author: WISDOM, Circuit Judge:

text:
    ORIENT MID-EAST LINES, INC. and Astronato Cia. Nav. S.A. as interest may appear, Plaintiffs-Appellants-Cross Appellees, v. A SHIPMENT OF RICE now or lately ON BOARD the S S ORIENT TRANSPORTER, In Rem, and The Republic of Vietnam, Tong Cuoc Tiep Te (General Supply Agency) and Cong-Ty Bao Hiem Tai Bao Hiem Vietnam, Defendants-Appellees-Cross Appellants.
    No. 73-2096.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.

      Kenneth D. Kuykendall, George W. Renaudin, Houston, Tex., Wharton Poor, R. Glenn Bauer, New York City, for plaintiffs-appellants.
    Hubert Oxford, III, Beaumont, Tex., John J. Loflin, New York City, for defendants-appellees.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   WISDOM, Circuit Judge:

Damage sustained by the S.S. Orient Transporter draws us into the esoteric world of “general average”, the ancient maritime doctrine that “loss for the common benefit which is incurred by one who partakes in a maritime venture should be shared ratably by all who participate in the venture”. Cia. Atlantica Pacifica, S.A. v. Humble Oil & Refining Co., D.Md.1967, 274 F.Supp. 884, 891. General average may go back to the Phoenicians, but undoubtedly it was practiced in Rhodes at least as early as 300 B.C., and was accepted throughout the Mediterranean world long before it was neatly formulated in the Digest of Justinian. Its fundamental principle is stated in a chapter in the Digest headed Lex Rodia de Jactu: If goods are thrown overboard in order to lighten the ship, what is sacrificed for the common good should be made good by a common contribution. Dig. XIV, 2, 1 pr. See F. Sanborn, Origins of The Early English Maritime and Commercial Law 5, 14-16 (1930); R. Lowndes & G. Rudolph, The Law of General Average fl]] 1-3 (9th ed. 1964) Today the principle covers a wide range of maritime losses, from damage done in quenching a shipboard fire to expenditures incurred in a port of refuge. General average concepts are not free floating maxims of admiralty law. They have been made subject to the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315, and the York/Antwerp Rules, modern codifications of Lex Rodia de Jactu, are typically incorporated in charter parties and bills of lading.

The plaintiffs-appellants sought general average contribution for damage sustained by the Orient Transporter in two different incidents — grounding in the Neches River, Texas, and destruction of the ship’s high pressure turbine on the high seas. The district court held that under COGSA general average does not apply to the damage sustained by the Orient Transporter, because the damage was caused by unseaworthiness and the plaintiff shipowners in neither instance exercised due diligence to make the ship seaworthy. The South Vietnamese interests, the defendants-appellees, counterclaimed for expenses incurred in unloading, storing, inspecting, fumigating, and reshipping the cargo after the Orient Transporter lost her propulsion system through the destruction of her high pressure turbine. In addition, they counterclaimed for recovery of a deposit paid as the cargo’s general average share of the salvage expenses incurred in towing the Orient Transporter to Panama and then back to Beaumont, Texas, after the turbine damage. The district court held that the claim for unloading, inspecting, fumigating, storing, and reshipping expenses was barred by COGSA’s one year statute of limitations. 46 U.S.C. § 1303(6). The court awarded the defendants-appellees $61,933.99 plus interest, as the deposit in the salvage action. We affirm.

I. FACTS

On April 15, 1970, Orient Mid-East Lines, Inc. contracted with the Commodity Credit Corporation of the United States Department of Agriculture, acting on behalf of the South Vietnamese Government, to transport 10,000 long tons of rice from the United States to Vietnam. The vessel to be used, the S.S. Orient Transporter, was warranted to be “tight, staunch, and strong, and in every way fitted for the voyage”. The charter party incorporated COGSA and contained a “Jason clause”:

In the event of accident, danger, damage or disaster before or after the commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which the carrier is not responsible by statute, contract or otherwise, the goods, consignees or owners of the goods shall contribute with the carrier in General Average to the payment of any sacrifices, losses or expenses of a General Average nature that may be made or incurred in respect of the goods.

Any general average contribution was to be payable according to the York/Antwerp Rules, 1950.

The Orient Transporter took on a full cargo of rice at Mobile, Alabama, and Beaumont, Texas. At Mobile repairs were made to the starboard boiler. A surveyor from Lloyd’s Register of Shipping noted on May 27, 1970, that the port boiler should undergo similar repairs “at the earliest opportunity, but not later than 7/70 (2mos)”. Loading of rice continued at Beaumont and was completed on June 6, before the port boiler had been repaired. Because the port authority at Beaumont wanted to use the loading berth for another ship, the Master of the Orient Transporter took the ship, under the guidance of a pilot, to an abandoned ship channel in the Neches River where she was intentionally grounded on the soft silt bottom to permit repair work on the port boiler. The bottom of the Neches River proved an unsuitable anchorage, however, apparently because the main condenser and other piping was blocked by silt. With difficulty the ship was removed from the mud and silt. When the ship finally broke free, it moved rapidly backwards across the river. Because of poor communications between the Master and the engine room and a lack of power, the ship did not reverse its direction until the stern barely avoided a dock and a cluster of pilings on the opposite side of the river. When the ship finally moved forward, it again traversed the channel and again grounded its bow in the mud and silt. It was then low tide, and the vessel could not free itself; the Master decided to wait until high tide the next morning. Before dawn the Master discharged 179 tons of fresh water. Later, at high tide, the vessel was floated with the aid of a tug boat and proceeded back to Beaumont for repairs. The Neches River episode resulted in expenses of $8,990.84.

After repairs were finally completed, the Orient Transporter sailed for Vietnam by way of the Panama Canal. At the time it left the pier on June 14, 1970, the ship’s engine room crew was short at least one fireman, two oilers, and a wiper, but the wiper, one Fetaxidis, and an oiler were later returned to the ship by the police before the ship left American waters. In Fetaxidis’s absence, he was signed off as a wiper and signed on as a fireman, a step up in the engine room hierarchy. Fetaxidis was 17 or 18 years old and had no record of formal or informal training as a fireman.

A fireman shoulders considerably more responsibility than does a wiper. Testimony at trial established that a wiper’s duties are essentially janitorial. A fireman, on the other hand, must know at all times the water level in the boilers. It is a vital task: too little water can result in an explosion; too much water can result in an overflow into the turbines which will destroy the turbine blades. The fireman also regulates the water level, by opening and closing feed lines. At the trial an expert testified that a fireman should always inform the engineer on watch if he has opened an extra feed line. Moreover, the expert stated that in a vessel such as the Orient Transporter, not equipped with an automatic watering device, a fireman should not open a feed valve without authorization from the engineer.

To check the water level in the boilers in the Orient Transporter, one looked at a vertical glass gauge approximately 15 inches long, similar to the transparent tube on the side of an electric coffee pot. The level in the gauge indicated the actual level in the boiler. So long as the water level in the boiler remained within the 15-inch limits of the gauge, the bow formed by the surface tension on top of the column of water was clearly visible through the glass. But if the water dipped below or rose above the level measured by the gauge, it was difficult to tell whether the gauge was full or empty, and thus whether the boiler contained too much or too little water. Testimony at trial established that when the water level cannot be seen through the gauge the proper procedure is to “blow down” the glass by draining the gauge and watching to see if water refills the glass. If it does, the water level is too high; if water does not refill the glass, the level is too low. Christopher Finley, Chief Engineer with Gulf Oil Corporation, testified that any competent fireman could blow down the water glass.

On June 21, 1970, at approximately 2110 hours Fetaxidis was on watch as fireman, and one Dimitrios Spetsiotis was the engineer on watch. Spetsiotis was in the lower engine room changing oil in the lube oil pump when Fetaxidis appeared and said that he could not determine the water level in the boiler; furthermore, he did not remember if, the last time he had checked, the water level was low or high. The two men returned to the fireman’s station. They could not see the water level in the glass. Spetsiotis tried to blow down the glass, but he still could not ascertain whether the boiler contained too much or too little water. Fearing an explosion, he turned on the boiler water feed pump and fed cold water directly into the boiler. The results were catastrophic for the Orient Transporter. About a minute later loud noises came from the engine room, strong vibrations shook the vessel, and steam rose from the main engine. The water in the boiler, already high before Spetsiotis turned on the feed pump, had “carried over” into the turbines. The blades of the high pressure turbine were destroyed, and the turbine was rendered inoperative. Without notifying Spetsiotis, Fetaxidis had turned on an extra feed line. Damage to the propulsion system totalled $180,863.17.

