir.) (on petition for rehearing), cert. denied, 354 U.S. 922, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (1957); (b) Gomez’ role was limited to about 125 grams, not the half kilogram which all the defendants were jointly charged with possessing, see United States v. Wanton, 380 F.2d 792, 795 (2d Cir. 1967); Cromer v. United States, 78 U.S.App.D.C. 400, 142 F.2d 697, cert. denied, 322 U.S. 760, 64 S.Ct. 1274, 88 L.Ed. 1588 (1944); (c) the indictment charged violations relating to both Schedule I and Schedule II drugs, whereas the proof pertained solely to cocaine, a Schedule II drug.

The judgments of conviction of all three appellants on Counts One and Two are affirmed. Wilson Ramirez’ conviction on Count Three is reversed, with a direction that judgment of acquittal be entered as to that count.

      . Ramirez was sentenced to five years imprisonment on Counts One and Two, to run concurrently, and five years imprisonment on Count Three, to run consecutively to the terms imposed on Counts One and Two. Gomez was sentenced to concurrent five-year terms on Counts One and Two. Both Ramirez and Gomez also received three years of special parole under 21 U.S.C. § 841. Gutierrez was placed on probation for three years. The fourth defendant, Umberto Ramirez, was a fugitive at the time of the trial.

      . All of the negotiations were conducted in Spanish.

      . This Court has also cautioned against unnecessary use of hearsay testimony when the eyewitnesses are reasonably available to testify before the grand jury. See United States v. Estepa, 471 F.2d 1132, 1135-1136 (2d Cir. 1972); United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969); United States v. Russo, 413 F.2d 432 (2d Cir. 1969); United States v. Carella, 411 F.2d 729 (2d Cir. 1969); United States v. Arcuri, 405 F.2d 691 (2d Cir. 1988), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969); United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1598. 22 L.Ed.2d 780 (1969); United States v. Beltram, 388 F.2d 449, 451-453 (2d Cir.) (dissenting opinion), cert. denied, 390 U.S. 1017, 88 S.Ct. 1273, 20 L.Ed.2d 168, 391 U.S. 955, 88 S.Ct. 1860, 20 L.Ed.2d 869 (1968); United States v. Umans, 368 F.2d 725, 730-731 (2d Cir. 1966), cert. granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872 cert. dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967); United States v. Payton, 363 F.2d 996, 1000 & n. 1 (2d Cir.) (dissenting opinion), cert. denied, 385 U.S. 993 (1966). That caution is repeated and reemphasized here.

      . Q. With respect to the automobile occurrence before you saw the signals, when the lights were flashing, did you actually see any part of what was taking place inside the car or was that beneath your eye level?
      A. It was impossible in the daytime with the glare of the windows, I was just waiting for the signals.
      Q. What you are saying is that when Inez Valex (sic) handed the package to Umberto Ramirez — that is what was told to you by the officers in the ear?
      A. Yes, sir, the undercover agents.
      Q. AVhat you told us with respect to the persons who counted the money, Hector Gomez and Umberto Ramirez, again that is what was told to you by the undercover officers and you couldn’t actually see them counting the money?
      A. No, I couldn’t see them counting the money.
      (The grand jury minutes consist of only nine pages.)

      . Cf. Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (disclosure of grand jury minutes subject to in. camera deletion of “extraneous material”) ; Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) (whether the Jencks Act, 18 U.S.C. § 3500, requires disclosure of document to the defense) ; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (disclosure of informant’s identity).

      . The judge merely read from the indictment, which charged that Ramirez “unlawfully, wilfully, and knowingly did carry a firearm . . . during the commission of a felony.” He further referred to the standard definition of “unlawfully” which he had given earlier. That earlier definition was: “Unlawfully means contrary to law. It is not necessary that a defendant knew that he or she was violating any particular law. Rather, it is sufficient if you are convinced beyond a reasonable doubt that he or she was aware of the general unlawful nature of his or her act.”

      . Gomez testified in his own defense that although he was present when the cocaine was delivered to the undercover agents, he did not know what was happening. Gutierrez similarly testified that she did not know that the package she handed to the undercover agents contained cocaine.


text:
    William R. STIDHAM, Petitioner-Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee.
    No. 73-1191.
    United States Court of Appeals, Sixth Circuit.
    Argued June 12, 1973.
    Decided Aug. 14, 1973.

