source: Caselaw Access Project

author: WILKEY, Circuit Judge: FAHY, Senior Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America v. Robert L. SCRIBER, Appellant.
    No. 72-1841.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 19, 1973.
    Decided May 16, 1974.
    Rehearing Denied June 14, 1974.

      Jerome J. Dick, Washington, D. C. (appointed by this Court), for appellant.
    N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before FAHY, Senior Circuit Judge, WISDOM, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.

       Sitting by designation pursuant to Title 28, U.S.C. § 291(a).

   WILKEY, Circuit Judge:

Appellant and three others were indicted 25 May 1971 on three counts of armed robbery under 22 D.C.Code §§ 2901, 3202, three counts of robbery, 22 D.C.Code § 2901, four counts of assault with a dangerous weapon, 22 D.C.Code § 502, and two counts of assault on a person having charge of mail matter of the' United States, 18 U.S.C. § 2114. Appellant was tried alone in United States District Court on 27-28 April 1972. The jury returned guilty verdicts against appellant on all counts except robbery. The court sentenced appellant to a term of ten years to life on the armed robbery count, with a concurrent term of three to ten years on the assault with a dangerous weapon count. Other counts were dismissed.

At a pretrial hearing on defense motions to suppress, the court ruled that the Government would not be allowed to introduce at trial earlier lineup identifications of appellant by five eyewitnesses. However, the court held that despite the impermissibly suggestive nature of the lineups, the five witnesses could identify appellant at trial because their in-court identifications would be based on an independent source. Appellant contends that he was denied due process of law by the court’s refusal to suppress the eyewitnesses’ in-court identifications.

He further argues that the trial court erred when it failed to impose sanctions on the Government for the loss of certain evidence that might have been useful in appellant’s defense. The lost evidence included police notes of eyewitness descriptions taken on the day of the crime and an array of photographs from which three of the eyewitnesses identified appellant prior to trial.

We find that the trial court did not err in allowing the five eyewitnesses to identify appellant in court and in not imposing sanctions for the failure to preserve evidence. We therefore affirm appellant’s conviction for armed robbery. However, we must vacate his conviction for the lesser-included offense of assault with a dangerous weapon.

1. Factual Background

On 20 January 1971 four men entered the Cleveland Park Branch of the United States Post Office. Three of the men proceeded to the area behind the service counters where the postal clerks and managerial personnel were working. While the man who remained in the lobby held the employees there at gunpoint, one of the other three pointed a gun at the supervisor, Mr. Myrick, and instructed him to “cool it.” The other two men, one of whom was subsequently identified as appellant, rifled the drawers behind the counter and removed approximately $800 in United States Post Office money. The man identified as appellant later accompanied Myrick to the Post Office safes and stood by as Myrick opened two of them. Neither safe yielded any further cash. After spending five to seven minutes in the building, the perpetrators of the robbery fled.

Later on the day of 20 January Detective Sergeant Noone of the Metropolitan Police Robbery Squad interviewed the eyewitnesses and made written notes as they described the robbers. On 1 February he returned to the Cleveland Park Station and displayed several black-and-white photographs to Myrick and two other employees, Mr. McGriff and Mr. Baylor. Each witness, outside the presence of the other two, selected appellant’s photograph from the array. Appellant was arrested on 3 February. On 4 and 11 February Myrick, Baylor, McGriff, and two other postal employees who witnessed the robbery, Mr. Johnson and Mrs. Taylor, identified appellant at police lineups.

At the pretrial suppression hearing, held the same day as the trial commenced, the five eyewitnesses who had identified appellant testified, as did Detective Sergeant Noone. The eyewitnesses were questioned by government and defense counsel concerning their lineup identifications, and McGriff, Baylor, and My-rick testified about their selection of appellant from the photographic array. In addition, the five eyewitnesses briefly outlined their recollections of the robbery, testified about how they had described the robbers to the police, and identified appellant in the courtroom. The Detective Sergeant gave his account of the photographic identification procedure and reported the disappearance of the “court-work jacket” in which the photographs, on-scene statements of witnesses, and his investigatory notes had been stored. After examining photographs of the two police lineups in which appellant had appeared, the court ruled that the lineups were unduly suggestive and could not be used at trial to corroborate the eyewitnesses’ identification of appellant. The prosecution indicated that it did not intend to put before the jury the photographic identification of appellant by the three employees. Finally, the court ruled that the five eyewitnesses would be permitted to identify appellant in court on the basis of their independént source.

At trial McGriff, Myrick, Baylor, Johnson, and Taylor appeared as prosecution witnesses and identified appellant as one of the robbers. In addition, two other Post Office employees testified to the fact of the robbéry. The. defense presented no evidence. The court submitted the case on instructions to the jury, which returned guilty verdicts as described above.

II. Independent Source for the In-Court Identifications

The trial judge’s ruling that the five eyewitnesses could identify appellant in court was proper if “the Government . . . establish [ed] by clear and convincing evidence that the in-court identifications were based upon observations other than the lineup identification.” The finding by the trial court that the eyewitnesses’ in-court identifications were based on an independent source is entitled to great deference on appeal, particularly since the trial court had the opportunity to observe the demeanor of the witnesses and thereby assess their credibility and reliability. Upon examination of the record, we can find no basis for overturning the trial court’s ruling.

The record reveals that the five eyewitnesses who identified appellant at trial had excellent opportunities to observe him during the course of the robbery. Appellant wore no mask to obscure his features. The Post Office was illuminated by flourescent lighting, which was described as “very good.” Behind the counters, in the area where appellant was operating during most of the robbery, there were no screens or barriers to obstruct the employees’ views. Appellant was in the building for a period of from five to seven minutes. When Myrick led appellant to the Post Office safes, he spent approximately three minutes either “side-by-side” or “eyeball to eyeball” with appellant. Appellant rifled Mrs. Taylor’s cash drawer while she stood “right beside” him, and he warned her that “if [she] continued to look at him he would shoot [her].” McGriff testified that appellant was in his presence for three or four minutes during the robbery and that he got a good look at appellant’s face from a distance of about ten feet. Baylor had an unobstructed view of appellant from about fifteen feet away. Johnson remembered appellant as one of the men who “came over the counter and was taking the money from the cash drawers” and testified that his opportunity to view appellant lasted three or four minutes. The excellent opportunities that the five identification witnesses had to observe appellant during the robbery were clearly sufficient to provide a solid basis for identification despite any later taint created by the suggestive pretrial lineups.

United States v. Wade listed several other factors bearing on whether an in-court identification is fatally tainted by a prior unlawful lineup. These factors, and their application to the case at bar, are as follows:

(1) “the existence of any discrepancy between any pre-lineup description and the defendant’s actual description” ; (Here, the witnesses apparently described appellant fairly accurately to police on the day of the robbery. The descriptions varied slightly in details, but they generally depicted appellant as around 5'-ll" or taller, tan- or brown-skinned, and slim in build.)
(2) “any identification prior to lineup of another person”; (None of the witnesses made such an identification in the case at bar.)
(3) “the identification by picture of the defendant prior to the lineup”; (Three of the witnesses did make prelineup photographic identifications of appellant. The impact of those identifications here is discussed in Part III infra.)
(4) “failure to identify the defendant on a prior occasion”; (No such failure occurred here.)
(5) “the lapse of time between the alleged act and the lineup identification.” (The lineups were held on 4 and 11 February 1971, 14 and 21 days, respectively, after the robbery. During the lapse between the crime and the first lineup, it is unlikely that the witnesses’ recollections of appellant’s description became so dim that the suggestive lineups overcame those recollections.)

Thus, the possibility that the eyewitnesses’ in-court identifications of appellant were tainted by the lineup identifications seems slight when the Wade criteria are applied.

In light of the foregoing, we can only conclude that appellant was not deprived of due process by the trial court’s ruling that the five eyewitnesses could identify appellant at trial.

III. The Pre-Lineup Photographic Identifications

Appellant contends that the pre-lineup photographic identifications of appellant by Myrick, McGriff, and Baylor fatally tainted the in-court identifications by those witnesses. Appellant does not directly challenge the procedures employed by the police when the photographic identifications were procured, but argues that: (A) the identifications must be presumed suggestive since the Government was unable to produce the photographic array at trial; (B) although the Government did not use the photographic identifications as evidence at trial, its failure to preserve the photographs deprived appellant of a fair trial by denying him the opportunity to use the possibly suggestive photographs in cross-examining McGriff, Myrick, and Baylor; and (C) the Government’s failure to produce the photographs should have resulted in the imposition of sanctions under this court’s decision in United States v. Bryant. We reject these contentions.

A.

Appellant’s first two contentions are almost directly controlled by the Supreme Court’s decision in Simmons v. United States. The procedures and circumstances of the photographic identifications in Simmons were virtually identical to those in the case at bar. As in this case, the photographs were displayed to the witnesses prior to the defendant’s arrest, so the photographic identification was a phase of the authorities’ search for suspects and not simply a device for procuring evidence against existing suspects. The bank robbery in Simmons took place in the afternoon, and the lighting in the bank was good. The same circumstances existed during the robbery committed by appellant and his cohorts. The robbers in Simmons, as in this case, wore no masks. Five bank employees viewed Simmons for periods ranging up to five minutes. In this case, five employees had good opportunities to view appellant during his five to seven minutes in the bank. All five employees were shown photographs of Simmons the day after the robbery “while their memories were still fresh.” Here, three of the eyewitnesses viewed photographs just eleven days after the robbery occurred. In Simmons, six photographs were displayed to each witness outside the presence of the others. Here, each witness individually inspected at least six photographs. In both Simmons and this case, there was no indication that the authorities who conducted the photographic identifications made any suggestive comments to the identifying witnesses. The only significant difference between Simmons and the case at bar is in the nature of the photographs displayed: in Simmons, group photos in which Simmons appeared several times; in this case, individual photos among which was a single picture of appellant. It is difficult, however, to perceive why this difference should compel any different outcome in the present case.

