author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Robert John EVANS, Appellant.
    No. 993, Docket 73-1029.
    United States Court of Appeals, Second Circuit.
    Argued June 25, 1973.
    Decided Sept. 19, 1973.

      Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., and John D. Gordan, III, Asst. U. S. Atty., on the brief), for appellee.
    Sheila Ginsburg, The Legal Aid Society, New York City (Robert Kasanof, New York City, on the brief), for appellant.
    Before LUMBARD, HAYS, and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

Robert John Evans appeals from a judgment of conviction entered against him on March 27, 1973, in the Southern District of New York after a three-day jury trial before the Honorable Dudley B. Bonsai, United States District Judge. The indictment, filed August 16, 1972, charged Evans in one count with robbing the First National City Bank, located at 130 East 42nd Street, in New York City, in violation of 18 U.S.C. § 2113(a). The jury found the defendant guilty, and sentence was imposed by Judge Bonsai of eight years imprisonment under 18 U.S.C. § 4208(a)(2). The defendant, who is currently serving his sentence, appeals on two grounds: first that the three eyewitnesses to the robbery who identified him at trial were incompetent so to testify, or alternatively that their testimony was the product of impermissible pre-trial identification procedures and hence inadmissible, *and secondly that the trial court’s failure specifically to instruct the jury on the dangers of eyewitness identification was reversible error. We find that these contentions are without merit, and we accordingly affirm the conviction.

The First National City Bank at 130 East 42nd Street in Manhattan was robbed at about 11:30 A.M. on July 28, 1972. The robber had been standing in line for some minutes waiting to reach the teller’s window. When he reached the window, he thrust a folded piece of paper on the counter in front of the teller, Janice Weber. Miss Weber looked up at the man, unfolded and read the note, which stated, “This is a holdup your 100’s, 50’s, 20’s Don’t stall My Partner will start shooting. Don’t faint or I’ll shoot.” Miss Weber handed over $2665 in currency to the robber. She placed the bills on the counter, looked up again and watched the man who had given her the note take the money and walk out of the bank. She kept the note. As the robber left, Miss Weber pushed the emergency alarm, triggering the surveillance camera located over the exit door. A photographic record was thus made of the robber leaving the bank.

During the time the robber was at Miss Weber’s window, and also for several minutes beforehand, the robber was observed by two customers in the bank, Margaret Kelly and Pauline Monahan, who were standing in line at the window next to Miss Weber’s. Both saw the note and money change hands, and both watched the robber leave the bank.

Before trial, the defendant moved to exclude the testimony of Misses Weber, Kelly, and Monahan, the three possible eyewitnesses to the robbery. A Simmons hearing was held to determine whether their testimony on the issue of identification was to be excluded. (See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 127 (1968)). John Janson, an FBI agent, testified that on the day of the robbery, in the afternoon, he had separately shown to each of the three eyewitnesses a photographic spread in an effort to identify the robber. Each eyewitness was unable to make a fully positive identification, but each selected a photograph of the defendant and also one of another man as pictures of the likely suspect. (According to Janson, from the seven photographs presented, Miss Weber selected that of the defendant and that of one Neil Masotta., Miss Kelly selected photographs of the defendant and one Larry Curtin. Miss Monahan made the same selection as Miss Kelly.) On the basis of their identification in the photographic spreads, the defendant was arrested and charged with the robbery.

When the individual eyewitnesses testified at the hearing, certain inconsistencies emerged concerning just what had happened during the spreads conducted by Agent Janson. Miss Weber acknowledged she had selected the defendant’s photograph, but she was not sure whether the other photograph she had picked was of Masotta or was rather “the last one,” which would have been of one James Timmons. Miss Kelly testified that she had at first picked only the defendant’s photograph, but on cross-examination she conceded she had picked a second, although less positively. Miss Monahan remained consistent in her selection. Each eyewitness also admitted that within the week prior to the Simmons hearing each had been shown either stills from the surveillance film taken of the robbery (Miss Weber) or parts of the film plus photographs of other robberies in which the defendant had allegedly been involved (Miss Kelly and Miss Monahan). Judge Bonsai denied the defendant’s motion to exclude the eyewitnesses’ identification testimony.

At trial, the government’s case consisted of the testimony of the three eyewitnesses, the surveillance film, the expert testimony of an FBI documents examiner, and the testimony of an officer of the bank that it was insured by the Federal Deposit Insurance Corporation and that surveillance cameras were in use at the 130 East 42nd Street branch. No evidence was presented by the defendant.

At trial, Miss Weber identified the defendant as the robber and stated that she was sure of her identification, even though she also admitted to having selected not only the defendant’s photograph but also that of another at the photographic spread on the day of the robbery. In addition, the presentation of the surveillance film to the jury was also made during Miss Weber’s testimony, and over the defendant’s objection Miss Weber was permitted by the trial court to point out during the showing of the film the location of persons and objects in the bank. Miss Kelly, in her testimony, made a similar in-court identification of the defendant as the man she had seen commit the robbery. She, too, acknowledged that she had not been completely positive of her identification of the defendant at the photographic spread on the day of the robbery. Miss Monahan was the third eyewitness to testify at trial. During her testimony in the morning, she was unable to identify the defendant as the man who committed the robbery. During the luncheon recess the prosecution had her view the surveillance film again, and in the afternoon she was recalled to the witness stand, over defense objection. The objection was overruled, and, her memory refreshed, she identified the defendant as the robber.

It is the defendant’s initial contention that the sum of these identifications by the three eyewitnesses establishes conclusively their incompetence to testify at trial on the issue of identity. In support of his contention, the defendant argues that the identifications made in court by Misses Weber, Kelly, and Mon-ahan were founded not upon their personal familiarity with the robber’s appearance, gained at the time of the robbery, but upon their recollection of the surveillance film (which, the defendant claims, is insufficiently clear to support any identification of the robber) and other photographs shown to them by government agents.

We are unable to discern any good reason for holding that the three eyewitnesses were incompetent to testify-. While it is true that “what the witness represents as his knowledge must be an impression derived from the exercise of his own senses, not from the reports of others, — in other words, must be founded on personal observation,” 2 Wigmore, Evidence § 657 (3rd ed., 1940) (emphasis omitted), nonetheless it has long been established that “the result of the witness’ observation need not be positive or absolute certainty . ; it suffices if he had an opportunity of personal observation and did get some impressions from this observation.” Id., § 658. These principles have been consistently applied with no less breadth in the area of testimony as to a person’s identity. Id., § 660. As the Supreme Court noted in Stovall v. Denno, 388 U.S. 293, 299-300, 87 S.Ct. 1967, 1971, 18 L.Ed.2d 1199 (1967): “The overwhelming majority of American courts have always treated the evidence question [of eyewitness identification] not as one of admissibility but as one of credibility for the jury.” Cf. Wall, Eye-Witness Identification in Criminal Cases, 38. It is thus not surprising that the limitations which the Supreme Court has recently applied to this broad principle have been for specific purposes of protecting federal constitutional rights through the use of exclusionary rules. United States v. Wade, 388 U.S. 218, 87 5. Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Although these cases involved due process claims, as well as fifth and sixth amendment claims, none of them premised the exclusion of identification testimony on the incompetency of the particular witnesses involved. Nor do we read any of them as suggesting a limitation on the modern tendency to permit the admission of testimony as long as it is relevant, open to cross-examination, and not the fruit of illegal investigatory practices. It is not surprising, therefore, that the defendant, in his effort to establish incompeteney, is unable to refer us to any cases which support his contention. In those which he briefly mentions, United States v. Barber, 442 F.2d 517 (3rd Cir., 1971), cert, denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); and United States v. Fernandez, 480 F.2d 726 (II), (2d Cir., 1973), as in the recent Supreme Court decisions just cited, competency was unquestionably assumed by the court, and the evidentiary question was understood to center not on the capabilities and capacities of the witnesses, but on circumstances which later undermined the reliability of their otherwise admissible first-hand knowledge.

Here, Misses Weber, Kelly, and Monahan each observed the robber at the time of the robbery, for an adequate length of time to perceive at least his general features, his sex, stature, bearing, the color of his skin, and even his fingernails. Their observations were made under conditions of adequate light, under (at least initially) normal daytime operations. There was no mask on the robber, nor any obstruction between the observer and the suspect. Nor is there any indication that the witnesses’ faculties of observation were in any way impaired. Under these circumstances, the witnesses were clearly competent. See Simmons v. United States, supra; Coleman v. Alabama, supra; Clemons v. United States, and companion cases 408 F.2d 1230 (1968) (en banc), cert, denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir., 1970), cert, denied, 400 U.S. 908, 91 S. Ct. 151, 27 L.Ed.2d 146 (1970) ; United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1972), cert, denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972); United States v. Fernandez (I), 456 F.2d 638 (2d Cir., 1972).

