author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Delfino R. OLIVAS, Plaintiff-Appellee, Aetna Life and Casualty Company, Plaintiff-Intervenor, Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-1139.
    United States Court of Appeals, Ninth Circuit.
    Nov. 12, 1974.

      James D. Whitney, Asst. U. S. Atty. (argued) Tucson, Ariz., for defendant-appellant.
    Robert F. Miller (argued), of Miller, Pitt & Feldman, Tucson, Ariz., for plaintiff-appellee.
   OPINION

Before HAMLEY, MERRILL and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The government has appealed from a judgment under the Federal Tort Claims Act [28 U.S.C. §§ 1346(b), 2671-2680] in favor of the plaintiff-appellee Olivas, because of injuries sustained on a construction project at an Air Force base in Arizona.

It is assigned as error that the district court found that the negligence of a government agent was the proximate cause of Olivas’ injury. The government appeals also from the trial court’s refusal to allow it to set off amounts paid Olivas by Aetna Life & Casualty Co. (hereinafter “Aetna”) under a workmen’s compensation policy. The district court also concluded that Aetna had not waived its right under Arizona law to a lien on the proceeds of plaintiff's judgment and this is assigned as error on the government’s appeal.

We affirm on the liability issue and reverse on the second and third issues. We conclude that there is a right to the offset and that Aetna, under its agreement with the prime contractor, had waived its right to a lien on the judgment against the government.

I.

THE LIABILITY ISSUE

Olivas, a laborer employed by Peter Kiewit Sons' Company (Kiewit), the prime government contractor, was ordered to enter a blast valve for cleaning. While Olivas was inside of the valve, an Air Force officer ordered the valve activated. The officer gave no warning to Olivas or his foreman and failed to comply with required procedures which were intended to protect men within the area. The trial court found that, had he complied with those procedures, authorization would have been denied until it had been determined that the valve could be operated without danger to Kiewit’s personnel.

Olivas knew that the valve door would close in 40 seconds, that it could not be stopped, and that he would be crushed to death unless he could be extricated. He was dragged out by the foreman, suffering some minor injury but, the district court concluded:

As a proximate result of plaintiff’s exposure to imminent danger of serious injury within the blast valve, plaintiff sustained an anxiety neurosis, of the traumatic type, with psychoneurotic reactions to stress. The development of such neurosis began immediately after plaintiff’s threatened injury and continued until it resulted in plaintiff’s becoming completely disabled. Such condition is permanent and plaintiff is, and will be in the future, unable to obtain or perform any gainful employment.

It was also found that the Air Force officer acted within the scope of his employment, that a reasonably prudent person in that situation would not have acted as he did, and that such conduct involved an unreasonable risk of harm to one in Olivas’ position. Kiewit’s superintendent was found to be concurrently negligent. Both acts were found to be independent causes of the injury and each was a proximate cause of the damage.

The government argues that its negligence was not the proximate cause of the specific injury claimed by the plaintiff, as detailed above.

In areas not covered by statute or prior judicial decision, the Arizona courts look to the Restatement of the law. Roberson v. United States, 382 F.2d 714, 718 n.4 (9th Cir. 1967), Serrano v. Ethridge Contracting Co., 2 Ariz.App. 473, 409 P.2d 757, 760 (1966). We look to the Restatement (Second) of Torts (1965).

Appellant urges that subsection 313(1) of the Restatement provides the applicable test for determining liability for the unintentional infliction of emotional distress. It reads:

§ 313. Emotional Distress Unintended
(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, . . . and
(b) from facts known to him should have realized that the distress, if it were caused, might result in illness of bodily harm.

Appellant asserts, therefore, that according to subsection 313(1) (a), liability for emotional distress can be imposed only if the nature and extent of the distress are reasonably foreseeable. From this premise the government concludes that, given the nature of the “traumatic event” in this case, emotional distress so severe as to result in total disability could as a matter of law not have been foreseeable.

But this is not a simple case of unintended emotional distress. The risk of harm to Olivas was, in the first instance, physical injury. And the trial court specifically found that Olivas’ anxiety and resulting disability came about as a proximate result of his exposure to this imminent danger of serious physical injury.

In such a case, the official comment to subsection 313(1) directs us to Restatement § 436, which governs situations where an act negligent primarily because it threatens bodily harm rather than because of a recognizable tendency to provoke emotional disturbance, nevertheless results in harm solely from emotional distress. Restatement (Second) of Torts § 436(2) (1965) states:

(2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.

The Reporter’s Comment on subsection 436(2) is particulary helpful in delineating the standards to be used when determining whether the injury proximately resulted from the negligence of the actor. It makes it clear that it is immaterial whether it is foreseeable that the negligent conduct would so affect the plaintiff’s mind or emotions that this emotional disturbance would cause bodily harm. Rather, it concludes that:

It is enough that, in view of the other’s actual, as distinguished from his reasonably foreseeable, emotional stability or instability and physical condition, it is not extraordinary that the emotional distress should have brought on the illness. While it is necessary that the negligent conduct be a substantial factor in bringing about the fright and that the fright also be a substantial factor in bringing about the illness, it is not necessary that the fright be a probable result of the negligence nor the illness a probable result of the fright. It is enough that it is a ‘natural’ result, using that word as denoting that men of ordinary experience and judgment would not regard the result as extraordinary, after expert testimony has given them the medical information necessary to enable them to form an intelligent opinion.

Restatement (Second) of Torts, § 436 (1965), Comment on Subsection (2), para. d.

The trial court found that the defendant’s negligence created an unreasonable risk of harm to Olivas (foreseeable plaintiff) and exposed him to “imminent danger of serious injury within the blast valve” (foreseeable injury), so it was not required to find also that the emotional distress resulting in complete disability was foreseeable. Rather, the court’s findings of fact obviate the need to find that the type of injury actually resulting was foreseeable.

Similarly, the Supreme Court of Arizona has found it unnecessary in this situation to show that the extent of liability was foreseeable. In Tucker v. Collar, 79 Ariz. 141, 285 P.2d 178 (1955), it held that one is liable for all the consequences “proximately resulting” from his or her negligent act, “even though the injury be of a form or to an extent not anticipated.” Id., 285 P.2d at 182.

The trial court followed the steps in subsection (2), para, d., in finding that the negligent conduct was a substantial factor in bringing about the fright, and that the fright was a substantial factor in producing the illness. It did not expressly find that Olivas’ injury was a natural result within the meaning of § 436 but stated instead the conclusion that the injury was a proximate result of defendant’s negligence. The difference is of little moment.

Appellant does not question the lack of that specific finding but argues only that the nature and extent of the injury were not foreseeable. The lower court’s finding of proximate cause would necessarily include one that the injury resulted naturally. Extensive testimony, including that of medical experts, supported the conclusion that given “the medical information necessary to enable them to form an intelligent opinion,” men of ordinary experience and judgment “would not regard the result as extraordinary.”

The Arizona court in Tucker, supra, used some of the same “proximately resulting” language employed by the district judge here. This would seem to indicate either a refinement of the § 436 language as applied to Arizona or, more likely, a feeling that in this context the terms proximate and natural are often interchangeable. We affirm the district court’s findings and conclusions on this issue.

II.

THE GOVERNMENT’S RIGHT TO SETOFF

Did the trial court err in denying the government a setoff in the amount of payments made or to be made by Aetna?

The government-Kiewit contract was on a cost plus fixed fee basis. Kiewit received a fixed fee plus reimbursement for expenses required under its contract. A contract provision, also a requirement under Arizona law, required Kiewit to cover its employees with workmen’s compensation insurance which it did through Aetna. The premiums were a reimbursable item and the United States reimbursed Kiewit for that expense. Kiewit was of course the insured employer and its employees were the beneficiaries.

After his injury, Olivas applied to the Arizona Industrial Commission and was found eligible for medical and disability benefits. The government argued at trial that it should have credit for the payments made by Aetna under the policy. Aetna intervened and claimed a statutory lien on the proceeds of any recovery by Olivas against the government to the extent of its workmen’s compensation payments to the time of judgment. In this dispute, Olivas is neutral but does not want to suffer a double deduction. He does not argue that he should be entitled to keep the full judgment and the payments from Aetna.

The trial court awarded Aetna a lien and denied the United States a setoff. We disagree on both counts. Under this form of contract, the government paid the insurance premiums and should get the credit for the payments made under the policy.

Under the collateral source rule, when an injured plaintiff has been compensated for his injuries from a source other than the defendant, the latter cannot benefit from that recovery. Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 535 (9th Cir. 1962); United States v. Price, 288 F.2d 448, 449 (4th Cir. 1961).

The rule is followed in Arizona which recognizes payments under workmen’s compensation policies as a collateral source in an action by an injured employee against a third-party tort-feasor. State v. Pressley, 74 Ariz. 412, 250 P.2d 992, 997 (1952); Merritt-Chapman and Scott v. Frazier, 289 F.2d 849, 854 (9th Cir. 1961).

But the rule is inapplicable when the defendant is the source of compensation to the plaintiff. The reason has been explained thus:

The philosophy underlying the Collateral Source Rule seems to be that either the injured party or the tort feasor is going to receive a windfall, if a part of the pecuniary loss is paid for by an outside source and that it is more just that the windfall should inure to the benefit of the injured party than that it should accrue to the tort feasor. This conclusion seems to be based on substantial justice. This reasoning, however, does not apply in a situation where the collateral source is the defendant himself. Under those circumstances no one gets a windfall and if a recovery were allowed under those circumstances the result would be that the plaintiff would receive a double recovery and that the defendant would be mulcted twice for the same item of damages.