In Simmons, the Court applied the following test to the facts described above:

[Cjonvictions 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 impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 [, 87 S.Ct. 1967, 18 L.Ed.2d 1199] . . . .

Under this test, the Court held that “in the factual surroundings of this case the identification procedure used was not such as to deny Simmons due process of law . . . . ” The same conclusion is unavoidable on the facts of this case.

B.

It is significant that in Simmons, as in this case, the Government was unable to make the photographic array displayed to identifying witnesses available at trial. The Court assessed this circumstance as follows:

Although the pictures might have been of some assistance to the defense, and although it doubtless would have been preferable for the Government to have labeled the pictures shown to each witness and kept them available for trial, we hold that in the circumstances the refusal of the District Court to order their production did not amount to an abuse of discretion .... The defense surely knew that photographs had played a role in the identification process. Yet there was no attempt to have the pictures produced prior to trial pursuant to Fed.Rule Crim.Proc. 16. When production of the pictures was sought at trial, the defense did not explain why they were needed, but simply argued that production was required under § 3500. Moreover, the strength of the eyewitness identifications of Simmons renders it highly unlikely that nonproduction of the photographs caused him any prejudice.

This analysis applies with even greater force to the present case, in which defense counsel failed to make a motion for discovery of the photographs at any stage of the prosecution.

C.

Finally, we must reject appellant’s contention that the trial court erred by not enforcing the rule of United States v. Bryant against the Government for its failure to preserve the photographic array. We emphasize that appellant did not move for production of the photographs in the proceedings below or request that Bryant sanctions be imposed on the Government for its loss of the evidence. We can reverse the judgment on a ground not asserted below only upon a finding of “ ‘plain errors or defects affecting substantial rights.’ ” We cannot make such a finding on the record of this case. Indeed, there is some evidence that the District of Columbia Police Department, heeding Bryant and this court’s further admonition in United States v. Hamilton, has made “earnest efforts” to preserve photographic arrays that have been displayed to potential identifying witnesses. Detective Sergeant Noone testified at the pretrial suppression hearing that he “usually keep [s] all these photographs in a court-work jacket in the Robbery Squad Office.” Moreover, in United States v. Clemons we took note of “recent commendable police regulations” that provide for “rigorous and systematic procedures designed to preserve” photographic identification evidence for trial. We need not decide, however, whether this evidence is sufficient to sustain the Government’s burden of proof under Bryant and United States v. Perry, since the appellant failed to activate the Government’s burden by moving for discovery or Bryant sanctions.

The lost court-work jacket also contained Detective Sergeant Noone’s notes recording the eyewitnesses’ descriptions of the robbers on the day of the crime. Appellant asserts that these notes might have been helpful to him in cross-examining the identification witnesses at trial. Therefore, he contends, the Government’s loss of the notes should have resulted in the imposition of sanctions under Bryant or the Jeneks Act. First, it has been held that rough, investigative notes taken by police officers at the scene of a crime are not “substantially verbatim” statements within the coverage of the Jeneks Act. Moreover, we note again that the appellant failed properly to raise any Bryant or Jeneks Act issues by moving for discovery or sanctions in the trial court. In the absence of plain error in the record, we decline to tamper with the judgment below.

IV. Conclusion

For the reasons stated herein, we affirm appellant’s conviction for armed robbery. However, we vacate appellant’s conviction for assault with a dangerous weapon, which we have held a lesser-included offense of the crime of armed robbery

Affirmed as modified.

FAHY, Senior Circuit Judge,

dissenting:

The District Court held that the in-court identifications of appellant as one of the robbers by five eyewitnesses were admissible as based in each instance on a source independent of previous identifications of appellant by these witnesses at two lineups which the court had found tainted, and, also, as to three of the witnesses, independent of photographs of appellant they had viewed but which were missing from the police files and were not available for inspection by the court. This court affirms, although none of the five identifying witnesses ascribed their identification at trial to a source independent of the suggestive lineups or missing photographs. I respectfully dissent.

At the conclusion of a pretrial suppression hearing at which the lineup identifications were considered the District Court’s ruling appears from the following exchange:

[The Assistant United States Attorney] : . . . now that the Court has suppressed the lineup, I wonder if the Court would make a specific finding that the record that we have before us has shown, by clear and convincing evidence, independent source?
The Court: I believe that is so, and I will make such a finding.
* * * * * *
I have no question with the independent source of any of those witnesses.

Defense counsel duly objected. There has been no testimony at any time by any of the witnesses that their identifications were or would be at trial based upon a source independent of the lineups which offended due process. One of the five witnesses, Mr. McGriff, was asked at the suppression hearing the basis for his identification. He replied: “It was based on what I saw during the robbery and based on the photos that I have seen of him since then.” Neither the District Court nor counsel similarly questioned the other witnesses.

As held in United States v. Sanders, 156 U.S.App.D.C. 210, 479 F.2d 1193 (1973), following United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and see Gilbert v. California, 388 U.S. 263, 272-273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the identifying evidence at trial would be admissible only upon clear and convincing evidence adduced by the Government that it would rest upon a source independent of the pretrial tainted identifications. To this effect, in addition to United States v. Sanders, supra, are our cases of United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, 105-106 (1972) (en banc), rev’d on other grounds, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc). Cf. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). The court now departs from this previously established framework within which this case falls.

The question before this court is not whether the witnesses could have identified appellant independently of the tainted lineups and, as to three witnesses, the missing photographs, but whether it was established by clear and convincing evidence that their trial identifications were in fact independent of such influences. We know from his own statement that it was not in the case of Mr. McGriff, and we have no testimony one way or another from the other four witnesses. The five witnesses testified at the trial upon the background of their recollections of the robbery, their subsequent view of the tainted lineups, and, as to three of the witnesses, their viewings of the missing photographs, and we have no evidence, much less clear and convincing evidence, that these identifications were not based on this mingling of both tainted and untainted observations of appellant. At no time was there any inquiry as to the possible effect of the tainted lineups or missing photographs except in the case of Mr. McGriff.

After the District Court suppressed the lineup identifications as illegal and tainted it was within the court’s competence to decide that the taint was not so heavy as to preclude trial identifications stemming in each instance from a source independent of the taint, and the missing photographs in the case of three of the witnesses; but I think it was not within the court’s competence to rule on the record of the suppression hearing that the trial identifications would in fact stem from such a source independent of these influences.

The majority opinion considers the several factors enumerated in Wade which bear upon whether an in-court identification is fatally tainted by a prior unlawful lineup, and states that here the possibility that the eyewitnesses’ in-court identifications were tainted seems slight. Under Wade, however, the taint in the present case stemming from the suppressed lineups persisted unless it were established by clear and convincing evidence that it would not affect the prospective trial testimony of the witnesses. The taint was deep enough to require suppression of the lineup identifications as a violation of due process. To state on the appeal that the possibility of tainted in-court identifications seems slight does not comply with the rule of proof by clear and convincing evidence of an independent source. Moreover, the court omits reference to the missing photographs which had also been shown to three of the witnesses.

It is altogether possible that the eyewitnesses, excluding Mr. McGriff, might have been able to identify appellant solely by what they remembered of the robbery, eliminating from their minds the subsequently tainted source and the use of the missing photographs, but their ability to do so was not developed. Therefore, we must assume that their identifications at trial were a conglomeration of all that had gone before. Even in cases where the witnesses have explicitly testified that the in-court identification is independent of intervening tainted identification procedures this court has refused to allow the in-court identification to stand because the showing was not clear and convincing. United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971); United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363 (1971).

      . The trial judge instructed the jury not to return a verdict on the robbery counts if they found appellant guilty of armed robbery. Transcript (28 April) at 94.

      . Transcript (27 April) at 88, 106.

      . Mr. McGriff put the number at “seven or eight,” Transcript (27 April) at 13; Detective Sergeant Noone stated that there were eight, id. at 33-34; Mr. Myrick recalled “eight or nine,” id. at 58; Mr. Baylor testified that there were “at least six,” id. at 67.

      . McGriff was called as a government witness and cross-examined by the defense. The other four eyewitnesses and Detective Sergeant Noone were called by the defense.

      . Transcript (27 April) at 35-38.

      . During the hearing, the lineup photographs were displayed to the five eyewitnesses. Appellant argues that this procedure reinforced the suggestive impact of the lineups themselves and further tainted the in-court identifications by the eyewitnesses. While appellant’s assertion of taint may have some merit, we cannot permit him to raise it as a ground for appeal since appellant’s trial counsel failed to object when the prosecution displayed the photos to McGriff and was himself responsible for demonstrating them to Johnson, Baylor, Myrick, and Taylor. Id. at 15, 51-52, 60-62, 70-72, 77-79.

      . Id. at 88, 105.

      . Id. at 81.

      . Id. at 106.

      . United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Wade test was formulated in the context of a lineup that violated the defendant’s right to counsel, not one held unduly suggestive. In the case at bar, appellant’s counsel was present at the lineups and objected to the manner in which they were conducted. Transcript (27 April) at 85. The basis of the court’s exclusion of lineup evidence at trial was that appellant “stood out” in the array presented. Id. at 105. However, in Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), this court specified that the Wade “independent source” test applies whenever a lineup is found defective on either right-to-counsel or due process grounds. 133 U.S.App.D.C. at 34, 408 F.2d at 1237.