We turn now to the question whether the testimony of the three eyewitnesses, otherwise competent, should have been excluded for the reason that it was the result of impermissibly suggestive pretrial identification procedures and hence, in its admission at trial, violative of due process. Cf. Simmons v. United States, supra. The defendant in his reply brief specifically disclaims that he is making a “taint argument” on the basis of Simmons, Wade, and Gilbert, supra, and states that his argument is only “an evidentiary [one] which inquires whether the witnesses could, from their ability to observe, identify the robber, and thus whether the witnesses were competent to testify.” However, in his principal brief, the defendant argues that “the eyewitness testimony presented by the government was improperly admitted at trial because this testimony was incompetent and the product of unnecessarily suggestive photographic procedures.” (Emphasis added.)

While, as indicated earlier, it is only recently that the Supreme Court has addressed the problem of improper eyewitness identification, Wade, Gilbert, Stovall, supra, and subsequent cases, the guidelines are fairly well established regarding the admissibility of in-eourt eyewitness identification testimony. In instances where there is no sixth amendment violation relating to the absence of counsel at a critical stage of the criminal proceedings (see United States v. Wade, supra; Coleman v. Alabama, supra), and again no such issue is raised by the defendant (cf. Sobel, Eye-Witness Identification § 47 (1972)), the admissibility of in-court eyewitness identification testimony is solely a question of due process. In a situation such as the present one, where various photographic identification procedures were used prior to and during trial, admissibility depends upon a weighing of all the circumstances surrounding the use of such procedures. As the test was formulated in Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971:

[E]ach case must be considered on its own facts, and . . . 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 misidentifieation.

The danger on which the Court was focusing, of course, was that “ [r] egardless of how [an] initial misi-dentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Id., at 383-384, 88 S.Ct. at 971. Yet despite the serious risks and even more serious consequences of misidentifieation through the use of photographs, the Supreme Court was “unwilling to prohibit [their] employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement,” noting that the technique was “used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Id., at 384, 88 S. Ct. at 971.

Since the Simmons case, there have been some instances of the exclusion of eyewitness identification testimony because of the impermissibly suggestive nature of its origin. See Foster v. California, supra; United States v. Sutherland (I), 428 F.2d 1152 (5th Cir., 1970), cert, denied, 409 U.S. 1078, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972). But the procedures held violative of due process in those cases went well beyond the techniques employed in the present case. Rather, the techniques used by the law enforcement authorities in securing an identification of Evans as the suspected robber were consonant with situations where courts have found either no violation of due process or a violation that, on a totality of the circumstances test, was harmless. In Simmons itself, for example, petitioner Simmons challenged the in-court identification testimony because the five bank employees who had witnessed the robbery had, on the following day, been shown photographs of himself and of a co-defendant which had been taken from the home of Simmons’ mother-in-law by the police during their investigation and from which all five witnesses had been able to identify Simmons as one of the suspects. In rejecting the claim that the use of those photographs and of other photographs of Simmons shown to the eyewitnesses constituted a violation of due process, the Court, through Mr. Justice Harlan, said (390 U.S. at 384-386, 88 S.Ct. at 971):

Applying the standard to this case, we conclude that petitioner Simmons’ claim . . . must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. ... It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces. . . . The justification for this method of procedure was hardly less compelling than that which we found to justify the “one-man lineup” in Stovall v. Denno, supra.
In the second place, there was in the circumstances of this case little chance that the procedure utilized led to misidentifieation of Simmons. The robbery took place in the afternoon in a well-lighted bank. The robbers wore no masks. Five bank employees had been able to see the robber later identified as Simmons for periods ranging up to five minutes. Those witnesses were shown the photographs only a day later, while their memories were still fresh. At least six photographs were displayed to each witness. Apparently, these consisted primarily of group photographs, with Simmons and Andrews [the co-defendant] each appearing several times in the series. Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion.
Under these conditions, all five eyewitnesses identified Simmons as one of the robbers. . . . These initial identifications were confirmed by all five witnesses in subsequent viewings of photographs and at trial, where each witness identified Simmons in person. . . . Taken together, these circumstances leave little room for doubt that the identification of Simmons was correct, even though the identification procedure employed may have in some respects fallen short of the ideal. [Footnote omitted.]

This court thereafter had occasion to consider the admissibility of in-court identification testimony in United States ex rel. Phipps v. Follette, supra, 428 F.2d 912 (1970), cert, denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). There, despite a finding that a post-arrest stationhouse showup was impermissibly suggestive in which the one eyewitness to a gas station robbery identified the two robbers, the in-court identification was nonetheless permitted to stand because the opportunity for the eyewitness to observe the robbers at the gas station, while he struggled with them for some 20 to 30 seconds, was deemed sufficient to surmount the taint of the showup. This court considered the Simmons test to be a two-fold one: that to sustain the exclusion of identification testimony, there had to be a showing both of impermissibly suggestive procedures and of the substantial likelihood of misidentification. Where one or both were lacking, this court concluded that eyewitness identification testimony was to be admitted. This approach has been followed subsequently in this circuit. See United States v. Fernandez (I), supra, 456 F.2d 638 (1972), where identification testimony of a robbery suspect was allowed in spite of a clearly suggestive photographic spread because the witnesses had had ample opportunity at the time of the robbery (five to seven minutes in daylight) to observe the features of the defendant.

While the Supreme Court has not explicitly adopted a two-step approach in applying the Simmons test of the totality of the circumstances, in Neil v. Biggers, supra, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court upheld a conviction where the one eyewitness, the victim of a rape, had over some seven months viewed suspects “in her home or at the police station, some in lineups and others in showups,” and many in photographs, before identifying her attacker at a showup. The Court reaffirmed that “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification,’ Simmons v. United States, 390 U.S., at 384, 88 S.Ct. 967.” It then went on to consider “whether . . . unnecessary suggestiveness alone requires the exclusion of evidence.” Neil v. Biggers, supra, at 198-199, 93 S.Ct. at 381. The Court concluded:

While we are inclined to agree that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, not because in every instance the admission of evidence of such a confrontation offends due process. [Id., at 199, 93 S.Ct. at 382.]

The Court declined to apply such a rule, and went on to say:

[T]he central question [is] whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentifieation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. [Id., at 199, 93 S.Ct. at 382.]

Weighing all the factors, the Court found no substantial likelihood of misidentification, and held that the evidence of identification was properly allowed to go to the jury. We note that other courts of appeals have sustained convictions based on eyewitness testimony in overall circumstances similar to the circumstances in the instant case. Clemons v. United States, and companion eases, supra, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968), cert, den., 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Macklin v. United States, 133 U.S.App. D.C. 347, 409 F.2d 174 (1969) ; United States v. Barber, 442 F.2d 517 (3rd Cir., 1971), cert, den., 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); United States v. Hines, supra, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1972), cert, den., 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). See also Coleman v. Alabama, supra, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Here the three eyewitnesses were shown photographs of Evans in separate photographic spreads within hours after the robbery, while their rec-olleetions were still fresh. There is no suggestion of impropriety in the spreads themselves: no improper use of names, no distinctive characteristics about Evans’s photograph as compared to those of the others. The selection by each of them of Evans’s photograph, while not wholly positive, was careful and free of any marks of police pressure or suggestion. Indeed, their tentativeness is in itself evidence that the spreads were fair, for if identification is risky, some doubt is customarily to be expected. Cf. Hines v. United States, 133 U.S.App.D. C. 27, 408 F.2d 1230, 1242 (1968), cert, den., 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969): “The most assertive witness is not invariably the most reliable one.” Under these circumstances, whatever dangers of initial misidentification existed in the use of the spreads, they were not unnecessarily suggestive and consequently were not such as to require exclusion at trial. They could be adequately protected against, as the Supreme Court noted in Simmons, “by a course of cross-examination which exposes to the jury the method’s potential for error.” Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971.

The taint argument, however, does not end here. The defendant argues that in the showing of the bank surveillance film, or portions of it, to the three eyewitnesses not merely prior to trial (at a time when the defendant had been in custody for more than two months), but, in the case of Miss Monahan, during the trial as well, the chances were thereby augmented that the in-court identifications were the result of improper pretrial photographic procedures in that the potential for danger present in the use of the photographic spreads, if not realized at the beginning, was realized when compounded through post-arrest review. Furthermore, because of this increased danger, the defendant in his principal brief urges the adoption of a per se exclusionary rule, whereby such allegedly tainted identification would be inadmissible unless the government can establish by “clear and convincing evidence” either that there was in fact no taint or that the testimony was based on an untainted, independent source of identification.

