author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CARMICHAEL, Defendant-Appellant.
    No. 71-1492.
    United States Court of Appeals, Seventh Circuit.
    Reargued June 1, 1973.*
    Decided Oct. 9, 1973.
    Kiley, Circuit Judge, filed opinion in which Swygert, Chief Judge, concurred, concurring in part and dissenting in part.

      Gerald M. Werksman, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Arnold Kanter, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and KILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
   CUMMINGS, Circuit Judge.

This case originated with the February 1969 issuance of a complaint by a United States Commissioner for the arrest of Robert E. Carmichael. The arrest warrant was issued on the complaint of Secret Service Agent Eugene Hussey, asserting a violation of the general conspiracy statute (18 U.S.C. § 371). The complaint was captioned “United States of America v. T. W. Allen, Robert E. Carmichael, and John Doe,” and recited the following:

“That on or about February 6, 1969, at Chicago, in the Northern District of Illinois, T. W. Allen, Robert E. Carmichael and John Doe did conspire to commit an offense against the United States, to wit, in violation of Title 18, United States Code, Section 371, in that each of them had in his possession mail or articles contained therein which have been stolen, taken, embezzled and abstracted from and out of the United States mail; and, in furtherance of such conspiracy, they held a meeting on February 5, 1969.
“And the complainant states that this complaint is based on the fact that your complainant was told by a reliable informant, whose information in the past has led to the conviction of at least six people, that T. W. Allen, Robert E. Carmichael and John Doe have in their possession numerous treasury and commercial checks, one [of] which is a check made payable to Photo Finishers, in the amount of $5,-276.00. The confidential informant told your complainant that he has seen these checks in the possession of one of the defendants and that the defendant who had possession told him that the checks would be given by Robert E. Carmichael to John Doe and then %o T. W. Allen, and that these checks were stolen from the mail, and that Robert E. Carmichael, T. W. Allen and John Doe would cash or cause these checks to be cashed.”

Pursuant to the warrant, Hussey arrested defendant Carmichael on February 10, 1969, in Harvey, Illinois. In April 1969, a five count indictment was returned against Carmichael, asserting that on February 10, 1969, in Harvey, Illinois, he possessed three U.S. treasury checks, a check issued by Gary’s Pay-Less Drugs, and a check issued by the Illinois Central Railroad Company, knowing that they had been stolen from the mail, in violation of 18 U.S.C. § 1708. On the Government’s motion, Counts I, II, and V were subsequently dismissed. Count III covered the possession of stolen treasury check 240,955 “being the contents of a letter addressed to Aunt Mid, Inc.” Count IV covered the possession of stolen-check C 07138, issued by Gary’s Pay-Less Drugs, “being the contents of a letter addressed to Foto Finisher[s].”

At the ensuing jury trial on Counts III and IV, Hussey testified that he first saw defendant on February 10, 1969, outside the house of Travis W. Allen at 902 West 109th Street, Chicago, in defendant’s auto, where defendant was joined by Allen. They drove to 154th and Center Streets in Harvey, Illinois, where defendant parked his Cadillac El Dorado. Allen left the car and walked north and then east toward the First National Bank of Harvey. Defendant remained in the driver’s seat of his Cadillac. When Allen returned toward the car he was placed under arrest by two other government agents. Thereupon Hussey arrested defendant, who was placed in a government car. Hussey then searched defendant’s car and found 31 checks in an envelope under the carpeting of the car below the right-hand glove compartment on the passenger’s side of the ear. Among the 31 cheeks found were those specified in Counts III and IV of the indictment. Hussey said he first saw the government check described in Count III in Allen’s office at 8:00 a. m. on February 4, 1969, when Allen showed him 12 to 14 checks. On that occasion, Allen told Hussey that the government check in question was stolen. Allen had been an informant for the Secret Service and had summoned Hussey to his office on February 4. Hussey knew Allen for about four years. Allen also telephoned Hussey on February 10 before 9:00 a. m., evidently about the rendezvous that took place later that day.

Narcotics Agent John Peoples testified that he was in Carmichael’s apartment at 3:00 p. m. on February 4 and saw defendant take the check described in Count IV and apparently other checks from a large manila envelope in the view of Harold Mundel, Elizabeth Sykes, and one or two other women. In their presence, defendant said that the checks were stolen “and that they were attempting to cash one of the checks and they were trying to find a place they could cash the check on that particular day,” referring to the Count IV check and possibly alternatively to a check payable to Marjorie Harris not mentioned in the indictment.

Defendant took the stand and denied ever seeing the indictment checks. He said he did not know there was an envelope containing checks under the floor-carpeting of his Cadillac on the day of his arrest. He denied that he had shown Peoples any stolen checks or an envelope containing checks. Defendant said he never discussed cashing stolen cheeks with Peoples. Defendant admitted meeting T. W. Allen through Harold Mundel ten days prior to his arrest. In all, defendant saw Allen three times. Mundel also introduced defendant to Agent Peoples. Prior to his arrest, defendant met Peoples twice.

The jury returned a guilty verdict under both Counts III and IV of the indictment, and defendant received concurrent sentences of five years on each of those counts. This appeal followed.

On November 6, 1972, a panel of this Court (Judge Fairchild dissenting) held that the above-described affidavit of Agent Hussey was insufficient on its face to establish probable cause for defendant’s arrest, so that the defendant’s motion to suppress the arrest warrant should have been granted. The panel did not consider whether the trial judge erred in precluding defendant’s questioning of Agent Hussey concerning the reliability of informer T. W. Allen. See 489 F.2d 979, 980. On reargument be-for the full Court, we hold that the affidavit was facially sufficient but that the district judge erred in denying defendant the opportunity to challenge the reliability of the informant at the hearing on the motion to suppress.

I

Defendant first contends that Agent Hussey’s affidavit in support of the search warrant was insufficient on its face. It is true that the bulk of the affidavit was based on hearsay conveyed by a confidential informant, but that alone does not flaw the affidavit. United States v. Harris, 403 U.S. 573, 580-581, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 412, 89 S.Ct. 584, 21 L.Ed.2d 637; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Analyzing the affidavit, it appears that Agent Hussey initially vouched for the reliability of the informant and attested that information given by that person had led to the convictions of at least six people in the past. The informant conveyed his own knowledge based on his personal observation of the check specified in Count IV of the indictment in the possession of one of the three defendants named in the Commissioner’s complaint. The informant gave Hussey the name of the payee and the precise amount of the check.

Thus far, as in United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), United States v. Edge, 444 F.2d 1372 (7th Cir. 1971), and United States v. Buonomo, 441 F.2d 922 (7th Cir. 1971), the credibility of the informant was established by his personal observations, and also Ly Hussey’s attestation that information given by that source had resulted in the conviction of six persons in the past. Thus in contrast to United States v. Roth, 391 F.2d 507 (7th Cir. 1967), this informant’s reliability was adequately spelled out by Hussey. Indeed, at the prior argument before the panel in September 1972, defendant’s counsel at least conceded arguendo that the affidavit was sufficient on its face.