The Orient Transporter was unable to proceed under her own power. A salvage tug brought the ship to the Panama Canal. It was there determined that a new turbine would be required. Because the turbine could not be supplied at the Panama Canal, the Orient Transporter was towed back to Beaumont. At Beaumont the cargo of rice was discharged, and arrangements were made to reship it to Vietnam aboard another vessel. Because of the cost and delay anticipated in procuring a new turbine, it was finally determined that repair of the Orient Transporter would be uneconomical. On October 1, 1970, she was sold for scrap.

II. THE CLAIMS FOR GENERAL AVERAGE CONTRIBUTION

The plaintiff shipowners sued for contribution in general average for the damage to the Orient Transporter and for other expenses arising out of both the Neches River incident on June 6 and 7 and the destruction of the high pressure turbine on June 21. The district court found that the ship was unseaworthy in both instances and that the plaintiffs had not established their due diligence to make the ship seaworthy. COGSA provides:

(1) The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to—
(a) Make the ship seaworthy;
(b) Properly man, equip, and supply the ship;
(e) Make the holds, refrigerating and cooling chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation.

46 U.S.C. § 1303. If through lack of due diligence the carrier fails to provide a seaworthy ship, the carrier may not recover in general average for damage proximately caused by the unseaworthiness.

The record in this case supports the court’s finding that the Orient Transporter’s port boiler was in an unseaworthy condition during the Neches River difficulties. The surveyor from Lloyd’s Register of Shipping had noted in Mobile that the boiler should be repaired “at the earliest opportunity”. Furthermore, another surveyor, who had examined the Orient Transporter after the Neches River incident, testified that without the boiler repairs the vessel was unseaworthy. The Master had apparently intended to repair the boiler during loading at Beaumont, but, for reasons not clear, repairs had not been accomplished by the time that loading was completed. The soft silt bottom of the abandoned channel of the Neches River was clearly intended as an anchorage where the final preparations to make the vessel seaworthy for the voyage could be carried out. It was this attempt to make the ship seaworthy which precipitated the damage and loss caused by the subsequent attempts to float the ship free.

When unseaworthiness of the vessel has been proved, the carrier may nonetheless avoid the adverse consequences that would otherwise flow by showing that it exercised due diligence to make the ship seaworthy before the incident. 46 U.S.C. § 1304. The appellant made little attempt to offer proof on this point at the trial below. In fact, such a showing could hardly have been made; it was during an attempt to make the ship seaworthy that the damage and loss for which general average contribution is sought occurred.

Recovery is foreclosed here by more than the unseaworthiness of the vessel;- the damage and loss complained of does not in any event warrant general average contribution. General average concepts apply only to action taken for the common safety when the ship and its cargo are in peril. Star of Hope, 1869, 76 U.S. (9 Wall.) 203, 19 L.Ed. 638; Columbian Ins. Co. v. Ashby & Stribling, 38 U.S. (13 Pet.) 331, 10 L.Ed. 186; Nicaraguan Long Leaf Pine Lumber Co. v. Moody, 5 Cir. 1954, 211 F.2d 715, 717. We reject the appellants’ contention that the York/Antwerp Rules, 1950, incorporated into the charter party in the instant case, have done away with this requirement.

First, the York/Antwerp Rules were intended to achieve international uniformity in the adjustment of general average, not to create a new species of general average act. See L. Buglass, General Average & The York/Antwerp Rules, 1950, at 7 (1959); Lowndes & Rudolph, supra, jfjf 225, 290-291. Second, general average act is defined in the rules as “any extraordinary sacrifice or expenditure . . . intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.” York/Antwerp Rules, 1950, Rule A. It is true, as the appellants point out, that the lettered rules are intended to provide guidance only where the numbered rules do not apply. But we are not persuaded that any numbered rules do away with the requirement that the ship be in a position of peril before the law of general average applies. Rules X and XI, on which the appellants rely, concern expenses incurred at a port of refuge entered as a general average act. Lowndes & Rudolph, supra, fl 652. Those rules are not applicable to the present situation. Furthermore, even Rules X and XI are limited to actions taken “for the common safety”, a phrase closely related to removal from peril. Finally, it would appear that the plaintiffs’ interpretation of the York/Antwerp Rules would run afoul of sections 3(8) and 5 of COGSA, 46 U.S. C. §§ 1303(8) & 1305. See G. Gilmore & C. Black, The Law of Admiralty § 5-13 (1957).

The district court found that the Orient Transporter was not in a position of peril when resting on the bottom of the Neches River. The facts support this finding. The vessel was far removed from any danger of collision with another ship, and did not interfere in any way with navigation. The pilot who moved the Orient Transporter from Beaumont to the Neches anchorage testified that the ship would not have been disturbed by heavy weather. Finally, the decision to ground the ship is persuasive evidence that the soft silt bottom in the abandoned ship channel was considered a safe anchorage. We cannot say that the district court erred in finding that this anchorage was safe.

We turn to the destruction of the high pressure turbine on June 21, 1970. The district court found that the vessel was unseaworthy: the fireman, Fetaxidis, was inexperienced; the engine room was inadequately manned; and the ship lacked proper equipment. In addition, the court found that the owners did not use due diligence to make the vessel fit prior to the voyage and that this failure caused the accident on June 21. Apparently conceding a lack of diligence, the appellants concentrate their argument on the court’s findings of unseaworthiness and causation.

An inadequate crew, of course, may create an unseaworthy condition. Waldron v. Moore-McCormack Lines, 1967, 386 U.S. 724, 727, 87 S.Ct. 1410, 18 L.Ed.2d 482; Aguirre v. Citizens Casualty Co., 5 Cir. 1971, 441 F.2d 141, 144, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58; Dillon v. M. S. Oriental Inventor, 5 Cir. 1970, 426 F.2d 977, 979, cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140. An inadequate crew may be due either to insufficient manning, see, e. g. June T., Inc. v. King, 5 Cir. 1961, 290 F.2d 404, 407, or to an incompetent crew, see e. g., Horn v. Cia de Navigacion Fruco, S.A., 5 Cir. 1968, 404 F.2d 422, cert. denied, 394 U. S. 943, 89 S.Ct. 1272, 22 L.Ed.2d 477; The Vale Royal, D.Md.1943, 51 F.Supp. 412, 426. Here there was convincing evidence of both. Fetaxidis had no experience or training as a fireman. There was testimony at trial that to obtain the status of a certified fireman water-tender, one must have six months experience at sea in the engine department of a merchant vessel and must pass a Coast Guard examination; the National Maritime Union gives an eight to ten week course in preparation for this examination. There was no evidence that Fetaxidis met any of these criteria. Moreover, his incompetence was actively demonstrated. By going to Spetsiotis, Fetaxidis invited the inference that he did not know how to “blow down” the water glass himself. More importantly, apparently he did not appreciate the necessity of knowing the water level at all times, of keeping the engineer on watch informed as to what feed lines were open, and indeed, of not opening feed lines without the engineer’s permission. The evidence clearly established Fetaxidis’s incompetence.

The inexperience of a crew member does not, of course, necessarily create an unseaworthy condition. Properly supervised, an inexperienced,- untrained individual may learn to become competent. Cf. The New York Marine, 2 Cir. 1940, 109 F.2d 564/565. On the Orient Transporter, however, Fetaxidis’s inexperience and ignorance of his job were compounded by a shortage of personnel. The engine department was understaffed by at least one oiler on June 21, and the inference is persuasive that there was no oiler on watch when the accident occurred. When Fetaxidis reported to Spetsiotis,. the engineer on watch, that the water level could not be seen in the glass, Spetsiotis was in the lower engine room changing oil in the oil lube pump — a task usually performed by an oiler. And in Spetsiotis’s deposition testimony concerning the events of June 21, there is no mention of an oiler on duty. Although it is possible that the incompetence of the fireman or the lack of an oiler might not, standing alone, have had significant adverse consequences, combined they amounted to an inadequate crew and an unseaworthy condition.

The unseaworthiness was exacerbated by primitive boiler-related equipment. The Orient Transporter had no automatic feed equipment, remote level indicators, or automatic alarm system — any one of which might have prevented the accident. Without such equipment, it was especially important that the ship be adequately manned. In conclusion, we note that seaworthiness is a question of fact. Aguirre v. Citizens Casualty Co., 441 F.2d at 144. The facts, as we read the record, lead us to the conclusion that the district court’s findings were not erroneous.

The appellants’ final contention is tied to the different liabilities under COGSA when damage results from unseaworthiness and when it results from negligent management of the vessel. Under COGSA the carrier is not liable for loss or damage to the cargo resulting from negligent management. 46 U.S.C. § 1304(2)(a). Conversely, negligent management will not foreclose a general average recovery by the ship owner, as will unseaworthiness. The appellants argue that the destruction of the boilers resulted from Spetsiotis’s negligence, not from any unseaworthy condition. After all, it was Spetsiotis’s turning on the feed pump which formed the immediate cause of the carryover of water from the boiler into the turbine. And there was testimony that when there is doubt as to whether the water is too high or too low in a boiler, the proper procedure is to “shut down” the boiler and stop the main engine. Instead, Spetsiotis took the worse action that he could have taken under the circumstances, as we now know them: he added cold water directly into the boiler.