We decline to adopt a per se rule in this case for the same reasons that the Supreme Court refused to do so in the Simmons case and in Neil v. Biggers. Simmons v. United States, supra, 390 U.S. at 383-384, 88 S.Ct. 967; Neil v. Biggers, supra, 409 U.S. at 198-200, 93 S.Ct. 375. And while the post-arrest photographic procedures employed here by the government may have been unnecessarily suggestive, we nonetheless find that, even coupled with the pre-arrest use of the spreads, they were not such as to constitute “a substantial likelihood of misidentification.” In reaching this determination, we continue to look to the totality of the circumstances (e/. United States ex rel. Phipps v. Follette, supra), and on that basis the later viewing of the surveillance film by Misses Weber, Kelly, and Monahan was not so suggestive as to overwhelm the reliability of their identification testimony grounded in their observations made on the day of the robbery of the robber himself and of the suspects’ photographs shown to them by FBI agent Janson. The film contained the likeness not of some possible suspect in the police files, but of the man who actually committed the robbery. As a consequence, to refresh the memory of each eyewitness from that source ran a significantly smaller risk of misidentification than to refresh it from a source unrelated to the actual events. See United States v. Mackey, 474 F.2d 55 (4th Cir., 1973). It is true that permitting Miss Monahan to refresh her recollection by viewing the film during trial is questionable. But her testimony, even so refreshed, when subjected as it was to cross-examination, became practically worthless, and hence the error was also harmless in view of the strong case which the government offered as a whole. The two other eyewitnesses identified the defendant without such use of the film at trial, and, as we noted earlier, they did so in considerable detail. There was also the expert testimony of Agent Lilja that the demand note presented to Miss Weber was in the defendant’s handwriting. Furthermore, the surveillance film was shown to the jury and they were able to make the comparison for themselves between the defendant, sitting before them in open court, and the person of the robber as caught by the eye of the surveillance camera at the time of the robbery.

Against the totality of this evidence, it cannot be said that those portions of it which stemmed from suggestive photographic procedures reached a level which required the exclusion of the resulting testimony. Rather, the testimony was sufficiently based on the personal knowledge of the eyewitnesses that any taint was subject to adequate exploration through cross-examination. In view of the extent, therefore, to which the eyewitnesses’ testimony was challenged on cross-examination — challenges which brought out many of the minor inconsistencies and irregularities discussed earlier — there yet remained ample un-controverted and untainted evidence of the robber’s identity for the jury to consider the issue. Cf. United States v. Wade, supra, 388 U.S. 218, 240, 242, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, supra, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, supra, 388 U. S. 293, 299-302, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967); Simmons v. United States, supra, 390 U.S. 377, 383-386, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, supra, 409 U.S. 188, 196-199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The other principal contention raised by the defendant is that it was an abuse of discretion and reversible error for the trial judge, after a request by defense counsel, to fail to give a specific charge to the jury on the dangers of eyewitness identification. The trial judge declined to give such an instruction, and limited his charge to the general issue of credibility. The defendant challenges this ruling and urges in support of his position further consideration of recent decisions of the Third Circuit and District of Columbia Courts of Appeals, and also of this court, either adopting or suggesting the use of a specific cautionary charge in criminal cases where identification of the defendant is a key issue. United States v. Barber, supra, 442 F.2d 517 (3rd Cir., 1971), cert, den., 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971); Salley v. United States, 122 U. S.App.D.C. 359, 353 F.2d 897 (1965); Macklin v. United States, supra, 133 U. S.App.D.C. 347, 409 F.2d 174 (1969). See also United States v. Fernandez (I), supra, 456 F.2d 638 (2nd Cir., 1972).

There is no question that identification testimony is notably fallible, and the result of it can be, and sometimes has been, “the greatest single injustice that can arise out of our system of criminal law,” Gregory v. United States (I), 125 U.S.App.D.C. 140, 369 F.2d 185, 190 (D.C.Cir., 1966), cert, den., 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969), namely the conviction of the wrong man through a mistake in identity. The dangers in this area have been well chronicled, and have been the proper subject of careful attention in this and many other courts and by members of the legal profession. We note, however, that there is also “formidable precedential authority which holds that it is necessary neither to instruct the jury that they should receive certain identification testimony with caution, nor to suggest to them the inherent unreliability of certain eye-witness identification.” United States v. Barber, supra, 442 F.2d at 526. In Barber, for example, the court approved the use of a specific cautionary charge only prospectively, and then not in all instances. United States v. Barber, supra, 442 F.2d at 528. And in Macklin, in spite of the failure of the court below to give a specific charge, the court held that “in view of the sufficiency of the charge as a whole, we do not find error here requiring reversal,” although there was in that case no request for a specific identification charge. Macklin v. United States, supra, 409 F.2d at 177.

Other courts of appeals which have considered the need for a detailed charge on the fallibility of eyewitness identification, whether to be given on request of counsel or otherwise, have decided that at most the use of such a charge is a matter of discretion, to be employed only as the circumstances of a particular case may warrant, or else that it is superfluous in the light of a proper and complete charge on the burden of proof in criminal cases and on the credibility of witnesses. McGee v. United States, 402 F.2d 434 (10th Cir., 1968), cert, den., 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); Cullen v. United States, 408 F.2d 1178 (8th Cir., 1969); Barber v. United States, 412 F.2d 775 (5th Cir., 1969). Moreover, even those courts which endorse the use of a specific charge would allow the trial judge wide latitude in choosing or declining to employ it, or they would look to other circumstances, such as the scope and adequacy of defense counsel’s cross-examination and summation, to justify its omission. United States v. Barber, supra, 442 F.2d, at 528; United States v. Moss, 410 F.2d 386 (3rd Cir., 1969), cert. den., 396 U.S. 993, 90 S.Ct. 488, 24 L.Ed.2d 455 (1969); United States v. Shelvy, 148 U.S.App.D.C. 1, 458 F.2d 823 (1972); United States v. Fernandez (I), supra, 456 F.2d 638 (2d Cir., 1972). As Judge Friendly said in the first Fernandez case, supra, at 643-644:

While a defendant is not entitled to a reading of all that was said about the dangers of misidentifieation in United States v. Wade . . ., 388 U.S. at 228-236, 87 S.Ct. at 1926, and Simmons v. United States . . ., 390 U.S. at 383-384, 88 S.Ct. at 967, we would think it reasonable that a properly drafted instruction, drawing particularly on Mr. Justice Harlan’s language in Simmons, should be given if requested. [However, wjhether failure to do would constitute reversible error would depend upon the circumstances.

We hold that under the circumstances of this case, particularly the full opportunity afforded to develop all the facts relevant to identification of the defendant and the careful and accurate instructions to the jury, it was not error for the trial judge to refuse to give an additional charge regarding identification.

Affirmed.

      . There is some confusion in the defendant’s briefs on the question whether his objection to the identification testimony of the witnesses is grounded solely on an argument of their incompetency, or whether it also rests on a contention that their testimony should have been excluded for being so tainted by improper pretrial identification procedures that to admit it at trial was violative of due process.

      . On this court’s endorsement of the use of Simmons hearings in a situation such as the present one, see our decision in United States ex rel. Phipps v. Follette, 428 F.2d 912, fn. 1 at 913, cert, den., 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970).

      . The defendant does not contend that the spreads were unfair or that at this pre-arrest stage they in any way violated the Supreme Court’s guidelines in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . The record is unclear on the extent to which the bank surveillance film was also used at this pre-arrest stage to help narrow the suspects.

      . There is some indication that Miss Weber claimed at this point never to have seen the surveillance film before, which may have been technically true but is not fully consistent with her testimony at the Simmons hearing.

      . Miss Kelly also testified that at the same spread, prior to viewing the group of seven photographs selected by Agent Janson, she had been shown a single photograph of an unknown person not, to her recollection, the defendant.

      . In Fernandez (I) there was also the further evidence of a bank surveillance film.

      . The defendant contends, in part, that taint is established prima facie in instances where the government has failed to use a more reliable source of identification, for example a lineup, when such a source is available and a less reliable one, for example a showup, has been used in its stead. The defendant would further urge that in such instances only a per se exclusionary rule would adequately ensure the regular use of the more reliable source. This argument was specifically rejected by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We believe it does not merit further consideration. See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 127 (1968), at 385-386 and fn. 6, at 386; United States v. Sutherland (I), 428 F.2d 1152, 1156 (5th Cir., 1970), cert, den., 409 U.S. 1078, 93 S. Ct. 698, 34 L.Ed.2d 668 (1972).

      . During argument, this court had occasion to view the surveillance film. We believe that it contained sufficiently clear images of the robber so that the jury was properly allowed to view the film and to make their own determination of the likeness of the robber on the screen to the defendant in the courtroom. Furthermore, while it may have been somewhat out of the ordinary to have Miss Weber narrate the film during its showing to the jury, we reject the defendant’s contention that she was not qualified to perform this function. She was an employee of the bank, familiar with the premises and with the general operation of the surveillance system, and present at the time the pictures were taken; she was not, as the defendant would characterize her, a lay witness masquerading as an expert.

      . See United States v. Wade, 388 U.S. 218, 228-236, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) , and sources there cited. See also Simmons v. United States, 390 U.S. 377, 383-384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) . A recent discussion of the problems, with bibliography, is to be found in So-bel, Eye-Witness Identification (1972). Por English views on the issues of cautionary charges, see the Eleventh Report, Evidence (General), of the Criminal Law Revision Committee, §§ 199 et seq. (1972), and Glan-ville Williams, The Proof of Guilt, 106-124 (3rd ed. 1963).