It is immaterial here that the concluding portion of Hussey’s affidavit contained hearsay, namely, the statement of the second informant, i. e., the possessor of the checks, to the first informant that the checks would be given by defendant Carmichael to John Doe (Harold Mundel) and then to Allen; that they were stolen from the mail; and that Carmichael, Allen and Doe would cash or cause them to be cashed.. The statement by the second informant was an admission against penal interest, thus manifesting his reliability and constituting an exception to the hearsay rule. United States v. Harris, supra, 403 U.S. at 583-584, 91 S.Ct. 2075; Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297; Rule 804(b)(4) of the Proposed Rules of Evidence for the United States Courts and Magistrates (1973). Such hearsay upon hearsay is not inherently defective. See United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972); United States v. Smith, 462 F.2d 456, 459 (8th Cir. 1972). As we held in United States v. Wilson, 479 F.2d 936, 941 (7th Cir. 1973), hearsay based on hearsay is acceptable in this instance as long as the affiant has “sufficient information so that both levels of hearsay meet the two-pronged test spelled out” in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, relating to

(1) the reliability of the informant and

(2) some knowledge of the underlying facts to support the conclusion that a crime had been committed. Here, as seen, the reliability of the first informant was established by Hussey’s statement of the informant’s past success in six instances. The reliability of the second informant inheres in his statements against interest. Furthermore, the statements of both informers contain-knowledge of supporting facts showing that illegal acts were being committed by Carmichael. Thus both Aguilar tests were satisfied; unlike Roth, it is apparent that the first informant did not receive information from a “wholly unreliable” second informer. In sum, when Hussey’s affidavit is read in a common-sense way, it justifies the district court’s conclusion that the Commissioner had a sufficient basis to find probable cause to support the arrest warrant. United States v. Noreikis, 481 F.2d 1177, 1179 (7th Cir. 1973). In so holding, we are in nowise relying on the identification of the two informants.

II

Defendant next urges that the trial court erroneously refused to allow defense counsel to elicit evidence at the hearing on the motion to suppress that would east doubt on the reliability of informant T. W. Allen. Agent Hussey was the sole witness at that hearing. He stated that he arrested defendant on February 10, 1969, on a warrant obtained from United States Commissioner Balog on February 6, 1969, pursuant to a complaint signed by Hussey on the same date. The agent testified that the name of the “reliable informant” mentioned in his affidavit was T. W. Allen. As to the statement in the affidavit for the arrest warrant that information from T. W. Allen “in the past has led to the conviction of at least six people,” defense counsel asked Hussey to “give us the names of those people, where they were convicted and for what.” Government counsel objected on the ground of relevancy and his objection was sustained. Defense counsel then said that under Spi-nelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, he was entitled to challenge the reliability of the informant Allen, but the court let its ruling, stand.

Hussey then testified that he saw the check mentioned in the Commissioner’^ complaint and covered in Count IV of the indictment on February 4, 1969, in an office on 114th Street in Chicago, and that T. W. Allen showed it to him then.

Defense counsel next asked Hussey for the name of John Doe, who was twice mentioned in the affidavit for the arrest warrant. Government counsel objected to the question, again on the ground of irrelevancy, and this objection was likewise sustained.

Hussey was then asked whether he made any effort to verify the statement in his affidavit that these checks were stolen. Another objection based on irrelevancy was sustained. Objections were also sustained to questions covering the following subjects:

1. Past information given Hussey by T. W. Allen that led to the conviction of six people.

2. When Allen gave Hussey such information.

3. The basis for Hussey’s conclusion that Allen was a reliable informant.

4. The length of time that Hussey knew Allen.

5. Any prior criminal convictions of Allen.

6. Any prior arrests of Allen.

After being foreclosed from the foregoing inquiries, defense counsel made the following offer of proof:

“If the witness [Agent Hussey] were allowed to answer my questions with respect to the reliable informant, his answers would show that no information had been given [by Allen] at any previous time that led to the arrest or conviction of anybody; that he [Allen] had prior criminal arrests and criminal convictions, and that there was no basis for his [Hussey’s] concluding or for this court to conclude that the allegedly reliable informant was a reliable informant.”

Without giving any supporting reason, the Assistant United States Attorney objected to the offer of proof “specifically and generally, as to each thing and as to the offer of proof in general,” resulting in another ruling favorable to the Government.

The Supreme Court has not decided on the extent to which a court may permit evidence with respect to the validity of a warrant that is valid on its face where the allegations of the affidavit establish probable cause. Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 11 L.Ed.2d 887. However, in United States v. Pearce, 275 F.2d 318, 321-322 (1960), this Court expressed its opinion in dicta that the propriety of such a hearing “is hardly open to question.” To like effect, see our opinion in United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967). Subsequently, in United States v. Edge, 444 F.2d 1372, 1375-1376 n. 8 (7th Cir. 1971), we recognized “the difficulties inherent in deciding when and how far to permit attack upon the truthfulness of affidavits submitted to magistrates” and formerly to commissioners. In Pearce and Roth, the hearings were actually allowed in the trial courts, so that there was no need for this Court to decide whether a defendant could insist on such a hearing; and in Edge the question before us now was left open.

We now hold that a defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material. See generally United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), certiorari denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412; United States v. Halsey, 257 F.Supp. 1002 (S.D.N.Y.1966); Kipperman, “Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence,” 84 Harv.L.Rev. 825 (1971).

However, once such a hearing is granted, more must be shown to suppress the evidence. Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. A completely innocent misrepresentation is not sufficient for two reasons. Most importantly, the primary justification for the exclusionary rule is to deter police misconduct (see Kipperman, supra, at 831, and cases cited), and good faith errors cannot be deterred. Furthermore, such errors do not negate probable cause. If an agent reasonably believes facts which on their face indicate that a crime has probably been committed, then even if mistaken, he has probable cause to believe that a crime has been committed. Such errors are likelier and more tolerable during the early stages of the criminal process, for issuance of a warrant is not equivalent to conviction.

Negligent misrepresentations are theoretically deterrable, but no workable test suggests itself for determining whether an officer was negligent or completely innocent in not checking his facts further. We therefore conclude that evidence should not be suppressed unless the officer was at least reckless in his misrepresentation. Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. Arguably, the same conclusion could be reached as to deliberate but immaterial misrepresentations. However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.

The rule we announce today is intended only to test the credibility of government agents whose affidavits or testimony are before the magistrate. The two-pronged test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (supra p. 986), sufficiently tests the credibility of confidential informers. Consequently, defendant may not challenge the truth of hearsay evidence reported by an affiant. He may, after a proper showing, challenge any statements based on the affiant’s personal knowledge, including his representations concerning the informer’s reliability, his representation that the hearsay statements were actually made, and his implied representation that he believes the hearsay to be true. This fills the gap not covered by the Aguilar tests, and, as the pertinent American Law Institute Commentary explains, “it would be a very rare situation in which the * * * [law enforcement officials] are hoodwinked by a Baron Munchau-sen.”