That Spetsiotis’s action formed the immediate cause of the accident, however, does not reduce the significance of the inadequacies of the engine room crew. Fetaxidis’s incompetence and the lack of an oiler set events in motion that led directly to a crisis situation for the engineer on watch. In an atmosphere of danger created by the possibility of an imminent boiler explosion, Spetsiotis panicked. But for the unseaworthiness there would have been no crisis and no accident. The unseaworthiness was a “substantial factor” in the accident. See Restatement (Second) of Torts §§ 431, 433 (1965); W. Prosser, Law of Torts § 41 (1971). It formed a crucial link in the chain of causation, continued not broken by the response of Spetsiotis.

At best the appellants showed that Spetsiotis’s action, and perhaps negligence, was a concurrent cause of the catastrophe. This is insufficient to establish a right of recovery here. When there is more than one effective cause, the fact that one cause is excepted under COGSA does not eliminate the carrier’s responsibility for unseaworthiness. Hydaburg Cooperative Ass’n v. Alaska Steamship Co., 9 Cir. 1968, 404 F.2d 151, 153; Union Carbide & Carbon Corp. v. The Walter Raleigh, S.D.N.Y. 1951, 109 F.Supp. 781, 793, aff’d, 200 F.2d 908, 2 Cir.; Gilmore & Black, supra, § 3-38. We have held that the burden of showing that damage is due to a cause other than unseaworthiness falls on the shipowner. Horn v. Cia de Navigacion Fruco, S.A., 404 F.2d at 432; Cooper v. Pinedo, 5 Cir. 1954, 212 F.2d 137, 143. Furthermore, when there are concurring causes, the burden is on the shipowner to show how much of the damage resulted from a cause entitled to exemption under COGSA. J. Gerber & Co. v. S.S. Sabine Howaldt, 2 Cir. 1971, 437 F.2d 580, 588; Lekas & Drivas, Inc. v. Goulandris, 2 Cir. 1962, 306 F.2d 426, 431-432; American Mail Line, Ltd. v. Tokyo Marine & Fire Ins. Co., 9 Cir. 1959, 270 F.2d 499, 502. Because the appellants have not met these burdens, they must bear the entire loss.

III. THE COUNTERCLAIM

In their counterclaim the Vietnamese interests sued for reimbursement of a deposit made as their general average share of salvage costs, and to recover expenditures of more than $100,000 incurred in loading, inspecting, fumigating, storing, and reshipping the rice after the Orient Transporter’s propulsion system was rendered inoperative by the events of June 21, 1970. The Vietnamese also claimed an additional $4,000, the value of some 581 bags of rice lost or ruined during transfer. Recovery hinges on the applicability of section 3(6) of COGSA, 46 U.S.C. § 1303(6), which provides: “In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered”. We agree with the district court that the cross-appellants are entitled to recover the salvage deposit and that their other claims are barred under COGSA’s one year statute of limitations.

The relevant sequence of events, as it appears from the record, is as follows. Towed back to Beaumont after losing its propulsion system, the Orient Transporter arrived on August 7, 1970. While the ship was being unloaded on August 24 the plaintiffs filed their action in rem against the cargo of rice, seeking general average contribution. The unloading of the Orient Transporter was completed on August 27. It was not until February 3, 1972, almost eighteen months after the Orient Transporter had discharged her cargo, that the defendants filed any pleadings in this ease. At that time they reserved the right to file a counterclaim at a later date; they did so on September 11, 1972. Apparently conceding that if the one year statute of limitations is applicable to this case their claims are barred, the defendants argue that the statute does not apply.

We agree that the one year limit does not apply to the claim for reimbursement of the salvage deposit. In States Steamship Co. v. American Smelting & Refining Co., 9 Cir. 1964, 339 F.2d 66, cert. denied, 380 U.S. 964, 85 S. Ct. 1109, 14 L.Ed.2d 155, the court faced a situation similar to that before us now: more than a year after the cargo was delivered, the cargo owner sued for reimbursement of its general average portion of a salvage award. The court held that the action was in actuality for indemnification and that as such was not a claim for “loss or damage” within the meaning of COGSA; therefore the one year limitation period did not apply. Because the salvage award in the case was not final until more than a year after delivery, the plaintiff could not have brought its claim within the one year period. The Court noted that in the usual action for damage to cargo, it is at the time of delivery that the shipper should become aware of any damage. With indemnity, however, the cause of action accrues only upon actual payment. 339 F.2d at 69-70. We adopt this analysis and hold that the salvage claim is not barred by the one year limitation period of COGSA.

The defendants-cross-appellants urge us to extend the rationale of States Steamship to their action to recover expenses and losses borne after the disabled Orient Transporter was towed back to Beaumont. They maintain that, like the plaintiff in States Steamship, they could not have raised their claims within the one year period. We are unconvinced. The record in this case does not indicate that the defendants’ causes of action arose after the one year period expired. Moreover, we are of the view that the claims brought in this action are the sort intended to be included within the COGSA time limit. The damaged and missing rice was discoverable during the unloading of the Orient Transporter. This is the typical “damage or loss” covered by the limitation period of COGSA. All of the expenses for unloading, inspection, fumigation, and storage were incurred within two months of time the rice was discharged. And the costs of reshipment were also incurred within the year. These expenses too are are cargo-related and covered by the limitation period.

We note that the federal courts have with consistency strictly applied the one year period when the cause of action arose within a year from delivery. See, e. g., American Oil Co. v. Steamship Ionian Challenger, 2 Cir. 1966, 366 F.2d 509; Minex v. International Trading Co., E.D.Va.1969, 303 F.Supp. 205. We find no reason to depart from this accepted practice in this- case.

Affirmed.

      . The ninth edition of Lowndes & Rudolph appears as volume 7 of British Shipping Laws (B. Hewson, ed. 1964).

      . “Every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter.” 46 U.S.C. § 1300.

      . Astronato Oia. Nav. S.A. owned the Orient Transporter. Orient Mid-East Lines, Ine. owned all the stock of Astronato Cia. Nav. S. A.

      . The bills of lading were also subject to COGSA. See note 2 supra.

      . It is unclear what caused the lack of power. The appellants contend that the power was reduced because the condenser and other piping was filled with silt. The appellees imply that it was because of the “unfitness” of the power equipment, that is, the port boiler.

      . Fetaxidis did not testify. At the trial the plaintiffs’ counsel reported that Fetaxidis had been killed in an explosion at sea.

      . Usually water is fed first through a heater, where the water temperature is raised before the water enters the boiler. Because he was concerned to get water into the boiler as quickly as possible, Spetsiotis fed cold water directly into the boiler.

      . Only two witnesses testified at the trial concerning the events of the voyage. These witnesses were two pilots, one who had taken the ship from Beaumont to the abandoned channel in the Neches River on June 6, 1970, and one who had returned the ship to Beaumont on June 7. Much of the other testimony was presented in the form of depositions. We are in as good a position to evaluate such evidence as was the trial court. J. Gerber & Co. v. S.S. Sabine Howaldt, 2 Cir. 1971, 437 F.2d 580, 586. The proper standard of review in such a case is a modified “clearly erroneous” standard. “[AJlthough we are bound by the clearly erroneous doctrine . . . , it is subject to the modification that it does not apply with equal force, where . . . the appellate court is iu as good a position as the lower court to evaluate the testimony that is crucial to the case”. Caradelis v. Refineria Panama, S.A., 5 Cir. 1967, 384 F.2d 589, 593; San Pedro Compania Armadoras, S.A. v. Yannacopoulos, 5 Cir. 1966, 357 F.2d 737, 740.

      . The York/Antwerp Rules, 1950, may be found in 6 Benedict on Admiralty (7 ed. Knauth ed. 1969) ; Buglass, supra; Lowndes & Rudolph, supra.

      . “Except as provided by the numbered Rules, general average shall be adjusted according to the lettered Rules.” York/Antwerp Rules, 1950, Rule of Interpretation.

      . Lowndes & Rudolph, supra, describe the phrase “for the common safety” as a “shorter and more convenient phrase than ‘for the purpose of preserving from peril the property involved in a common maritime adventure.’ ” Id. at 1f 556. They also note:
      No one at the [Stockholm] Conference [of 1924] . . . expressed any desire to widen the definition of general average so as to include in its scope losses or expenses other than those arising from an intention to save the common adventure from a common peril. In the end not only were the words “for the common safety” inserted in the definition, but the principle implied by these words was further emphasized by continuing with the phrase “for the purpose of preserving from peril the property involved in a common maritime adventure.”