      . We have carefully scrutinized the trial court’s charge on the general issue of credibility in this ease and find it clear and thorough.


source: Caselaw Access Project

author: BUTZNER, Circuit Judge:

license: Public Domain

text:
    William Raymond SMITH, Appellee, v. A. E. SLAYTON, Jr., Superintendent of the Virginia State Penitentiary, Appellant.
    No. 72-1847.
    United States Court of Appeals, Fourth Circuit.
    Argued July 16, 1973.
    Decided Sept. 25, 1973.

      William A. Carter, III, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellant.
    Barry Nakell, Chapel Hill, N.C., [court-appointed counsel] for appellee.
    Before CRAVEN, BUTZNER, and RUSSELL, Circuit Judges.
   BUTZNER, Circuit Judge:

This appeal questions whether the admission into evidence of a bloodstained seat cover, taken from William Raymond Smith’s automobile without a search warrant, violated his rights under the fourth and fourteenth amendments. The district court, relying on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), held the evidence was unlawfully seized. We reverse.

On August 27, 1964, James Wooten was playing in the street with his sister, Irene Wooten, and his half-brother, Columbus Taylor, in Norfolk, Virginia. A man drove up, asked directions to sc nearby street, and requested James Wooten to accompany him in order to point out the street. On September 1, James Wooten’s body was found on a trash dump. He had been sexually molested and killed.

A police officer investigating the case talked to Smith on September 21 concerning the crime. When asked if he killed James Wooten, Smith responded, “I may have, I don’t remember.” Smith then explained that he had been sexually disturbed for 30 years, that his marital life was very unsatisfactory, and that he did not wish to be in the presence of little boys and girls for fear of what he might do.

Irene Wooten and Columbus Taylor both said that the abductor was driving a green station wagon. During the investigation, when questioned as to his automobile, Smith replied that he had owned a 1953 Pontiac sedan in late August, but that he sold it and was now buying a black Plymouth station wagon which he was unable to obtain until he paid the balance due. The police learned that Smith’s Pontiac was formerly painted green, that it had been brush painted black before Smith sold it, and that a seat cover had been removed from it. The ear dealer, who traded vehicles with Smith, told the police that Smith had obtained the Plymouth on September 11. This was about two weeks after the abduction and, contrary to Smith’s statement, indicated that he had possession of the Plymouth at the time the police questioned him.

On September 22, Smith voluntarily went to police headquarters. He was placed in a lineup where Irene Wooten identified him by sight and Columbus Taylor by voice. Smith was then arrested and taken into custody. The next day a police officer observed Smith’s Plymouth station wagon in a public parking lot across the street from the police station and notified the detective investigating the crime of his find. The detective looked through the car’s window and saw a stained seat cover in plain view on the front seat. Suspecting the stains were blood, the detective removed the seat cover from the unlocked car and delivered it to a crime laboratory. The seat cover was subsequently admitted into evidence at Smith’s trial. A toxicologist testified that the stains were human blood, but he could not determine whether the blood was the same type as James Wooten’s.

After an evidentiary hearing, the district court initially denied relief, but this court vacated the judgment and remanded the case for further proceedings because of Smith’s absence from the hearing. In the meantime, the Supreme Court decided Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), which excluded from evidence vacuum sweepings that the police obtained without a valid search warrant from a car parked in the yard of a murder suspect. The district court, deeming Coolidge controlling, granted Smith a writ of habeas corpus subject to retrial at which the seat cover and the toxicologist’s testimony would be excluded from evidence.

A recent opinion of the Supreme Court, not available to the district judge, persuades us that the principles stated in Coolidge should not be applied to Smith’s factually dissimilar case. In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), the Court explained the reason for partially excepting automobiles from the general rule that searches must be authorized by valid warrants:

“Although the original justification advanced for treating automobiles differently from houses, insofar as war-rantless searches of automobiles by federal officers was concerned, was the vagrant and mobile nature of the former . . . warrantless searches of vehicles by state officers have been sustained in cases in which the possibilities of the vehicle being removed or evidence in it destroyed were remote, if not nonexistent The constitutional difference between searches of and seizures from houses and similar structures and from vehicles stems both from the ambulatory character of the latter as well as from the fact that the extensive, and often noncriminal contact with automobiles that will bring local officials in ‘plain view’ of evidence, fruits, or instrumen-talities of a crime, or contraband.

The Court’s explanation illustrates why the seizure of the seat cover was lawful. Here it was precisely the police’s extensive public contact with automobiles, not a search of Smith’s private property, that directly led to the evidence. The patrolman who initially observed Smith’s car and the detective who obtained a plain view of the bloodstained seat cover were in a public parking lot where they had a right to be without any warrant. Under these circumstances the seizure-was lawful. Referring to the seizure of evidence from an automobile, the Supreme Court has said: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968).

In Coolidge, Mr. Justice Stewart, writing in Part IIC for a plurality of the Court, emphasized that the plain view doctrine will not support the warrantless seizure of evidence if the officer lacked prior justification for the intrusion that leads to the view. Here, the justification lay in the fact that the officer was in a public place, where, along with any other member of the public, he could lawfully look into Smith’s car while it was parked in a public lot and see the seat cover. He did not illegally intrude on Smith’s property to obtain the view of the evidence that was subsequently admitted at Smith’s trial. Smith’s exposure of this evidence to the plain view of the public indicates such a lack of expectation of privacy that its seizure was inoffensive. See, Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967) (Mr. Justice Harlan concurring) .

Also, in Coolidge, the police knew that the accused car was an instrument of the crime. They knew of its presence at his home and they planned all along to seize it. Under these circumstances, a majority of the Court held, in Part IID, that the police had no justification for failing to secure a warrant. Here, in contrast, the police were aware that Smith had not used the Plymouth to abduct the boy. Consequently — unlike the police in Coolidge — they had no design to seize the vehicle as an instrument of the crime. Not until the detective looked into the car, did he inadvertently find a seat cover which he recognized might well be evidence of the crime. Under these circumstances, the exposed situation of the car was an exigency justifying the immediate seizure of the evidence. See, United States v. Cohn, 472 F.2d 290 (9th Cir. 1973).

We hold, therefore, that a police officer may lawfully seize from a car parked in a public place an object in plain view that he has probable cause to believe is evidence of crime. The public location of the car, the plain view of the evidence, and the officer's probable cause to act coalesce to establish that the seizure is not proscribed by the fourth amendment as unreasonable.

Reversed.

      . Smith v. Cox, Mem.Dec. 71-1173 (4th Cir. 1971). We previously had required an evi-dentiary hearing. Smith v. Peyton, 413 F.2d 760 (4th Cir. 1969).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alfredo OMALZA, Defendant-Appellee.
    No. 73-1042.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted June 19,1973.
    Decided Sept. 21, 1973.
    Jerry Cord Wilson, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee.
    Howard Lynn Wisdom, Oklahoma City, Okl., for defendant-appellant.
    Before JONES, HILL and SETH, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   PER CURIAM:

Alfredo Omalza, the appellant, was convicted of possessing an unregistered firearm in violation of 26 U.S.C.A. § 5861(d).

From the evidence it appeared that on July 15, 1972, Officer Bridges of the Oklahoma City, Oklahoma, Police Department responded to a domestic disturbance call at the apartment of appellant’s former wife. At the request of Officer Bridges and the former wife, the appellant left the apartment. About twenty minutes later Officer Bridges saw the appellant driving his car a few blocks from his former wife’s apartment. The appellant, apparently recognizing Officer Bridges, made several evasive turns and finally entered a dead-end street. Officer Bridges used his patrol car to block appellant’s exit. Bridges had heard a report that appellant had threatened to kill his former wife and, as appellant got out of his car, the officer asked appellant about this intention. As the conversation continued, the appellant appeared to be nervous and began to move toward the front seat of his car. The appellant was then “patted down” for weapons. He was found not to have any weapon on his person.

After being twice warned by Bridges to move away from his car, Officer Bridges looked through the window into the front seat. He saw what appeared to be a pistol and a box of 12-gauge shotgun shells. Bridges opened the front door of the car on the driver’s side and reached for the pistol. The appellant walked behind Bridges toward the rear door on the driver’s side of the car. Appellant then, complying'with Bridges’ order, placed his hands on the front of the car. The pistol on the front seat was in fact a cigarette lighter. Two of the shotgun shells in the front of the car had been fired recently.

Officer Bridges opened the left rear door of the car. The back seat was folded down with a large amount of tools and other material on top of the folded seat. Bridges ran his hand under the folded down part of the back seat. He felt the butt end of a weapon and withdrew a sawed-off shotgun. The appellant was placed under arrest. His indictment and conviction followed. On appeal the sole ground asserted is that the search of the appellant’s ear and the seizure of the gun were invalid.