      Dean Hill Rivkin, Lexington, Ky. (Court Appointed), for petitioner-appellant.
    John M. Famularo, Asst. Atty. Gen. for respondent-appellee; Ed W. Hancock, Atty. Gen., Frankfort, Ky., on brief.
    Before PHILLIPS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.
   WEICK, Circuit Judge.

Petitioner, Stidham, and one, Richard L. Long, were convicted in the Fayette County, Kentucky, Circuit Court on a charge of armed robbery of a liquor store, and were sentenced to twenty years’ imprisonment. They did not appeal from their conviction. Subsequently, they filed a motion to vacate sentence under Kentucky’s post-conviction procedures (R.Cr. 11.42), which motion was denied by the Circuit Court. On appeal to Kentucky’s highest court, the Court of Appeals, the judgment of the Circuit Court was affirmed in a signed opinion. Stidham v. Commonwealth of Kentucky, 444 S.W.2d 110 (Ky., 1969).

Stidham then petitioned the United States District Court for the Western District of Kentucky for a writ of ha-beas corpus, which was denied without a hearing. On appeal we reversed and remanded for an evidentiary hearing. 452 F.2d 837 (6th Cir. 1971). The District Court complied with our mandate and conducted an evidentiary hearing. At the conclusion of the hearing the District Court delivered an oral opinion, in which it adopted findings of fact and conclusions of law and again denied the petition. The opinion appears at length in the record.

Petitioner had asserted that when he was sentenced in the state court his attorney did not attend the sentencing and did not advise petitioner of his right to appeal from his conviction. His attorney, however, disputed this assertion and testified at the evidentiary hearing that he did attend the sentencing. His attorney further testified that he advised Stidham of his right to appeal, and that in their consideration of the matter they both decided not to appeal because of the possibility of Stidham’s receiving a more severe sentence on retrial. The District Court chose to believe the testimony of the attorney rather than that of Stidham.

The District Court further found from the evidence that there was probable cause for the police, shortly after the robbery, to stop the automobile in which Stidham and his companion were riding at 11:10 p.m., to arrest them, and to search them and their automobile as incident to the arrest.

The arresting police had received in their police car a radio broadcast of the robbery with a description of the robbers and their automobile which had “a tail light out”. The police signaled the defendants to stop, and observed an arm went out the window of their car. In searching the area later, they found in the adjoining field a .22 caliber pistol similar to the type used in the robbery. Search of the automobile uncovered $346 in cash, which was the approximate amount stolen in the robbery. The police also found .22 caliber ammunition in the trunk of the car.

The victim of the robbery was brought immediately to the scene of the ari’est, where he positively identified Stidham as one of the robbers. We find no merit in Stidham’s claim that his Fourth Amendment rights were violated, or that the “showup” at the scene of the arrest was impermissible. Hastings v. Cardwell, 480 F.2d 1202 (6th Cir., decided July 17, 1973).

Stidham’s only claim which requires more extended discussion is that he was deprived of the effective assistance of counsel because his counsel had only one day to prepare for trial. The fact is, however, that counsel had been appointed for him shortly after his arrest and more than six months before the trial. On a previous occasion when the case was assigned for trial the defendants had secured a continuance. On the day when the case was assigned for trial the second time, the defendants moved the Court to discharge their appointed attorney and to appoint another lawyer to represent them. The Court granted their motion and appointed the lawyer whom they requested. The lawyer asked for a continuance. The Court discussed with counsel several suggested dates for the trial, but counsel had other conflicting scheduled activities on each day suggested by the Court. The Court then requested counsel to confer with his clients to determine the nature of their defense. After consultation with the clients, the lawyer advised the Court that they would be ready to go to trial on the following day.