        Id. at H 550 (emphasis Lowndes & Rudolph) .

      . Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect. A benefit of insurance in favor of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability.
      46U.S.C. § 1303(8).
      Nothing in this chapter shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.

        Id. § 1305.

      . The Master stated that he decided to jettison 179 tons of fresh water to ease the floating of the ship “[d]ue to the reason of safety of the vessel and goods”. Although evidence that the ship was in a position of peril, the statement is not conclusive. See Ravenscroft v. United States, E.D.N.Y. 1936, A.M.C. 696, aff’d, 88 F.2d 418, 2 Cir., cert. denied, 301 U.S. 707, 57 S.Ct. 940, 81 L.Ed. 1361. Significantly, the Master jettisoned the water before he knew whether the tide would float the ship, fresh water and all.

      . We harbor some doubts as to whether the damage to the high pressure turbine was the result of a general average act under the York/Antwerp Rules, 1950. The parties do not argue the point, however, and because of our disposition of the case we need not face the issue.

      . Charles Walker, a patrolman for the National Maritime Union, stated that in June 1970 there were twenty-five certified firemen water-tenders in the area available for shipping. He testified that on request he could have obtained a certified fireman water-tender for the Orient Transporter in “probably two hours”.

      . All of this equipment is common. Christopher Finley, who had served 26 years as Chief Engineer, testified that he had never served on a ship that did not have remote level indicators and alarm systems.

      . The effect of the combination of the new .Jason Clause and the Carriage of Goods by Sea Act is that once a general average act within “traditional bounds” is established, cargo will be required to contribute in general average even if the general average loss is due to a cause, such as an error in navigation attributable as negligence to the carrier, if it is determined that the carrier would not be responsible to cargo under the Act for loss resulting from such cause. The ultimate inquiry in this regard, therefore, concerns whether or not the carrier is entitled to the benefit of one or more of the exemptions from responsibility provided in the Act. Thus, the ship’s right to recover general average contribution from cargo in this case presents precisely the same question as would be involved if cargo were herein seeking to hold the ship liable for damage to cargo’s goods.
      Cia. Atlantica Pacifica, S.A. v. Humble Oil & Refining Co., 274 F.Supp. at 901-902 (footnotes omitted). And see Gilmore & Black, supra, § 5-13.

      . These expenses may be broken down as follows:
      Unloading $ 62,582.01
      Inspection 1,123.40
      Fumigation 9,329.00
      Storage 26,895.56
      Reshipment 513.00
      $100,442.97

      . The cargo was delivered on February 11, 1957. On October 28, 1958, the salvage award became final. On March 16, 1959, the owner of the cargo filed a libel to recover its portion of the salvage paid.

      . After the Orient Transporter arrived in Beaumont on August 7, 1970, its cargo was attached by a United States Marshal pursuant to an action in rem for salvage brought by the owners of the tug boat that towed the ship back to Beaumont. The United States Department of Agriculture undertook for the Government of Vietnam to bear responsibility for the amount of the salvage award, and the seizure was lifted. Through its agency, the Commodity Credit Corporation, the Agriculture Department oversaw and financed the unloading, fumigation, inspection and storage of the rice, and arranged for another charter so that the cargo would ultimately reach its destination. By March 31, 1971, the Government of Vietnam had reimbursed the Agriculture Department for all of these expenses. The Government of Vietnam also paid 90 percent of the freight to the Commodity Credit Corporation on February 2, 1971.


source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    Daniel GRANT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
    No. 73-1435.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.
    Rehearing and Rehearing En Banc Denied Oct 18, 1974.

      Henry H. Harnage, Miami, Fla. (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondentappellee.
    Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.
   GOLDBERG, Circuit Judge:

Shortly after ten o’clock on Saturday morning, June 24, 1961, the body of Mrs. Hyman Nudel was discovered in the back room of a Miami upholstery shop operated by Mrs. Nudel and her husband. Medical testimony established that death was caused by strangulation by hands and ligature such as a cord or wire. There were apparently no eyewitnesses to the murder, and police found no fingerprints or other physical evidence with which they could positively identify the perpetrator.

At about noon on the day of the murder petitioner Daniel Grant, who for several months had been an employee in the Nudels’ shop, was picked up and taken to the police department’s homicide bureau. The parties are not in complete agreement as to what happened thereafter; however, considering “only the uncontested portions of the record: the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted,” Culombe v. Connecticut, 1961, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037, a perhaps incomplete, but certainly unsavory, scenario emerges. Without being warned of his constitutional rights, Grant was questioned regarding his whereabouts that morning. When Grant explained that he had gone by the upholstery shop to borrow some money from Mr. Nudel, he was placed under arrest. From Saturday afternoon until Monday evening, some 53 hours, Grant was incarcerated without being taken before a magistrate. From 6:31 p. m. Monday until 2:00 a. m. Tuesday Grant was questioned intensively by relays of police officers. During that seven and a half hour period Grant was left alone for only two brief intervals; in addition, his wife was brought in to talk to him for about thirty minutes. In the course of the interrogation petitioner was confronted by at least one person to whom he owed money. At approximately 1:20 a. m. Grant was told to take down his pants and to pull out and give to the detectives some of his own pubic hairs, presumably to compare with hairs found on the body of the deceased. The suspect was then required to strip naked while Detectives Shepard and Utes conducted a “physical examination.” Detective Holmes told Grant that two abrasions on his knees absolutely indicated his guilt. At that point — approximately 2:00 a. m. — Grant succumbed and confessed to the murder of Mrs. Nudel.

The detectives called a police department stenographer to come to the station, and Grant concluded his formal statement of confession at 2:30 a. m. The statement was then typed, and it was read to and signed by Grant. From that time until about 5:15 a. m. Grant remained in the presence of his accusers and was not permitted to sleep. He was then taken by police officers to the Nudels’ upholstery shop and was asked to reenact his confession. After a “dry run” or rehearsal, a movie of the performance was taken, with Grant in jail or prison garb acting the role of the murderer and with a detective playing the role of the victim. Over defense counsel’s strenuous objections, this enacted “confession” was shown to the jury at Grant’s trial.

On July 11, 1961, some two weeks after the initial confessions, petitioner, who was still incarcerated, complained of headaches and asked to see a doctor. In response the State Attorney’s Office sent Dr. Harry Moscowitz, a psychiatrist, to examine Grant. Dr. Moscowitz testified at trial that he “followed the usual format of a psychiatric examination.” He determined that the headaches had begun when Grant found a cockroach in his ear and were not of a neurological-psychiatric nature. The psychiatrist then engaged Grant in a discussion about why he was in jail and elicited from him a description of the murder that conformed substantially to the initial confession. The state presented Dr. Moscowitz as a witness at Grant’s trial, and over strong defense objections, offered Grant’s statements to Moscowitz as a third “confession.”

Primarily on the basis of the three confessions, Grant was convicted upon a trial by jury in December 1961 for first degree murder and was sentenced to death. The conviction was affirmed by the Supreme Court of Florida, with two Justices dissenting. Grant v. State, Fla.1965, 171 So.2d 361. The present appeal is from an order of the United States District Court for the Southern District of Florida dismissing, without a hearing, Grant’s petition for writ of habeas corpus. Petitioner asks that we reverse the district court’s order and grant the writ on the grounds that: (1) all three of the confessions were involuntary and their admission into evidence was a denial of due process; (2) admission of the filmed reenactment into evidence at trial was so highly prejudicial and inflammatory as to deny petitioner his constitutional right to a fair trial; and (3) the state trial court erroneously and harmfully limited inquiry by defense counsel into an alleged confession by Mr. Nudel. We agree with petitioner that the confessions upon which he was convicted were involuntary and that he is therefore in custody in violation of the Constitution. Because petitioner is entitled to relief on this ground, we do not reach the other issues raised on appeal.

In the landmark decision of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court delineated specific procedures to safeguard the Fifth Amendment privilege against self-incrimination during in-custody interrogations. If Daniel Grant’s trial had taken place after the date of the Miranda decision, the involuntariness and inadmissibility of his confessions would be established beyond peradventure. We recognize that the strict requirements of Miranda are not to be applied retroactively. Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Miranda, however, neither invoked a miracle nor marked the genesis of judicial vigilance prior to which the courts were oblivious to overzealous and abusive police interrogation practices. That decision was simply a milestone in the steady advance of Anglo-Saxon jurisprudence in the civilized treatment of the criminally accused. Only five years after the Wickersham Commission aroused public consciousness with its famous report on police abuses, the Supreme Court reversed a Mississippi conviction based on confessions obtained by whipping the accused with a buckle-adorned leather strap. Brown v. Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. In his forceful opinion for the Court, Chief Justice Hughes served notice — thirty years before Miranda — that “[t]he rack and the torture chamber may not be substituted for the witness stand,” 297 U.S. at 285-286, and that these and other barbaric paraphernalia designed to extract and extort confessions would be denounced and proscribed when evidenced.