Defense counsel’s offer of proof, along with information about T. W. Allen’s possible unreliability that was brought out by defense counsel at trial, was sufficient to make the threshold showing required. In the absence of prior guidelines from this Court, we will not fault defense counsel for not making his initial showing by way of affidavit, but in the future any suggestion that the evidence on probable cause should not be credited must be supported by affidavit unless, as here, the informant’s name is not disclosed until the suppression hearing. Cf. American Law Institute, Model Code for Pre-arraignment Procedure, Official Draft No. 1 (July 15, 1972), Section SS 290.3(1) and Commentary thereon at pp. 222-226. The A.L.I. procedure has been advocated on reargument by government counsel for use in future cases in this Circuit. Since the hearing on the motion to suppress was too circumscribed, the reliability of informer Allen may now be probed before the district court, subject to Circuit Rule 23.

If the Government had attempted to justify the arrest by showing that arresting officer Hussey had more information than he put in the complaint and therefore had probable cause in fact even if the warrant was invalid (see United States v. Fachini, 466 F.2d 53 (6th Cir. 1972)), defendant of course would have been free to show that Hus-sey did not have all the information claimed.

Ill

For the reasons given in the prior panel opinion (489 F.2d at 982), we approve the district court’s rulings permitting the Government to cross-examine defendant about his criminal activities on February 4, 1969, and permitting Narcotics Agent Peoples’ rebuttal testimony.

Vacated and remanded for a hearing consistent herewith. In the event the motion to suppress is denied, the conviction will stand.

KILEY, Circuit Judge, with whom SWYGERT, Chief Judge, concurs (concurring in part and dissenting in part).

I concur in part II of the majority opinion, but I respectfully dissent from part I which holds that Hussey’s affidavit for the arrest warrant for Carmichael was facially sufficient. My dissent is based upon the reasons given in the original panel opinion decided November 6, 1972, as supplemented by the views I now express.

In our panel decision (Fairchild, J., dissenting) we “assumed” that the “confidential informant’s” reliability was established, and we decided that Hussey’s affidavit showed probable cause for the magistrate’s conclusion that “one of the defendants” possessed the check. We held that the affidavit was insufficient on its face to arrest Carmichael, since his probable criminal culpability was based upon the statement of an anonymous second informant whose reliability was not adequately determined under Aguilar and Spinelli.

The majority of this court now bases its en banc opinion that the Hussey affidavit is sufficient facially upon the following: (A) the reliable informant told Hussey that he saw the “checks” in the possession of “one of the defendants” named in the complaint, and gave Hus-sey the payee’s name and the precise amount of the Foto Finishers’ check; (B) Carmichael’s attorney “at least conceded arguendo” in oral argument that the Hussey affidavit was facially sufficient; and (C) the “defendant in possession” told the reliable informant that the checks were stolen and were to be given by Carmichael to Doe and to Allen and would be cashed or caused to be cashed by the three of them.

The majority thereupon concluded that the Aguilar tests of credibility and reliability were met to justify the magistrate’s issuance of the warrant for Carmichael’s arrest.

A.

Our panel assumed the credibility of the confidential informant, and I adhere to the assumption that he, whoever he was, saw the checks in possession of “one of the defendants.”

B.

I disagree with the en banc court that Carmichael’s attorney in oral argument “at least conceded arguendo” that the Hussey affidavit was facially sufficient. The tapes of neither the original oral argument nor the en banc argument warrant the inference that the concession was made arguendo. The attorney stated that:

We don’t know whether one of the defendants the confidential informer is talking about is himself or someone else, and it’s very confusing. .
With respect to the reliability [as to the reason for his challenging the facial sufficiency] and — ah—it’s so confusing I don’t know why the agent went about it this way. ... I don’t think I can [attack this affidavit on the ground that it is hearsay]. I think the law is against me on that. I keep reading — I think I keep reading cases that say hearsay is permissible. .

We noted in our panel decision that Carmichael’s attorney urged two reasons for reversal of the denial of the motion to suppress: first, that he was entitled to a hearing at which he could cross-examine Hussey as to the reliability of the confidential informer; second, the facial insufficiency of the warrant. We did ^iot reach the “first,” having decided in Carmichael’s favor on the “second.” The most that can be said about Carmichael’s attorney’s statements in oral argument is that the affidavit’s hearsay was confusing; that “since it is all hearsay it is impossible to determine the credibility;” and that the attorney’s principal focus was upon his “first” reason.

C.

The crucial hearsay upon hearsay of the second informant to the reliable informant contained in Hussey’s affidavit is material to the decision, since it alone implicates Carmichael. The en banc majority relies upon the statement of the “defendant in possession” to the confidential informant that the checks were stolen and were to be given by Carmichael to Allen and to Doe, who would cash the checks or cause them to be cashed.

The majority’s reliance for finding the statement credible is that the criti-cial statement of the second informant was against his penal and pecuniary interests, and thus his statements were trustworthy. The majority concluded that the Aguilar tests of credibility and reliability were met and justified the magistrate’s issuance of a warrant for arrest of Carmichael.

The second informant’s statement was an admission against his own penal interest. But the decision in United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), compels no finding here on the issue of whether the unnamed second informant’s admissions against his penal interest were sufficiently trustworthy in the federal system to establish the credibility of his admissions made to incriminate Carmichael. In Harris, “[q]uite apart from the affiant’s own knowledge” of Harris’ illicit activities, the informer de-clarant, “who feared for his life” if named, was interviewed by the agent and found to be “prudent.” The Court stated, at 584, 91 S.Ct. at 2082, that “concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another.” In Harris the declarant’s admission that over a long period he had been buying liquor on the premises implicated the property. And the reliance in this court, and in the Supreme Court in Harris, on the Proposed Rules of Evidence for the United States Courts and Magistrates has been weakened. See United States v. Kissane, 478 F.2d 1098 (7th Cir. 1973), and United States v. DiVarco and Arnold, 484 F.2d 670 (7th Cir. 1973).

I agree that double hearsay does not “automatically” make an affidavit insufficient; and that the “question is whether the information given by the informant, taken in the light of the totality of circumstances, can reasonably be said to be reliable.” Fiorella, supra, 468 F.2d at 691. Assuming that the unidentified second informant's statement is reliable because it is a declaration against his penal interest, unless the second informer is Carmichael — and in my view there is no reasonable manner in which the affidavit could be read to identify Carmichael as the second informer — neither Harris nor the reasoning underlying the hearsay exception supports a conclusion here that, without more than the declaration, probable cause exists for his arrest. The hearsay exception does not provide per se reliability of the declarant but only that his declaration is trustworthy because “persons do not make statements which are damaging to themselves unless satisfied for good reason that they are are [sic] true.”