The efforts of the appellant to avoid being stopped by Officer Bridges, his evasive conduct, his efforts to edge his way to the door of his car were acts constituting suspicious conduct. The officer neither searched nor seized when he looked into appellant’s car. The presence in the car of what appeared to be a pistol justified the opening of the car door and a further examination of the shotgun shells which were in plain view. The presence of recently fired empty shotgun shells, under the circumstances, justified the belief that the car contained the weapon in which the shells were fired and authorized the search. There was probable cause for the search of the car and the seizure of the gun. No error was committed in the overruling of the motion to suppress or in the admission of the gun in evidence. The Fifth Circuit Court of Appeals has thus stated the principle: “[A] reasonable warrantless search of a moving vehicle may be properly made in the absence of a prior arrest so long as there is probable cause for the search.” Williams v. United States, 5th Cir. 1968, 404 F.2d 493. Since the search was valid, the conviction must stand. The judgment of the district court is

Affirmed.


author: PER CURIAM.

text:
    Wiley JONES, Petitioner, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Corrections, et al., Respondents.
    No. 73-1316.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Sept. 25, 1973.

      Wiley Jones, pro se.
    Jim Guy Tucker, Atty. Gen., by Ralph C. Hamner, Jr., Deputy Atty. Gen., Little Rock, Ark., for respondents.
    Before MATTHES, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   PER CURIAM.

Appellant, Wiley Jones, appeals from the district court’s summary dismissal of his complaint which alleged under 42 U.S.C. § 1983 that he had been deprived of medical treatment by prison personnel. According to Jones, he sustained a back injury on April 6, 1973, while at work at the Cummins Unit of the Arkansas Department of Corrections and sought medical treatment. He alleges he went to the infirmary and was given some pills. On April 9, 1973, he went to regular sick call and was refused further treatment by the paramedic. Five days later, still in pain, he requested permission to go to the infirmary. This permission was denied. On April 16, 1973, Jones again went to regular sick call and asked the paramedic for further treatment. He claims the paramedic informed him that he would do nothing further for him, and not to return to the infirmary for his back injury.

Prior to any response by the state as to whether treatment had been rendered, or any physician’s examination had occurred, the district court dismissed the complaint on the basis that “[a] federal constitutional question does not arise simply because an inmate and prison personnel disagree as to whether the former needs a back xray or medication for a back condition.”

We reverse the district court’s summary dismissal of the complaint, and remand the case for further proceedings consistent with this opinion.

The Supreme Court in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), has stated that a prisoner’s petition, no matter how inartfully drafted, should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. We wish to reemphasize that allegations of mere negligence in the treatment of a prisoner’s condition, or claims based on differences of opinion over matters of medical judgment, fail to state a federal constitutional question unless the prisoner alleges exceptional circumstances. Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) ; Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972); Fischer v. Cahill, 474 F.2d 991 (3d Cir. 1973); Coppinger v. Townsend, 398 F.2d 392 (10th Cir. 1968); Stilner v. Rhay, 371 F.2d 420 (9th Cir.), cert, denied, 387 U.S. 922, 87 S.Ct. 2038, 18 L.Ed.2d 977 (1967).

However, numerous cases have held that where the prisoner alleges a complete deprivation of medical care, a federal claim is stated. Shields v. Kunkel, 442 F.2d 409 (9th Cir. 1971); Santiago v. Sowers, 347 F. Supp. 1055 (M.D.La. 1972); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970); Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970). The case before us is similar to Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972). There the Court of Appeals for the Second Circuit observed:

“Corby also claims that he was ‘denied adequate medical attention in regards to a serious nasal problem which was brought to the attention of defendant Conboy.’ Allegations of mere negligence in the treatment of a prisoner’s physical condition, or claims based on differences of opinion over matters of medical judgment, fail to rise to the level of a § 1983 violation. See United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970); Church v. Hegstrom, 416 F.2d 449 (2d Cir. 1969). However, a charge of deliberate indifference by prison authorities to a prisoner’s request for essential medical treatment is sufficient to state a claim. See Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970). The complaint, though devoid of details as to the nature of plaintiff’s nasal disorder, does recite that the problem was serious and that no remedial action was taken by the authorities despite their awareness of it. Although the claim is border-line, particularly in view of plaintiff’s admission in his amended complaint that subsequent to the filing of his original complaint he ‘was called out of his cell and told he was going to see the prison doctor,’ we believe that it is sufficient and that plaintiff should have been afforded an opportunity to substantiate it.” 457 F.2d 251, 254.

It is not clear from the allegations of the complaint whether Jones was seen by a physician. It is impossible to determine on this record whether he was denied essential medical treatment. The State of Arkansas should file responsive pleadings to appellant’s complaint, and the district court may then reasonably determine whether a hearing is necessary, based upon appellant’s allegations as weighed against his medical records and the prison medical personnel’s response. Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970). Cf. Mills v. Larson, 56 F.R.D. 63 (W.D.Pa. 1972).

Judgment reversed and remanded with direction to reinstate the complaint and order a response from the State of Arkansas.


author: JONES, Circuit Judge:

text:
    James Winfred ESKINE, Plaintiff-Appellee-Cross Appellant, v. UNITED BARGE COMPANY et al., Defendants, Cargill, Inc., and Travelers Insurance Company, Defendants-Appellants, Union Barge Line Corp. et al., Defendants-Cross Appellees.
    No. 72-2427.
    United States Court of Appeals, Fifth Circuit.
    Aug. 23, 1973.
    Rehearing Denied Oct. 12, 1973.

      James E. Diaz, Lafayette, La., for Cargill, Inc., and Travelers Ins. Co.
    William P. Rutledge, Lafayette, La., for Eskine.
    James H. Daigle, George B. Matthews, New Orleans, La., for Union Barge Line Co., and others.
    Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges.
   JONES, Circuit Judge:

The appellant, Cargill, Inc., is engaged in a salt mining and marketing operation in southeastern Louisiana. The operation includes the loading of salt in barges for delivery to various destinations. The appellee, James Winfred Es-kine, was employed by Cargill. It was his job, in part, to assist in tying the barges alongside the loading dock and to handle the loading of salt in the barges through an overhead spout into the several hatches which ran crosswise of the barges. In the loading process the empty barge was moved by a Cargill tug to the loading dock and, after loading, the barge was moved away by the tug to be picked up later and put into a tow and moved to the desired destination. In the loading of a barge it was Eskine’s duty to manipulate the downspout by a tag line from one side of a hatch to the other, and from one hatch to another, so that the salt might be evenly distributed throughout the barge.

Shortly before eight o’clock in the evening on November 9, 1967, while engaged in a loading operation, Eskine was crossing over a barge from the water side to the dock side. He fell through an open hatch about fifteen feet to the bottom of the barge. He was seriously injured. No one saw him fall. His injuries included brain damage and he could recall nothing about the accident.

After extensive pleading, amendments, cross claims and other proceedings, the case went to trial, with diversity of citizenship, before court and jury against Cargill and its liability insurance carrier, Travelers Insurance Company. All other parties were dismissed or severed. The case was tried on a claim by Eskine for damages for maritime tort and unseaworthiness. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143.

It was established that Cargill did not own any barges. The evidence did not establish the identity or ownership of the barge. The case was submitted to the jury under instructions as to unseaworthiness and ownership pro hac vice. An instruction was given on contributory negligence. Some instructions were requested which were not given. The jury returned a verdict in favor of Es-kine for $132,000. Judgment was entered on the verdict. The usual after-judgment motions were made and denied. This appeal followed.

Cargill asserts that the evidence was insufficient to support a jury determination that the barge was unseaworthy. No useful purpose would be here served by setting forth the evidence. It is enough to say that the evidence was more than adequate to justify a finding of unseaworthiness.

The appellant contends that the evidence did not establish the identity of the barge nor its owner. From this premise it moves to the position that it was not and should not have been held to be the owner pro hac vice of the barge. The district court correctly held otherwise. The barge was moved to the loading dock by a Cargill tug and tied to the dock by Cargill employees. It was in the exclusive control of Cargill while being loaded. When loaded, it would have been moved from the dock by Car-gill. The relationhip was, or was analogous to, that existing under a bareboat charter. It is not clear from the record as to what the arrangement was between the barge owners and Cargill but it is clear that there was an arrangement existing under a contract, express or implied. Although the voyage of the barge on which Eskine was injured was short in both time and space, there was a movement on navigable waters to the dock, a loading at the dock and an intended movement from the dock with Cargill having, at all times, the complete and exclusive control of the barge. This being so, Cargill was the owner pro hac vice of the barge and as such liable for damages for injuries resulting from unseaworthiness. Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448; The Hazel E. Herman, 5th Cir., 1928, 24 F.2d 27; Gilmore & Black, Law of Admiralty 171 et seq.; Baer, Admiralty Law of the Supreme court 2 Ed. et seq. § 12-4; 80 C.J.S. Shipping § 28, p. 660 et seq.; § 34, p. 686 et seq.

Cargill urges error in the refusal of the district court to give requested instructions. The instructions given by the court were full and complete and covered the issues. There was no error in the court’s rulings on instructions refused or in the giving of the instructions submitted to the jury. Bolden v. Kansas City Southern Railway Co., 5th Cir., 1972, 468 F.2d 580.