Adams v. Turner, 238 F.Supp. 643, 644-645 (D.D.C.1965).

The government claims that it comes within the exception, to which Aetna replies that the cost of insurance is added into any bid on a fixed price contract and that the government would be an indirect source of funds under any type of contract. That ignores the terms of this contract. They are clear and unambiguous. Kiewit’s profit had already been determined and the risk of increased premiums was on the government. The parties could have, but did not, contract otherwise. We conclude that the collateral source rule does not preclude the United States from obtaining a setoff under these circumstances and one should be allowed to the extent of the medical benefits and disability compensation paid to Olivas under the Aetna policy.

III.

WAIVER OF AETNA’S LIEN

Is Aetna entitled to a statutory lien on Olivas’ judgment for the amounts that it has paid to him ?

The United States says it is not because of a waiver of subrogation provision in the Aetna-Kiewit policy. Aetna’s motion to intervene had been based on its asserted subrogation interest; it now asserts only a statutory lien under Arizona Rev.Stat. § 23-1023 (1971) which reads in pertinent part:

§ 23-1023. Liability of third person to injured employee; election of remedies
A. If an employee entitled to compensation under this chapter is injured or killed by the negligence or wrong of another not in the same employ, such injured employee . may pursue his remedy against such other person.
B. If the employee . . . does not pursue his . . . remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. . . .
C. If he proceeds against such other person, compensation and medical, surgical and hospital benefits shall be paid as provided in this chapter and the insurance carrier . . . shall have a lien on the amount actually collectible from such other person to the extent of such compensation and medical, surgical and hospital benefits paid. .

It is “well settled that the right of subrogation ‘may be modified or extinguished by contract.’ ” Hardware Mut. Ins. Co. v. Dunwoody, 194 F.2d 666, 668 (9th Cir. 1952). Aetna urges, however, that its waiver of subrogation rights against the United States affects only its interest under parts A. and B. of § 23-1023, and does not undermine its statutory lien under part C.

The Arizona courts have refused to draw such a distinction between “lien” and “subrogation” interests. “Lien rights” under Ariz.Rev.Stat. § 23-1023’s predecessors have been treated as if they were subrogation rights. State Industrial Commission v. Pressley, 74 Ariz. 412, 250 P.2d 992, 996-997 (1952); Hornback v. Industrial Commission, 106 Ariz. 216, 474 P.2d 807, 810-811 (1970). We cannot conclude that Aetna did not know of this interpretation of a statutory lien when it agreed to the waiver of subrogation clause, as well as when it relied on its right of subrogation as its statutory basis for intervention in this suit.

Moreover, under the same practical reading which the Arizona courts have accorded to prior versions of § 23-1023, it is clear that the lien interest created under paragraph C. is merely an alternative to the assignment of rights under paragraph B. The provisions are designed to insure that an employee will not receive a double recovery and that the insurance carrier will be reimbursed by the third-party tort-feasor for compensation actually paid.

If the contractual waiver of the right of subrogation is interpreted as a general waiver of the right of reimbursement, it would necessarily include a waiver of both the assignment of rights under paragraph B. and the lien interest under paragraph C. If this interpretation is adopted, the statutory objective of preeluding double recovery by the employee will still be accomplished. For, in order for the waiver clause to have any effect, another party to whom the waiver has been contractually granted must be in a position to assert a setoff for the amount of the recovery that otherwise would be subject to the lien. Here that party is the United States.

We hold, therefore, that any right to reimbursement Aetna may have had under Ariz.Rev.Stat. § 23-1023 was expressly waived by the terms of its policy.

Affirmed in part, reversed in part, and remanded with instructions to proceed in a manner consistent with this opinion.

      . Restatement (Second) of Torts § 313 (1965), Comment on Subsection (1), para, b., states:
      “b. The rule stated in this Section is unnecessary to make the actor’s conduct negligent and, therefore, to subject him to liability if the actor should realize that it involves an 'Unreasonable risk of causing bodily harm in some other manner, sucJi as by immediate impact. As to the effect which is to be given to the fact that the act negligent because otherwise threatening bodily harm results in the harm solely through the effect of the actor’s conduct upon the mind or emotions of the other, see § 436.”

      . Ariz.Rev.Stat. § 23-902 (1971).

      . The relevant contract provision states :
      “ARTICLE V — INSURANCE.
      “a. The Contractor shall procure and thereafter maintain such bonds and insurance in such forms and such amounts and for such periods of time as the Contracting Officer may require in writing and shall be reimbursed for the cost thereof.
      “b. In every instance where this contract requires the United States to pay the premium on a bond or insurance policy, the bond or insurance policy shall contain an endorsement or other recital excluding by appropriate language any claim on the part of the insurer or obligor to be subrogated, on payment of a loss or otherwise, to any claim against the United States.
      “c. The Contractor shall give the Contracting Officer or his representative immediate notice in writing of any suit or action filed against the Contractor the cost and expense of which are reimbursable under the provisions of Clause 4 hereof, and the risk of which is then uninsured or in which the amount claimed exceeds the amount of insurance coverage. The Contractor shall furnish immediately to the Contracting Officer copies of all pertinent 'papers received by the Contractor. Insofar as the following shall not conflict with any policy or contract of insurance, and upon request of the Contracting Officer, the Contractor shall do any and all things to effect an assignment and subrogation in favor of the Government, of all Contractor’s rights and claims except against the Government, arising from or growing out of sucli asserted claims, and if required by the Contracting Officer, shall >>
      Tlie record of negotiations (memorandum of understanding) provides:
      “INSURANCE
      The Contractor presented a memorandum prepared by Midwest Agencies, Inc., which outlined the insurance problems associated with this project. The Contractor then proposed to provide insurance upon the basis of “manual” workmen’s compensation rates in Arizona (as required by state law), and, also, insurance, upon the basis of a retrospective plan similar to that approved for the Titan I Update project, for workmen’s compensation covering the states of Colorado, California, Kansas, and Arkansas, and for general liability and automobile liability in all states. The proposal was accepted in principle, subject to examination and approval by the Contracting Officer of specific policies to be submitted by the Contractor.

      . We are aware that an experienced contractor bidding on a fixed-price government contract might be able to estimate quite accurately the possible increases in insurance premiums during the course of the contract. But the contractor under a cost-plus-fixed fee contract has the advantage of knowing he will be reimbursed, not on the basis of his estimate as reflected in the fixed fee, but rather on the actual cost to him of the premiums. Consequently, even with relatively good estimates, the contractor and the government alike are in significantly different risk-bearing postures under the two types of contract.

      . WAIVER OF SUBROGATION AGAINST THE UNITED STATES
      “The Company waives any rights of subrogation acquired against the United States of America by reasons of any payment under this policy; except that such waiver shall not extend to losses caused by acts of the United States of America which are not connected with the contracts and subcontracts covered by Section 1 of this endorsement or with the operations of the employer covered by this policy.”

      . Aetna’s Motion to Intervene as a Plaintiff states:
      “[Aetna] bases its motion to intervene as of right on the grounds that (1) it has an interest in the transaction in that under Arizona law, it has a subrogation interest against the proceeds of any judgment obtained by plaintiff; (2)'the assertion of defendant’s set-off impairs Aetna’s ability to protect its subrogation interest; . . . ”

      . The earlier cases spoke of “assignments of rights to the state,” but this is the same concept as that now characterized as a statutory lien.


source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas BURKE, Defendant-Appellant.
    No. 73-3320.
    United States Court of Appeals, Ninth Circuit.
    Nov. 11, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1576.

      Nicholas R. Allis, Deputy Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant.
    Darrell W. MacIntyre, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before TRASK and SNEED, Circuit Judges, and POWELL, District Judge.

       Honorable Charles D. Powell, Senior United States District Judge from the Eastern District of Washington, sitting by designation.

   OPINION

TRASK, Circuit Judge:

Robert Burke appeals from his conviction of two bank robberies, proscribed by 18 U.S.C. § 2113(a), (d) (bank robbery; use of a dangerous weapon). Following trial by jury, the appellant was sentenced to two 20-year concurrent prison sentences.

A robber, wearing a stocking mask and armed with a revolver, robbed two banks on June 26, 1973, and July 16, 1973, respectively. During the first hold up the robber made his getaway in a stolen 1972 Plymouth Barracuda. This car was subsequently found nine blocks from the scene of the robbery. A search of the vehicle yielded green rubber gloves and a white towel with the designation “Steiner American Corporation.” In the second robbery the getaway car was a 1967 Mustang reported stolen from Hessell Chevrolet on the date of the robbery. Mr. Jody Lilly, a salesman for Hessell Chevrolet, testified that the appellant was present on the car lot at noon of the previous day and that the keys to the Mustang were discovered missing at the end of the day. The appellant was arrested on August 28, 1973, while leaving his home in a 1973 Chevrolet van. The appellant’s brother, the record owner of the van, gave the FBI permission to search the van and informed the agents that they would find the appellant’s pistol hidden in the van. A subsequent (warrantless) search yielded a .357 revolver and two .38 caliber revolvers and cartridges; each of the revolvers was wrapped in a white towel with the “Steiner American Corporation” designation. Other evidence linking the appellant with the commission of the crimes included: (1) identification testimony by witnesses at both banks and (2) photographs made by the surveillance cameras at each of the banks which revealed a tattoo on the robber’s arm identical to that of the appellant. At the trial the appellant took the stand and testified that he had been at Hessell’s Chevrolet on many occasions in connection with efforts to replace his wrecked car; the appellant further testified that he had a mustache since April 1973 (there was some confusion among the identification witnesses as to whether the robber had a mustache). The surveillance photographs showed a man who was clean shaven. On the basis of the foregoing evidence, the jury found the appellant guilty of both counts of the indictment.