There is no presumption in the law that criminals are so trustworthy that they do not make statements damaging to others unless satisfied that they are true. Justice Harlan in his dissent in Harris, 403 U.S. at 595, 91 S.Ct. at 2088, “inclined to the view . . . that magistrates may not properly predicate a determination that an unnamed confidant is credible upon the bare fact that by giving information he also confessed to having committed a crime.” He noted that the government had in its Harris brief conceded that police informants are often less reliable than ordinary citizens.

It is true that we are dealing with a pre-trial question of probable cause and not a trial. Nevertheless there must be a “substantial basis” for crediting hearsay. Harris, at 581, 91 S.Ct. 2075. The magistrate was presented no facts to form a “substantial basis” supporting an inference of unlawful conduct by Carmichael. That “one of the defendants” had possession of a $5,276.00 check payable to Foto Finishers and that “one of the defendants” told a “reliable informant” that the “checks were stolen from the mail” no more implicates Carmichael than it does any “John Doe” whom the police might seek to arrest.

No reason appears why Hussey could not have, as the affiant in Harris did, elicited more information from the confidential informant about the “defendant in possession” — i. e., his name, why his name could not be used, and his reputation. Had Hussey done so, he might have been able to vouch for the credibility of the second informant and the reliability of his admissions.

In my opinion the Hussey affidavit was not sufficient to support an inference of the magistrate that Carmichael was probably guilty of possession of checks stolen from the mail, knowing them to be stolen. Rather, the Hussey affidavit presented a puzzle for the magistrate as to which “defendant” made the incriminating statement to the confidential informant, and presented no “substantial basis” (see Harris, at 581, 91 S.Ct. 2075) for crediting the second informant’s implication of Carmichael.

To require a federal agent to prepare an affidavit stating probable cause sufficient for the arrest of a person is not unduly burdensome. The government has no sufficient countervailing interest in sustaining Hussey’s puzzling affidavit against Carmichael’s constitutionally protected privacy interest. An affidavit ought to contain sufficiently clear statements of fact and trustworthy hearsay which will enable the magistrate, without prolonged study, by a eommonsense reading to determine whether probable cause exists for the arrest. We ought to require a more professional performance by government agents than the en banc court has required here.

      . At the subsequent hearing on the motion to suppress the arrest warrant, Hussey testified that T. W. Allen was the informant.

      . “Defendants” refer to the three persons named in the. complaint — Carmichael, Allen, and Doe. Only Carmichael was subsequently indicted in connection with the events alleged in the complaint. Doe was Harold Mundel (see note 4, infra,).

      . The pertinent part of 18 U.S.C. § 1708 is contained in its last two paragraphs, providing as follows:
      “Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—
      “Shall be fined not more than $2,000 or imprisoned not more than five years, or both.”

      . According to defense counsel, at trial Mundel turned out to be the John Doe named in the Commissioner’s complaint.

      . See note 1, supra.

      . See note 2, supra.

        . Even defendant’s answer to the Government’s petition for rehearing en iano admits that the concession was made arguendo (at P. 3).

      . Prom the trial testimony, it seems that Carmichael was the second informer.

      . Cashing stolen checks would also give rise to tort liability for conversion. The second informant’s statement was therefore also an admission against pecuniary interest, an exception to the hearsay rule even in those jurisdictions that do not recognize admissions against penal interest as an exception. Chambers v. Mississippi, 410 U.S. 284, 289, 93 S.Ct. 1038, 35 L.Ed.2d 297.

      . See note 4, supra.

      . Through an offer of proof made at the ensuing trial, during defendant’s case his counsel stated that if Hussey had been allowed to testify with respect to the background of T. W. Allen, he would have testified that Allen had been convicted of two felonies, viz., a federal conspiracy to possess stolen checks and a state deceptive practice charge.
      In requesting the trial court to reconsider its ruling on the motion to suppress, defense counsel later stated that he had learned that J. B. Floyd was acquitted in June 1969 in a case in which T. W. Allen was the person who led to Floyd’s arrest.

      . See also King v. United States, 282 F.2d 398 (4th Cir. 1960); Jackson v. United States, 118 U.S.App.D.C. 341, 336 F.2d 579, 586 (1964); United States v. Ramos, 380 F.2d 717 (2d Cir. 1967); United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972); cf. United States v. Gillette, 383 F.2d 843, 847 (2d Cir. 1967). United States v. Hockenberry, 474 F.2d 247, 248 (3d Cir. 1973), on which defense counsel has relied under Circuit Rule 29, deals with a defendant’s grand jury admissions of giving false statements in support of search warrants and is really not germane to the problem before us.

      . Indeed, Professor Forkosch has recently argued that upon a preliminary showing of falsehood or other imposition on a magistrate, a person has a Fourth Amendment right to challenge the truthfulness and credibility of an affiant subscribing to the papers supporting an arrest warrant. Forkosch, “The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued Under the Fourth Amendment,” 34 Ohio St. L.J. 297, 314, 328, 340 (1973). The present opinion is not based on constitutional grounds, for defendant has not urged such a right and it is unnecessary so to hold.

      . Commentary on Section SS 290.3(1) of A.L.I. Model Code for Pre-arraignment Procedure, Official Draft No. 1 (July 15, 1972), p. 224.

      . This Section provides :

        “Challenge to Evidence of Reasonable Cause (1) Contesting Evidence for Issuance of Warrant.
      (a) Subject to the provisions of paragraph (b), in any proceeding on a motion to suppress evidence seized by authority of a search warrant, or incidental to an arrest made by authority of an arrest warrant, the moving party shall be entitled to contest, by cross-examination or offering evidence, the good faith of any testimony presented to the issuing authority and relied on to establish reasonable cause for issuance of the warrant.
      “(b) The moving party shall be allowed to make the contest authorized in paragraph (a) only upon preliminary motion, supported by affidavit, setting forth substantial basis for questioning the good faith of the testimony, and such party shall have the burden of proving the lack of good faith.”

      . The element of “pecuniary interest” is a fragile base for sustaining the idea of trustworthiness, even if the statement of the second informant could establish his tortious conversion; and a more fragile base against the pecuniary interest of Carmichael, who has not been identified by' the majority as the second informant.

      . The admission in Harris was made to the affiant, a “federal tax investigator,” not to another informer, as in the case before us, who then told Hussey.

      . The en banc majority, in footnote 8 on page 986 of its opinion, states “from the trial testimony it seems that Carmichael was the second informer.” No additional testimony was given to the issuing magistrate to supplement the Hussey affidavit, and subsequent testimony at the suppression hearing or at trial could not rehabilitate the affidavit. We have frequently noted that the quality of an affidavit must he judged as of the time of issuance.