In considering this issue, the Kentucky Court of Appeals stated:

“As to the contention made that their appointed counsel was not given adequate time to prepare their defense, we note from the record that they were first appointed counsel on March 8, 1966. After various postponements, trial was set for September 12, 1966. On the date of the trial petitioners asked the court to discharge their appointed attorney and to appoint them another, requesting the second attorney specifically by name. The court complied with this request. The second attorney did make a request for a continaunace, which was overruled. The case was set for the following day. On this motion, he filed an affidavit stating that he and petitioners agreed to go to trial on the following day and that the time was adequate to prepare such defense as the petitioners had. When an indigent defendant is given the lawyer whom he requests by name and that lawyer agrees to a trial date and later states that he had sufficient time to prepare defense, we believe it would be strange indeed to accept the unsupported statement of the accused that his lawyer did not have sufficient time. We believe this contention to be completely without merit. Fultz v. Commonwealth, Ky., 398 S.W.2d 881 (1966); Tarrence v. Commonwealth, Ky., 265 S.W.2d 40 (1954). Likewise, their contentions that they were denied the right to a direct appeal and that their counsel was not present at sentencing are refuted by the affidavit of their counsel and therefore deemed without merit. Williams v. Commonwealth, Ky., 405 S.W.2d 17 (1966).” (444 S.W.2d 110, 111).

In requesting the appointment of new counsel and requesting continuances on the very day the case is assigned for trial, litigants must not play fast and loose with the court.

The lawyer testified that Stidham told him that he (Stidham) had won the $346 found in the automobile a week before in a poker game with a man named “Charlie”, in Cincinnati, but he was unable to furnish the lawyer or his previous attorney with Charlie’s full name or address, nor the names and addresses of the other persons alleged to have been in the poker game. At the trial the lawyer raised issues concerning the identification of petitioner and the automobile, the fact that the pistol had been found in the field some distance from the highway, illegal search and seizure, and the “show up”.

At the evidentiary hearing the attorney testified:

“. . . [A]fter the trial was over I can say confidently that I don’t think another day would have made any difference or another week. I mean that I was as prepared on the 13th of September as I would have been on the 23rd of September.” (Tr. 106).

In response to questions propounded by the Court, the attorney testified:

“The Court: What I am interested in, you as an attorney and this petitioner and his co-defendant had conversation there. After all, it may take some time to prepare some cases, but was there anything in the case that time would have been of any benefit?
“The Witness: No, sir.
“The Court: And you also had a conference with them at the jail for about 30 minutes, as I understand?
“The Witness: Yes, sir.
“The Court: The following day?
“The Witness: No, sir, that evening.
“The Court: That evening. And you worked on the case, you made out whatever plan — whatever you plan of trial was going to be. Would time — if you had had two weeks or a month, would you have had any more of an opportunity to make any different plan than that under the evidence in the ease, under the facts in the case as given to you by the defendant? I can understand how time is a circumstance in the preparation of a serious charge but all of us know, who have had experience in the practice of criminal cases that unless there is something that time is going to give you some advantage to get something done or to find out something, one day is as good as a month.
“Is there anything now, as an attorney, which you know about the case which you feel that if you had had more time you could have offered a better defense?
“The Witness: No, sir. It wouldn’t have made a bit of difference.
“The Court: It wouldn’t have made a bit of difference.” (Tr. 120-121).

Stidham testified at the evidentiary hearing and made some important admissions. He admitted that “about a quarter to eleven” he and his companion Long stopped at a sandwich shop for sandwiches and coffee, and then went into the liquor store to get a bottle of whiskey. This appears to have been just prior to the burglary. After going in the store he testified that they decided not to buy the whiskey and that they left the store. He admitted that he threw an object out of the car just as it was being stopped by the police, but he claimed it was cups and napkins from the sandwich shop, rather than the pistol. He also admitted that the .22 caliber ammunition was in the trunk of the car.

Stidham’s complaint against his first lawyer was that he merely got them a deal from the prosecutor, namely, a proposed sixteen years’ sentence in return for a guilty plea. It is interesting that in his testimony at the evidentiary hearing, he never mentioned his alleged poker-playing witnesses in Cincinnati.

In our opinion there was substantial evidence to support the findings of fact of the District Court, and they are not clearly erroneous. It was the province of the District Court to make credibility determinations. The burden of proof was on petitioner to establish a violation of his constitutional rights. Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61 (1945). Petitioner did not meet this burden.

The late appointment of counsel does not constitute a per se violation of the Constitution. The issue must be determined by consideration of all the facts and circumstances of the case. United States v. Knight, 443 F.2d 174, 177 (6th Cir. 1971); Callahan v. Russell, 423 F.2d 450, 454 (6th Cir. 1970).