At the close of the Government’s case the appellant requested and received the statements of 13 witnesses in an FBI-conducted lineup. At the end of the trial defense counsel first discovered that one of these statements included a somewhat equivocal identification made by Sandra Alley, a government witness who positively identified the appellant at trial. Appellant argues that this transmittal of exculpating material violated both the Jeneks Act, 18 U.S.C. § 3500, and the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it was tardy.

Sandra Alley’s lineup identification can fairly be designated a “statement” within the purview of 18 U.S.C. § 3500(e) and one which related to the subject matter of the witness’ in-court testimony as required by § 3500(b). As such, the statement could have been subject to the appellant’s discovery following the witness’ testimony on direct examination. However, the appellant fails to allege one crucial fact essential to a demonstration of a Jencks Act violation: namely, the fact that the defendant actually moved for a production of the statement as required by § 3500 (b).

In Ogden v. United States, 303 F.2d 724, 733 (9th Cir. 1962), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964), this court discussed the “demand” requirements at length:

“Recognizing all of this, it remains true that the burden rests upon the defendant to invoke the statute at the appropriate time. The Act provides that the Court shall order the production of statements to which the defendant is entitled ‘on motion of the defendant.’ ‘No ritual of words’ is required, but the defendant must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry. If he fails to do so he may not assert, on appeal, that failure to order production or to undertake further inquiry was error. It would defeat the important purposes of the Act to give its provisions a hypertechnical interpretation. But it would be equally destructive to permit the statute to be used as a device for creating inadvertent error. The responsibility for fairly directing the attention of the Court to the precise demand submitted for the Court’s determination is appropriately placed upon the Defendant, who seeks the statute’s benefits. 303 F.2d at 733 (footnotes omitted).

Here, apart from the appellant’s general request for production of “Brady material” made at the beginning of the trial there does not appear to have been any specific request for a Jencks Act production of lineup statements, even though the appellant was aware that the lineup had occurred. Moreover, this case does not present an absolute refusal to produce materials. When the appellant renewed his request for “Brady materials" at the conclusion of the Government’s case (and for the first time, made specific the demand for the line up statements), the material was turned over to the appellant. Since the Government’s witness Sandra Alley was excused subject to recall and further cross-examination by the appellant there is no basis for the appellant’s allegation that the witness was no longer available or susceptible to recall. The fact that the appellant’s counsel failed to read the line up statement until after the trial cannot be deemed a prosecutorial error or abuse of discretion by the court. The appellant was given the statement at 10:45 on the morning of the second day of trial. There was a noon recess of 90 minutes, defendant called several witnesses in the final afternoon session, and he had the right to recall the witness in question. He had the time “reasonably required for the examination of such statement.” 18 U.S.C. § 3500(c). Therefore, even assuming that a Jencks production request had been properly before the court, under these circumstances no violation of the statutory provisions occurred. See United States v. Amabile, 395 F.2d 47, 52 (7th Cir. 1968), vacated on other grounds, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Moore v. United States, 394 F.2d 818, 819 (5th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 641, 21 L.Ed.2d 573 (1969) (counsel was given Jencks statement prior to lunch recess with right to recall witness after recess).

It is arguable whether Alley’s line up statement constituted “exculpatory” evidence subject to the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requirement of voluntary production by the prosecution. Her statement was:

“. . . she could' not be positive in her identification, she thought the number four individual [appellant] had a very similar build to the bandit that she observed. She added though, that the number two man who spoke in a very loud voice, sounded a little like the bandit.”

In light of the witness’ positive in-court identification of the appellant and the emphasis placed upon the appellant’s distinctive New York accent, in the testimony of Mrs. Olivares, another witness, the witness’ line up statement might have had considerable impeachment value. However, the materiality of this testimony to the question of the appellant’s guilt is debatable. This was not a case in which the Government’s case “depended almost entirely” on the identification testimony of Mrs. Alley (or Mrs. Olivares’ voice identification) as was the situation in Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (a more recent application of the Brady principle). Finally, even if the line up statement is considered “Brady material,” there was no absolute denial of the evidence to the appellant. As discussed previously, the appellant was given the evidence in ample time to examine it and had the privilege of recalling witness Alley to the stand for further cross-examination. We conclude that the appellant’s Brady argument is without substantial merit.

Two agents from the FBI testified as experts with respect to photographic identification based upon pictures taken by the banks’ surveillance cameras during the robberies. Agent Herold testified as a firearms examiner from the FBI laboratory in Washington, D. C. He stated that the weapon shown in the surveillance film had certain similarities with a weapon taken from the van and concluded that the weapons were both of the same type although it was not possible to determine if the gun taken from the van was the identical gun used in the robbery. No error was assigned on appeal to the admission of this testimony. Agent Webb testified to comparisons between photographs of appellant taken after arrest with surveillance photographs for the purpose of establishing a similarity of physical characteristics and wearing apparel. All photographs were enlarged to the same size. Agent Webb’s testimony called attention to similarities between details appearing on the shoes of appellant and on the shoes shown in the surveillance photographs; similarities between a tattoo of a female figure on the appellant’s arm with such a figure on a surveillance photo; and similarities of physical characteristics such as body build, structure of chin and nose. He concluded that “it would be very unlikely” that the person shown in the surveillance pictures would be any other than the person shown in the arrest photographs of appellant.

Appellant assigns as reversible error the court’s ruling admitting the testimony of Agent Webb. This court has had two recent occasions to consider the question. In United States v. Brown, 501 F.2d 146 (9th Cir. 1974), we held that when a party seeks to introduce expert testimony on personal photographic identification he should first be required to make an offer of proof outside the presence of the jury. If the court on the showing made is convinced in its discretion that the expert may materially assist the jury beyond their common experience as amplified by argument of counsel, the expert should be allowed to testify Brown was followed by a decision of the same panel on the same day in United States v. Trejo, 501 F.2d 138 (9th Cir. 1974), which also considered the admissibility of photographic identification. In line with Brown the court held that the admission of the testimony was error. We so find here. The similarities in construction and markings on the tennis shoes, the location and similarity of the tattoo on the two sets of photographs and the likeness of physical characteristics are all matters within the province and capability of the jury guided by argument of counsel on both sides. The error here, as in Trejo and Brown, however, was hardly prejudicial. Appellant was trapped by evidence of an overwhelming quantity both direct and circumstantial. The addition of Webb’s testimony was but a small fraction of all that enmeshed appellant.

Appellant contends that a brief argument between the appellant and Government witness Agent Wilkins (provoked by the appellant) was overheard by a juror and thus prejudiced the appellant’s right to a fair trial. The District Court investigated the incident and apparently concluded that any prejudice flowing from the event was minimal and that any interrogation of the jurors as to whether any of them had actually overheard the conversation would only serve to exacerbate an otherwise minor event. (The evidence that a juror had overheard the conversation was contradictory.) Under the circumstances, the District Court did not abuse its discretion in the handling of the episode.

Appellant objects to the allusion at trial to the .38 revolvers discovered in appellant’s van on the grounds that the evidence indicated that the robber used a .357 Magnum (also found in the van). Appellant contends that testimony regarding the .38 revolvers was therefore irrelevant and prejudicial. This court has recently approved of the admissibility of a revolver over somewhat analogous objections of relevancy and prejudice raised in United States v. Walters, 477 F.2d 386, 388-89 (9th Cir. 1973), cert. denied, 414 U.S. 1007, 94 S.Ct. 386, 38 L.Ed.2d 245 (1974). There, evidence of the defendant’s possession of a revolver was admitted even though none of the Government’s witnesses was able to identify the gun as being used in the robbery. The court, however, held that notwithstanding the defendant’s protestations of prejudice, the gun was probative of the defendant’s identity as the perpetrator by demonstrating defendant’s capacity to commit the offense. In the instant case it would appear that any need for “identity” evidence was satisfied by the introduction of the .357 Magnum alone about which there had been testimony linking it to the weapon used in the crimes, although arugably, allusion to the .38 revolvers bore some slight relevance to the question of criminal identity since the evidence was not conclusive that the .357 Magnum was the weapon used. However, once again, appellant challenges a matter within the sound discretion of the trial court; and under the circumstances, it cannot be said that the District Court clearly abused its discretion in allowing the jury to learn of the .38 revolvers.

Appellant challenges the legality of the search of his van following his arrest and argues that the court improperly denied his motion to suppress the evidence obtained as a result of that search. The Government counters that the appellant lacks standing to contest the search and that the search was otherwise justified'.

The Government’s contention that the appellant is without standing to protest the search of the van rests upon the fact that record ownership and licensing of the van was in the name of the appellant’s brother. However, the appellant testified that the van was really his, and that ownership and registration were in his brother’s name only for the purpose of acquiring credit. The appellant also made an offer of proof to produce five witnesses who would verify the appellant’s claim that the van was really his. The District Court declined this offer but also explicitly stated that it did not find the appellant’s standing to be in issue. (R.T. at 35.) The court concluded that regardless of who owned the van, defendant used it extensively. (R.T. at 19.) The Supreme Court has stated:

“[I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.” Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960).

As a result of his repeated use of the van, the appellant had a reasonable expectation of privacy and freedom from search in the use of the van. See Katz v. United States, 389 U.S. 343, 88 S.Ct. 507, 19 L.Ed.2d 567 (1967). The situation here is analogous to that of the tenant’s right to freedom from search. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). The District Court properly concluded that there were no standing obstacles involved in the instant case.