Although the facts of subsequent cases never reached the level of brutality of the beatings in Brown, the Court continued to scrutinize confessions. The Supreme Court long “has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 1960, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242. As the Court noted in Spano v. New York, 1959, 360 U.S. 315, 321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265,

as law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made.

Writing for the majority in Davis v. North Carolina, 1966, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, Chief Justice Warren declared that

the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977] (1964). This Court has undertaken to review the voluntariness of statements obtained by police in state cases since Brown v. Mississippi .... The standard of voluntariness which has evolved in state cases under the Due Process Clause of the Fourteenth Amendment is the same general standard which applied in federal prosecutions — a standard grounded in the policies of the privilege against self-incrimination. Malloy v. Hogan, 378 U. S. 1, 6-8 [84 S.Ct. 1489, 1492-1493, 12 L.Ed.2d 653] (1964).

Thus, “voluntariness” was not a new word introduced by Miranda into our jurisprudential lexicon, and the prospectivity of that decision did not bless all previous confessions. See generally Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 938-1036 (1966).

The test for admissibility of a confession in a pre-Miranda case is whether, considering the “totality of the circumstances,” the defendant’s statements were voluntary. Clewis v. Texas, 1967, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423; Fikes v. Alabama, 1957, 352 U.S. 191, 197, 77 S.Ct. 281, 1 L.Ed.2d 246. Such a standard is, of course, easier to state than to apply. We know of no simple measuring device that would enable us to compare the relative reliability of confessions, the relative outrageousness of interrogation techniques, or the relative extent to which the wills of accused persons have been overborne. The variety of methods used to extract confessions, and the number of possible combinations and permutations of those methods, render any linear comparison impossible. Thus, we cannot say that Grant’s incarceration for at least 53 hours without being taken before a magistrate renders his confession involuntary per se, even though the Supreme Court has reversed a state court finding of voluntariness when the accused was incarcerated only- some 38 hours before being charged. Clewis v. Texas, supra; see also Darwin v. Connecticut, 1968, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630. Similarly, we cannot hold the confession involuntary solely on the ground that Grant was subjected to intensive interrogation for seven and a half hours by relays of white police officers. Nevertheless, when the extended confinement and the exhaustive questioning are considered together and in combination with the confrontation by a creditor, the demand that petitioner pull out his own pubic hairs, and the early morning physical examination followed by the officer’s authoritative statement that abrasions on petitioner’s knees proved his guilt, there can be no doubt that the resulting confession was involuntary.

In reaching our conclusion we are not unmindful of the substantial weight that is to be accorded to state court determinations. However, as Justice Frankfurter wrote for the Court five years before the Miranda decision,

where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such . an extracting process — where this is all that appears in the record —a State’s judgment that the confession was voluntary cannot stand.

Culombe v. Connecticut, supra, 367 U.S. at 605. The tactics employed by police officers in extracting a confession from Grant in 1961 were just the type of procedures that led to the decisions in Miranda and in Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. These extractive techniques shock our pre as well as our post-Miranda consciences. A confession induced by such tactics cannot be considered voluntary under any standard and should not have been admitted as evidence to establish petitioner’s guilt.

The second and third “confessions” — the filmed reenactment of the crime and the statement to the psychiatrist — cannot be separated from the circumstances surrounding the first confession, and they too must be held inadmissible. The reenactment was staged at approximately 5:00 a. m., only a couple of hours after the initial confession; petitioner, who had been questioned intensively for the entire evening and night, had no opportunity to sleep before being taken to the scene of the crime. Whether or not these features might have prevented the screenplay from being denominated a four-star cinematic production of Academy Award standards, they should at best have required the movie to be X-rated and banned from use in the courtroom for confession purposes.

Although Grant’s inculpatory statements to Dr. Moscowitz followed the initial confession and reenactment by two weeks, Grant had been in jail for the entire period. The record gives no indication that petitioner had spoken with counsel at any time during those two weeks or that any other event or circumstance had intervened that might isolate the encounter with the psychiatrist from the effects of the prior confessions.

As the Supreme Court has observed, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.

United States v. Bayer, 1947, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654. The Court in Bayer, sustaining a trial court’s refusal to suppress a “supplementary” confession, declined to adopt a per se rule that would permit one confession made “under circumstances which preclude its use, perpetually [to disable] the confessor from making a usable one after those conditions have been removed.” 331 U.S. at 541. The second confession in Bayer, however, followed the involuntary one by six months, during which time the defendant was under only very limited restraint on a military base; before making the second statement the defendant was given fair warning that it might be used against him. In Clewis v. Texas, supra, the accused gave three confessions to police: the first on July 9, the day after his arrest; the second on July 12; and the third on July 17. For the four days preceding his final statement, Clewis was in the county jail, but was neither interrogated nor abused and was permitted adequate food and sleep. During questioning on July 17, however, he was not advised of his right to remain silent or to have counsel appointed. After finding Clewis’ first two confessions involuntary because of impermissible interrogation techniques, the Court concluded:

On this record, we cannot hold that petitioner’s third statement was voluntary. It plainly cannot, on these facts, be separated from the circumstances surrounding the two earlier “confessions.” There is here no break in the stream of events from the time Sunday morning when petitioner was taken to the police station to the time Tuesday morning some nine days later that he signed the statement in issue, sufficient to insulate the statement from the effect of all that went before.

Clewis v. Texas, supra, 386 U.S. at 710. See also Darwin v. Connecticut, supra; Beecher v. Alabama, 1967, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35. Our examination of the record of Daniel Grant’s interrogation and detention convinces us that, as in the ordeal of Marvin Clewis, there was “no break in the stream of events . . . sufficient to insulate” Grant’s statement to Dr. Moscowitz from the kaleidoscopic “effect of all that went before.” Indeed, the involuntariness of Grant’s final statement is greatly increased by the fact that it was induced by one who was represented to the prisoner as a doctor to treat his headaches, but who was actually a psychiatrist sent by the State Attorney’s Office and who was following “the usual format of a psychiatric examination.” Cf. Leyra v. Denno, 1954, 347 U.S. 556, 559-560, 74 S.Ct. 716, 98 L.Ed. 948.

Judges as well as law enforcement authorities must always remain vigilant lest we forget the sage admonition of Chief Justice Warren regarding the use of abusive practices to obtain confessions :

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

Spano v. New York, supra, 360 U.S. at 320-321. Petitioner Grant’s “confessions” were in no sense voluntary, and they should not have been admitted as evidence against him. Because petitioner’s detention is in violation of the Constitution of the United States, he is entitled to be released. We therefore reverse the judgment of the district court and remand with instructions to grant the petition for writ of habeas corpus, subject to the right of the State, if it wishes to do so, to retry petitioner on the indictment here involved within ninety days after the mandate of this Court reaches the district court.

Reversed.

      . At least five officers, all of whom are white, were involved in the interrogation. Petitioner is black.

      . No evidence related to any such comparison was ever introduced at trial.

      . We emphasize that our synopsis of facts is based solely on undisputed testimony or, in instances of conflicting testimony, on the version of events offered by prosecution witnesses. Under questioning by his attorney at trial, Grant presented a much more pungent account of the moments leading up to his confession:
      Q In other words, from 6:00 o’clock at night until 12:00 you were under this repeated questioning?
      A Yes.
      Q By relays of detectives?
      A Yes.
      Q And there were about seven or eight of them?
      A That is right.
      Q What happened after that?
      A Well, one of the detectives told me— He said that they would either get what they wanted one way or the other.
      Q What did they mean by that?
      A That, I didn’t know at the time.
      Q What did you find out subsequently, if anything, what they meant by that?
      A After then they made me pull off my clothes. Detective Shepard came in and made me pull off all my clothes. He had me standing up and he cursed me and said a few different words to me, and he shoved me into the big chair that he was sitting in, and he called me all kinds of names and Detective Utes—
      Q At this time you were naked?
      A Yes.
      Q All right.
      A And Detective Nichols brought in some rope and—
      Q What kind of rope?
      A It was sash cord, I believe it was.
      Q All right.
      A And Detective Utes had a piece about four feet long, I guess it was, and he had it around my neck and was pulling on it, and Detective Shepard he had a rope, and he made me tie it around my balls, he put his feet up against the desk and he was pulling on it.
      Q Were they at this time, while this was going on, interrogating you?
      A Yes.
      Q What happened?
      A It kept going until I couldn’t stand it no more.
      * * :}: sje sje
      Q What then happened, Daniel, if anything?
      A Detective Shepard was still holding the rope and Detective Utes took his rope off, and he went in and got the pictures and he showed it to me, and he asked me didn’t I do it, and I said, “No,” and Detective Shepard was pulling on the rope, and he said, “You might as well admit it, because I am going to pull until you do; ” so he kept pulling it.
      Q And you then confessed?
      A Until I couldn’t take any more, and I confessed.
      Q Is that confession true in any way?
      A No, sir.
      Q Why did you mak it Daniel?
      A Because I was afraid and they were hurting me.
      Transcript, pp. 478-80. Petitioner’s description of the interrogation was contradicted by several participating police officers. We assume that the state court resolved the credibility choices in favor of the prosecution, of. La Vallee v. Rose, 1973, 410 U.S. 690, 692, 93 S.Ct. 1203, 35 L.Ed.2d 637; therefore, on this appeal we place no reliance on petitioner’s disputed testimony.