It is obvious that petitioner was just about caught “redhanded”. Under these circumstances it was most difficult for any attorney to defend him successfully. The lawyer could not very well search to find Cincinnati poker players without being furnished their names and addresses.

Ineffectiveness of counsel is easy to charge, but difficult to prove. No such claim can prevail “unless what was done or not done by the attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court.” Hayes v. Russell, 405 F.2d 859, 860 (6th Cir. 1969). No such situation existed here.

Affirmed.


author: BUTZNER, Circuit Judge: ALBERT Y. BRYAN, Senior Circuit Judge

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Appellant, v. VIRGINIA BAPTIST HOSPITAL, INC., Appellee.
    No. 72-1191.
    United States Court of Appeals, Fourth Circuit.
    Argued March 8, 1973.
    Decided June 19, 1973.
    Rehearing Denied Sept. 10, 1973.

      Donald S. Shire, Atty., U. S. Dept, of Labor (Richard F. Schubert, Sol. of Labor, Carin Ann Clauss, Associate Sol., Washington, D. C., Eldon E. Silverman, Denver, Colo., and Marvin Tincher, Regional Atty., Nashville, Tenn., on brief), for appellant.
    William B. Poff, Roanoke, Va. (Ronald M. Ayers, and Woods, Rogers, Muse Walker & Thornton, Roanoke, Va., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
   BUTZNER, Circuit Judge:

The single issue presented by this appeal is whether the district court erred in ordering the United States Secretary of Labor to amend his complaint against the Virginia Baptist Hospital, Inc. to include a more definite statement of his claim. When the Secretary declined to expand his complaint, the district court dismissed the action, and the Secretary appealed this order of dismissal. Because we conclude that the complaint furnished sufficient information to permit the hospital to prepare an answer, we vacate the judgment of the district court and remand the case for further proceedings.

The Secretary’s complaint alleged that the hospital had its place of business in the western district of Virginia, that it engaged in interstate commerce, and that the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (1970), conferred jurisdiction on the district court. The complaint further charged that, since September 15, 1968, the hospital had repeatedly violated the Act by failing to pay all its employees the minimum wage required by the Act, by paying wages that discriminated on the basis of an employee’s sex, by employing persons for more than forty hours a week without paying them overtime rates, by failing to keep accurate records, and by employing oppressive child labor. The complaint identified the sections of the Act which the hospital had allegedly violated, and it requested injunctive relief.

The hospital moved for a more definite statement. It requested the Secretary to specify the names of the employees paid less than the minimum wage and the wages paid each of these employees; the jobs in which the hospital practiced sex discrimination, the employees in those jobs, and the wages paid to each employee; the names of the employees who did not receive overtime pay and the weeks in which these employees were entitled to overtime pay; the particular records that the hospital had failed to maintain as required by the Act; and the names of employees whose employment constituted oppressive child labor, the hours worked by each of these employees, and the particular manner in which their employment violated the Act. The district court, ruling that a plaintiff must plead the facts within his knowledge on which he bases his claim, ordered the Secretary to amend his complaint to allege all the information requested by the hospital.

The district court’s order, we believe, misconstrued the role of pleading under the 'Federal Rules of Civil Procedure. Rule 12(e), which authorizes the motion for a more definite statement, must be read in conjunction with Rule 8, which establishes the general rules for pleading. Rule 8(a) makes three elements mandatory in a complaint: (1) a statement of the grounds upon which the court’s jurisdiction depends, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment. Rule 12(e) allows a defendant to move for a more definite statement if the complaint “is so vague or ambiguous that [he] cannot reasonably be required to frame a responsive pleading.”

A major aim of American procedural reform has been to reduce reliance on pleadings to refine the evidentiary basis for a litigant’s claim. The early state procedure codes, modeled after the New York code drafted by David Dudley Field, tried to simplify common law pleading by requiring a complaint to state “the facts constituting each cause of action.” Judicial hostility to the codes, however, generated complex distinctions between law, facts, and evidence to nullify the attempt to simplify pleading. To avoid these technicalities, the drafters of the Federal Rules substituted the word “claim” for “cause of action,” dropped the requirement that the complaint allege “facts,” and expanded discovery procedures, but even these changes were not entirely successful. To clarify the original intent of the rules, the bill of particulars was abolished by the 1946 amendments which became effective in 1948. The same amendments restricted the motion for a more definite statement to pleadings so vague or ambiguous that the opposing party could not frame an appropriate response.