      . United States v. Hinkle, 145 U.S.App.D.C. 234, 236, 448 F.2d 1157, 1159 (1971); United States v. Long, 137 U.S.App.D.C. 275, 278, 422 F.2d 712, 715 (1970); Clemons v. United States, 133 U.S.App.D.C. 27, 38-39, 408 F.2d 1230, 1241-1242 (1968). Independent source findings are overturned on appeal very infrequently. United States v. Johnson, 147 U.S.App.D.C. 31, 38, 452 F.2d 1363, 1370 (1971); United States v. Gambrill, 146 U.S.App.D.C. 72, 81, 449 F.2d 1148, 1157 (1971).

      . United States v. Gambrill, 146 U.S.App.D.C. 72, 80-81, 449 F.2d 1148, 1156-1157 (1971); Long v. United States, 137 U.S.App.D.C. 311, 316, 424 F.2d 799, 804 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 38-39, 408 F.2d 1230, 1241-1242 (1968).

      . Even if the trial court fails to articulate clearly its basis for finding an independent source, the appellate court can uphold the lower court on the basis of its own scrutiny of the record. United States v. Johnson, 147 U.S.App.D.C. 31, 38 n. 25, 452 F.2d 1363, 1370 n. 25 (1971); United States v. Kemper, 140 U.S.App.D.C. 47, 50 n. 24, 433 F.2d 1153, 1156 n. 24 (1970); Hawkins v. United States, 137 U.S.App.D.C. 103, 104, 420 F.2d 1306, 1307 (1969). Here, the trial court based its finding of independent source on the “independent observation” of the eyewitnesses, Transcript (27 April) at 88, and thus apparently relied on the witnesses’ opportunity to observe at the time of the crime. The court made its reasoning more explicit with respect to McGriff, whose testimony, the court stated, was based on “independent observation, after having been face-to-face with the man for four or five minutes.” Id. at 87.

      . Id. at 12, 117. Appellant apparently was wearing a pair of sunglasses. Id. at 12.'

      . Id. at 10, 117, 142-143; Transcript (28 April) at 10-11.

      . Transcript (28 April) at 19, 31.

      . Transcript (27 April) at 121, 147; Transcript (28 April) at 12-13, 22, 37.

      . Transcript (27 April) at 63, 117.

      . Id. at 80; Transcript (28 April) at 8-10.

      . Transcript (28 April) at 8.

      . Transcript (27 April) at 11.

      . Transcript (28 April) at 20-21.

      . Id. at 30-31.

      . Id. at 36.

      . Transcript (27 April) at 54.

      . See United States v. Lee, 148 U.S.App.D.C. 341, 459 F.2d 1365 (1972); United States v. Butler, 147 U.S.App.D.C. 270, 455 F.2d 1338 (1971); United States v. Harris, 141 U.S.App.D.C. 253, 437 F.2d 686 (1970) ; United States v. Green, 141 U.S.App.D.C. 136, 436 F.2d 290 (1970).
      Our dissenting colleague points to the witness McGriff’s statement as to the basis for his identification, “It was based on what I saw during the robbery and based on the photos that I have seen of him since then,” and concludes, “The question . . . is . . . whether it was established by clear and convincing evidence that [the eyewitnesses’] trial identifications were in fact independent of such influences [the tainted lineups and the missing photographs]. We know from his own statement that it was not in the case of Mr. Mc-Griff . . . . ” Dissenting opinion p. 1049. We think what Mr. McGriff said is only what any analytical and completely truthful witness would say. As has been pointed out before, “[T]he viewing of any photograph of the accused at any time is likely to add an immeasurable quantum to the certainty of a witness’ identification, but these trace residuals the Supreme Court seemed willing to accept as not ‘impermissibly suggestive.’ ” United States v. Ash, 149 U.S.App.D.C. 1, 16, 461 F.2d 92, 107 (1972) (en banc) (Wilkey, Tamm, Robb, MacKinnon, dissenting), rev’d, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (emphasis original).

      . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

      . 388 U.S. at 241.

      . Transcript (27 April) at 20, 44, 57, 62, 75.

      . 142 U.S.App.D.C. 132, 439 F.2d 642 (1971).

      . 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      . 390 U.S. at 385.

      . The other two eyewitnesses identified appellant at trial without making pretrial photographic identifications. Consequently, there is no possibility that their in-court identifications were tainted by anything other than the pretrial lineups, with which we have dealt in Part II supra.

      . See note 3 supra.

      . 390 U.S. at 384.

      . 390 U.S. at 386.

      . 390 U.S. at 388-389 (footnotes omitted).

      . 142 U.S.App.D.C. 132, 142, 439 F.2d 642, 652 (1971). We developed further the Bryant rule in United States v. Perry, 153 U.S.App.D.C. 89, 471 F.2d 1057 (1972).

      . United States v. Lewis, 140 U.S.App.D.C. 40, 46, 433 F.2d 1146, 1152 (1972).

      . 137 U.S.App.D.C. 89, 420 F.2d 1292 (1969).

      . Transcript (27 April) at 36. Noone offered no explanation for the disappearance of the court-work jacket, but none was sought by the parties or the court since the issue was not raised by any defense motion.

      . 144 U.S.App.D.C. 235, 238, 445 F.2d 711, 714 (1971).

      . United States v. Bryant, 142 U.S.App.D.C. 132, 142, 439 F.2d 642, 652 (1971).

      . The regulations were, incorporated in Metropolitan Police Department Memorandum Order No. 16, § 11(2) (15 May 1970), which provides :
      Adequate records of the photographs shown to each witness must be kept so that the exact group of photographs from which an identification was made can be presented in court at a later date to counter any claim of undue suggestion and enhance the reliability of the in-court identification. This information shall be recorded in the statement of facts of the ease.
      United States v. Clemons, 144 U.S.App.D.C. 235, 238 n. 7, 445 F.2d 711, 714 n. 7 (1971).

      . Note 38, supra.

      . 18 U.S.C. § 3500 (1970).

      . United States v. Augenblick, 393 U.S. 348, 354-355, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); United States v. Hines, 147 U.S.App.D.C. 249, 263-264, 455 F.2d 1317, 1331-1332 (1971).

      . United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (1973). As in Wimbush and cases cited therein, we find no necessity for a remand for resentencing on the greater offense when the sentences are concurrent.

      . There were two lineups. As to one the court specifically ruled he would “eliminate it for identification.” As to an earlier one, there is some confusion, but for our purposes it is resolved by a stipulation of counsel on the appeal that the photographs of both lineups were suppressed.

      . At one of the lineups he had identified the “wrong suspect.”

      . Were lie the only one of the five who was affected by the taint, the harmless error rule might have been successfully invoked. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . The court adverts in footnote 26 to my reference to Mr. McGriff’s testimony that his identification was based on photographs seen since the robbery as well as on what he saw during the robbery. The advertence of the court is that an “immeasurable quantum” is likely to be added to the certainty of a witness’ identification by any viewing of any photograph at any time, but “these trace residuals the Supreme Court seemed willing to accept as not ‘impermissibly suggestive.’ ”
      It is demonstrable that the record before the District Court and this court in the present case furnishes no basis for a suggestion even that Mr. McGriff’s reliance in part upon photographs in his identification of appellant was of an “immeasurable quantum” or within the compass of “trace residuals.” Two sets of photographs were seen by Mr. McGriff. One set was composed of separate pictures of two lineups, each of which lineups the District Court found was so impermissibly suggestive as to violate due process of law. This finding is undisturbed. The other set of photographs was missing from police files and was not available to the District Court or to this court to view. Accordingly there is no basis whatsoever for a suggestion that those photographs were not impermissibly suggestive.


author: LEVENTHAL, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor and Angelo J. Cefalo, Appellants, v. INTERNATIONAL UNION OF DISTRICT 50, ALLIED AND TECHNICAL WORKERS OF the UNITED STATES AND CANADA. Angelo J. CEFALO et al., Appellants, v. Elwood MOFFETT et al. Angelo J. CEFALO, Individually and on behalf of the International Union of District 50, Allied & Technical Workers and its members, et al., Appellants, v. Elwood MOFFETT, Individually and as International President of District 50, Allied & Technical Workers, et al.
    Nos. 72-1494, 72-1495 and 72-2082.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 1, 1973.
    Decided June 3, 1974.