      . U.S. National Comm’n on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931).

      . The impact of the original confession may be just as great when the initial confession was false and did not actually involve “letting the cat out of the bag.” This would be particularly true where, as here, the accused has not only repeated his confession but has also reenacted his alleged crime several times for the benefit of law enforcement authorities. In his study of the psychology of confessions, Professor Edwin Driver explained the coercive effect of this type of repetition:
      The tactics of having the suspect “repeat his story over and over” and asking him to try to fill in the details of the crime which has only been described to him in outline are manipulations towards self-persuasion, not necessarily attempts to trip up the suspect in lies. Eor if duped into playing the part of the criminal in an imaginary sociodrama, the suspect may come to believe that he was the central actor in the real crime. Experiments indicate that oververbalization in role playing increases the effectiveness of an effort at persuasion in two ways. Eirst, the actor may be impressed by his own arguments, illustrations, and appeals; and, second, he may experience a sense of achievement or satisfaction with bis own performance. More shocking perhaps is that if a play-acting confession is made in the presence of certain “truth signals,” the suspect may later have difficulty accurately recalling what in fact happened . . . . Thus, a suspect accustomed to telling the truth to large, kindly, persistent men or used to responding truthfully to innocuous introductory questions may have his memory seriously clouded, or even may come to believe the false statements he makes in this context.
      Driver, Confessions and the Social Psychology of Coercion, 82 Harv.L.Rev. 42, 53-54 (1968).


author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Roy MANDUJANO, Defendant-Appellee.
    No. 73-3353.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 16, 1974.
    See also, 5 Cir., 496 F.2d 1059.
    William Sessions, U. S. Atty., John Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.

      Michael Allen Peters, Houston, Tex. (Court-appointed), for defendant-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   TUTTLE, Circuit Judge:

On May 2, 1973, appellee Mandujano appeared as a witness before the DALE (Drug Abuse Law Enforcement) Grand Jury, pursuant to a subpoena. The following warnings were given Mandujano:

“Q: Now you are required to answer all the questions that I ask you except for the ones that you feel would tend to incriminate you. Do you understand that ?
A: Do I answer all the questions you ask.
Q: You have to answer all the questions except for those you think will incriminate you in the commission of a crime. Is that clear?
A: Yes, sir.
Q: You don’t have to answer questions which would incriminate you. All other questions you have to answer openly and truthfully. And, of course, if you do not answer those truthfully, in other words, if you lie about certain questions, you could possibly be charged with perjury?”

Mandujano was further advised that he could have an attorney outside the grand jury room; however, he was not told that he had a right to have appointed counsel outside the grand jury room, that what he said could be used against him in later proceedings, and that he had a right to remain silent.

A federal narcotics agent had reported that in March, 1973, he offered Mandujano money for the purchase of heroin and gave him $650 for the attempted purchase. The government attorney who questioned Mandujano before the grand jury testified at the motion to suppress that he had discussed with the agent the circumstances of this attempted buy in preparation for Mandujano’s appearance before the grand jury. Evidence taken on the motion to suppress also showed that the government attorney requested suggestions for witnesses to be supoenaed before the grand jury from the agent who had dealt with Mandujano and the agent recommended calling Mandujano and then reported to the attorney how the actual attempt had occurred.

Mandujano was asked the following questions, inter alia, by the government attorney before the grand jury: .

“Q: Have you ever talked with anybody about selling it? Has anybody tried to buy heroin from you? Have you tried to get heroin for them in order to sell to them ?
A: No, sir.
Q: Are you sure of that ?
A: Yes, sir.
Q: In other words, no one has ever come up to you and wanted to buy heroin ?
A: No, sir.
Q: And you have never told anybody that you would try to get heroin to sell to them ?
A: No, sir.
Q: Now, you can say here today that you have not discussed the sale of heroin with anybody in the last year ?
A: I don’t understand you, sir.
Q: Have you talked to anybody about selling heroin to them during the last year?
A: No, sir.
Q: Are you sure about that ?
A: I just, you know, I discuss it, you know, when we buy it, you know, to fix it just, you know.
Q: Has anyone ever asked you if they could buy an ounce of heroin or more from you ?
A: No, sir.
Q: Let me ask you once again Mr. Mandujano, have you ever talked to anybody about selling them heroin in the last year?
A: No, sir.
Q: No one has ever given you any money—
A: No.
Q: —to go buy them heroin ?
A: No, sir.
Q: In other words, if you had $650 right now—
A: Yes, sir.
Q: —Do you think you would be able to purchase an ounce of heroin? . . .”

This interrogation tracked the exact facts of the actual contact between the federal narcotics agent and Mandujano.

The appellee was subsequently indicted in count 1 under 21 U.S.C.A. § 846 for attempt to distribute one ounce of heroin on or about the 29th of March, 1973, and in count -2 under 18 U.S.C.A. § 1623 for making false representations. The perjury count was based on Mandujano’s denial before the grand jury of any attempt to obtain or sell heroin or any solicitation to do so.

The district court granted appellee’s motion to suppress his testimony before the grand jury, finding that appellee was a virtual or putative defendant in custody under the Miranda decision, and therefore should have been given all Miranda warnings. United States v. Mandujano, 365 F.Supp. 155 (W.D.Tex. 1973). The district court determined that the warnings given were inadequate and that appellee could not be deemed to have voluntarily waived his Fifth Amendment right to remain silent. Appellee was convicted under count 1 for attempt to distribute heroin, without use of his grand jury testimony.

I. “PUTATIVE OR VIRTUAL” DEFENDANT

Given the nature of the investigation and the questions tendered by the government attorney, the district court held, and this Court agrees, that full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant. The district court aptly portrayed the circumstances warranting the fact finding that Mandujano was a virtual or putative defendant during his appearance before the grand jury:

“The government maintains that neither case was considered for presentation to the grand jury prior to 'the testimony of the defendants before that body, and that both files had been closed following the contact between the defendants and the law enforcement officers; nevertheless, the facts of the case belie the government’s protestations of innocent intent with respect to the possibility of future prosecutions. The special attorney who had conducted the questioning testified that he was well aware of the previous contact with the defendants in attempts to buy from them, as well as the exact circumstances involved in each attempted buy. The transcript of the grand jury proceedings reveals deliberate and careful attention to questions which specifically delved into the facts concerning these contacts between the defendant and government agents. The special attorney was aware that no case had been made, and though this Court does not presume any improper motives on the part of the government agents or the special attorney, it strains credulity to suggest that the special attorney did not have one eye on a possible prosecution of the defendants. The government had in fact already attempted to make a case against each defendant. Note too that each defendant, immediately after denying any contact about an attempted sale, was asked in the very next question about the validity of that answer . . . Considering the totality of the circumstances in this case, the questioning of the defendants before the grand jury smacks of entrapment. Moreover, given the fact that the investigatory files involving the attempts to buy from both defendants had been closed, the questions posed presented a high likelihood that the answers provided by the defendants would furnish material for further action on the part of the government. If the defendants admitted that they had offer to buy heroin for the undercover agent who approached them, the government could possibly have used such an admission in its case-in-chief in connection with the attempted sale. See United States v. Leighton, 265 F.Supp. 27 (S.D.N.Y.1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968); United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). The denial by defendants that they had conversations about procuring heroin for the officers left them open to the consequent indictments for perjury. Actually, therefore, their only safe harbor would have been to remain silent, and this option was, in effect, denied to them.” United States v. Mandujano, 365 F.Supp. at 158-159 (W.D. Tex.1973).

We construe the foregoing statements by the trial court to be findings that the government had focused upon Mandujano as someone whom the government had knowledge of having committed a crime, as a person whom the government had planned to indict as it had one eye on prosecution, and against whom it was gathering incriminating evidence. Also the discussion indicates that the trial court found that when Mandujano was brought into the grand jury room, the government then knew that an affirmative answer to questions put to him would amount to a confession of guilt of trafficking in heroin.