Under the principles of Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925), it is clear that certain “exigent circumstances” will justify a warrantless automobile search. Here, prior to the search, the appellant’s brother had informed the FBI that there was a long-barrelled pistol hidden in the van. The agents had probable cause to believe that weapons or other evidence of the crimes were hidden in the van. Owing to the movable nature of the van, the warrantless search was justified. Chambers v. Maroney, supra. See United States v. Cohn, 472 F.2d 290, 292 (9th Cir. 1973); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835, 842-45 (1974).

The judgment of the District Court is affirmed.

      . “The Act, in terms, is restricted to writings signed or adopted by a witness and to accounts which are ‘a substantial verbatim recital’ of a witness’s oral statements. 18 U.S.C. § 3500(e); United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969).” Wilke v. United States, 422 F.2d 1298, 1299 (9th Cir. 1970).

      . Section 3500(b) reads in part:
      “ . . . the court shall, on motion of the defendant, order the United States to produce any statement . . . .”

      . The jury was explicitly instructed on the evidence to be considered in making its determination. R.T. at 390-91.


author: CUMMINGS, Circuit Judge. PELL, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James G. DEMOPOULOS, Defendant-Appellant.
    No. 74-1341.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 18, 1974.
    Decided Nov. 5, 1974.
    Rehearing en banc Denied Dec. 12, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1427.

      George B. Collins, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Michael P. Mullen, Asst. U. S. Attys., Chicago, 111., for plaintiffappellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
   CUMMINGS, Circuit Judge.

Defendant was indicted in the Northern District of Illinois for violating 18 U.S.C. § 1623(a), which specifically proscribes knowingly making false material declarations while a witness before a grand jury. The indictment charged defendant with making the following false declarations:

“that he did not meet in the Rex Restaurant in Chicago in or about February 1969 with Peter Boznos and Sam Crispino, that he did not receive an envelope, parcel or package from either Sam Crispino or Peter Boznos in the Rex Restaurant in Chicago in or about February 1969, and that he did not receive any money from either Sam Crispino or Peter Boznos in the Rex Restaurant in Chicago in or about February, 1969.”

After a jury trial, defendant was convicted and was sentenced to 18 months in prison. On appeal, defendant raises numerous alleged errors and asserts that considering them together, he is entitled at least to a new trial. We affirm his conviction.

Sufficiency of the Evidence

Defendant first challenges the sufficiency of the evidence. The evidence shows that in early 1969 Samuel Crispino contracted to purchase the Cafe Chablis on West North Avenue in Chicago. He was represented in this transaction by attorney Peter Boznos. Crispino made his purchase of the restaurant contingent on his procuring a liquor license. At the time that the closing was originally scheduled in mid-February 1969, he had not obtained the liquor license, although he had applied for it on January 28, 1969. The liquor license was finally issued on February 26, 1969, and the closing took place on that date.

While Crispino’s license application was pending in February 1969, Boznos received an anonymous telephone call from someone who said he was a Chicago Police Department vice officer. The caller said that Crispino’s liquor license application would not be approved until a $5,000 payment was made. The caller later agreed to a reduced payment of $3,000. Boznos was instructed to go to the Rex Restaurant in Chicago at midnight on a certain date to make the payment. Boznos was told that the defendant would be present at that restaurant to pick up the money.

A few days after this telephone call, Boznos and Crispino met at the Rex Restaurant. Crispino brought with him a package containing $2,000. (Why Crispino brought $2,000 when $3,000 had been agreed upon over the phone is not explained by any testimony in the record and is not relevant here.) Boznos testified that defendant joined them at their table a few minutes later. The defendant told Boznos that Crispino should put the money under the table. Crispino did so, and defendant picked it up and left the restaurant five to six minutes thereafter.

Boznos positively identified defendant as the recipient of the $2,000. Crispino described the recipient as a slender man, 5'6" to 5'7" in height, weighing 160 pounds, with black, wavy hair, about 30 to 35 years old, and appearing to be of Greek or Spanish extraction. The defendant was of Greek extraction and described himself as 35 years of age, 5'6^4" tall, weighing 165 to 170 pounds and having black hair. However, at the trial, when asked if the man to whom he had passed the $2,000 was in the courtroom, Crispino uncertainly selected Gregory Vlamis, a relative of defendant, who was seated in the first row of benches. Vlamis was 30 years old, 170 pounds and 5'11" tall. Crispino made it plain that he was not sure that this was the man in the Rex Restaurant.

Boznos’ identification of defendant does not stand alone, for Crispino’s portrait of the other person at the Rex Restaurant exactly matched defendant’s self-description, even though Crispino also hesitatingly selected Gregory Vlamis as the bagman.

In our judgment, the testimony of Boznos and Crispino amply supported the verdict. It was within the jury’s pi’ovinee and not for us to assess the credibility of the Government’s principal witness, Peter Boznos.

Admissibility of Telephone Conversation

Defendant next asserts that it was reversible error for the trial court to permit the jury to consider the aforesaid telephone conversation that Boznos had with the unidentified caller seeking a $5,000 bribe in exchange for police approval of the liquor license. Defendant contends that the conversation was inadmissible hearsay. Government counsel offered this conversation not to prove the truth of the matter but “as background operative facts to show subsequent actions of this and other witnesses” [Boznos and Crispino]. This limited purpose was reiterated to the jury in the prosecutor’s closing argument, and the district court gave the following limiting instruction:

“During the examination of the witness Peter Boznos, he testified concerning a phone conversation he had with an unknown individual from the Austin Police District. This conversation was admitted to allow you to understand subsequent actions which were taken by the witness Boznos and others. It was not offered for the truth of the matters contained in that phone conversation, and you are to consider that phone conversation only as it pertains to the subsequent actions of the witness Boznos and others, and you are not to consider it for the truth of anything, nor as proof of the matters asserted in that conversation.”

In this setting, it was permissible to admit the challenged testimony. See Tritsis v. Backer, 511 F.2d 1021 (7th Cir. 1974); United States v. Hickman, 426 F.2d 515 (7th Cir. 1970).

In support of his contention that the telephone conversation was hearsay used to prove the truth of its contents, defendant claims that the prosecutor could have characterized him as a bag-man in the closing argument, as he did, only if the conversation was so used. This claim is simply wrong. Defendant was a lawyer without official influence on applications for liquor licenses. In light of this and since Crispino was providing $2,000 to affect favorably his application, the jury could infer entirely apart from the telephone conversation that defendant acted as a bagman for someone else when he accepted the $2,000 at midnight in the Rex Restaurant in February 1969.

Admissibility of Grand Jury Testimony

Defendant’s testimony before the grand jury on August 21, 1973, was transcribed and consisted of 54 pages. Before the trial began, counsel for defendant and the Government agreed to numerous deletions in this testimony. Thus large portions of the transcript were deleted by agreement, including many whole pages. The court settled the questions of admissibility where the parties could not reach agreement. Defendant raised a uniform set of objections and asked that they be applied to each part of the transcript that he challenged. He argued that these portions of the transcript should not be admitted into evidence because they were irrelevant, immaterial and prejudicial to defendant. At the threshold of the trial and out of the presence of the jury, defense counsel made these objections to much of the non-deleted portions of the transcript, and the court sustained many of his objections, causing further deletions. The court agreed to treat defendant’s objections as having been reiterated when the transcript was offered into evidence at trial.

On appeal defendant belatedly argues that the portions of the transcript relevant to whether defendant’s false declarations were “material” to the grand jury’s investigation should not have been read to the jury. (See 18 U.S.C. § 1623(a), note 1, supra.) The apparent basis for this contention is the rule, well established in this Circuit, that the issue of materiality in a perjury charge is a question of law for the court. United States v. Rivera, 448 F.2d 757, 758 (7th Cir. 1971); United States v. Parker, 447 F.2d 826, 830 (7th Cir. 1971). However, at no point in the more than 60 transcript pages of colloquy between the court and counsel with relation to the proposed deletions did defendant’s counsel suggest that the portions of the transcript relevant to materiality should be treated differently than other admissible portions. Indeed, at the outset of the colloquy he specifically stated that the prosecutor might read to the jury those portions of the transcript that the court ruled admissible. In this posture, we cannot accept defendant’s overdue argument that there were two kinds of admissible evidence, one for the court and jury and one for the court alone.

In Gebhard v. United States, 422 F.2d 281, 289 (9th Cir. 1970), the full transcript of defendant’s testimony before the grand jury was admitted before the petit jury during his perjury trial. On review, the court concluded that there was merit in the Government’s argument that “The full transcript was admissible to show the materiality of perjured testimony to the subject matter of the grand jury’s investigation.” 422 F.2d at 289. In this case, we need not and do not go so far as to adopt that holding as a general rule. We conclude only that the non-deleted portions of the transcript were admissible on the issue of materiality to the investigation and could, therefore, be read to the jury in the absence of any objection that they should have been considered only by the judge.

Moreover, even had the defendant properly requested that the judge alone inspect those portions of the transcript that bore on materiality, there were alternative grounds for allowing the jury to consider the unexcised portions. The transcripts read to the jury were admissible on several issues which were to be decided by the jury: whether the defendant “knowingly” made false declarations before the grand jury (note 1, supra) and, in accordance with the instructions, whether he “intentionally committed the act” because, again according to the charge, “The crime charged in this case requires proof of specific intent before the defendant can be convicted.” Furthermore, the challenged portions bore on wilfulness, which was defined in another of the instructions given by the trial judge. Finally, in considering defendant’s objections before trial, the court sustained those that it considered most prejudicial to defendant, despite their arguable materiality.