      Earl C. Dudley, Jr., Washington, D.C., with whom David N. Webster, Washington, D.C., was on the brief, for appellants. Paul Martin Wolff, Washington, D.C. also entered an appearance for appellants.
    Winthrop A. Jones, Washington, D.C., with whom Joseph C. Wells and George H. Cohen, Washington, D.C., were on the brief, for appellee International Union of Dist. 50.
    Michael Kimmel, Atty., Dept, of Justice, for appellee Brennan in Nos. 72-1494 and 72-1495. Harold H. Titus, Jr., U. S. Atty., Morton Hollander and Michael H. Stein, Attys., Dept, of Justice, were on the brief, for appellee Brennan in Nos. 72-1494 and 72-1495. Raymond D. Battocchi, Atty., Dept, of Justice, also entered an appearance for appellee Brennan in No. 72-1494.
    Harold H. Titus, Jr., U. S. Atty., Walter H. Fleischer and Michael H. Stein, Attys., Dept, of Justice, filed a brief on behalf of the Secretary of Labor as amicus curiae in No. 72-2082.
    Ross O’Donoghue, Washington, D.C., entered an appearance for appellee Moffett in No. 72-1495.
    Before DANAHER, Senior Circuit Judge, and MeGOWAN and LEVEN-THAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

These consolidated cases present appeals from rulings of the District Court in actions under the Labor-Management Reporting and Disclosure Act of 1959 (hereafter LMRDA or the Act) 29 U.S. C. § 481 et seq. The combined judgments, for which no stay was sought, permitted effectuation of a merger between District 50, Allied & Technical Workers, and the Steelworkers. The appellants, Angelo Cefalo and Samuel Vullo, who were candidates to become principal officers in District 50, contend that the merger, approved by a referendum of the membership of District 50, should be enjoined because it was negotiated by officers who had been elected in violation of Title IV of the Act, and, accordingly, that a new election of officers pursuant to Title IV was required as a matter of law prior to consideration by the membership of the merger. They also contend that the referendum, conducted under the supervision of the Secretary of Labor, was marred by irregularities. We affirm.

I. FACTUAL BACKGROUND AND DISTRICT COURT PROCEEDINGS

The factual and procedural background is complex, and our presentation necessarily somewhat simplified.

A. The Title IV Action

After the May 1970 referendum election of union officers in which defendant Elwood Moffett was reelected as president of District 50, the defeated Cefalo filed a complaint with the Secretary of Labor under § 402 of LMRDA. The Secretary found cause to believe the elections of the union officers and of the executive board had been conducted in violation of § 401 of the Act. In September 1970 the Secretary began an action (Civil Action 2864-70) against District 50, pursuant to Title IV of the Act, to set aside the elections. In March, 1971, a court order approved a stipulation between the Secretary and District 50 which provided that the Secretary would supervise (1) nomination and election of local delegates from the union’s locals to a new convention, (2) nomination and election of the executive board at this convention, to be held in August 1971, and (3) after the convention, nomination and secret ballot election of principal officers. The election of executive board members was certified by the Secretary as conforming to Title IV of the Act. On March 13, 1972, the District Court granted Cefalo’s petition, filed in October 1971, to intervene. On March 14, the District Court approved the results of the executive board election.

B. The Title V Action

Beginning in April, 1971, an attempt was made by the union officers to have the August 1971 convention approve a proposed merger with the Steelworkers, even though the proposal was not disclosed in the call to the convention and indeed was not revealed until most of the convention delegates had been chosen.

In July 1971 Cefalo and Vullo began an action (Civil 1328-71) under Title V of LMRDA, against Moffett and District 50, and on August 18, the District Court issued a preliminary injunction, concluding that plaintiffs would probably prevail on the merits in showing that the union officers breached their fiduciary duty of trust and fair dealing established by § 501 of LMRDA, by failing to inform the union membership of the impending merger prior to selection of convention delegates, and by seeking approval of the merger by various locals’ resolutions without revealing the pecuniary benefit the officers and staff of District 50 stood to gain from the merger.

The preliminary injunction of August 18 enjoined defendants from presenting, voting upon or effectuating the merger. On August 23, following an expedited hearing, this court modified the injunction to permit the August 1971 convention, then in session, to authorize the executive board elected at the convention to adopt a plan, subject to court approval, for holding a referendum of the membership of District 50 on the merger. Cefalo v. Moffett, 146 U.S.App.D.C. 117, 449 F.2d 1193 (1971). Our opinion and order emphasized' the latitude of the District Court to specify procedures appropriate in achievement of the objective of a “free and informed vote of the Union’s membership, not subject to undue influence.” 146 U.S.App.D.C. at 123, 449 F.2d at 1199. We directed the District Court to seek the comments of the Secretary “in considering whether or on what terms and conditions to approve a plan for referendum on the merger.” 146 U.S.App.D.C. at 124-125, 449 F.2d at 1200-01. The opinion noted that the Act placed exclusive enforcement authority in the Secretary to redress violations of Title IV rights, see Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 473, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) and commented that on reflection the Secretary might conclude that the merger and referendum should be halted in order to preserve and vindicate Title IV rights to proper election of officers.

C. The Decision to Proceed with the Merger Referendum Without Awaiting The Election of New Officers.

On September 20, 1971, District 50 presented, by a motion filed in the Title V action, a plan for a merger referendum which had been developed with participation of the Steelworkers’ lawyers and had gained the approval of the Department of Labor. Plaintiffs, objecting to the referendum plan, took several depositions, including particularly that of Acting Solicitor of Labor Alfred Albert. Various motions were filed, by plaintiffs to defer the referendum, and by the unions to expedite it. At a hearing in December the Department’s counsel advised that the Department favored deferring the election of the officers until after the merger referendum. The District Court requested a written statement from the Secretary of Labor setting forth his position on the issue of the timing of the referendum and election of officers. The Secretary’s memorandum filed January 3, 1972, outlined his view that a referendum on the merger vote should not be delayed until after a new election of officers.

On February 23, 1972, District Judge Parker issued an opinion and order in the Title V action which held that the membership of District 50 should proceed to vote for the approval or disapproval of the merger, and which approved “in principle” the referendum plan submitted by District 50, endorsed by the Secretary. The court held plaintiffs were entitled to “adequate and equal opportunity to express their opposition to the merger,” and to submit counter-proposals, and ordered plaintiffs to submit such proposals as they contemplated would afford this opportunity. In their memorandum filed March 8, plaintiffs objected to any merger vote that preceded the election of new officers. On April 3, 1972, the District Court overruled plaintiffs’ objections, and directed that a referendum vote be held no later than June 10, 1972, under the supervision of the Secretary (although he was not a party to the Title V action). The court ordered publication of a special supplement of at least six pages of the District 50 News with equal space for proponents and opponents of the merger. The order in the Title V action, directing that the referendum be held according to the approved plan, issued April 14, 1972, and is appealed in No. 72-1495.

The same issue was presented by Cefalo as intervenor in the Title IV action when he moved on March 21, 1972, for an order directing immediate election of officers, prior to the merger referendum. The denial of this motion by Judge Parker on April 3, 1972, is the order appealed in No. 72-1494.

D. Approval of the Merger

While the foregoing appeals were pending, the merger referendum was held, pursuant to the order in the Title V action. The merger was approved by a vote of 37,289 to 26,733. On June 30, 1972, after investigating complaints by the Cefalo group, the Secretary certified the results. On August 8, the District Court approved the merger by an order that is appealed in No. 72-2082. Plaintiffs’ challenge is based on (a) a claim of inaccuracies in the mailing list, which the Secretary investigated and found that such inaccuracies as could be demonstrated were unavoidable; and (b) a claim that pro-merger campaign contributions were coerced, which the Secretary held was unfounded.

II. THE ISSUES

A. The Contention That The Orders Of The District Court Constitute A Stay

The plaintiffs contend that the District Court’s April 1972 orders deferring election of officers pending the referendum on the merger were, in substance, a stay of an order directing a new election of officers, a stay forbidden by § 402 of LMRDA, 29 U.S.C. § 482.

Section 402 expresses a Congressional policy of expedition in the handling of complaints alleging violations of § 401, which governs the conduct of elections. A union must process within three months a member’s complaint of a § 401 violation, see § 402(a)(2). An aggrieved member must file a complaint with the Secretary within one month after exhaustion of union remedies, and the Secretary must bring any lawsuit to set aside an election within 60 days thereafter, see § 402(b). If in such a suit the court finds that a violation of § 401 may have affected the outcome of an election, § 402(c) provides that the court shall direct the conduct of a new election under the supervision of the Secretary, and that the Secretary shall promptly certify to the court the names of the persons elected. Section 402(d) provides that an order directing a new election shall not be stayed pending appeal.

The District Court’s actions did not violate the provisions of § 402. The stipulation for an election filed in Secretary’s Title IV action expressly provided it was not an admission by defendants of a violation of § 401. Nor was the court’s order providing for an election a finding of a § 401 violation, either expressly or by necessary implication. The order of the District Court approving a merger referendum prior to an election of officers did not amount to a “stay pending appeal” within the meaning of § 402(d).

However, the District Court’s orders did operate to delay the date of election of union officers, and we think it appropriate to go beyond our ruling that there was no transgression of § 402 and to consider the larger questions raised by appellants: whether in this case the District Court’s actions are contrary to the spirit of the Act, or whether there is any other basis for concluding that judgment below reflects abuse of discretion.

B. Approval of the Merger Referendum Prior to a New Election of Union Officers

In its opinion of February 23, 1972, in the Title V action, the District Court deterniined, after review ’of the memoranda of the parties and the submissions of the Secretary, to proceed with the union merger referendum and declined to stay that referendum pending disposition of the Title IV action on the merits. In our 1971 opinion we directed the District Court to ascertain the views of the Secretary. We referred to the Secretary’s exclusive role in determining whether to seek judicial relief under Title IV. The Secretary’s distinctive discretion to decide whether to bring a Title IV action does not, of course, give him exclusive power to direct the future course of an action brought. But although not decisive, the Secretary’s voice, informed by his familiarity with the matters pertaining to union elections and the vindication of Labor’s Bill of Rights, is rightly accorded weight by the court.

In rejecting the view that a new election of officers should precede the merger referendum, the Secretary urged, and the District Court found, that by the summer of 1971 what was nominally a contest between contenders for union office, a contest that typically stresses the policies proposed by the campaigners for on-going execution by the union, had become primarily a question of merger with the Steelworkers.