Although this Court has recently pretermitted the question of the scope of Miranda in the context of a putative defendant before a grand jury investigation, United States v. Morado, 454 F.2d 167 (5th Cir. 1972) and Mattox v. Carson, 424 F.2d 202 (5th Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 51 (1971), we have recognized that as a general rule a grand jury witness is not entitled to warnings of his right to appointed counsel and his right to remain silent. The Court of Appeals for the Sixth Circuit, however, has carved out the exception that when a person ceases to be merely a witness in a general investigation and becomes placed “virtually in the position of a defendant,” then the full panoply of rights under Miranda due a person in custody must be afforded. See United States v. Luxenberg, 874 F.2d 241 (6th Cir. 1967); United States v. Fruchtman, 282 F.Supp. 534 (N.D.Ohio 1968), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed. 2d 86 (1970); Stanley v. United States, 245 F.2d 427 (6th Cir. 1957).

In United States v. Morado, supra at 173, we have already recognized the force of the argument that if an investigation has passed beyond the stage of a general inquiry and has focused upon the defendant, then the defendant would be in the position of a virtual defendant:

“Without intimating whether this circuit will agree with this ‘virtual defendant’ perspective, we note that its emphasis is upon the same factor we have considered to be of prime importance in determining whether or not a man is ‘in custody’ as that term is used in Miranda: ‘has the focus of the investigation centered upon him?’ United States v. Phelps, 443 F.2d 246 (5th Cir. 1971); United States v. Akin, 435 F.2d 1011 (5th Cir. 1970); United States v. Montos, 421 F.2d 215 (5th Cir. 1970); Bendelow v. United States, 418 F.2d 42 (5th Cir. 1969); Windsor v. United States, 389 F.2d 530 (5th Cir. 1968). If the investigation in the case at bar had passed beyond the stage of being a general inquiry into an unsolved crime of a suspected conspiracy, and had focused upon Solis as a defendant whom the government planned to indict and against whom it was gathering incriminating evidence, we would face the necessity of embracing or rejecting this rule.”

The language in Morado is particularly applicable in the case at bar because this investigation clearly had passed beyond the stage of general inquiry into an unsolved crime, and had focused upon the defendant as someone whom the government had planned to indict as it had one eye on prosecution, against whom it was gathering incriminating evidence, and against whom indictments were actually returned. The fact that the questioning attorney immediately pounced upon Mandujano’s denial that he had been contacted about the sale of heroin, indicated a clear and direct focus upon Mandujano as a future defendant. Moreover, the government attorney even mentioned the precise figure — $650— which had purportedly been given to Mandujano by the federal narcotics agent, plainly demonstrating that the previous transaction was clearly in the attorney’s mind.

Also there was no basis for the perjury count of the indictment until after Mandujano’s grand jury appearance. When the government attorney, aware of the alleged prior transaction, asked Mandujano about any previous heroin solicitation or sale, he knew that any truthful answer by Mandujano would be incriminating and therefore protected by the Fifth Amendment which Mandujano was entitled to plead. Thus, if the attorney proceeded to question actually anticipating an answer, he must have known that the response would require Mandujano to confess to a crime or commit perjury. The likelihood of Mandujano confessing a crime before the grand jury was certainly de minimis. The inference is easily drawn that the attorney’s questioning was primarily baiting Mandujano to commit perjury. As perceived by the district court this case “smacks” of entrapping Mandujano to incriminate himself or commit perjury. His only “safe harbor” was to remain silent — a right of which the government failed to inform him.

The government asserts that since Mandujano negotiated for a heroin sale with the federal narcotics agent which did not result in a distribution due to appellee’s being unable to procure heroin from his sources, therefore the government agents concluded that appellee must have had knowledge of a source for heroin. Consequently he was called before the grand jury only to obtain intelligence regarding known heroin sources, consistent with the purposes of the grand jury, and not in an attempt to obtain incriminating or perjurous statements from him. Nevertheless, as concluded by the district court, “the facts of the case belie the government’s protestations of innocent intent with respect to the possibility of future prosecution.” Moreover, the questions tendered by the government attorney simply could have inquired whether Mandujano knew any heroin dealers rather than focusing on whether anyone had ever solicited heroin from him.

Moreover, the warnings that were given were not adequate advisement even of the appellee’s Fifth Amendment rights against self-incrimination. As pointed out by the trial court, the questioning attorney “stressed not the right to remain silent, but the requirement that the defendant answer all the questions put to him, with limited exceptions. He did not stress the alternative of the defendant remaining silent in the face of a potentially [here certainly] damaging question.”

Under the circumstances of this case, this Court agrees that Mandujano was a putative defendant in custody and was entitled to Miranda warnings.

II. REMEDY FOR FAILURE TO GIVE MIRANDA WARNINGS

The more difficult issue here is whether the usual remedy for failure to give constitutional warnings, i. e., suppression of the testimony, can ever be employed in a situation where the testimony itself amounted to perjury.

Appellant relies heavily on United States v. Orta, 253 F.2d 312 (5th Cir. 1958), to convince us that “[u]nder no circumstances” can a grand jury “witness” commit perjury and then successfully claim that the Constitution affords him protection from prosecution for that crime. Witness Orta was charged with having committed perjury at a grand jury investigation. The district court suppressed Orta’s grand jury testimony, but this Court reversed, broadly stating, supra at 314:

“It is clear that the protection of the Fifth Amendment relates to crimes alleged to have been committed before the time when the testimony is sought. A witness, ignorant and uninformed of his constitutional rights, would not intelligently waive them if he testifies, thinking that he was compelled to do so. He might answer truthfully and thereafter assert the constitutional guaranty. Under no circumstances, however, could he commit perjury and successfully claim that the Constitution afforded him protection from prosecution for that crime. As said in Glickstein v. United States, 1911, 222 U.S. 139, 142, 32 S. Ct. 71, 73, 56 L.Ed. 128; * * the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.’
“The only debatable question is one of the supervision of the conduct of Government representatives in the interest of fairness. In United States v. Scully, 2 Cir., 1955, 225 F.2d 113, 116, the Court of Appeals for the Second Circuit held:
‘ * * * the mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury.’
“That holding is applicable to the present record. There is no showing that the Grand Jury before which Orta testified was seeking to indict him or any other person already identified.” (Emphasis supplied).

Although clearly holding that a mere “witness” uninformed of his rights before the grand jury, even one concerning whom there is a “mere possibility” of indictment, may not commit perjury with impunity, the Orta court sounded the important caveat that the question of supervision of the conduct of government representatives in the interest of fairness may be debatable in some circumstances. The language in the Orta opinion, supra at 314,

“There is no showing that the Grand Jury before which Orta testified was seeking to indict him or any other person already identified,”

highlights the important distinction between Orta and this case, demonstrating the wisdom of the caveat concerning the court’s duty of supervision “in the interest of fairness.” The instant case does not' involve a mere “witness,” but a putative, and subsequently actual, defendant. The facts showed that there was a mere possibility that a witness may later be indicted, but that the government deliberately subpoenaed a putative defendant before the grand jury primarily for the purpose of obtaining incriminating or perjurous statements against him and mainly in order to elicit evidence helpful in indicting him. Several decisions of this Court, such as Orta, Daniels, Glaseo, Stassi and Wilcox, have involved perjurous testimony and the adequacy of the instruction as to constitutional rights; however, the precise issue of a putative defendant who was primarily called before the grand jury for the purpose of obtaining incriminating or perjurous statements and mainly in order to elicit evidence helpful in indicting him has not been presented to this Court. Although there are factually overlapping features of the cases to be discussed, we have concluded that the totality of circumstances in the case at bar calls clearly for this Court to affirm the district court’s suppression of Mandujano’s testimony before the grand jury.

As heinous as the crime of perjury is under our law, and as correct as the Orta principle is, that a witness uninformed of his constitutional rights generally should not be afforded a license to commit perjury, under our law, we simply cannot ignore the unfairness in baiting this defendant before the grand jury and overlook the principle that the Fifth Amendment must always be as broad as the mischief against which it seeks to guard. In order to deter the prosecuting officers from bringing a putative or virtual defendant before the grand jury, for the purpose of obtaining incriminating or perjurous testimony, the accused must be adequately apprised of his rights, or all of his testimony, incriminating and perjurous, will be suppressed. In order to combat these methods the Fifth Amendment privilege must be fully honored in this situation. This end entails only slight erosion of the general principle announced in Orta. This deviation in the situation of a putative defendant uninformed of his Miranda rights and called for the purpose of obtaining incriminating or perjurous testimony is necessary to counteract the fundamental unfairness of allowing a defendant to be faced by such a Hobson’s choice.

In distinguishing Orta, we distinguish the other cases, cited above rendered after the date of Miranda, which reaffirmed the Orta principle (pre-Miranda), as none of these decisions concerned the situation of a putative defendant entitled to, but unadvised of, his Miranda warnings. The problem here is the problem adverted to in the dictum in Orta, and not the problem adjudicated by the Orta holding or by any other decisions of this Court. As previously indicated, the grand jury was not seeking to indict Orta and Orta was not a putative defendant entitled to Miranda warnings. Orta was an ordinary witness entitled to a general Fifth Amendment warning.