Prosecutor’s Alleged Comment on the Subject of Defendant’s Taking the Stand

During the testimony of FBI Agent Johnson, defense counsel made an objection and stated:

“This [testimony of Mr. Johnson] isn’t impeaching of anything or anybody, or of the defense, or any testimony that the defendant has given.”

Thereupon the prosecutor replied:

“Your Honor, we will wait until he [defendant] takes the stand to impeach him. It is not offered to impeach him. It is offered as part of the case in chief of the government.”

Defense counsel made no objection to this remark. Not until 15 transcript pages later did he move for a mistrial on the ground of the prosecutor’s comment. The Assistant United States Attorney explained that “It was an invited response,” resulting in the denial of the motion for a mistrial. We agree with the Government that this remark did not constitute a comment on defendant’s failure thus far to testify nor compel him to take the stand. There has been no showing whatever that this fleeting episode prompted defendant to testify. Therefore, since defendant has shown no prejudice from the prosecutor’s remark, the trial court did not err in denying his motion for a mistrial.

Cross-Examination of Boznos

Defendant contends that the court unduly restricted his right to cross-examine Boznos by sustaining an objection to the following question:

“Well, did you ever give any consideration and thought to going over to see [Austin Police District Commander] Mark Thanasouras about this?”

Defendant urges that the question should have been allowed in order to show that, since the two men knew each other well, Boznos would have dealt with Thanasouras directly rather than through defendant. The trial court was within its discretion in limiting the cross-examination by refusing this question because it was merely cumulative of prior testimony about the close relationship between Boznos and Thanasouras.

Cross-Examination of Character Witness

During the trial defendant placed his character in issue and called witnesses to testify as to his good reputation. Defendant contends on appeal that a question put by the prosecutor during cross-examination of one of these witnesses caused such prejudice that a mistrial was required. Defendant’s witness was asked:

“In your discussions with other persons about James Demopoulos, did you ever hear the discussion that he had been picked out while a spectator, as a defendant, in this building?”

The Government concedes that the question was irrelevant and improper. The question resulted in an objection that was immediately sustained. Then counsel for the Government withdrew the question, and the court instructed the jury to disregard it. In these circumstances, there was no measurable prejudice to defendant which would justify a new trial.

Non-Compliance with Rule 30 of Federal Rules of Criminal Procedure

Defendant claims that reversal is required because of the court’s violation of Rule 30 of the Federal Rules of Criminal Procedure. Both sides tendered instructions to the court for its consideration. In accordance with his custom, the trial judge said that he would not hold a conference on instructions unless he wanted suggestions and comments from counsel, in which case he would inform them. He added:

“But I don’t have conferences on instructions, especially where you quote the statute and so forth, or the law, upon which you are relying. Most of them are stock anyhow. There may be one or two where I will want to hear from you.”

However, as the judge explained, he “carefully considered each written instruction as presented by counsel for the Government and for the defense, and the court caused each instruction to be marked either ‘Given’ or ‘Refused’, after full and complete research of the law pertaining to each instruction given.”

After denying defendant’s motion for acquittal, a 10-minute recess was given so that counsel could examine the instructions about to be given to the jury. Neither counsel requested additional time. After this recess, counsel made their respective arguments to the jury, and their arguments were followed by the charge.

After the charge was given and while the jury was deliberating, in the absence of the court and according to its then custom, defense counsel was permitted to present objections to the instructions. He noted on the record that this practice did not give the court the meaningful opportunity contemplated by Rule 30 for correcting any instructions to which objection had been made. After considering the objections, the court could have issued corrected instructions but did not choose to do so, thus overruling the objections sub silentio.

We condemned this practice in United States v. Van Drunen, 501 F.2d 1393 (7th Cir. 1974), and have noted that it no longer prevails in trials conducted by this judge after July 24, 1974, when Van Drunen was decided. In United States v. Clay, 495 F.2d 700, 708-709 (7th Cir. 1974), we held that violations of Rule 30 that clearly do not result in prejudice to a defendant will not result in reversible error. Three and one-half months after our decision in Clay, the Supreme Court, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, specifically approved this approach to Rule 30 violations. The Court held that where it affirmatively appears that a defendant was not prejudiced by the violation reversal is not required. Consequently, we will examine the four instructions of which defendant complains and to which he was not permitted to make objection before the jury retired in order to decide whether it affirmatively appears from the record that the defendant was not prejudiced thereby.

Propriety of Instructions

Initially, defendant complains of the giving of LaBuy Instruction 6.04 relating to circumstantial evidence (33 F.R.D. 523, 572-573). The objection below was that this instruction “contains an erroneous interpretation or description of what constitutes circumstantial evidence.” No further elaboration was given. In this Court, defendant complains of the instruction on the ground that the only circumstantial evidence was in the telephone conversation received by Boznos from an anonymous caller requesting $5,000 in order to secure police approval of his liquor license. Since this testimony was not received in evidence as proof of the truth of the matter asserted, defendant argues that the Government should not have tendered this circumstantial evidence instruction. However, in his testimony, Crispino described the man he and Boznos met in the Rex Restaurant shortly after midnight in February 1969. This description tallied with the defendant’s description of himself and was enough circumstantial evidence to warrant this stock instruction.

Defendant next claims that the immunity instruction was unfair to defendant because it warned the jury only that “such testimony [of immunized witnesses] must be examined and weighed by the jury with greater care than the testimony of an ordinary witness.” The jury was also instructed that in weighing the testimony of each witness it should consider his relationship to the Government or the defendant and any interest that he had in the outcome of the case. The jury charge also described the extent and scope of the immunity granted witnesses Boznos and Crispino under 18 U.S.C. § 6002. All this was equivalent to defendant’s refused instruction L. Instruction L would have told the jury that the testimony of immunized witnesses “should be received with suspicion and considered and scrutinized with the very greatest of care and caution.” The denial of this tendered instruction as repetitive of instructions given by the court was not prejudicial to defendant.

Defendant also complains that the word “informer” should have been included in this immunity instruction. This was not one of the grounds of objections at the trial. Furthermore, Boznos and Crispino were not informers, for they testified only when ordered to do so under grants of use immunity. In closing this matter, we cannot fault the trial judge for the inclusion of the following sentence in the immunity instruction :

“However, the fact that this government witness was granted immunity also is not a justification under the law for your finding a defendant not guilty if you find that his guilt has been proven beyond a reasonable doubt from your consideration of the evidence.”

Defendant next complains of the parenthetical clause in the following sentence from the specific intent instruction which the court read to the jury:

“Such intent may be determined from all the facts and circumstances surrounding the case (and from similar prior crimes and transactions).”

The Government admits that the parenthetical matter was inadvertently included in the instruction it furnished to the trial court. No objection was made to this instruction, so that error may not be assigned under Rule 30. Furthermore, since no evidence had been presented of “similar prior crimes and transactions,” the jury could not have been misled. Therefore this surplusage should not be considered plain error under Rule 52(b) and reversal is not required.

The last instruction of which defendant complains relates to the telephone conversation between Boznos and an anonymous caller. The instruction read as follows:

“During the examination of the witness Peter Boznos, he testified concerning a phone conversation he had with an unknown individual from the Austin Police District. This conversation was admitted to allow you to understand subsequent actions which were taken by the witness Boznos and others. It was not offered for the truth of the matters contained in that phone conversation, and you are to consider that phone conversation only as it pertains to the subsequent actions of the witness Boznos and others, and you are not to consider it for the truth of anything, nor as proof of the matters asserted in that conversation.”

Defendant argues that this instruction permitted the jury “to paint the conversation with the gilt of truth.” To the contrary, the instruction reminded the jury that the telephone conversation was not offered for the truth of the matters therein. We disagree that this instruction “is the use of the telephone conversation, as truth, to corroborate the story of Boznos.”

Therefore, since the record affirmatively shows that the defendant was not prejudiced by any of the instructions which he attacks, the violation of Rule 30 does not compel reversal here.

Newly Discovered Evidence

Defendant argues that the trial court erred in denying his motion for a new trial based on allegedly newly discovered evidence. Defendant claims that after the trial was over, his trial counsel first learned of a document indicating that Police Commander Thanasouras approved Crispino’s application for a liquor license on February 5, 1969. It is defendant’s contention that this so-called newly discovered evidence would be crucial to his defense because it indicates that the bribe was intended to secure an approval that had already been given, thereby raising doubt about the testimony of the Government’s key witnesses. In truth, the document was shown to defendant’s then counsel by the prosecutors and offered for copying two months prior to trial and was previously subpoenaed and received by him on January 31, 1974, the day before it was shown to him by government counsel. Therefore, it cannot be considered as newly discovered evidence. Moreover, such evidence, even if truly newly discovered, would not require the district judge to grant a new trial because he could reasonably conclude that its probable effect in a new trial would not be to change the result. United States v. Balistrieri, 436 F.2d 1212, 1215 (7th Cir. 1971), certiorari denied, 402 U.S. 953, 91 S.Ct. 1620, 29 L.Ed.2d 124. Where the license was not finally approved until February 26, 1969, and a police investigation of Crispino in Thanasouras’ district was not completed until some time after February 5, 1969, it is reasonable to conclude that Thanasouras, despite his earlier formal approval, could have adversely influenced the granting of the license up to the time that Crispino actually received it. No new trial was required.

Attitude of the Trial Court

Finally, defendant complains that the court’s “anger,” expressed during defendant’s cross-examination, prejudiced the jury against him. The challenged remark of the court occurred after the witness interrupted the judge and read as follows:

“Now, just a minute. You are on the witness stand, and don’t you forget it. You are not in the well of this court, and you’ll take the advice of [your] counsel [not to volunteer anything], if you haven’t up till now.”