The Secretary’s memorandum develops this matter (pp. 9-10):

The primary question concerning the union [District 50] at this point is whether it should maintain its separate existence or whether it should merge and become a part of the United Steelworkers Union. The rank and file membership is now squarely between two competing factions within the union, each of which apparently has commitments to a union other than District 50. Even if an election of officers were conducted either prior to or simultaneously with the referendum, the principal issue in the campaign would still be the proposed merger with the Steelworkers. This question should be decided at the earliest possible time. To defer that question for the approximately five months required to conduct nominations of officers under District 50’s Constitution would further confuse the membership with regard to their standing in District 50 and quite possibly lead to its breaking up as an effective force within the labor movement.
Although various possibilities may be hypothesized, as a realistic and practical matter a vote on the question of merger will determine whether the membership wishes to change officers. A vote for the merger will demonstrate both support for the incumbent officers and a desire to become a part of the Steelworkers. A vote against the merger will be a rejection of the incumbents and indicate that the membership wishes District 50 either to remain independent, become part of the Machinists or affiliate with some other organization. The latter event will necessitate a new election of officers under the supervision of the Secretary.

The Secretary’s reference to the Machinists raises the point that an element in the decision whether to merge with the Steelworkers lay in the alternative whether to become part of the Machinists. In a critical paragraph, No. 9, in its August 1971 findings the District Court stated:

Since shortly after his loss of the May 1970 election Mr. Cefalo has been employed as an assistant to the President of the International Association of Machinists and Aerospace Workers, AFL-CIO, which is actively and successfully raiding the membership of District 50.

The Secretary also urged the court to reject any plan of combining the election of officers with the vote on the merger (memorandum at 10-11):

Although at first blush the question of combining the election of officers with the vote on the question of merger seemed preferable to having the election of officers first, upon more thoughtful consideration it appears that a combined election would be less desirable. In a combined election, the individual member would have to decide simultaneously whether to ratify the merger agreement and who should be the principal officers of District 50 in- the event that the merger agreement fails of ratification. Each of these decisions will rest upon different considerations, and they should be made independently of each other.. A union member who may desire to vote for a candidate for office other than an incumbent might also desire to vote in favor of the merger. If he exercised his right to vote for the candidate of his choice, a majority of votes cast for the merger would nullify his choice for a union officer, since the merger becomes effective immediately upon its approval by the membership.
In addition to the foregoing, some of the same objections raised with respect to holding the election of officers first apply. Thus, to hold a combined election would defer decision on the merger for about five months and would entail considerably greater expense for the union and the Secretary than an immediate mail referendum on the merger alone.

We find these considerations to be persuasive, and to justify both the decision to proceed with the merger referendum and to defer the determination of the Title IV action pending that merger referendum vote. In our 1971 opinion modifying the preliminary injunction, we stressed that any merger referendum be safeguarded by provisions for “a properly conducted referendum vote” to protect the need for an informed debate on the merger by the union membership.

We are not oblivious to the difficulties that are presented when a union is called on to decide a matter of such moment as a merger on a proposal submitted by officers whose position is in any degree suspect. Where an election has been challenged and Title IV rights have not been fully vindicated by the conduct of a supervised election of officers, there is the risk that union business conducted in the interim may lack the full legitimacy of a union electoral process. This consideration, while material, is not dispositive of the issue here. While the Secretary might conclude that such matters as a merger ought always to be deferred until completion of a supervised election, we cannot say that the statute requires such an absolute rule. Here there were considerations militating against further delay. There was a compelling need for the members to express their views on the issue of merger with the Steelworkers. To have withheld an opportunity for them to do so until completion of a new election of officers was to have risked costly postponement of the membership’s opportunity to choose an effective bargaining representative, a risk augmented by the “raiding” by the Machinists referred to in the District Court’s paragraph 9 finding.

The Secretary was of the view that the merger referendum was the immediate essential vehicle for allowing members to determine the future course of their union, the broad objective sought by Congress in passing the Act. Safeguarding the integrity of the referendum process was the intervening selection of an executive board in an election supervised by the Secretary, and the Secretary’s supervision of the referendum itself. The District Court sought additional protection by guaranteeing appellants’ dissemination of their views opposing the merger.

In our view, these considerations justify both the recommendation of the Secretary and the ruling of the District Court. Neither the executive official nor the judge was bound to forsake a course that in both method and objective reflected the ultimate principle of union democracy.

We thus uphold the District Court’s ruling, and the Secretary’s position, in this case without approving the more general statements of the position of , the Department of Labor on remedying Title IV violations to which appellants object. Solicitor Albert’s statement that the Department will not intervene with respect to a merger unless it is a device to evade a court-ordered election under § 402 may reflect too narrow a view of the Department’s role. Similarly, in making a determination as to a purpose of evasion on the part of present District 50 officers, the Department’s views may attribute too much weight'to the fact that merger discussions with the Steelworkers began before a new election was ordered in the Title IV action. We focus on what we regard as the critical finding of the Department, stated by Acting Solicitor Albert in deposition and asserted in the Secretary’s January, 1972, memorandum, that the merger referendum was the appropriate vehicle for resolving the then most crucial issues concerning the union’s future. The question for us is whether, in this context, the District Court exceeded its lawful powers or abused its discretion. We hold that it did not.

C. The Conduct of the Merger Referendum

Appellants’ challenge to the order approving the referendum is, in effect, an attack upon the Secretary’s procedures in establishing and supervising the refendum, and upon his investigation of complaints of alleged irregularities. Because of the unusual nature of the Title V violation, the Secretary was called upon to perform a supervisory function similar to those he performs in Title IV election cases.

1. The mail referendum.

The court approved a mail referendum. Appellants say there were inaccuracies in the mailing list. It is plain that the Secretary took extraordinary care to assure that the mailing list used as.the basis of the referendum would be as accurate as possible. Also, the District Court required that notice of the referendum, and the special edition of the District 50 News, be posted “where notices to members customarily are posted.”

Some members did not receive ballots, and appellants say these might number “several thousand.” But the union had more than 165,000 members, and the margin of victory was more than 10,500 votes (37,289 to 26,733). There were also 3,151 ballots received too late to be counted, but this number was not shown to be due to any defect in the mailing list.

Though appellants criticize the mailing — they refer to 4,299 mailings never received, and hypothesize that “possibly thousands” were omitted from the list — they offer no suggestions for procedures to improve the conduct of a mailing of this magnitude. Instead, they proposed in person balloting through the locals. Our 1971 opinion indicated that this procedure might be prescribed, but was not mandatory. We think the District Court was well within its discretion in rejecting the suggestion for separate elections in nearly 1,400 locals throughout the United States and Canada — each having its own potential for mistakes, inaccuracies and irregularities — and its attendant additional costs, both for campaigning and for Labor Department supervision. The District Court had before it the testimony of Acting Solicitor Albert, reflecting the experience of the Labor Department in supervising referendum votes, that “experience there is clear ... by mail ballot you get wider participation.” There was no testimony to the contrary. The turnout rate was about 40% for American members of District 50, and 25% for Canadian members. We are not apprised as to whether these rates differ from participation rates expected in this kind of balloting. No basis other than complete speculation would have permitted the District Court to conclude, or would now permit this court to surmise, that a greater voter response would have resulted from local balloting. Account must be taken of the eligibility of retired and unemployed voters, who would not be expected to appear at polls located at job sites. In a Title IV lawsuit, a violation of § 401 makes a prima facie case that the violation may have affected the outcome of an unsupervised election. Wirtz v. Hotel Employees Local 6, 391 U.S. 492, 505-509, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968). Here, however, the Secretary’s supervision of the referendum establishes a presumption of fairness and regularity that is not upset by appellant’s showing.

2. Pro-Merger Fund.

Appellants also stress that most union staff members contributed between $50 and $100 to a pro-merger campaign fund. The Secretary found that these contributions were not coerced by union officers. This finding is not implausible, especially in view of the fact that the staff personnel hoped for substantial personal benefits from the merger, as we noted in our prior opinion. That fact was duly disclosed to the union membership and indeed emphasized by those opposing the merger.

A suggestion that appeals to self interest must be distinguished from an act of coercion. The Secretary found that while the example set by certain staff members contributing may have generated a social pressure for their colleagues, the union officers themselves were aware of the litigation and carefully avoided any compulsion. The one specific complaint by a union staff member in Providence that he was forced to make a contribution was investigated by the Secretary, who concluded that the charge was unfounded. These findings are supported by the evidence, and we think the District Court exercised sound discretion in dismissing appellant’s objection to the election results.

Affirmed.

      . When the litigation began, the union was District 50, United Mine Workers of America, but the name was changed in April, 1970, after a break with the Mine Workers.

      . United Steelworkers of America, AFL-CIO.

      . 29 U.S.C. § 482.

      . 29 U.S.C. § 481.

      . Leave to intervene was first denied, on the authority of Hodgson v. UMWA, 72 LRRM 2496 (D.C.Cir. 1971), which affirmed the denial of intervention on the basis of the District Court’s opinion in Hodgson v. UMW, 51 FRD 270 (D.D.C.1970). Reconsideration was granted after that ruling was reversed in Trbovich v. UMWA, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972).

      . Merger negotiations between District 50 and the Steelworkers had begun in 1968, but were broken off after an $8 million judgment had been obtained against District 50 by its former parent, the United Mine Workers. Merger negotiations resumed in 1970 after this court reversed that judgment, International Union, UMWA v. District 50, UMWA, 140 U.S.App.D.C. 349, 435 F.2d 421 (1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 645 (1971). A proposed merger agreement was reached in principle in January, 1971. and executed April 24. 1971.