Cargill contends that the 1972 amendment to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. bars recovery in this action. The amendment became effective in November 1972. The trial was completed in the district court in December 1971. The cited statute has no effect on this decision. See Julian v. Mitsui O.S.K. Lines, Ltd., 5th Cir., 1973, 479 F.2d 432.

The other questions raised by the appellant have been considered. They need not be discussed. We find no merit in any of them.

The judgment of the district court is affirmed.


text:
    Robert E. SHAFFER, Petitioner-Appellant, v. Harold V. FIELD, Superintendent of California Men’s Colony, San Luis Obispo, California, Respondent-Appellee.
    No. 72-1707.
    United States Court of Appeals, Ninth Circuit.
    Aug. 27, 1973.

      Michael L. Davidson of Davidson, Davidson & Phillips, Foster City, Cal., for petitioner-appellant.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Russell Iungerich, Rodney Lilyquist, Jr., Dep. Attys. Gen., Los Angeles, Cal., for respondent-appellee.
   OPINION

Before MERRILL, BROWNING, and WALLACE, Circuit Judges.

PER CURIAM:

Petitioner was convicted of a violation of California Penal Code § 187. After exhausting state remedies he applied for a writ of habeas corpus in the United States District Court for the Central District of California. The district court denied the writ. See Shaffer v. Field, 339 F.Supp. 997 (C.D.Cal.1972).

Considering the issues in the order presented in the district court’s opinion, we hold as follows:

1. Admission of the spontaneous statements of the dying victim did not violate petitioner’s Sixth Amendment right of confrontation. “The determination of whether, in a particular case, the application of a recognized exception to the hearsay rule satisfies the requirements of the Confrontation Clause . . . calls for an examination of all the circumstances of the case. The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration.” United States v. Adams, 446 F.2d 681, 683 (9th Cir. 1971). The trustworthiness of spontaneous statements is established on grounds distinct from the general credibility of the declarant. The declarant’s unavailability did not deprive the jury of a basis for evaluating the truth of the declarations.

2. The warrantless entry of petitioner’s locker at the sheriff substation, without his consent, did not violate the Fourth Amendment. Since the circumstances under which the lockers were held and used by sheriff’s employees demonstrate that there was no reasonable expectation of privacy in their use, there was no “search” within the meaning of the Fourth Amendment.

3. The “Baumgartner” instruction does not necessarily violate due process of law, United States v. Moore, 429 F.2d 1305 (9th Cir. 1970), and we find no violation on the facts of this case.

4. We adopt the district court’s holding that the trial court’s failure to give a manslaughter instruction did not deprive petitioner of due process of law. See Shaffer v. Field, supra, 339 F.Supp. at 1004-1005.

The judgment is affirmed.


text:
    Juan KELSEY, Appellant, v. UNITED STATES of America.
    No. 72-2009.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973.
    Decided Sept. 13,1973.
    Harry S. Tischler, Asst. Defender, Defender Ass’n of Philadelphia, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Carmen C. Nasuti, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) July 25, 1973
    Before SEITZ, Chief Judge, and AL-DISERT, Circuit Judge.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before SEITZ, Chief Judge, and AL-DISERT and HUNTER, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

Where defense counsel erroneously informs a defendant entering a plea of guilty that sentences in a bank robbery charge could be pyramided into a 75-year maximum, can it be said that the guilty plea was entered “voluntarily after proper advice and with full understanding of the circumstances”? Following an evidentiary hearing in a § 2255 proceeding, the district court found that “any error was harmless beyond a reasonable doubt.” We reverse.

Critical to the pronouncement of any sentence on multicount indictments under the federal bank robbery statute, 18 U.S.C. § 2113, is the avoidance of improper pyramiding punishment authorized for the violation of various sections of the statute. The district court appears to have acknowledged that the information furnished appellant was erroneous, but reasoned that at thé time of the reception of the plea the clear guidelines of United States v. Conway, 415 F.2d 158 (3d Cir. 1969), had not yet been announced. Such an approach does not appear to recognize that Conway simply applied the teachings of Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), a decision handed down twelve (12) years prior to the plea in this case. We deem as inapplicable to these proceedings the doctrine of Brady v. United States, 397 U. S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), that a subsequent change in the law which greatly reduces the possible sentences which might have been imposed does not vitiate a previously entered guilty plea. The clarification of the law did not originate in Conway, it stemmed from Prince.

In United States v. Jasper, 481 F.2d 976 (3d Cir., 1973), we reported that “the court’s first advice gave too low a maximum, the statement by the Assistant United States Attorney assumed, contrary to Prince that the sentence could be pyramided, and the court, while finally stating the correct maximum on each count, did not correct the pyramiding; misstatement.” We held that defendant’s acknowledgment that he understood this colloquy “is hardly sufficient to indicate that he knew the real potential consequences of his plea.” (481 F.2d 981.) Moreover, we are convinced that the controlling principle is that stated in Berry v. United States, supra, 412 F.2d at 191: “Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action.” The appellant having been told that the maximum sentence was 75 years, when in fact the maximum was considerably less than that, we are persuaded that there was not total compliance with F.R.Cr.P. 11, McCarthy v. United States, supra, and that he did not enter his plea with “understanding of the . . . consequences of the plea.”

The plea of guilty will be vacated, the sentence imposed thereon will be vacated, and the proceedings remanded with a direction to permit appellant to plead anew.

      . Berry v. United States, 412 F.2d 189, 192 (3d Cir. 1969), citing United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968).

      . Appellant entered his plea October 23, 1969, subsequent to McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and was sentenced to 25 years imprisonment pursuant to 18 U.S.C. § 4208(b). The sentence was modified on January 15, 1970, to imprisonment for a period of 7 years under the provision of 18 U.S.C. § 5010(c) of the Youth Corrections Act.

      . In Prince the defendant had been sentenced to 20 years for robbery of a federally insured bank and 15 years for entering the bank with the intention to commit a felony. The Court held that “when Congress made either robbery or an entry for that purpose a crime it intended that the maximum punishment for robbery should remain at 20 years, but that, even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent.” 352 U.S. at 329, 77 S.Ct. at 407.
      In this case, appellant was indicted in four multiple counts charging a violation of 18 U.S.C. § 2113(a), (b) and (d). Count one charged a taking by force and violence the sum of $474.00 belonging to the bank, a violation of (a). Count two also referred to (a), charging an entering of the bank to commit a felony. Count three charged a violation of (b), the actual taking. Count four charged a violation of (d), “putting in jeopardy” the lives of others while committing (a) and (b). In the statutory text, a violation of (a) calls for a penalty of 20 years for the robbery clause, or the entering clause. Section (b), the larceny clause, calls for a 10-year penalty. Section (d) is the use-of-firearm clause with its 25-year penalty.
      The following colloquy took place at the plea:
      THE COURT: Do you know on each of those counts if you enter a plea of guilty you could be sentenced to a term of imprisonment of 20 years and/or a fine of $5,000.00; do you understand that?
      APPELLANT: Yes, Sir.
      DEFENSE COUNSEL: Your honor, I believe it is 20 years on the first two counts, and 25 years on the fourth count, a total of 75 years.
      THE COURT: All right, I stand corrected.
      Do you understand that, Mr. Kelsey, 20 years on the first two counts, 10 years on the third count and 25 years on the fourth count?
      APPELLANT: Yes, sir.
      Without dissecting the entire colloquy, we note that the use of the 75 years by defense counsel had the capability of being interpreted as follows: count one, 20 years; count two, 20 years; count three, 10 years; count four, 25 years, or a total of 75 years. By the court’s statement: “All right, I stand corrected,” the court unwittingly endorsed the erroneous computation of appellant’s counsel. Prince flatly held that there could not be an accumulation of sentences on counts one and two.
      In any event, the government does not in its brief suggest that appellant was not misinformed, but contends that this was harmless error.

      . In dissent, Judge Van Dusen stated: “On the facts presented by this record, I would apply the holdings in the Fifth and Tenth Circuits that misinformation, given to a defendant at arraignment by a district judge, which indicates a possible longer sentence than the law permits does not invalidate a plea of guilty entered after receipt of such misinformation. United States v. Woodall, 438 F.2d 1317, 1329 (5th Cir. 1971) ; Murray v. United States, 419 F.2d 1076, 1079 (10th Cir. 1969).” 481 F.2d at 984. The majority rejected his view.


author: GODBOLD, Circuit Judge:

text:
    Raymond A. JAMES, Plaintiff-Appellant, v. REBEL WELL SERVICE, INC., and Humble Oil and Refining Company, Defendants-Appellees.
    No. 30496.
    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1973.

      J. Stuart Douglass, Harvey J. Lewis, Vincent J. Glorioso, Jr., New Orleans, La., for plaintiff-appellant.
    W. Gerald Gaudet, Lafayette, La., Bernard J. Caillouet, E. Burt Harris, New Orleans, La. (Humble Oil & Refin. Co.), for defendants-appellees.
    Before GODBOLD, DYER and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

The repercussions from Rodrigue continue. On November 1, 1966, Raymond A. James allegedly sustained injuries while working for Rebel Well Service, Inc. on an Humble Oil platform set on the Outer Continental Shelf of Louisiana. James brought this action against Rebel Well and Humble on October 31, 1969, two years and 364 days after the alleged injury and 144 days after the Supreme Court decision in Rodrigue, handed down June 9, 1969. On June 4, 1970 the District Court dismissed James’ suit as barred by the Louisiana one year statute of limitations for personal injury actions, article 3536, LSA-C.C.