      . Moore’s Federal Practice, Proposed Rules of Evidence 148 (Temp.Pamph.1973.)


source: Caselaw Access Project

author: ALDISERT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Russell Davis MEALEY, Jr., Appellant, v. The STATE OF DELAWARE.
    No. 73-1412.
    United States Court of Appeals, Third Circuit.
    Submitted Oct. 29, 1973.
    Decided Jan. 2, 1974.
    See also, D.C., 352 F.Supp. 349.
    Richard W. Pell, Tybout, Redfearn & Schnee, Wilmington, Del., for appellant.
    Francis A. Reardon, Deputy Atty. Gen., Dept, of Justice, Wilmington, Del., for appellee.
    Before HASTIE, ALDISERT and WEIS, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal presents the question whether impermissible photographic identification testimony which infringed appellant's due process rights in a state criminal proceeding constituted harmless error beyond a reasonable doubt. The district court found “that the properly admitted evidence of Mealey’s guilt was so overwhelming, and the prejudicial effect of the victim’s identification of him was so insignificant by comparison that it is not reasonably possible that the improperly admitted evidence contributed to his conviction.”

Following a jury trial in a Delaware State Court, Mealey was convicted on the charge of raping a seventy-six year old woman, and because the jury did not recommend mercy, he was given a life sentence as required by Delaware law, 11 Del.Code Ann. § 781. The conviction was affirmed by the Delaware Supreme Court in an unreported opinion in Mealey v. State of Delaware, No. 183, 1970 (1971). Thereafter appellant petitioned the district court for a writ of habeas corpus. An evidentiary hearing was held; the district court denied relief ; and this appeal followed.

The relevant legal and constitutional principles are not in dispute. The sole question is the application of those principles to the evidence adduced at trial. This evidence disclosed that Mealey had a comprehension in reading, spelling and arithmetic between the second and third grade, in the opinion of a psychologist, “a mentally defective range” for a twenty year old. On September 17, 1969, he was with a group of other youths drinking and carousing in the vicinity of the residence of Mrs. Viola Sanderson, the victim. There was testimony that Meal-ey had drunk three six packs of beer and a fifth of whiskey in the twelve hours preceding the incident.

At approximately 3:00 a. m. Mrs. Sanderson was beaten and raped in her home by an assailant who had gained entry through a previously broken window. A neighbor testified that at 2:45 a. m. she “heard all this commotion” and saw the appellant and three other youths “Luther Payne, Larry Blevins, Richard Morgan (the victim’s son), they were all out in front of this house. . ” “From my house, see, I can’t see Mrs. Sanderson’s entrance or anything of her property and it’s tall weeds there to the side . . . they were kind of wrestling around, you know, and loud talking. And then all four of them went in Mrs. Grants’ (a neighbor of the victim) house.”

We agree with the Delaware Supreme Court and the district court that the state had a “strong case” of circumstantial evidence connecting Mealey to the crime: the victim testified that her assailant had a portable radio; witness Sanders testified that he owned a portable radio and had possession of it that evening when Mealey and another entered his car, and that after they left his car between 11:30 p. m. and 12:30 a. m., his radio was missing; Mealey was seen at a time between 3:00 and 3:30 a. m. with a portable radio; his mother testified that upon his return home at 3:45 a. m. he was carrying a portable radio. The victim said the assailant wore black trousers; separate witnesses saw Mealey wearing black trousers at 2:45 and between 3:00 and 3:30 a. m. as did his mother when he returned home; and at the time of police questioning, Mealey was wearing black gabardine trousers.

Following interrogation by the police, Mealey admitted he had broken into a neighborhood delicatessen, stealing eight plastic lighters and two watches and that he was the owner of a British shilling coin with a hole in it. The police found a British shilling with a hole in it outside the victim’s house. In the victim’s bedroom the police found four plastic cigarette lighters and two copies of a motor vehicle warrant bearing Mealey’s name.

The state offered evidence that police found three or four grey hairs about a foot in length on Mealey’s trousers. There was no proof of similarity between the victim’s hair and the hairs found on Mealey. Police found that Mealey’s white undershorts were stained with a reddish substance. There was no proof that the stains were blood.

We now turn to the identification evidence as described by the habeas court:

During the trial the victim of the assault either could not or would not identify Mealey, who was in the courtroom. Thereafter, photographs of six men were exhibited to her by the prosecution. One strikingly differentiated Mealey from the other five. From these photographs the victim identified Mealey as her assailant. The Delaware Supreme Court held that this “procedure was error,” but that:

“ [W] e think the error here was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although improper, the identification was merely cumulative of the State’s already very strong case. We reach this conclusion because of the overwhelming evidence otherwise produced by the State connecting Mealey to the crime in question.”

356 F.Supp. at 477-478.

The district court found the photographic identification procedure “was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), but agreed with the Delaware court that the introduction of this evidence was harmless error, relying upon three Supreme Court cases: Chapman, supra; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). In all three of these cases the Supreme Court had to determine whether constitutional error was harmless.

In Chapman, supra, the Court held that “before a federal constitutional error can be harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. at 828. In Harrington, supra, the Court concluded that its judgment on the existence vel non of harmless constitutional error would be based on its own reading of the record and on what seemed to it to have been the probable impact of the improper evidence on the jury. Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340, instructs us to balance the evidence properly admitted against that improperly admitted; and that if “the properly admitted evidence of guilt is so overwhelming, and the prejudical effect of the [improperly admitted evidence] is so insignificant by comparison,” then the conclusion is warranted that the improperly admitted evidence was harmless error. See, Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

Based upon our review of the record, we are persuaded that there was sufficient circumstantial evidence to establish Mealey’s presence in the victim’s house, if not her bedroom, sometime on the night of the crime. However, part of this same evidence placed Mealey, not alone, but with three friends, including the victim’s son, in the vicinity of the victim’s house only fifteen minutes before the rape. Mrs. Buckman, the witness who saw and heard this group, was certain of the time because she “looked at . [her] cuckoo clock on the wall.”

Moreover, the only specific evidence that ties Mealey to the crime of rape is (1) he wore black trousers, (2) he had reddish stains on his undershorts, and (3) he had three or four grey hairs on his trousers. There was no proof that Mealey was the only one of the four youths wearing black pants. There was no proof that his undershorts bore the victim’s blood or that the specific grey hairs found on his person were of like substance, texture, color and length of the victim’s hair.

This is not to say that the accumulation of this evidence would not have supported a verdict of rape under Delaware law. It is to say, however, that the judiciary must be scrupulous in evaluating the probable impact of the identification testimony on the jury’s decisions (1) to return a verdict of guilty, and (2) not to recommend mercy, which mandates a life sentence under Delaware law.