Judged by the standard set forth in Rule 12(e), the Secretary’s complaint was sufficient to require the hospital to respond. The complaint stated the jurisdictional grounds for the claim, identified the sections of the Act that the hospital had allegedly violated, described the nature of the violations, specified the period of time in which they occurred, and notified the hospital of the relief the Secretary sought. The hospital could rely on its records to admit or deny any of the charges. If the hospital did not know whether some of the Secretary’s allegations were true or false, Rule 8(b) would permit it to plead that it lacked sufficient information to form a belief as to the truth of the allegations and would give this plea the effect of a denial. If the hospital thought that the Secretary lacked facts to support his allegations, it could establish by affidavit its compliance with the law and move for summary judgment under Rule 56. If it wanted to discover the facts on which the Secretary based his claim, it could use the discovery devices of Rules 26 to 37.

Before 1948, district courts differed over whether defendants were entitled to have the Secretary’s boiler plate Fair Labor Standards Act complaint amplified by allegations of the facts. But since the amendment of Rule 12(e), this split of authority has largely disappeared. The only two courts of appeals that have considered the question have ruled that it is error to require the Secretary to augment his complaint by a more definite statement of the facts pertaining to the violations he has charged. The great majority of district courts have also accepted this interpretation of Rule 12(e), and the leading commentators agree that these decisions correctly implement the purpose of the rules.

We do not hold that requiring a limited expansion of a complaint is never appropriate under Rule 12(e), for that is a matter generally left to the district court’s discretion. But when the complaint conforms to Rule 8(a) and it is neither so vague nor so ambiguous that the defendant cannot reasonably be required to answer, the district court should deny a motion for a more definite statement and require the defendant to bring the case to issue by filing a response within the time provided by the rules. Prompt resort to discovery provides adequate means for ascertaining the facts without delay in maturing the case for trial.

Accordingly, the judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. The government shall recover its costs.

ALBERT Y. BRYAN, Senior Circuit Judge

(dissenting):

No fault can be found in the majority’s precise and comprehensive exposition of the Federal Rules of Civil Procedure. However, the Rules are there considered entirely in the abstract. My point is that, in the actualities of this case the District Judge correctly sustained the defendant’s motion for a more definite statement. In holding to the contrary, the decision disregards the overriding and practical aim of the Rules — to simplify pleading and to expedite the cause.

The Secretary pressed in argument that the District Judge should be reversed solely because he granted the defendant’s motion instead of requiring the defendant to employ the discovery provisions of the Rules. Quite candidly the Secretary conceded that, although he had the information sought by the Hospital readily at hand, he opposed the motion because he “did not want to have to live with the precedent of putting all of [his] proof in [his] complaint”. Therefore, he insisted that the Hospital go to the expense and effort of time-consuming discovery.

No one questions that discovery is the usual course; that is hornbook. But where this cumbersome procedure can be avoided, I see in it no affront to the Rules. The Rules are not so inflexible as not to tolerate any deviation from some of their steps when to do so will, because of exceptional circumstances, achieve the Rules’ aims — simplicity and expedition — without the merest prejudice to any party. Otherwise, the overall ambition of the Rules is thwarted by the Rules themselves. Moreover, any information given responsively to the motion would not have constituted proof. Apparently this was the District Judge’s construction.

The logic of his stance upon the Secretary’s refusal to obey the Court’s orders in the Hospital’s motion is starkly revealed by recounting the impediments the Secretary interjected into the progress of the suit. Instead of obtaining the information at once or within 10 days, Rule 12(e), without any inconvenience whatsoever to the Secretary, the Hospital is now relegated to the observance of the long stages of discovery, as though they were indispensable to the plaintiff. In lieu of immediate receipt of the desired information, the Hospital must:

1. State in its answer that the Hospital was “without knowledge or information” as to the truth of any averment in the complaint in that category, all of which would have been furnished at once on the Hospital’s motion.