On July 14, 1970, in Huson v. Otis Engineering Corp., 430 F.2d 27 (CA5, 1970), we held that although Rodrigue adopted state law as the applicable scheme for injuries sustained while working on platforms located on the Outer Continental Shelf, the Louisiana statute of limitations was not applicable. The Supreme Court reversed our holding as to the applicability of the Louisiana statute but affirmed our result on other grounds. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Huson’s injury occurred and his complaint was filed prior to the Rod-rigue decision. Weighing the equitable considerations and examining the purposes of Rodrigue, the Court in Huson refused to retroactively time bar Hu-son’s action. Finding no crucial distinction between Huson’s situation and James’ situation, we reverse the District Court’s dismissal of James’ suit on the basis of the Louisiana statute of limitations, but we also remand for a consideration of the defendants’ plea of laches.

In Chevron Oil, after concluding that the Louisiana statute was applicable, the Supreme Court considered three factors in deciding not to bar Huson’s action by retroactive application of Rodrigue: .whether the decision established “a new principle of law, either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed .”; whether nonretroaetivity would further the purposes and effect of the new rule; and whether retroactive application would produce inequitable results. 404 U.S. at 106-107, 92 S.Ct. at 355, 30 L.Ed.2d at 306. In Guillory v. Humble Oil & Ref. Co., 453 F.2d 886 (CA5, 1972), where both injury and suit also preceded Rodrigue, we followed the Supreme Court’s equitable decision in Huson.

In this case, whose only distinguishable aspect is that the suit was filed 144 days after Rodrigue, the same considerations compel us to reverse the District Court. For two years and 220 days after his injury, “[t]he most [James] could do was to rely on the law as it then was.” Obviously retrospective application of Rodrigue would deprive James “of any remedy whatsoever on the basis of superseding legal doctrine that was quite unforeseeable.” James’ injury, if proven, “may significantly undercut his future earning power,” and his right to redress is deserving of protection. Humble and Rebel Well contend that, because suit was filed after Rodrigue, the decision in that case became applicable to the action and prospective application of Rodrigue requires the suit be time-barred. That conclusion would lead to absurd results. A suit filed one day before Rodrigue for an injury three years before the decision would not be tirnie-barred, while a suit filed one day after Rodrigue for an injury occurring one year before the decision would be time-barred.

We can conceive of no circumstances under which we could conclude that the Louisiana statute began to run prior to the date of Rodrigue. But we need not decide in this ease whether Rodrigue or some subsequent date marks the effective date after which every action will be subject to the statute, see Mullins v. Chevron Oil Co., 344 F.Supp. 1063 (E. D.La.1972), first, because James’ suit was filed well within a year after Rod-rigue, and secondly, 144 days was not an unreasonable time delay before bringing suit after Rodrigue.

The conclusion that the statute of limitations did not time-bar James’ action does not end the analysis. If James relied on pre-Rodrigue law in delaying suit he must also submit to the limitations of that law. Admiralty law, which previously applied to Outer Continental Shelf Platform injuries, applied the doctrine of laches in limiting actions. Hu-son v. Otis Engineering Corp., 430 F.2d 27 (CA5, 1970); Pure Oil Co. v. Snipes, 293 F.2d 60 (CA5, 1961). The elements in considering a plea of laches, extent of delay and prejudice to defendant, are set out and analyzed in numerous decisions, see, e.. g., Powell v. City of Key West, 434 F.2d 1075 (CA5, 1970); Molnar v. Gulfcoast Transit Co., 371 F.2d 639 (CA5, 1967); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (CA5, 1970); Akers v. State Marine Lines, Inc., 344 F.2d 217 (CA5, 1965); McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (CA5, 1962). The District Court did not consider Rebel Well’s and Humble’s plea of laches in light of its holding that James was barred by the statute. As we did in Dickerson v. Continental Oil Co., 449 F.2d 1209, 1223 (CA5, 1971) (on second petition for rehearing) we rem;and for consideration of that issue.

Reversed and remanded.

      . Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969).

      . The court also dismissed James’ suit against Rebel Well on the independent basis that his exclusive remedy against his employer was the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1970). James wisely did not waste effort appealing that decision. Nations v. Morris; 483 F.2d 577 (CA5, 1973).

      . Chevron Oil Co. v. Huson, supra, 404 U.S. at 107, 92 S.Ct. at 356, 30 L.Ed.2d at 306.

      . Id., 404 U.S. at 108, 92 S.Ct. at 356, 30 L.Ed.2d at 306.

      . Id., 404 U.S. at 108, 92 S.Ct. at 356, 30 L.Ed.2d at 307.


author: ALMOND, Senior Judge.

text:
    Godfrey BLOCH, Appellant, v. Benjamin CHIATSE SZE, Appellee.
    Patent Appeal No. 9163.
    United States Court of Customs and Patent Appeals.
    Oct.. 4, 1973.
    Rehearing Denied Dec. 20, 1973.

      Ellsworth H. Mosher, Arlington, Va., atty. of record, for appellant.
    A. Newton Huff, Wilmington, Del., atty. of record, for appellee. C. Harold Herr, Gerald A. Hapka, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge.
   ALMOND, Senior Judge.

This is an appeal from the decision of the Patent Office Board of Patent Interferences awarding priority to appellee, the party Sze. The three counts of the interference correspond to claims in the patent issued to appellant, the party Bloch, that provided the basis for his involvement in this proceeding. Sze provoked the interference by copying these claims into his application.

In an earlier decision involving the same interference, familiarity with which is presumed, this court reversed a decision of the board awarding priority to Bloch on the ground that Sze could not make the counts in issue. See Sze v. Bloch, 458 F.2d 137, 59 CCPA 983 (1972). As a result of that decision, the case was remanded to the board in order for it to consider the question of whether Bloch was entitled to the benefit of the filing date of an application subsequently abandoned but copending with the application which matured into his patent. See fn. 1. On remand the board held that he was not, on the ground that the earlier filed parent application did not comply with the requirements of 35 U.S.C. § 112. We affirm that decision.

The Subject Matter

In our earlier opinion we described the subject matter of the interference in the following manner:

The invention in issue relates to a bulked dimensionally stable singles yarn. Singles yarns (i. e., yarns that have not been plied) of continuous synthetic filaments, which have a uniform cross-section, are much denser than yarns of natural staple fibers, which do not have a uniform cross-section. In order to produce a yarn of continuous synthetic filaments which resembles staple fiber yarn, the filaments may be bulked by crimping. However, strands of crimped filaments are not dimensionally stable since stretching of the strand will straighten out the filaments. To achieve dimensional stability, the crimped filaments may be combined with straight, stress-bearing nonelastic filaments, which limit stretching of the strand. The counts in issue are directed to such a yarn.
Count 1 is illustrative:
1. A bulked dimensionally stable singles yarn composed of a plurality of continuous filaments, certain of said continuous filaments being uniformly crimped throughout at least a portion of their length to provide bulk and others of said continuous filaments being in relatively straight form to provide dimensional stability, said crimped and straight filaments being randomly disposed throughout the cross-section of said yarn.
The Bloch patent, wherein the counts arose, discloses that:
In accordance with one embodiment of the present invention two bundles of continuous filaments composed of the same or of different synthetic materials and derived from separate spinnerettes feeding into the same or into different spinning baths are so processed that the two bundles of filaments have different shrinkage characteristics. These bundles are then combined and subjected to treatment adapted to shrink the various filaments in the bundle.
As a result of this differential shrinkage one group of filaments becomes shorter than the other group thereby causing the longer filaments to pull up and deviate from a straight line condition into gathers, puckers, folds, loops, or other shapes, herein referred to generally as crimps, at various points along their length and thereby form a bulked yarn.

The other counts are somewhat narrower than count 1 and do not present issues requiring a discussion of them and appellant has not asserted that he would be entitled to those counts if he fails to prevail as to count 1.

Decision Below

The board stated its conclusions regarding the merits of Bloch’s parent application in the following way:

In summary we are convinced, considering the specification of Bloch (original description, claims and drawings) as a whole, that it does not provide support for the language of the counts in issue nor does it provide a sufficient written description of the “manner and process of making” the invention of the counts to comply with the requirements of 35 U.S.C. § 112. Accordingly, we hold that Bloch is not entitled to the benefit of the filing date of his parent application for constructive reduction to practice and that he is not entitled to prevail on that basis.

More specifically the board noted that there is no explicit language in Bloch’s application literally corresponding to the language in count 1 insofar as it calls for a “bulked dimensionally stable singles yarn”; that the crimped and straight filaments be “randomly disposed throughout the cross-section of said yarn”; and that certain of the continuous filaments be “uniformly” crimped.