The court then explained that it did not want defendant to interrupt and start volunteering after his own counsel had admonished him not to volunteer. After the witness apologized, the court did likewise, and, before the afternoon session began, instructed the jury as follows :

“You should not, by the tone of my voice, nor by any gesture on my part, interpret that as the court having any opinion on the guilt or innocence of this defendant. My sole venture, my sole mission here is to preside so that this defendant obtains a fair trial, and the government obtains a fair trial, and that is all. I have no interest whatsoever in the outcome of this lawsuit.”

In view of this cautionary instruction and the court’s own prior apology, this incident certainly did not deprive defendant of a fair trial.

The judgment of conviction is affirmed.

PELL, Circuit Judge

(dissenting).

While the majority opinion is persuasively written, I am unable to dispel an opinion that the cumulative effect of the various matters raised by the appellant was such as to deprive him of a fair trial. Accordingly, I respectfully dissent.

Since, however, the determination of whether the combination of several incidents creates a sufficiently unfair trial as to call for reversal is essentially a balancing process with judgmental analysis being involved, I shall direct my attention primarily to two aspects of this trial which when taken together, and I do not believe they can be considered separately, deprived Demopoulos of a fair trial.

The two are: (1) the improper question put to a character witness saying in effect to the jury that Demopoulos had been previously picked out as a defendant in another courtroom in the federal court house building; and (2) the subsequent instruction indicating that a finding that the defendant had the requisite specific intent could be based upon his having been involved in similar prior crimes and transactions. The other trial incidents complained of, of course, when added to this base merely strengthen the necessity for a new trial.

The error of the instruction, tendered by the government and given by the court, cannot be viewed in a noncontextual vacuum. It is not disputed that there was no evidence of similar prior crimes and transactions but the entire tenor of the trial of the ease, tried as it was during a period of widespread newspaper publicity in Chicago concerning scandals in the police department, was strongly suggestive to the jury that the defendant Demopoulos was a part of those transactions. Particularly, the reference to prior criminal transactions was given further significance in the eyes of the jury because of the question put to the character witness indicating that Demopoulos “had been picked out while a spectator, as a defendant, in this building?”

' I do not deem that there was any adequate cautionary instruction to remove from the jury’s mind this reference to the defendant being identified as a defendant in another case in the same courthouse when taken in juxtaposition with the instruction with regard to specific intent. Counsel objected to the question to the character witness and the objection was sustained. Counsel then moved that the jury be instructed to disregard that completely. Only after the prosecuting attorney withdrew the question did the court advert further to the clearly improper question and then merely stated, “[ejounsel for the government will withdraw the question, and the court instructs the jury to disregard the asking of that question.” This conveyed nothing more to the jury than the fact that since the question had been withdrawn they should pay no attention to it. There was no admonition specifically directed to the matter of not giving any consideration to the fact, or the impropriety of disclosing, that Demopoulos had been picked out as a defendant in another case.

The error is made more serious by the fact that the incident involved a case of mistaken identification.

I fail to comprehend how the jury could not have been misled by the reference to “similar prior crimes and transactions” since no evidence had been presented in this regard. The very fact of lack of evidence has long been deemed a highly cogent reason for elimination or preclusion of reference in an instruction.

Thus, in United States v. Breitling, 61 U.S. 252, 254-255, 15 L.Ed. 900 (1858), Mr. Chief Justice Taney stated:

“It is clearly error in a court to charge a jury upon a supposed or conjectural state of facts, of which no evidence has been offered. The instruction presupposes that there is some evidence before the jury which they may think sufficient to establish the facts hypothetically assumed in the opinion of the court; and if there is no evidence which they have a right to consider, then the charge does not aid them in coming to correct conclusions, but its tendency is to embarrass and mislead them. It may induce them to indulge in conjectures, instead of weighing the testimony.”

The converse of the present rule is the well-settled rule in criminal cases that if there is no evidence to support a particular defense, the trial judge is justified in refusing to submit such defense to the jury. United States v. Gosser, 339 F.2d 102, 109 (6th Cir. 1964), cert. denied, 382 U.S. 819, 86 S.Ct. 44, 15 L.Ed.2d 66. No more, however, should there be an instruction given as to which there is no supportive evidence.

In United States v. Collier, 313 F.2d 157, 159 (7th Cir. 1963), cert. denied, 374 U.S. 844, 83 S.Ct. 1900, 10 L.Ed.2d 1064, this court held erroneous an instruction explaining the term “special employee” because there was no basis in the evidence and another instruction which assumed, “with no proof of the fact, that defendant was ready, willing and able to commit the offense charged.”

The mere implication of unlawful conduct other than that charged against a defendant is ground for reversal. In United States v. Leggett, 312 F.2d 566, 574 (4th Cir. 1962), the only issue was whether the defendant had represented himself to be an F.B.I. agent. The Government in presenting its case claimed he was not even licensed as a private investigator. The trial court in referring to this contention, charged the jury in part:

“And had no right therefore to seek information concerning the registration of any guests they had and that at the most he was a trespasser.”

In reversing, the court stated:

“If he had been an invited and welcome guest it would have made no difference. 'Trespass’ signifies a transgression or wrongful act, Nolan v. New York N. H. &. H. R. Co., 70 Conn. 159, 39 A. 115, 43 L.R.A. 305; and this is particularly true in the minds of laymen, unacquainted with the niceties of legal definitions. The facts of this case did not justify applying the term ‘trespasser’ to the appellant and its use may well have led the jury to infer that the appellant committed a crime just by going to the motel. It certainly tended to divert them from the real and sole issue in the ease.”

The mere inclusion of the words “assaults any person” in an instruction dealing with a Count of an indictment which did not charge an assault, although the section of the statute on which the Count was based did include “assaults any person,” was deemed serious enough error to require reversal “and so clear that appellant is not precluded from raising it here notwithstanding that he failed to object to that charge below.” United States v. Roach, 321 F.2d 1, 4 (3d Cir. 1963).

While ordinarily an incorrect instruction if favorable to the defendant will not be deemed prejudicial to him, “[w]hen a false issue of magnitude sufficient to nullify proper consideration of the issues is inserted into a case [by instructions], the proper administration of justice is thwarted and a conviction so based cannot stand.” Michaud v. United States, 350 F.2d 131, 133-134 (10th Cir. 1965). There the court held that the inclusion of a false issue in the ease was plain error under Rule 52(b), Fed.R.Crim.P., requiring reversal. In the case before us the trial court interjected, albeit inadvertently but nevertheless patently there, an extraneous issue of law. “Extraneous law may be quite as prejudicial as extraneous facts. Verdicts should be based only on the evidence in the case and the pertinent law as applied to that evidence.” United States v. Hill, 417 F.2d 279, 281 (5th Cir. 1969).

In Morris v. United States, 326 F.2d 192, 195 (9th Cir. 1963), the district court gave an instruction that flight or concealment immediately after the commission of a crime may be considered as a fact hearing on guilt just as in the case at bar prior similar crimes or transactions could be considered as bearing upon the existence of specific intent. In Morris, there was no evidence that the defendant had fled or concealed himself. Here there was no evidence of prior similar crimes. In Morris, “the danger that the jury might have been led to indulge in conjecture” was heightened by a testimonial reference to the defendant as a fugitive. In the present case, the danger of jury conjecture was heightened by the reference (in the improper question during testimony) to Demopoulos having been picked out as a defendant in another case. In Morris, there was a reversal. There should be here.

The prejudice of the unremoved reference to criminal identification plus the erroneous instruction was made more stringent in impact in the present case by the fact that the basic question presented to the jury was to decide as a matter of credibility whether to believe Boznos who identified the defendant as the person to whom the money was paid or whether to believe the defendant who took the stand and denied any participation. The only other eye witness to the transaction was unable to identify Demopoulos in the courtroom. On the one-to-one basis presented to the jury, it is impossible to say that the scales-tipping feather was not the false criminality issue introduced and it is no answer to say that the introduction of the false issue was inadvertent. Also other factors here must be considered as further denigrating the defendant’s credibility, such as the trial court’s rebuke of the defendant as a witness.

It is true, of course, that a proper objection was not made to the instruction. However, in the highly improper way in which the matter of instructions was handled the lack of objection is not surprising. It helps Demopoulos’s miscarriage of justice very little that the district court judge is no longer following the cursory procedure utilized in the present case. With further reference to the nature of the attention given to the matter of instructions, it is noted that the defendant tendered some 25 instructions, each of which, according to the trial judge, he had carefully considered and had marked “Given” or “Refused.” Yet, every instruction tendered by the defendant was refused with a notation in each case that it was repetitive or argumentative or both. Perhaps most of the tendered instructions were covered by those given by the court; however, a careful examination woúld have reflected that defendant’s instruction Q was verbatim with that given by the court with the exception of the added crucial words “and from similar prior crimes and transactions.”

With regard to the other contentions raised by the defendant, I emerge from an examination of the record with the distinctly uncomfortable feeling that somewhere along the line sight was lost of the sole issue which was supposedly being tried and that was whether Demopoulos falsely denied to a grand jury that he had picked up a package of money in February 1969 at a specified restaurant in Chicago from one of two named individuals. This was not a trial of an obstruction of justice charge nor a bribery case, nor even a disbarment proceeding. Although the parties stipulated facts prior to the trial which rather clearly demonstrated the materiality of the challenged grand jury testimony and although the court treated the materiality determination as being for the court and not the jury, nevertheless substantial portions of the grand jury testimony went before the trial jury as to occurrences both before and after the supposed restaurant meeting.