      . Counsel stated (Tr. 23 Dec. 1971, p. 16) that the Department’s settled position is not to interfere with a union’s merger where the Department has no evidence that its purpose is to avoid a new election under the Secretary’s supervision, as provided in Title IV. This position is consistent with that stated by Acting Solicitor Albert at his deposition.

      . This action occurred within a week after the District Court order of March 15, 1972, declaring the persons named in the Secretary’s certification were the duly elected officers of the executive board.

      . The Title IV case was transferred to Judge Parker from Judge Bryant on October 28, 1971.

      . This determination was later adopted in the rulings in the Title IV action.

      . Cefalo v. Moffett, supra, 146 U.S.App.D.C. at 124-125, 449 F.2d at 1200-1201 (1971).

      . Other parties may intervene and present an approach divergent from the Secretary’s. Trbovich v. UMWA, supra note 5. Even without such intervention, the court is not bound to follow the Secretary’s approach. Compare SEC v. Jones, 298 U.S. 1, 80 L.Ed. 1015 (1935).

      . We are aware of expressions in Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), cautioning against the rectification of violations of § 401 by reference to a supervening election. Tlxat decision, however, was one which upheld the right of the Secretary to seek a new election notwithstanding an intervening unsupervised election. In the present case, by contrast, the Secretary recommended deferral of the election of officers to permit a supervised referendum on the merger, having supervised the election of the executive Board that proposed the merger referendum.

      . Transcript of deposition, p. 50.

      . The mailing list was based primarily on employers’ check-off lists, estimated to account for 95% of the working members of the union. A supplement was prepared by local and regional union officials. The list was continually updated. There were more than 8,000 additions and deletions between the mailing of the special editions of the District 50 News and the mailing of the ballots.

      . Cefalo v. Moffett, supra, 146 U.S.App.D.C. at 123, 449 F.2d at 1199.

      . Transcript of Deposition, p. 71 (JA 126).

      . Cefalo v. Moffett, supra, 146 U.S.App.D.C. at 122, 449 F.2d at 1198.

      . Plaintiffs cite Hodgson v. United Mine Workers, 344 F.Supp. 17 (D.D.C.1972). The factual situation there was.quite different. The District Court found that union staff members made campaign contributions ($500 to $1,000) substantially equal to pay raises received at the same time or shortly thereafter, and that there were no alternative explanations for the timing of the salary increases, other than their manipulation to influence the election. 344 F.Supp. at 25. In the case at bar, the District Court found that the pay raise was granted in August, 1971, to bring field staff salaries more in line with salaries paid similar field staff by both the Machinists and Steelworkers, and the amount of the increase ($1,000 minimum) far exceeded the contributions (between $50 and $100) made in the spring of 1972.


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    UNITED STATES of America v. Donald M. COOPER, Appellant.
    No. 73-1745.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 22, 1974.
    Decided June 6, 1974.
    Rehearing Denied July 15, 1974.
    Michael Joseph, Washington, D. C., with whom Stephen F. Owen, Jr., Washington, D. C. (both appointed by this Court), was on the brief, for appellant.
    James M. Hanny, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Earl J. Silbert, U. S. Atty., and James F. Mc-Mullin, Asst. U. S. Atty., also entered appearances for appellee.
    Before FAHY, Senior Circuit Judge, and McGOWAN and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

This is the story of a bank robber who dropped his calling card in front of the teller’s cage. When the FBI accepted his implied invitation to call, he opened the door to his apartment and other incriminating information, which resulted in his conviction. All this he now regrets, and seeks to withdraw his ill-advised assistance to law enforcement. This we hold he cannot do.

I.

The robbery of the American Security and Trust Company branch on Pennsylvania Avenue, N.W., occurred on the morning of 20 April 1972. In front of the teller’s cage the FBI picked up an envelope addressed to Donald M. Cooper, 1941 U Place, S.E. Pictures taken during the course of the robbery were identified by Donald M. Cooper’s former coworkers at the Federal Reserve Board as being the named person.

At approximately 2:40 p. m. the FBI Special Agent investigating, accompanied by three other FBI agents, knocked on Mr. Cooper’s door. They identified themselves as FBI agents and asked the appellant if they could come in and speak with him, to which Cooper replied, “Certainly.” After entry, the Special Agent immediately read to Cooper the FBI standard Miranda-type warning statement as to Cooper’s rights, and then advised Cooper that they were investigating a robbery at the American Security and Trust Company that morning. The agent then handed the prepared written Miranda warning of his rights to appellant Cooper for him to read. After reading it, Cooper was asked if he fully understood what his rights were; he replied that he did.

However, when the agent then asked appellant if he would sign the written waiver-of-rights form, Cooper replied that he would not sign the waiver before he spoke with an attorney. Cooper’s refusal to sign the waiver form was accompanied or followed by a statement that he was desirous of answering the FBI questions, but he would answer only those he chose to answer. He then proceeded, in answer to the agent’s question, to give an account of his whereabouts and movements from 5:00 p. m. on 19 April through the morning of 20 April, which was a denial that he had ever been in the bank or its vicinity at the time of the robbery or anytime that day.

When confronted with (1) the department store current bill with his name on it, and (2) eight photographs taken during the robbery, Cooper declared that he did not understand how the current account statement addressed to him got there and denied that he was the man in the photographs. The robber in the photographs was wearing a distinctive pair of striped trousers, and equally distinctive eyeglasses and shoes. When the agent pointed out that Cooper’s shoes and eyeglasses were identical to those in the photographs, appellant sought to evade this direct coincidence by saying, “But I have no clothing at all which looks like that. Come upstairs and see for yourself. Come look at my wardrobe. See for yourself, I have no such clothing.” The agents accepted this invitation with alacrity; in a few moments they retrieved a pair of men’s pants, identical to those shown in the photographs, right from the closet Cooper had so confidently offered for examination.

The above facts were established by the testimony, uneontradicted, of the FBI agents at the preliminary hearing, held on appellant’s motion to suppress, on the basis of Miranda v. Arizona, his statements in the interview and the pair of trousers. Appellant Cooper himself did not testify at the suppression hearing, although he could have done so without any risk of his testimony being used against him at the trial, if his version of the first interview would have differed in any material way from that testified to by the FBI agents. At the trial, appellant did take the stand in his own defense, and, while denying that he perpetrated the robbery, did give an account admitting that he was present in the bank on the morning of the robbery. On this point, appellant’s testimony was of course directly contradicted by his own previous story to the FBI agents on the day of the robbery.

On this appeal the only two points of alleged error are the failure of the trial court to suppress appellant’s previous inconsistent statements and the failure to suppress the tangible evidence of the trousers found in appellant’s closet.

II.

We think the disposition of this case is governed by the Supreme Court’s recent decision in Schneckloth v. Bustamonte, and particularly by our own en banc decision in United States v. Frazier as to the validity of appellant’s consent to the search and the voluntariness of his statements to the FBI agents.

Turning to the statements first, in Frazier the appellant made a similar distinction between oral and written statements; Frazier asked the interviewing policeman not to take notes, said he would not talk if the officer made notes, but continued to talk freely when the officer put down his pencil. Here Cooper made a more discriminating distinction. After being fully warned orally and in writing, in accordance with the Miranda requirements, Cooper declined to sign a written waiver form without consulting an attorney, which was one of his Miranda rights; he then stated that he was willing to answer questions of the agents, but reserved the right to decline to answer any questions which he did not wish to answer, another exercise of his Miranda rights indicating understanding thereof. Cooper, it is apparent, was engaged in an effort to throw the agents off the scent with a misleading display of candor, not realizing the knowledge the agents already possessed.

It is to be noted that appellant Cooper, unlike Fraizer, was a man of demonstrated intelligence; he had a Bachelor of Science degree in mathematics and had held responsible employment.

In two cases before Fraizer, United States v. McNeil and Pettyjohn v. United States, we rejected the inference that, simply because the accused refused to sign anything in writing, he did not understand the Miranda warnings. It is, we think, a common experience of life that in many circumstances persons are willing to convey information orally but are reluctant to put the same thing in writing. We do not think, as Frazier en banc, McNeil, and Pettyjohn have made clear before, that a refusal to sign a waiver means that the person interrogated is assuming a contradictory position with respect to his willingness to respond to oral questions, whatever may be his motive in so doing.

In McNeil we said, “Certainly the execution of that form was not a condition precedent to an effective waiver.” And as the Fourth Circuit explained in United States v. Hayes, “Just as the mere signing of a boilerplate statement to the effect that a defendant is knowingly waiving his rights will not discharge the government’s burden, so the mere absence of such a statement will not preclude as a matter of law the possibility of an effective waiver.” We subscribe to the view expressed by the Fifth Circuit, “A refusal to sign a waiver may indicate nothing more .than a reluctance to put pen to paper under the circumstance of custody.” Our dissenting colleague relies upon certain eases from the Fifth and Seventh Circuits. In our view these are distinguishable on the facts from the case at bar, and, in fact, have already been so distinguished. In the American Law Institute “Model Code of Pre-Arraignment Procedure,” Tentative Draft No. 6, 1 April 1974, the Commentary on previous decisions regarding Requirement of a Signed Waiver (pp. 161-62) states:

Courts have not required a signing of a waiver before the commencement of interrogation, and they have taken differing views on the effect of such a signing. [Footnote omitted.] The situation of a suspect who refuses to sign a waiver or put his statement in writing but who gives an oral waiver and answers questions freely has caused some difficulty, with the federal courts holding that statements made in this situation are admissible if the trial court has held an evidentiary hearing and determined that the oral statements were made voluntarily, with the knowledge that they could be used as evidence, [footnote omitted] and after an intelligent waiver of rights.