The district court apparently determined that in view of the subsequent holding in Miranda, there was now an essential difference between a prosecution for perjury when there have been no Miranda warnings and the suppression of testimony under the exclusionary rule, when such warnings have not been given, i. e., that although the indictment could not have been dismissed, the testimony could nonetheless have been suppressed. This distinction would be a facile solution to the difficult question here, were it not for the language in United States v. Glasco, 488 F.2d 1068 (5th Cir. 1974), intervening between the district court’s decision in the case at bar and the instant appeal, indicating that Orta had “post-Miranda vitality.” In Glaseo the defendant witness, who was in custody for another crime, had perjured himself when testifying in the trial of another defendant and the court held that a motion to suppress was properly denied. Again, however, Glaseo concerned entirely different facts, and an entirely different procedure. Glaseo was not put up as a witness to give evidence incriminating himself. He had already pleaded guilty to the same offense. Here, the agent reported that he believed Mandujano had committed the narcotics offense charged in court 1, and the government proceeded to subpoena Mandujano before the grand jury and asked him the precise questions dealing with a transaction that led to his being indicted by this same grand jury. Moreover, since Glaseo appeared at a trial as a defense witness, he apparently appeared voluntarily and not by the compulsion of a subpoena issued on behalf of the government.

Furthermore, the two cases cited in Glaseo, Wilcox and Stassi, also involved factual circumstances so dissimilar from those of the instant case that they need not be discussed. Both cases quoted from the Orta opinion.

One final case, United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972), which was noted by the district court, discusses the applicability of Orta to persons who commit perjury before a grand jury. Grand jury witness Daniels signed a “Waiver of Privilege Against Self-Incrimination” which advised that a witness could consult with an attorney outside the grand jury room but contained no statement with respect to the appointment of counsel for indigent witnesses, and proceeded to give perjurous testimony to the grand jury. Daniels conceded that generally there is no right to counsel for ordinary witnesses appearing before the grand jury, but argued that when an indigent witness who is advised that he may have an attorney present, must also be advised that if he is unable to provide his own counsel, one will be appointed for him free of cost. Finding that Daniels was “only a witness” and “was not under indictment when he appeared,” the court held that he was not entitled to appointed counsel. The important distinguishing factors are that Daniels did not argue that he was entitled to Miranda warnings, but only contended that since a witness could have retained counsel, he should have been advised that indigent witnesses may have appointed counsel free of cost. Furthermore, the court clearly delineated that Daniels was only a witness and not a putative defendant. Therefore, the latter portion of the decision which concludes that Daniels, even if entitled to counsel and deemed not to have waived his rights, would still have no license to commit perjury is a reaffirmation of the general principle announced in Orta and is to be distinguished completely from the situation of a putative defendant entitled to Miranda warnings who is called before the grand jury for the purpose of obtaining incriminating or perjurous testimony.

We reiterate that the Orta principle that witnesses uninformed of their constitutional rights should not be allowed a license to commit perjury continues with full force. We only make a slight inroad that where a totally unfair procedure is put in train — as when there is a factual determination that a person who is subpoenaed before the grand jury and questioned about an alleged crime, was already known to the satisfaction of the prosecuting agency prior to the grand jury appearance to be guilty of that precise crime — , elemental fairness requires that such a person is under such compulsion as to require that he be given the Miranda warnings, and that failure to do so must require suppression of any incriminating testimony given by him even though he is being prosecuted for giving false testimony.

The remaining question arises from the principle that the Fifth Amendment protection against self-incrimination extends only to past acts, not to those that are or may be commit-fed in the future. As stated in Glickstein v. United States, 222 U.S. 139, 32 S.Ct. 71, 56 L.Ed. 128 (1952), [quoted by the Orta court, as stated infra], “ * * * the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.” The appellant urges that when the defendant Mandujano appeared before the grand jury, he had not committed the perjury and that his criminal liability concurred with his utterance before the grand jury. Therefore, the perjury indictment was not premised upon evidence of past acts obtained from the mouth of the defendant, but was based on a crime whose very commission, rather than evidence of commission, was the defendant’s testimony. Glickstein v. United States, supra, concerned a bankrupt who was indicted for perjury for having falsely sworn in a bankruptcy proceeding while under examination before a referee.

Once again, we must point to the distinguishing characteristics in the facts and the proceedings in this case. The entire proceedings here which led up to Mandujano’s indictment for perjury were, as we have noted repeatedly, beyond the pale of permissible prosecutorial conduct. We conclude that the entire proceeding was a violation of Mandujano’s due process rights under the Fifth Amendment.

We, of course, do not attempt an axiomatic definition of due process, but note the well known language from Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1941), overruled on other grounds, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1962):

“ ‘Asserted denial [of due process] is to be tested by an appraisal' of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.’ ”

Although the application of the standard set in Betts v. Brady, supra, was overruled in Gideon v. Wainwright, supra, it is clear that the test remains the same. Was the conduct (refusal to appoint counsel) so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process. 316 U.S. at 473.

We conclude simply that the proceedings here complained of met that standard.

We believe this not to be inconsistent with any prior decision of this Court, all of which dealt only with the specific rights guaranteed by the self-incrimination clause of the Fifth Amendment.

The judgment is affirmed.

      . Actually Mandujano told the government attorney that he didn’t have the money to get a lawyer. The following conversation transpired between them:
      “Q: Have you discussed your presence here with anybody?
      A: My wife.
      Q: Have you contacted a lawyer in this matter?
      A: No, sir, I haven’t.
      Q: I take that to mean then that you do not wish the services of a lawyer here today?
      A: I don’t have one. I don’t have the money to get one.
      Q: Well, if you would like to have a lawyer, he cannot be inside this room. He can only be outside. You would be free to consult with him if you so chose. Now, if during the course of this investigation, the questions that we ask you, if you feel like you would like to have a lawyer outside to talk to, let me know.
      A: Yes, sir.
      Q : Is that clear?
      A: (Nod affirmative).”
      At no time was Mandujano told that an attorney would be furnished him free of charge if he were financially unable to employ one.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965).

      . The reference to “defendants” is made in the plural because the district court issued a joint opinion for this case and United States v. Rangel, 365 F.Supp. 155 (W.D.Tex.1973), because it found that the two cases, though not consolidated and not involving the same transaction, embodied a virtually identical set of circumstances.

      . Morado, supra at 173. Robinson v. United States, 401 F.2d 248 (9th Cir. 1968); United States v. DiMichele, 375 F.2d 959 (3rd Cir. 1967); United States v. Winter, 348 F.2d 204 (2d Cir. 1965); United States v. Parker, 244 F.2d 943 (7th Cir. 1957); United States v. Scully, 225 F.2d 113, 116 (2d Cir. 1955).

      . In United States v. Fruchtman, supra, in circumstances similar to the instant case, the court found the witness to be a virtual defendant. There the government attorney submitted an affidavit denying that the witness was a potential defendant at the time of questioning; yet, the court noted that this attorney had also read investigative reports detailing the circumstances about which the witness was questioned before the grand jury. These facts are similar to those here, where the special government attorney read the narcotics agent’s report prior to the grand jury session.

      . This Court in Brown v. Beto, 468 F.2d 1284, 1286 (5th Cir. 1972), discussed at length the application of Miranda, stating: “Before law enforcement officers can subject a citizen to custodial interrogation, he must first have been given the Miranda warnings. In Miranda ‘custodial interrogation' was defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 4 This court has yet to formulate a general rule for distinguishing custodial from non-custodial interrogation but instead has preferred to take a case-by-case approach.:» In making the distinction between custodial and non-custodial interrogation this court has singled out certain criteria as having special significance; these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.’ Although none of these factors is alone determinative, we have recently indicated that the most compelling is whether or not the focus of the investigation has finally centered on the defendant.® ”

      . United States v. Orta, 253 F.2d 312 (5th Cir. 1958); United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972); United States v. Glasco, 488 F.2d 1068 (5th Cir. 1974); Stassi v. United States, 401 F.2d 259 (5th Cir. 1968); United States v. Wilcox, 450 F.2d 1131 (5th Cir. 1971).

      . As did the trial court, we refrain from placing blame on any one official for what turned out to he conduct “smacking” of entrapment. We recognize the fact that involved here were an agent who reported to his superior, and then a special attorney having designated duties in the field of narcotics investigation and prosecution, and finally the United States Attorney and his staff. Somewhere within this chain of command and information, a decision was made to subpoena as a witness a man to whom the original agent testified he had given $650 for a “score,” and to ask this witness about this specific transaction.