Finally, in viewing the record as a whole, I find myself disturbed by the frequency with which resort has had to be taken to cautionary instructions to save the fairness of the trial. Under the circumstances of this case, Mr. Justice Jackson’s often quoted words in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949), are particularly apt: “The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.”

For the reasons set out hereinbefore, I would reverse and remand for a new trial.

      . 18 U.S.C. § 1623 provides in pertinent part:
      “(a) Whoever under oatli in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, in-eluding any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $30,000 or imprisoned not more than five years, or both.”

      . In Richards v. United States, 329 F.2d 188, 190 (5th Cir. 1964), involving another perjury trial, the court held that certain testimony was admissible “to enable the trial court to determine the materiality of the false statement.” As here, there was apparently no request that such testimony be considered only by the trial court in making its materiality ruling.

      . Rule 30 provides :

        “Instructions. At the close of the evidence or at such earlier time, during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall he furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. Xo party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”

      . Accord, United States v. Schartner, 426 F.2d 470 (3d Cir. 1970); Lovely v. United States, 169 F.2d 386 (4th Cir. 1948).


author: LUMBARD, Circuit Judge: OAKES, Circuit Judge

text:
    In the Matter of Jack ROBINSON, Bankrupt.
    No. 45, Docket 74-1351.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1974.
    Decided Nov. 8, 1974.

      Donald P. Sheldon, Buffalo, N. Y. (Saperston, Wiltse, Day & Wilson and Thomas F. Segalla, Buffalo, N. Y., on the brief), for appellant, Jack Robinson.
    William H. Gardner, Buffalo, N. Y. (Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, N. Y., on the brief), for appellee, Manufacturers and Traders Trust Co.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   LUMBARD, Circuit Judge:

Jack Robinson appeals from an order dated January 15, 1974, of the District Court for the Western District, John T. Curtin, J., affirming a denial of his discharge in bankruptcy upon findings by Beryl E. McGuire, Referee in Bankruptcy. Robinson filed a voluntary petition in bankruptcy on March 3, 1971, which stated his business to be that of a canned meat broker. The petition listed liabilities of $109,640.06 and non-exempt assets of $800. At a creditors meeting on April 16, 1971, Robinson denied under oath that he had made certain statements in January 1971 to Robert F. Spitzmiller, Jr., an assistant vice president of the Manufacturers and Traders Trust Co. of Buffalo, the appellee. On June 8, 1971, the last day for filing objections to Robinson’s discharge, the bank filed such objections and petitioned for a determination of whether discharge was appropriate. After three hearings the referee concluded that Robinson had given false testimony and denied Robinson’s discharge. The district court affirmed the referee’s decision, whereupon Robinson appealed to this court. We affirm.

I.

Robinson raises two issues on appeal. First, he claims that the bank failed to file timely its objections to his discharge. The' last day of filing objections was June 8, 1971, and the bank filed its objections along with a petition for determination of dischargeability on that day. However, it did not pay the required filing fee of $10 for each document until the following day. The bank did, however, submit a $50 check on June 8th as indemnity against expenses in production of the record. Robinson argues that the late payment of filing fees somehow delays the effective date of the filing until June 9th. We do not agree.

There is no express statutory requirement that a filing fee must be paid before objections can be considered to have been timely filed. Robinson’s argument is largely based on the fact that the Bankruptcy Act provides that the initial filing fees required of a bankrupt must be paid before a discharge is granted, Bankruptcy Act § 14(b)(2), 11 U.S.C. § 32(b)(2) (1970). However, the usual procedures followed with respect to payment of the initial filing fee undercut Robinson’s argument, because even where the bankrupt fails to pay the initial filing fee, the bankruptcy process still goes forward. See United States v. Kras, 409 U.S. 434, 488-489, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

Furthermore, even if Robinson is correct in asserting that payment of filing fees is a prerequisite for an effective filing, it is arguable in this case that the fees were in fact paid on June 8th. On that date the bankruptcy court had in its possession the bank’s check for $50 and it appears that that check could have been used to pay the filing fees.

Further support for rejection of Robinson's argument is found in the 1972 revision of the Manual of Office Procedures for Bankruptcy Clerks which provides that “[wjhere . . . papers are offered for filing without the proper fee, they should nevertheless be accepted for filing and a notation made on the paper itself that the filing fee has not been paid. The matter should then be called to the referee’s attention.” Thus it appears that the normal practice of bankruptcy courts is to accept papers for filing whether or not filing fees have been paid.

Finally, we note that the purpose of a filing deadline is to bring the bankruptcy proceeding to an end and to permit an expeditious determination of whether there is any reason why the bankrupt should not be discharged. Here this purpose was fully accomplished by the bank’s act of filing its objections within the required time period. Whether the filing fees were paid on that day, the next day or the next week does not effect the fulfillment of the deadline’s purpose. Accordingly, we hold that the objections were timely filed.

II.

Robinson’s second claim is that the district court erred in sustaining the referee’s refusal to issue a discharge. The referee had concluded that Robinson had knowingly, and fraudulently made a false oath in a bankruptcy proceeding. Under the Bankruptcy Act such a false oath is a ground for denying a discharge. Bankruptcy Act § 14(c), 11 U.S.C. § 32(c) (1970); 18 U.S.C. § 152 (1970). Under the Act the person objecting to the discharge must “show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed [one of the acts that bar discharge].” Bankruptcy Act § 14(c), 11 U.S.C. § 32(c) (1970). Once the person opposing the discharge has done this, the burden of proving that he has not committed [one of those acts] shall be upon the bankrupt.” Bankruptcy Act § 14(c), 11 U.S.C. § 32(c)(1970).

In the Second Circuit we have held that “[t]he words of the statute requiring that the testimony be given ‘knowingly and fraudulently’ mean no more than an ‘intentional untruth in a matter material to the issue which is itself material.’ ” In re Melnick, 360 F.2d 918, 920 (2d Cir. 1966) (per curiam) quoting In re Slocum, 22 F.2d 282, 285 (2d Cir. 1927). Great weight is given to the referee’s findings because he saw and heard the witnesses and his findings are not to be reversed unless they are clearly erroneous. In re Melnick, supra,.

The testimony in question was given at an adjourned session of the First Meeting of the Creditors of the bankrupt which was held on April 16, 1971. At that proceeding Robinson was asked several questions concerning statements he allegedly made to officers of the bank in January 1971. At the subsequent hearing on the bank’s objections to Robinson’s discharge Spitzmiller testified that Robinson had told him in January that he had some $50,000 in accounts receivable. On April 16, however, Robinson denied that he had made such statements when he was asked by the bank’s counsel about each alleged account receivable.

Robinson claims that his statements were not intentional untruths because he did not understand the questions that he was asked. While it is true that at times Robinson seemed confused as to whether he was being asked if he had told the bank in January that he had accounts receivable or if he had accounts receivable in January, other parts of the exchange between Robinson and the bank’s attorney show that Robinson did understand the questions. The referee concluded that the bank “established by a fair preponderance of the evidence that the bankrupt knowingly and fraudulently gave false testimony in this proceeding” and that Robinson’s disclaimers were not credible. The record supports the referee’s findings. In re Melnick, supra. The cases cited by Robinson do not support his contention that he lacked the requisite fraudulent intent. These cases generally involved failures of bankrupts to list inconsequential property interests on their schedules of assets. The court inferred that there was no fraudulent intent because the amounts involved were so small. See, e. g., In re Tabibian, 289 F.2d 793, 797 (2d Cir. 1951); In re Taub, 98 F.2d 81 (2d Cir. 1938). Robinson’s testimony concerned thousands of dollars in alleged accounts receivable and Robinson was closely examined as to each alleged account. It is simply not reasonable to conclude that his false statements were unintentional.

Robinson’s principal argument is that his misstatements did not concern a material matter. He argues that his false statements were immaterial for two reasons. First, he notes that the bank did not rely to its detriment on his claims of accounts receivable since all of the $35,000 owed by Robinson to the bank had been advanced prior to January 1971. This argument is irrelevant because the false testimony at issue here is not the statements that Robinson allegedly made to the bank, but rather his denials under oath at the bankruptcy proceeding that he made those statements to the bank. Robinson’s discharge was not denied because he testified falsely to the bank in January, but rather because he testified falsely in the bankruptcy proceeding in April. It is the materiality of his testimony in April that is at issue and its materiality must be judged by the situation at the time that it was made.

Robinson’s second argument is that his false statement was immaterial because a true statement on his part would not have benefited his creditors. He claims that even if he admitted that he had told the bank he had accounts receivable in January, his creditors would not have received any more money.

We have consistently held, however, that materiality does not require a showing that the creditors were prejudiced by the false statement. See Morris Plan Industrial Bank v. Finn, 149 F.2d 591, 952 (2d Cir. 1945); In re Slocum, 22 F.2d 282, 285 (2d Cir. 1927) (“[T]he materiality of the false oath will not depend upon whether in fact the falsehood has been detrimental to the creditors.”). See also In re Melnick, supra; In re Parsons, 88 F.2d 428 (2d Cir. 1951).

Even though truthful responses to the questions propounded by the bank’s counsel would not have increased the value of the bankrupt’s estate, they were certainly material to discovering what, if any, assets Robinson may have had. In January 1971 Robinson apparently told the bank that he had accounts receivable in excess of $50,000. When he filed his petition in bankruptcy less than two months later, Robinson claimed that he had no accounts receivable. The bank, as Robinson’s major creditor, certainly had a legitimate interest in trying to find out what had become of Robinson’s recently claimed accounts receivable and the questions put to him by the bank’s counsel were certainly relevant to that inquiry. Contrary to the dissent’s assertion, the bank did not know in January that Robinson had no accounts receivable. The record indicates that it only knew that, as to some of the accounts, the amounts claimed by Robinson could not be verified. So far as the bank knew it was possible that some amounts were owing. Thus, the bank’s questions were relevant to the issue of tracking down the disposition of Robinson’s assets.