Here the evidence is uncontradicted that Cooper, while declining to sign the form in the absence of an attorney, said he was desirous of answering questions, and thus “voluntarily initiated” the following conversation. Thus, on the law as we understand it, Cooper’s statements would be admissible.

We find it unnecessary to define Cooper’s precise situation as being either “unrestrained,” “custodial,” or “arrest,” because we find in the uncontradicted testimony as to the circumstances of the interview that there was absolutely no coercion manifested, aside from the degree of disquietude which any citizen might feel upon being interviewed by law enforcement officials. The interview was conducted in appellant Cooper’s own living room, he had invited the officers to enter, he was warned of his rights, he exercised some of his rights by refusing to sign anything and by indicating he might decline to answer some questions, he talked freely as to those questions which he did answer, he himself originated the idea of the officers searching his closet to compare his wardrobe with that of the bank bandit.

We think it important that Cooper did not in any way dispute the circumstances establishing voluntariness testified to by the FBI agents at the suppression hearing, at a time when he clearly could have done so without prejudice, had there been any contradictory evidence he could have honestly offered. The actions of appellant Cooper here certainly fall within the concept of voluntariness as explained in Schneckloth v. Bustamonte, supra, where the Court said, “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” This was spoken in relation to a situation in which the later accused was not in custody, and while Cooper’s situation might be termed a custodial one, we think the evidence demonstrates as full a knowledge by appellant Cooper as to his rights under the Miranda standard as it is possible to conceive, and that with full awareness of his rights, Cooper did go forward and make statements in an effort to evade detection, such statements redounding to his ultimate prejudice.

The conviction for bank robbery is Affirmed.

FAHY, Senior Circuit Judge,

dissenting:

The en banc decision of this court in Frazier, relied upon by the court, does not seem to me to divert Miranda from requiring in the present ease the exclusion of the evidence attributable to the in-custody interrogation of Cooper. In determining that Frazier had knowingly and intelligently waived his Fifth Amendment privilege this court had the benefit of findings that he had, made by the District Court at a hearing on a remand devoted to the subject. No comparable probing of the waiver problem in Cooper’s case is before us. Frazier is also distinguishable on the basis that Frazier had actually signed a written waiver, whereas Cooper refused to do so until be spoke with an attorney. His full statement when the waiver was offered to him to sign, according to the testimony of the F.B.I. agent who conducted the interrogation, is as follows:

[Cooper’s] reply was that he would not sign the waiver to these rights before he spoke with an attorney. However, he was desirous of answering questions put to him. However, he would answer only those he chose to answer.

I approach the issue before the court by emphasizing two aspects of the Mi randa opinion. The first is the following statement of the Supreme Court:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

384 U.S. at 474.

Cooper clearly indicated that he wanted to consult an attorney when he was asked to waive his rights. Considered alone, this was an indication that he wished to remain silent. Accordingly, the Supreme Court said, “the interrogation must cease.” 384 U.S. at 474.

The second aspect of Miranda I emphasize revolves around the agent’s statement, “However, he was desirous of answering questions put to him.” Such a desire, as it bears upon the problem of self-incrimination, is inconsistent with Cooper’s preceding refusal to sign the waiver of his rights unless this testimony of the agent that Cooper was “desirous of answering questions put to him” met the “heavy'burden [which] rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” once he “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent. . . . ” 384 U.S. at 473-474, 475. I fail to find any basis for holding this heavy burden was met.

In United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), a similar situation arose. The interrogation was also by F.B.I. agents who advised the suspect of his constitutional rights under Miranda, as Cooper was advised. Nielsen then, as the facts are stated by the Court of Appeals,

. said he had a retained attorney and would not sign a waiver of rights form or “anything” until he talked to his attorney. At this point, the agent asked the defendant if he wanted to call his attorney. The defendant replied that he would wait to call until later in the morning but that “they” could continue questioning him. Resumption of questioning by the agent resulted in the defendant responding to five questions in the negative.

392 F.2d at 852. In the above situation the Court of Appeals held as follows with respect to the further interrogation:

There can be no question that when the defendant in the instant case refused to sign anything until he saw his attorney, he indicated a desire to remain “silent.” Since the interrogation continued beyond that point, the Government had a “heavy burden” to show that the subsequent interrogation of the defendant took place after he “knowingly and intelligently” waived his Miranda rights. We do not believe that the Government satisfied this burden.
. . . Here the defendant’s refusal to sign the waiver form, followed by an apparent willingness to allow further questioning, should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation. Instead of accepting the defendant’s equivocal invitation, the agents should have inquired further of him before continuing the questioning to determine whether his apparent change of position was the product of intelligence and understanding or of ignorance and confusion. However, no further inquiry took place. In the absence of such an inquiry, we are compelled to conclude that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights. Consequently, the trial court erred in admitting the testimony of the subsequent interrogation. (Footnote omitted.)

392 F.2d at 853.

A similar situation came before the Court of Appeals for the Fifth Circuit in United States v. Phelps, 443 F.2d 246 (1971). There the questioning continued after the investigator, by reading to him a standard “rights” form, had advised the suspect of his rights. He declined to sign a printed waiver, but indicated he did not want a lawyer present and that he knew his rights. Thereafter he made incriminating statements to the officers. The District Court granted his motion to suppress the statements. On the Government’s appeal the Court of Appeals stated:

In the present case the record shows that immediately after the investigators discovered the illegal weapon, they properly warned Phelps of his rights. Phelps, while professing to understand and declining the assistance of a lawyer, indicated by his refusal to sign the waiver that he did not wish to waive his right to remain silent. The officers’ interrogation, therefore, should have ceased at this point.
* * * * -X- *
In the present case we are unable to tell whether Phelps validly waived his right to remain silent or not. It is clear that after Phelps refused to sign the waiver, the officers should have ceased interrogating him. It is also clear that subsequent conversation did occur between the investigators and Phelps. The hearing on the motion to suppress does not reveal, however, whether the subsequent questions by the officers were the result of voluntary conversation initiated by Phelps or whether these questions were initiated by the officers themselves without any instigation by Phelps. If the former situation obtains, then under our decision in Hopkins [United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970)], Phelps’ subsequent answers would be admissible. If the latter situation obtains, however, Mirmda compels that we hold the answers inadmissible. The record of the hearing is silent as to these crucial facts, probably because the trial court made its determination prior to our decision in Hopkins. We think, therefore, that justice will best be served by holding a further evidentiary hearing to determine whether Phelps voluntarily waived his right to remain silent.

443 F.2d at 249-250.

United States v. Ramos, 448 F.2d 398 (5th Cir. 1971), is also helpful. The Government there had initiated further questioning after the suspects refused to sign waivers. The court held:

In the instant case the record clearly reveals that neither of the defendants voluntarily initiated further conversation subsequent to their refusals to sign a waiver form. Rather, the government agent himself initiated further questioning without any instigation by either defendant. Therefore, under our decision in Phelps [supra], we hold that the agent’s refusal in this case to terminate each interview violated the Supreme Court’s mandate in Miranda and that the defendants’ incriminating statements were thereby rendered inadmissible.

448 F.2d at 399.

The court refers to a Commentary accompanying the American Law Institute Model Code of Pre-Arraignment Procedure (Tent. Draft No. 6, 1974). The court’s reference is to Part IB of the Model Code entitled “Procedure from Appearance at Police Station to First Judicial Appearance” and is concerned, inter alia, with “Conditions on Questioning Arrested Persons.” The proposed Model Code gives no support to my brethren, but, rather, strongly adheres to the language and policy of Miranda. Thus section 140.8(2) (d) under “Waivers,” provides:

(d) No waiver shall be sought from an arrested person at any time after he has indicated in any manner that he does not wish to be questioned or that he wishes to consult counsel before submitting to questioning.

In its Commentary upon this proposed provision the ALI states:

(C) Requirement of a Signed Waiver. Paragraph 140.8(2) (b) provides that a suspect is to be given the Miranda warnings and asked to sign a statement acknowledging that he wishes to make a statement or answer questions in the absence of counsel before being interrogated. The signing of this statement is an absolute prerequisite to interrogation in the absence of counsel, and a refusal to sign is an “indication” for purposes of Paragraph 140.8(2)(d). Courts have not required a signing of a waiver before the commencement of interrogation, and they have taken differing views on the effect of such a signing. The situation of a suspect who refuses to sign a waiver or put his statement in writing but who gives an oral waiver and answers questions freely has caused some difficulty, with the federal courts holding that statements made in this situation are admissible if the trial court has held an evidentiary hearing and determined that the oral statements were made voluntarily, with the knowledge that they could be used as evidence, and after an intelligent waiver of rights. (Footnotes omitted.)

ALI Model Code of Pre-Arraignment Procedure, supra, at pp. 161-62.

Part IA of the ALI Model Code of Pre-Arraignment Procedure (Prof.Off. Draft No. 1, 1972) governing “Procedure from First Police Contact Through Arrest” (the Cooper situation), provides at section 120.8(2):

(2) Limitations on Questioning. No law enforcement officer shall question an arrested person if such person has indicated in any manner that he does not wish to be questioned, or that he wishes to consult counsel before submitting to any questioning.