“The vagaries of eyewitness testimony are well-known. . . .” We have previously recorded the observation that “the major cause of wrongful convictions is not the use of confessions, but the use of eye-witness identifications,” and have said:

Eye-witness identification testimony . . . is an expression of a belief or impression by the witness. If there is a high degree of precision and certainty in his expression, which is consistent with any prior statements and unshaken on cross-examination, the statement of the witness may be regarded as a statement of fact. If certainty is lacking, the expression is deemed to possess an evidentiary quality of inferior rank.

United States v. Barber, supra, 442 F.2d at 527.

The same considerations which impelled our grave concern for jury instructions on eye-witness identification must not be minimized nor neglected when we balance proper circumstantial evidence and improper identification evidence in the determination of harmless error presented in constitutional issues.

It is to ignore, if not to defy, the probabilities of human experience if we fail to appreciate that jurors are appalled at the recitation of clinical details of sexual attacks from the lips of victims; Any of us, possessed with the most elemental feelings of sensitivity, has a natural desire to extend sympathetic attention to innocent victims of such heinous crimes; consequently, there is a concomitant tendency to place great reliance upon the victim’s description of details of the attack. Such inclinations are but symptomatic of predictable normal human behavior.

We do not suggest that there be a diminution of the value of such eye-witness accounts or of the respect to be accorded such testimony. Consideration of properly admitted direct evidence, tested in the crucible of the adversaiy process in open court, is the one great organon of the factfinder in its quest for the truth. But the very respectability of such direct evidence, especially identification testimony proffered by the victim of a heinous crime, requires that safeguards be interposed so that such evidence does not completely inundate and engulf other competent, relevant, and material items of evidence which compete for the factfinder’s attention.

Thus, we have established rules of evidence — some imposed by substantive law, others mandated by the Constitution — that evidence not only be relevant and material, but also competent. Two distinguished courts, the Delaware Supreme Court and the United States District Court for that state, have ruled that the testimony of the victim identifying her assailant did not meet the federal constitutional test of competency. But sound principles of justice do not stop with that determination. Roscoe Pound would remind us that we are not bound by principles of mechanical jurisprudence: “The sociological movement in jurispurdence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument.”

Accordingly, the Supreme Court has ruled that the mere fact that illegal evidence has been admitted does not necessarily infect the entire proceedings, Schneble, supra, and that if a court can determine that “the prejudicial effect of it is insignificant by comparison” with other properly admitted evidence, then we should not disturb the verdict.

Admittedly, striking this balance is a subjective judgment. Admittedly this requires us, in Pound’s phrase, to put “the human factor in the central place.”

So guided, we find that we cannot, as a matter of law, say that the Delaware jury in this case, composed of a reasonable cross section of the community, representative of the vicinage, possessed of all the sensibilities, compassion and sympathetic understanding of the plight of the elderly victim of a henious sexual assault, did not place undue importance on her identification testimony. We cannot say that the dramatic eye-witness testimony was “so insignificant by comparison” as to call into play the harmless error rule. So balancing the evidence, we conclude that “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. ”

The judgment of the district court will be reversed, and the proceedings remanded with a direction to grant the writ of habeas corpus unless the State of Delaware, within a reasonable time, grants a new trial on the indictment.

      . United States ex rel. Mealey v. Delaware, 356 F.Supp. 473 (D.Del.1973).

      . Mealey was also convicted of breaking and entering under 11 Del.Code Ann. § 397 and sentenced to a concurrent term of three years imprisonment.

      . Pursuant to an opinion reported in 352 F. Supp. 349 (D.Del.1972), the district court held an evidentiary hearing on the issue of appellant’s waiver of rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, in its opinion reported in 356 F.Supp. 473, 477 (D. Del.1973), the district court found that “[o]n the basis of the State Court record and the testimony at the hearing before [it] . . . Mealey was competent to knowingly and intelligently waive both his right to remain silent and his right to an attorney, and that he did so.” For the reasons set forth in the district court’s opinion, 356 F.Supp. 473, 475-477, we will not disturb this finding.

      . The Delaware Supreme Court stated that Mealey was depicted as a white man; the five others were “black men.” The district court stated “Mealey appears to be a light complected Negro or at least a non-Caucasian.” 356 F.Supp. at 477 n.l.

      . At trial Mrs. Sanderson identified at least one and possibly two other photographs as resembling her assailant before selecting Mealey’s photograph. Mealey’s photograph became state’s exhibit 7A and was referred to by the state in its closing arguments.
      Mrs. Sanderson was also asked if her assailant was in the courtroom. Her wheelchair was placed directly in front of the defendant and she was unable to identify him. The court stated, “See if she can make identification by asking her again.”
      Q. This person, if you saw him, would you know him?
      A. Yes, I think I would know him.
      Q. Do you know if he is in the courtroom?
      A. I don’t know. I didn’t — he ain’t in here, is he?
      Although there was discussion about obtaining a pair of glasses for her, the prosecution did not follow through with its third attempt at courtroom identification. The court later observed: “She was never asked when she got her glasses if she could make another identification.”

      . Since Mealey contends that his right to due process of law was violated by this identification procedure, the federal, not state, harmless error rule is applicable. See Chapman, supra, 386 U.S. at 21, 87 S.Ct. 824.

      . Although Mrs. Sanderson testified that her assailant came into the bedroom “by himself,” this does not inexorably lead to the conclusion that this assailant was Mealey. In addition to problems of identification in the courtroom, she had difficulties in describing what she saw that night. For example, Mrs. Sanderson initially testified that she did not see anything in her assailant’s hand. Yet, she later testified that he had a portable radio. The importance of the portable radio testimony has already been emphasized.

      . Mrs. Buckman, the witness who had seen the group at 2:45 a. m., was among those who testified that Mealey wore dark pants. However, she was able to describe only the shirt (white) of one of the other three youths and she was unable to describe in any way the attire of the remaining two.

      . Neither the hairs nor the shorts were introduced into evidence; instead, detectives testified that these matters were on the defendant’s person when he was searched at police headquarters. It also appears that these items were not submitted for scientific testing, although one detective admitted that such tests could have been performed.

      . United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967).

      . United States v. Barber, 442 F.2d 517, 526 n.9, citing The Dimensions of Eyewitness Identification Cases, 42 U.Colo.L.Rev. 135 (1970).

      . Opinion of any kind is a poor quality ol evidence, and where admissible at all it is only so because it is the best that is available.

      . Pound, Mechanical Jurisprudence, 8 Colo.L.Rev. 605, 609-10 (1908).

      . This is especially true since the victim was in a wheelchair at trial and testified that she was “beat up so much” she was unable to see out of one eye.