The statute only requires that the bankrupt make a “false oath.” We have excluded minor or inconsequential misstatements from its coverage. However, it goes too far to suggest that the words “false oath” means “a false oath that conceals assets of the bankrupt’s estate.” Such an interpretation is clearly inappropriate since the first clause of section 152 deals with concealment of assets. To require that a false oath diminish the value of the bankrupt’s estate would in effect render the “false oath” clause nugatory since such a standard would track the requirements of the first clause of section 152. Moreover, most authorities agree that the false oath statute is essentially equivalent to a perjury statute. Thus only the basic requirements of perjury need be proven. D. Cowans, Bankruptcy Law and Practice § 201 (1963); 7 H. Remington, Bankruptcy Law § 3081 (1955).

This court has always regarded statements made during examination of a bankrupt to be “serious business.” In re Diorio, 407 F.2d 1330, 1331 (2d Cir. 1969). As Robinson’s brief admits, “[A] discharge is a privilege granted the honest debtor and is not a right accorded all bankrupts.” In any judicial proceeding concerned with establishing the truth, those who testify must be under an obligation to speak truthfully at all times. In a bankruptcy proceeding the creditors of the bankrupt often stand to lose considerable sums of money. It is not surprising that Congress would want to ensure that testimony in such proceedings is truthful. Likewise the courts should not countenance conscious disregard of the truth.

Affirmed.

OAKES, Circuit Judge

(dissenting):

I agree with the majority that the bankrupt’s technical argument on time of filing objections borders on the absurd. But I fail to see the materiality of the bankrupt’s false statements made at the first meeting of creditors on April 16, 1971. Concededly he had no accounts receivable either on January 11, 1971, or on April 16, 1971. He is held to have stated falsely on April 16 that he did not tell the bank on January 11, 1971, that he did have certain accounts receivable consisting of specific customers of his in his capacity as a canned meat broker. Thus he is found to have stated to the bank on January 11, and this would be his first falsehood, that he did have several specific accounts receivable. The bank concededly did not rely on that first falsehood in extending credit, nor did it do so by neglecting to enforce its loan agreement. By virtue of the fact that his petition was filed on March 3, moreover, any preference achieved by such enforcement would have been set aside. Thus, in any possible end result it is immaterial whether the bankrupt made the false statement to the bank on January 11. Can it be said, then, that his false denial on April 16 of having made an immaterial statement in January has any real bearing?

To say that “materiality does not require a showing that the creditors were prejudiced by the false statement,” as the majority says (opinion at 1188), however, is not to say that every statement under oath is material. The majority goes on to argue that counsel for the bank had a right to inquire into what had happened to the bankrupt’s “recently claimed accounts receivable” when the petition showed none such. I agree with that proposition; when the bankrupt testified that he- had none in April and that he had had none in January, however, it is difficult to fathom what information could be gleaned from forcing him to admit that he had lied in January about having these specific accounts receivable. All that a truthful answer in April would have led to was an admission of his lying in January. The January falsehood was not made under oath during bankruptcy proceedings and thus would not itself have been grounds for denial of the discharge.

But even if the bank might otherwise have “had a legitmate interest in trying to find out what had become of Robinson’s recently claimed accounts receivable,” in the majority’s words (opinion at 1188), testimony by the bank’s Zone Supervisor, Mr. George Sheldon, showed that within two days after the meeting of January 11 the bank “had done some ‘checking’ and had found we could not confirm any of the receivables” and indeed had so “advised Mr. Robinson,” the bankrupt, on January 13 (App. 244). This being true, it is difficult to see what the purpose of the line of questioning was, other than to get the bankrupt to deny that he had previously told a lie and in the process to tell another one so as to effectuate the denial of his discharge. The purpose could not have been to track down “recently claimed accounts” since the bank knew that none existed in April or in January.

If I am correct that the bankrupt’s testimony, assumed to be false, is nevertheless not material, the question of law becomes whether materiality is a necessary element of proof for a conviction under 18 U.S.C. § 152 which in turn, under the Bankruptcy Act, § 14(c)(1), 11 U.S.C. § 32(c)(1), is grounds for a denial of a discharge. Section 152 of 18 U.S.C. specifically spells out the various acts in connection with bankruptcy such as fraudulent concealment of assets, presentation of false claims against the estate, receipt of property from a bankrupt and the like — including “knowingly and fraudulently mak[ing] a false oath or account . . .” — that are criminal offenses.

The case law is now and, as I have understood it, always has been, that materiality is an essential ingredient— even though materiality is not dependent on actual injury to creditors. Metheany v. United States, 365 F.2d 90, 93 (9th Cir. 1966), 390 F.2d 559 (9th Cir. 1968), cert. denied, 393 U.S. 824, 89 S.Ct. 81, 21 L.Ed.2d 94 (1968); Meer v. United States, 235 F.2d 65, 67 (10th Cir. 1956); United States v. Margolis, 138 F.2d 1002, 1004, 1005 (3d Cir. 1943); In re Slocum, 22 F.2d 282, 284, 285 (2d Cir. 1927). See also 1A Collier, Bankruptcy (14th ed.) ¶ 14.25 at 1338; In re Lozito, 113 F.2d 764 (2d Cir. 1940); In re Taub, 98 F.2d 81 (2d Cir. 1938). As was said in In re Steiker, 380 F.2d 765, 768 (3d Cir. 1967):

A false oath knowingly and fraudlently made, however, is not all that must be established. It must also be shown that the false oath was given in relation to some material matter in the bankruptcy proceedings. In re Kaufhold, supra; Hanover-Capital Trust Co. v. Meyer, 57 F.2d 815 (C.A. 3, 1932); 1 Collier, Bankruptcy 14.-25 at 1324, 7 Remington, Bankruptcy § 3086; Annot., 59 A.L.R.2d 791, 831 (“Materiality”) (1958). It has been said that the determination of whether the false oath is material depends on whether the inquiry bears a relationship to the bankrupt’s business transactions or his estate, Willoughby v. Jamison, 103 F.2d 821, 824 (C.A. 8), cert. denied, 308 U.S. 588, 60 S.Ct. 111, 84 L.Ed. 492 (1939), or concerns the “discovery of assets, business dealings, and relations of the bankrupt, the existence and disposition of his property and debts and the like.” 7 Remington, Bankruptcy § 3086.

(Footnotes omitted.)

I will agree that courts must be careful not to overlook consciously false statements that could in some way affect the outcome of the bankruptcy, the presentation or proof of a claim, the discovery of an asset, or the like. I fail to see how this bankrupt’s statements, denying his earlier misstatement but correctly describing his business, could have had any bearing on any aspect of the estate, given the record here.

Accordingly, I would reverse.

      . The manual was published by the Federal Judicial Center and was distributed to referees in bankruptcy by the Administrative Office of the United States Courts in November 1972.

      . Section 14(c) provides that “[t]he Court shall grant the discharge unless satisfied that the bankrupt has (1) committed an offense punishable by imprisonment, as provided under Section 152 of Title 18 . . . .”

      . Section 152 of the Criminal Code provides that “[wjhoever knowingly and fraudulently makes a false oath or account in or in relation to any bankruptcy proceeding [s]hall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . Q. . Did you tell Mr. Spitzmiller on January 11th that that account receivable was owing?
      A. There was no accounts receivable.
      Q. I understand that.
      A. I told you that.
      Q. And did you not tell Mr. Spitzmiller on that—
      A. How could there by any outstanding when I just told you that there isn’t any?

      . Q . The next item that Mr. Spitzmiller mentions is Malecki Sausage, four thousand nine hundred dollars. Did you tell Mr. Spitzmiller that you had that account receivable owing?
      A. No.
      Q. The next item is Twin Fair, four thousand five hundred dollars. Did you give that information to Mr. Spitzmiller?
      A. I talked to Mr. Spitzmiller in the past and he asked me many occasions who owes me money.
      Q. I’m speaking specifically about January 11th, 1971, Mr. Robinson, do you recall that conversation?
      A. Tes, I believe so.
      Q. And on that conversation, did you tell him that Twin Fair owed you four thousand five hundred dollars?
      A. No.

      . “Whoever knowingly and fraudulently conceals from . . . creditors in any bankruptcy proceeding, any property belonging to the estate of the bankrupt

        [s]hall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 152 (1970).

      . In light of the majority’s statement on page .1188 of the opinion that “the bank knew it was possible that some amounts were owing” in January, 1971, it is interesting to note that the bank’s attorney asked no questions whatsoever as to the whereabouts of those assets “possibly owing.” He did ask what happened to the accounts receivable owing in 1970, the last year the bankrupt said that he had accounts owing. As to the accounts of 1971, the bank’s attorney’s questions dealt exclusively with the bankrupt’s past statements, not with his accounts receivable. At one point he even made this clear by telling the bankrupt, “I’m asking not whether it [an account receivable] was in fact outstanding, Mr. Robinson. I’m asking whether you told Mr. Spitzmiller it was outstanding.” App. 102.

      . I put to one side the suggestion of the majority that the false oath provision cannot be construed to require for conviction a diminution of the value of the bankrupt’s estate since it would “track the requirements” of the first, or concealment-of-asset, clause. While I disagree with the argument since concealment of assets and diminution of value are by no means synonymous, this dissent does not stand or fall on the question whether diminution or concealment of assets is involved. Rather I believe the question is whether materiality is an element of the of- ' fense.