2. Prepare and serve interrogatories, or take depositions, to gain this knowledge or information.

3. Wait 30 days for objections or answers to interrogatories. Rule 33(a).

4. Seek a hearing before the Court on the objections, if any.

5. Await the decision of the Court on the objections.

6. Await the answer by the adversary party to any interrogatory found unobjectionable.

7. Examine all answers to ascertain if they were sufficient.

8. Except to any answer believed insufficient.

9. Seek a hearing before the Court on the exceptions.

10. Await decision thereon.

Pursuit of such prolongation of procedure is costly both in money and in time. It should not be imposed upon a defendant when, as in the special circumstances of this case, the whole of it could have been obviated through the Secretary’s compliance with the Hospital’s motion, which he could do at once, easily and without a shadow of prejudice. The Rules are not so sacrosanct that we dare not apply them practically.

I would affirm.

      . Rule 8(a) of the Federal Rules of Civil Procedure provides:

        “Claims for Relief. A pleading which sets forth a claim for relief shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.”

      . Rule 12(e) of the Federal Rules of Civil Procedure provides:

        “Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.”

      . See generally Clark, Code Pleading §§ 7-12, 38 (2d ed. 1947) ; James, Civil Procedure §§ 2.1-2.13 (1965) ; 2A Moore, Federal Practice § 8.03 (1972) ; 5 Wright & Miller, Federal Practice & Procedure: Civil § 1202 (1969).

      . James, Civil Procedure 66 (1965). See also Clark, Code Pleading § 38 (2d ed. 1947).

      . Clark, Code Pleading 83 (2d ed. 1947).

      . Clark, Code Pleading 241 (2d ed. 1947) ; James, Civil Procedure 84 (1965).

      . In a 1939 speech to the New York County Lawyers Association, Charles E. Clark, the Reporter for the Advisory Committee on Rules for Civil Procedure, explained how some litigants were abusing the bill of particulars:
      “The difficulties and dangers of this legalistic approach to the rules are shown by a development, which might be amusing if it were not serious. I refer to the practice as to motions for bills of particulars which I am told is already developing in the district courts here. Under the new rules (R. 12, e) the practice of securing a bill of particulars, a weapon exquisitely designed to delay a cause and to make the pleadings technical, detailed, and therefore useless, and for little-else, is narrowly limited.....
      “ . . . Down here when in doubt as to your case you move for a bill of particulars, and when not in doubt you move anyway. Your able Judicial Council diagnosed the evil of too many such bills delaying the cases; but its remedy — semi-automatic granting of the order — seems to me almost worse than the disease. .
      “The trouble is that you have confused the pleadings with the evidence. Pleadings cannot supply the place of proof to try your case. Their function is only to set the general boundaries of the action and to provide the basis for res adjudicata or the binding force of the final judgment to be rendered. If you need facts about the case before trial from your opponent, you should get them by deposition and discovery.”
      Clark, The Bar & the Recent Reform of Federal Procedure, 25 A.B.A.J. 22, 23 (1939) (footnote omitted).

      . Advisory Committee on Rules for Civil Procedure, Report of Proposed Amendments, 5 F.R.D. 433, 444 (1946). See also James, Civil Procedure 133 (1965) ; Clark, The Amended Federal Rules, 15 Brooklyn L.Rev. 1, 8 (1948).

      . See e. g. Fleming v. Dierks Lumber & Coal Co., 39 F.Supp. 237 (W.D.Ark.1941) (motion granted) ; Fleming v. Gitlin Bros. & Rush, Inc., 1 F.R.D. 608 (E.D.Pa.1940) (motion denied). See also 2A Moore, Federal Practice 2386 (1972).

      . Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126 (5th Cir. 1959); Vecchia v. Fairchild Engine & Airplane Corp., 171 F.2d 610, (2d Cir. 1948).

      . See e. g. Schultz v. Manor House of Madison, Inc., 51 F.R.D. 16 (W.D.Wis. 1970); Shultz v. Clay Transfer Co., 50 F.R.D. 480 (E.D.N.C.1970). See also 2A Moore, Federal Practice § 12.18 n. 5 (1972).

      . See 2A Moore, Federal Practice § 12.18 (1972) ; 5 Wright & Miller, Federal Practice & Procedure: Civil § 1376 (1969).

      . See Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir.1959).