      . Schneble, supra, 405 U.S. at 432, 92 S.Ct. at 1060.


author: STEVENS, Circuit Judge.

text:
    Henry ROTA, Individually and for other members of Victory Lodge 2151 of the Brotherhood of Railway, Airline and Steamship Clerks, et al., Plaintiffs-Appellants, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS et al., Defendants-Appellees.
    No. 73-1030.
    United States Court of Appeals, Seventh Circuit.
    Argued May 23, 1973.
    Decided Oct. 1, 1973.
    Certiorari Denied Jan. 14, 1974.
    Stee 94 S.Ct. 896.
    See also, 338 F.Supp. 1176.
    Shayle P. Fox, Chicago, 111., Morris H. Wolff, Philadelphia, Pa., Jeffrey S. Goldman, Chicago, 111., for plaintiffs-appellants.
    Solomon I. Hirsh, Chicago, 111., James L. Highsaw, Washington, D. C., for defendants-appellees.

      Before CLARK, Associate Justice, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.

       The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, retired, is sitting by designation.

   STEVENS, Circuit Judge.

Plaintiffs challenge a ruling by the president of the Brotherhood of Railway, Airline and Steamship Clerks that a dues increase from $5.50 to $11.00 had been approved by the 1,235 delegates to a regular Union Convention on May 28, 1971. The district court entered summary judgment for defendants, holding that the undisputed facts showed that the increase had been approved by a majority vote as required by § 101(a) (3) (B) (I) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. § 411(a) (3) (B) (i), and that the question whether the two-thirds requirement in the Union Constitution had been met related only to internal Union affairs which a federal court has no power to review. We believe there is sufficient confusion in the record on the question whether a majority voted in favor of the increase to preclude the entry of summary judgment.

The Convention was attended by 1,235 delegates representing about 200,000 Union members. The Union Constitution, which could be amended at a regular Convention by a two-thirds vote of the delegates present and voting, specified minimum monthly dues of $5.50 per member. In advance of the 1971 Convention, a number of proposals for increasing the dues were mailed to the delegates.

At the opening session of the Convention on Monday, May 24, 1971, procedural rules were adopted, and various matters, including the subject of a dues increase, were referred to appropriate committees. On Friday afternoon the Convention Committee on Grand Lodge Constitution and Laws made its report, recommending an increase in dues to $10.00 effective July 1, 1971, and to $12.00 effective July 1, 1973, with a specified allocation among local lodges, system boards, and the Grand Lodge. Opposition to the allocation, to the amount of the increase, and to the two-step procedure developed. After a number of amendments were proposed, the subject was resubmitted to the Laws Committee for further consideration.

At the evening session the Committee submitted a report recommending an increase to $11.00 effective July 1, 1971. Again opposition developed on the floor of the Convention; amendments were proposed and either voted down or rejected for procedural reasons. The Chairman spoke in favor of the increase, gave other delegates an opportunity to speak for and against, and then called for a vote. The transcript of the proceedings then reflects the following:

We will now vote on the Committee’s report, and the Committee’s report was that the dues shall be $11.00 and the Grand Lodge portion would be $4.20 a month; the System Board portion $4.20; and the Local Lodge portion $2.60, with the understanding, as I stated previously, any General Chairman who thinks he does not need that much money can write in and get forgiveness from the International President.

Are you ready to vote ?

. Calls for the question

INTERNATIONAL PRESIDENT DENNIS: Those in favor of the Committee’s report please raise your right hands. Down hands. Those opposed.

Well, let’s see if we can see a little better by a standing vote. Those in favor of the Committee’s report please rise.

. Those in favor of the motion arose .

INTERNATIONAL PRESIDENT DENNIS: Everybody rise who is in favor of the Committee’s report, and we will have the Tellers tabulate their particular tables. It looks to me like we have two thirds.

Cries of “Oh” and applause ....

INTERNATIONAL PRESIDENT DENNIS: This is the Committee’s amended report. You see, the TC Division over on this side of the house only has a half a vote.

Cries of “Roll call ft

INTERNATIONAL PRESIDENT DENNIS: And I will bet my right arm that there’s two thirds of the Delegates standing.

Cries of “No” and “Roll call” . . .

INTERNATIONAL PRESIDENT DENNIS: Now we are not going to gain anything by a lot of hollering. I will do what this Convention wants me to do. I am trying to be fair and honest about this thing. I could very easily say that this is a two-thirds vote.

So now, if anybody wants to get a little rough with the Chair, the Chair in turn will get a little rough with them. (Applause)

Now, I have tried to be considerate. (Applause)

I now declare we have a two-thirds vote standing. (Applause and cheers) And this is the ruling of the Chair. (Applause and cheers)

DELEGATE TOPPEN: Committee Report No. 5, page 4, Resolution No. 7, page 4.

DELEGATE F. M. SHEAHAN (TC Division 1): Mr. Chairman. Mr. Chairman.

INTERNATIONAL PRESIDENT DENNIS: What is the problem ?

DELEGATE SHEAHAN: Point of privilege.

INTERNATIONAL PRESIDENT DENNIS: State it.

DELEGATE SHEAHAN: I have a point of privilege.

INTERNATIONAL PRESIDENT DENNIS: State your point.

DELEGATE SHEAHAN: I wish to challenge the Chair on the vote. (Applause and cheers)

DELEGATE JOAN D. BRDA (Lodge 36): I second the motion. (Applause)

INTERNATIONAL PRESIDENT DENNIS: All right. If two-thirds of the Delegates challenge the decision of the Chair, we will then have a roll call vote. (Applause)

Now, those delegates who wish to challenge the decision of the Chair please rise.

. Those who wished to challenge the decision of the Chair arose

INTERNATIONAL PRESIDENT DENNIS: That is not two-thirds of the house. (Applause and cheers)

The decision of the Chair stands.

A - few minutes later another delegate challenged the action of the President for not vacating the chair when the vote had been challenged.

INTERNATIONAL PRESIDENT DENNIS: Mike 2.

DELEGATE VICTOR F. LAGON-IA (TC Division 17): Mr. President, a point of information. The delegate from the Canadian division appealed the decision of the president. Should not the president vacate the Chair and have some one other than him make another decision of the same one?

INTERNATIONAL PRESIDENT DENNIS: If I would have a two-thirds vote sustaining that delegate, I would have relinquished the Chair.

DELEGATE LAGONIA: You made the two-thirds decision twice.

INTERNATIONAL PRESIDENT DENNIS: Yes. And that stands.

DELEGATE LAGONIA: Well, I do not think that is according to Robert’s rules.

INTERNATIONAL PRESIDENT DENNIS: Well, I think it is according to our convention rules, Brother. And our Convention rules prevail, except where we have no rule to cover, and then we go to Robert’s.

The record of the Convention proceedings does not disclose any attempt to ascertain the actual count of votes. The first vote on the dues increase was by a show of hands and the second by a standing vote. Apparently in both instances the chair made the determination, without the assistance of tellers, that the motion had carried. He also rejected the appeal from his decision on the basis of his own determination that the show of hands did not represent a two-thirds vote. The reliability of his determination may reasonably be questioned because he was an advocate of the increase, because a visual scan of over 1,000 persons in a large hall is imprecise at best and, in addition, because the votes of many delegates were weighted.