However, the board’s analysis of the relevant disclosure in Bloch’s application did not end with these observations. It proceeded to evaluate that which was disclosed in order to determine if there was support, though not ipsissimis ver-bis, for the counts in issue. As indicated above, it eventually concluded that there was inadequate support for those counts.

Opinion

We have carefully considered the arguments of the parties as presented in their briefs and at oral argument. However, we have not been persuaded that the board committed reversible error as it is our opinion that the language of count 1, at least insofar as it calls for “* * * crimped and straight filaments being randomly disposed throughout the cross section of said yarn,” does not find adequate support within the meaning of § 112, in the specification to appellant’s parent application.

It is clear from the board’s opinion, and particularly in view of the summary quoted above, that it was of the view that the specification in question inadequately described the invention of the counts which are directed to yarns and also failed to adequately describe how to make such an invention. With respect to the limitation calling for random disposition of the two filament types, we agree with the latter conclusion but not the former.

Appellant’s specification calls for a yarn made up of two different filaments having differential shrinking characteristics and states:

* * * I use * * * two types of strands of filaments, one of which is shrinkable and therefore capable of being contracted when subjected to , steaming, dyeing, or other treatment, and one which is relatively stable, the shrinkable strands contracting and causing the other more stable filaments to distort or crinkle, creating bulkiness in the yarn without fuzziness.

As the board points out, the specification does not specifically state that the filaments of differential shrinkage characteristics are randomly disposed within the yarn before or after the shrinking operation that causes the yarn to bulk. However, it is our view that one skilled in the art would appreciate that this must be accomplished since it would appear to be a necessary condition if the bulking operation referred to in the quoted portion of the specification is to succeed.

In the first place it is clear from appellant’s disclosure that bulking occurs because the filament of high shrinkage potential causes the more stable to crinkle as the former contracts. Manifestly this could not occur if the filaments were not intermingled in such a way that the shrinking filaments can act upon the others. We think this requires that the filaments be dispersed in the yarn bundle in such a manner that a filament of one type is proximate to one of the other. This is supported by Figs. 3 and 4 of appellant’s specification which are reproduced below:

In Fig. 3, the heavy line 3 represents the filament of high shrinkage potential whereas the lighter line 4 represents the stable filament. Fig. 4 represents the yarn bundle of Fig. 3 after shrinking has occurred resulting in a bulked yarn. In these two figures the two different filaments alternate in the yarn in a regular fashion. Arguably such an arrangement is not “random.” However, the disclosure does state that the filaments can “ * * * be in any intermingled arrangement.” We of course do not read that to include inoperative arrangements.

Furthermore, we think that one skilled in the art would view Figs. 3 and 4 as an idealized representation of the yarn bundle that could not practicably be achieved in actual use since an actual yarn could be made up of many filaments of each type. More likely the actual pattern would not repeat itself. Thus, in a word, it would be a “random” pattern. Nevertheless, bulking could still occur because the randomness of the dispersed filaments insures that the shrinkage of one set of filaments would crinkle the others.

Although we believe that appellant has an adequate “written description of the invention” insofar as the claims call for a yarn having randomly disposed filaments of the types involved, it is our view that he has not met the additional requirement for a “written description * * * of the manner and process of making * * * it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make * * * the same * * * ” See § 112 and In re Ahl-brecht, 435 F.2d 908, 58 CCPA 848 (1971).

With respect to carrying out the invention insofar as it requires that the filaments be randomly disposed, appellant’s specification includes two pictorial representations, Figs. 1 and 2, of apparatus which allegedly accomplish the desired result. These are shown below.

These drawings are discussed in the specification as follows:

Referring to the drawings, and more particularly to Figs. 1, 3 and 4, the numerals 1 and 2 designate twin spinnerettes as shown. The strand 3 may be of a larger denier than strand 4. Due to the fact that rollers 7 are drawing faster than rollers 5 feed, it is especially stretched, giving it potential shrinkage. Filaments 4 on the other hand are fed by rollers 6 more nearly equal to the rate of speed at which rollers 7 draw them. Filaments 4 thereby are made more nearly stable with respect to shrinkage.
The special stretching of filaments 3 gives rise to the shrinkage which distorts the more stable filaments 4, creating bulk.
In Fig. 2, a single spinnerette 2' is provided with two groups of extrusion orifices, of which one group may be of different sizes relative to those of the other group, one of these orifice groups may be a center circular one, and one a surrounding annular one, with two pumps to force the plastic through the orifices to form the strands 3' and 4', while the rollers 5' and 6' and also the rollers T act as before described.
The size of the filaments is varied by a number of factors such as pressure in the spinnerette, the viscosity of the liquid and the sizes of the orifices, and also the rate of speed at which the filaments are drawn from the orifices.
When carrying out this invention, if it is desired to have a different pressure or different viscosity, twin spin-nerettes may be used, or separate feeds within a special dual spinner-ette; but when only the sizes of the orifices and/or rate of speed of the rollers drawing off the filaments is to be varied, one spinnerette 2' may be used with or without the two sets of orifices of different sizes.

In its comments on the specification, the board concluded that processing the filaments according to the steps described above would not result in a co-mingling of the filaments in a manner that they would be randomly disposed in the resulting yarn bundle shown entering box 8 or 8', the function of which is not set forth in the specification. We agree with this conclusion and find support for it in the specification to appellant’s patent wherein a similar process to the one in the parent application is described. That process requires that the different filament bundles must be “combined” prior to the shrinking operation. Relative to combining the filaments the specification states:

The bundles can be combined by opening the individual bundles as by an air jet or by separating the filaments by suitable guides and combining the bundles with the various filaments interleaved uniformly or with one group predominantly on the outside and the other group predominantly on the inside.

. We think that from this the board properly concluded that intermingling of the filament bundles will occur only when the filaments are brought together in an open condition. It would appear from the drawings in the parent application that the individual bundles have already been converged at rollers 5 and 6. Therefore, when the two bundles are converged at rollers 7, the individual filaments are no longer open and hence cannot intermingle.

Appellant argues that the process involved will “inherently” and “inevitably” result in random intermingling. However, as we indicated above, the specification of his patent suggests the contrary. Furthermore, insofar as appellant suggests that the routine manner of yarn handling must cause this result, his assertions are not backed up by reference to any evidence in the record nor has he suggested and backed up with evidence that one skilled in the art would know to augment the disclosed process with procedures well known to the art.

Appellant has extensively relied upon Fig. 2 as showing a workable process. However, in doing so he has argued that there is an obvious error in that figure which would be recognized and corrected by one skilled in the art. Fig. 2 is said to depict a spinnerette 2' with two sets of orifices arranged in concentric circles. According to appellant, it is obvious that the filaments from the inner circle of orifices cannot practicably be separated from those extruded by the outer orifices and directed to separate sets of rollers. Therefore, he reasons that one skilled in the art would direct both sets of filaments to a single pair of rollers and by so doing intermingling would inherently result because all the filaments are open prior to convergence at the rollers.

This argument, a new one to this case, appears to have been inspired by our earlier decision wherein we agreed with Sze that a eospinning pi’ocess disclosed by him would result in an intermingling of filaments. In that process, a single spinnerette with orifices arranged in concentric circles was used.

Although this interpretation flies in the face of what is clearly disclosed in the specification, we do not think it helps appellant if adopted by us. Appel-lee pointed out at oral argument that his cospinning process produces two different filaments from the concentrically arranged orifices. One of those can be made from two different polymers arranged so that one forms the center of the cylindrical filament and is sheathed by the other. The two polymers are selected so that they have different shrinkage characteristics and will cause this filament to crinkle without stretching. Thus the yarn obtained by his process needs no stretching step.

By contrast, appellant’s application does not indicate that spinnerette 2' would be used to produce cospun filaments differing in this way and clearly conveys the notion that stretching is required to achieve potential shrinkage necessary for bulking. Naturally if all the filaments were gathered in a single bundle prior to stretching, no differential shrinkage could be imparted to any two filaments and the bulking operation could not succeed.

Appellant has also argued that certain admissions made by Sze during the course of prosecuting his application and this interference are evidence that “random disposition” would occur in his process. However, these “admissions” were made relative to the Bloch patent, rather than the parent application. That patent’s specification is greatly amplified relative to its parent and accordingly we do not feel that Sze was prejudiced by any admissions he may have made.

Appellant bore the burden, a heavy one, of proving that language contained in his parent application is sufficient to support claims in a later filed application. Wagoner v. Barger, 463 F. 2d 1377, 59 CCPA — (1972). For the foregoing reasons it is our belief that he failed to discharge this burden. The decision of the board is affirmed.

Affirmed.

      . U.S. Patent 3,061,998 issued November 6, 1962, on an application filed November 12, 1959, as a continuation-in-part of application serial No. 497,776 filed March 29, 1955.

      . Serial No. 303,214 filed August 14, 1963, as a continuation-in-part of application serial No. 651,018 filed April 5, 1957.