It seems clear that the weight of authority is that once the suspect, being warned, refuses to sign a proffered waiver without consulting counsel, the custodial interrogation must cease. The interrogation may be validly resumed only upon the initiative of the suspect, with a heavy burden upon the United States to establish that fact, failing which a subsequent incriminating statement in answer to resumed interrogation is inadmissible.

In an attempt to meet this problem the court states:

Here the evidence is uncontradicted that Cooper, while declining to sign the form in the absence of an attorney, said he was desirous of answering questions, and thus “voluntarily initiated” the following conversation. Thus, on the law as we understand it, Cooper’s statements would be admissible.

Surely the court is mistaken in stating that Cooper said he was desirous of answering questions after declining to sign the waiver, and that he “voluntarily initiated” the subsequent conversation. The record reveals, as I have pointed out, that it was the F.B.I. agent, not Cooper, who testified “he [Cooper] was desirous of answering questions put to him.” Even were we to imply that Cooper expressed the desire this would not support the court’s ruling that the incriminating statements were admissible, because there is a complete absence of evidence whether such desire was “voluntarily initiated” by Cooper or followed only after the F.B.I. agents probed the situation with him following his refusal to sign the waiver.

The court does not bridge the gap in evidence by relying upon circumstances establishing voluntariness testified to by the F.B.I. agents, citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The court thus would substitute voluntariness for the Miranda standard of admissibility, which requires proof of a knowledgeable and intelligent waiver as well as a voluntary one.

Schneckloth was concerned with the validity of a consent to a search. The question was whether the consent was valid in the absence of knowledge of the right to refuse consent. The Court held such knowledge was not essential. The test applied was whether the consent was voluntary in the surrounding circumstances. As to that, lack of knowledge was a circumstance to be considered but was not controlling.

Not only was the Court explicit in limiting its decision to a consent by one not in custody — a situation we do not have in Cooper’s case — but the Miranda issue before us is not one of voluntariness as that concept was involved in Schneckloth. Miranda requires that we decide whether the compulsion inherent1 in custodial interrogation is removed by a knowledgeable and intelligent waiver of rights, which of course must also be voluntary. Voluntariness is but one aspect of the three-pronged Miranda test. The court’s present reliance upon what it refers to as a lack of coercion — voluntariness — ignores the basis upon which Miranda governs the application of the Fifth Amendment privilege, which was not involved in Schneckloth.

In Cooper’s case the waiver of his Miranda rights turns upon whether he affirmatively initiated further interrogation and thereby abandoned his desire to remain silent indicated by his refusal to sign the waiver. If not, incriminating answers to such uncounseled custodial interrogation are inadmissible under Miranda as the product of compulsion.

The court turns to Cooper’s silence for support not only on the issue which the court poses as one of voluntariness, but also in ascribing to Cooper the initiation, of further questioning by the agents after he had refused to sign the waiver. Cooper’s silence, however, is not a substitute for the heavy burden of the United States to establish the facts respecting the initiation of the further questioning — an essential factor in establishing a knowing and intelligent waiver of the right to remain silent. In Nielsen, supra, this burden, not having been borne, the evidence was ruled inadmissible. And see Ramos, supra. In Phelps, supra, as in our first Frazier case, 419 F.2d 1161 (D.C. Cir. 1969), a remand for a hearing to resolve the factual issue was required.

The court stresses that Cooper understood the Miranda warnings. I do not disagree that Cooper understood the words contained in the enumeration of his rights which were read to him. But it does not follow that he understood that he had the right, upon refusing to sign the waiver until he consulted an attorney, not to be further questioned in the absence of an attorney, or that he had the right to remain silent unless he thereafter initiated further examination by the agents. I do not think Miranda, with its strong emphasis upon the importance of safeguarding the Fifth Amendment privilege as one of the fundamental protections of the dignity of the human personality of a suspect confronted with an effort by the Government to obtain self-incrimination, can be swallowed up by finding that the suspect understood the meaning of the recitation of his rights.

The court states that appellant was an intelligent man, having earned a Bachelor of Science degree. This is of slight significance in determining whether he knowingly and intelligently waived his Miranda rights. Such a waiver must be determined with reference to some knowledgeability and intelligence regarding his rights and their waiver. Moreover, the majority omits to note that in a report to the Clerk of the Criminal Division of the District Court the Superintendent of St. Elizabeths Hospital advised that on or about the time of the offense, which was the day of the interrogation, Cooper “is diagnosed as Schizophrenic], paranoid type,” and “was suffering from a mental disease which substantially affected his mental and emotional processes and substantially impaired his behavioral controls. . . . ”

The evidence against Cooper, exclusive of that resulting from the interrogation above discussed, was substantial. Nevertheless, strength of evidence of guilt, we know from a long line of Supreme Court decisions, is not to influence the judiciary in passing upon the possible violation of the Fifth Amendment privilege. Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 89 L.Ed. 1029 (1945).

Either of two courses I think are open to the court. One would be to remand for an evidentiary hearing and findings of fact with respect to who initiated the questioning which followed appellant’s refusal to sign the waiver, the course adopted in Phelps, supra. The other would be, as in Nielsen, supra, to set aside the conviction and remand for a new trial without the use of appellant’s incriminating statements challenged on this appeal, or the fruits of the search which also resulted from the custodial interrogation following his refusal to sign the waiver.

Since the court adopts neither course, I respectfully dissent.

      . The document is headed, “Interrogation;
      Advice of Rights — Your Rights
      “Place — Washington, D.C.
      “Date — April 20, 1972
      “Time — 2:41 P.M.
      “Before we ask you any questions, you must understand your rights.
      “You have the right to remain silent.
      “Anything you say can be used against you in court.
      “You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
      “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
      “If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”
      Thereafter follows a Waiver of Rights:
      “I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . 155 U.S. App. D.C. 135, 476 F.2d 891 (1973).

      . 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969).

      . 136 U.S.App.D.C. 69, 419 F.2d 651 (1969).

      . 140 U.S.App.D.C. at 7, 433 F.2d at 1113 (citation omitted).

      . 385 F.2d 375, 377 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968).

      . United States v. McDaniel, 463 F.2d 129, 135 (5th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973).

      . The particular section of Tentative Draft No. 6, relied on by the dissent, has not yet been voted on by the Institute. 15 Crim.L.Rep. 2203. A final proposed draft is planned to be submitted in 1975. In our view this section of the Draft is not required by Miranda, and is definitely contrary to the trend of decided cases in the Courts of Appeal, as the Commentary makes clear. In Cooper’s case here we decline to expand Miranda, preferring to rest our decision on the law as it is.
      The most recent case on this issue with comparable facts is United States v. Biondo, 483 F.2d 635 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563 (1974). The defendant was taken into custody and given a Miranda rights and waiver form, which he refused to sign. Further questioning by agents followed, and defendant made an inculpatory statement. Later, however, he indicated that he did not wish to answer any further questions, and the interview terminated. The Eighth Circuit held that the record “clearly supports the trial judge’s conclusion that [defendant] knew his rights and voluntarily and intelligently waived his Miranda privilege. It is evident from his reading of the form in question, his declination to sign the same, and his subsequent refusal to answer further questions that [defendant] was well aware of his rights and, notwithstanding, continued to answer questions. This is not to say^that the mere fact that a statement was eventually obtained indicates that the accused waived his rights . . . . However, that he understood the warning and waived his rights is seen from his subsequent statement that he did not wish to answer any more questions and decided to conclude the interview.” Id. at 642-643.

      . The circuits are unanimous in this view (citing cases from all eleven circuits). In determining whether the suspect has actually made a voluntary and knowing waiver, the Fifth and Tenth Circuits have ruled that answers to questions put after a refusal to sign a waiver form are inadmissible unless the questions are asked in the context of a conversation voluntarily initiated by the suspect.

      . Cooper also refused the agents permission to search his home after the discovery of the trousers, showing a continued awareness of his rights. No further search was made.

      . In our view, it makes no difference “that it was the F.B.I. agent, not Cooper, who testified ‘he [Cooper] was desirous of answering questions put to him,’ ” as urged by our dissenting colleague (p. 1067). The evidence of voluntariness was clear and uncontradicted. Surely the question of voluntariness of the accused’s statements cannot turn solely on the physical fact of whose mouth opened first.

      . 412 U.S. at 248-249 (citation omitted).

      . 18 U.S.C. § 2113(a).

      . The District Court at the suppression hearing in this case found only that Cooper’s statements were voluntary.

      . In United States v. McDaniel, 5 Cir., 463 F.2d 129, 135-136, referred to in footnote 9 of the present court’s opinion, the Fifth Circuit distinguishes Phelps, supra, finding that McDaniel, after refusing to sign the waiver, affirmatively indicated a willingness to maintain the conversation. The court stated: “ . . .he volunteered unsolicited information. ...” The court nevertheless recognized that his conviction “treads perilously close in some respects to the borders of . . . the Fifth Amendment-owm-Miranda." I might add that the Court of Appeals in my opinion gave undue weight to the voluntary nature of the information furnished by McDaniel and less than the weight due to the burden upon the United States of establishing an intelligent and knowing waiver of rights.

      . I find nothing in the McNeil and Pettyjolm decisions of this court to the contrary, especially considering their particular factual situations.

      . The court’s opinion does not deny that the interrogation of Cooper was custodial; in any event it was in my opinion, and the Government so stated during oral argument.

      . Some 7-% months later, when this report was forwarded, be was deemed competent to stand trial and his mental illness was not considered by the Hospital to be a defense to criminal responsibility,