After the Convention adjourned, 165 delegates “requested the International President to have their names recorded against the dues increase for many and varied reasons.” The significance of this request is unclear.

On June 21, 1971, plaintiffs, suing on behalf of “similarly situated” Union members, commenced this action in the United States District Court for the Eastern District of Pennsylvania. That court, 338 F.Supp. 1176, held that an amended complaint attacking the dues increase stated a cause of action, but that venue was improper. The case was therefore transferred to the Northern District of Illinois where defendants’ motion for summary judgment was granted.

The record includes the pleadings, the printed transcript of the Convention Proceedings, and various affidavits. The amended complaint challenges both the Convention procedures and the results of the vote on the dues increase. It alleges in paragraph seven:

“d) The membership of Victory Lodge 2151 was clearly opposed to such a drastic increase in dues, as was the majority of BRAC members who make up the class of plaintiffs in this action. A majority of the delegates also clearly opposed a dues increase of 100%. Chairman Dennis, however, was on record throughout the convention as being in favor of the dues increase. Chairman Dennis furthermore improperly induced certain Canadian delegates to vote in favor of the increase.
“e) Chairman Dennis refused to conduct a roll-call vote of the delegates on the issue of the dues increase despite repeated requests from the delegates that a roll-call vote on this important issue be taken. Even in the standing vote of the delegates which Chairman Dennis purported to conduct, which could not reflect the true voting powers of the delegates, considerably less than two-thirds of the delegates voted in favor, as required at the very least by the BRAC constitution. Instead, Chairman Dennis used threats and intimidations from the chair in an effort to silence debate and dissent and then ‘gavelled through’ the matter without any effort to determine by written ballot or roll call where each delegate stood on this closely contested issue, or to accurately determine the actual vote of the convention.”

The affidavits filed with plaintiffs’ opposition to defendants’ motion for summary judgment, when read with the printed record of Convention Proceedings, raise a factual question as to whether the dues increase was passed by a weighted vote of a majority of the delegates. Thus, the McCann affidavit stated, in part:

“The next motion was to raise the dues a flat $5.00 [sic] effective July 1. There was a discussion on the floor. The Canadian delegates bringing up the issue of a competitive union in their vicinity and explaining they would lose members. Brother Dennis informed them there would be an adjustment made in their locality so they need not be concerned. These Canadian delegates were still permitted to vote, although they were previously informed they would not be affected.
“The first vote was raising of hands. From my position I ascertained the vote as approximately fifty-fifty. Brother Dennis ruled the motion was passed. There was much groaning and dissension among the delegates.
“The next vote was taken by the delegates standing up from their seats.
“My observation was that about the same delegates that raised their hands pro and against now stood and sat down. I again estimated about fifty-fifty.
“Brother Dennis spent a minute or two looking around and again ruled the motion passed and the dues were raised $5.00 additional.
“Again there was much dissension from the floor and protests registered. Brother Dennis ruled the motion stood as the chair ruled.
“Many delegates walked out in disgust.
“In fact, the issue was brought up again the following day and ruled out of order irritating Brother Dennis very much.
“Inasmuch as delegates had varied voting strength, depending on the size of the Lodge or Lodges, they represented, it would be literally impossible to accurately determine the exact voting power exercised either way by the method used.
“All I can determine is that about half the delegates stood for the raise and about half the delegates stood against the raise. This was my own estimate from my vantage point in the rear of the auditorium.” A.48-49.

The Browne affidavit states:

“I do not believe it was a simple majority let alone a Two Thirds Majority as required by our constitution, therefore I felt and still feel that a roll call vote should have been taken.” A.120.

The affidavit of W. B. Winchester states, in part:

“I was present and on the floor at the time the vote for a 100% dues increase was taken, it would raise the minimum dues from $5.50 to $11.00 per month. I was shocked at the high-handed and unfair procedures which took place.
“The Chairman asked those in favor of the committee’s report to please raise their right hand. There were only a few hands raised, not nearly half of the room raised their hands in favor of the dues increase. He then asked for those who were opposed to raise their right hands and more than % of the delegates in the room raised their right hands. Chairman Dennis, at this point, saw that the dues increase was lost and immediately called for a standing vote to see if he could determine a little better how the vote went. He asked for those in favor of the committee’s report to rise. Only a small percentage of the delegates rose. He then asked for the delegates in favor of the committee’s report to rise and ‘we will have the tellers tabulate their particular tables’ and stated ‘it looks to me like we have %rds’. The tellers did not tabulate the delegates at each table because immediately Mr. Dennis and his parliamentarian discussed this procedure and both of them realized that a tabulation of each table would be about the same as a roll-call vote.
******
“I was seated in a part of the room where I had a good opportunity to observe the procedures used in taking the vote and to see for myself how the delegates voted. I heard Chairman Dennis claim that a two-thirds majority had been obtained in support of the dues increase. This was just not so, and I was deeply disturbed by the Chairman suggesting that such a majority had been obtained. Immediately after the vote, I cheeked with the other members who were at the Convention and asked their opinion as to whether there was any possibility that I had misread the vote. The feelings of those with whom I spoke was almost unanimous that a two-thirds majority and possibly not even a simple majority was received in support of the dues increase. Chairman Dennis knows, to be truthful, that he did not receive the majority of the- vote, I know it, and all those who were delegates at the Convention know it; . . . ” A.132-134.

The affidavits submitted by plaintiffs are sufficient to raise a question of fact as to whether the dues increase was carried by a majority vote. Although the plaintiffs’ attack in the district court focused primarily on the alleged shortcomings in Convention procedures, together with the claim that there was substantial reason to doubt that the two-thirds vote required by the constitution was obtained, we think it was error to interpret plaintiffs’ position as, in effect, conceding that a majority vote favored the dues increase. Plaintiffs’ allegations and affidavits were sufficient to require defendants to demonstrate unambiguously that the requirement of the federal statute had been satisfied.

There is, of course, a general national policy against judicial interference in the internal affairs of unions. See Calhoun v. Harvey, 379 U.S. 134, 145, 85 S.Ct. 292, 13 L.Ed.2d 190 (Mr. Justice Stewart concurring); Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964). But that general policy is subject to important exception in specific areas in which Congress has found that the interests of individual members need special protection against the danger of overreaching by entrenched union leadership. The subject of dues increases is such an area.

Congress has specifically required a secret ballot procedure for local labor organizations and, with respect to national or international organizations, a majority vote at a regular convention, or a majority vote at a special convention held with adequate notice of the dues increase issue. The statute does not undertake to specify the procedures that must be followed in voting on a dues increase. Necessarily, however, the word “vote” connotes a fairly determined expression of the will of the union membership and a reliable and accurate count thereof. Since Congress has deemed the subject of dues increases sufficiently important to require statutory controls, it is also sufficiently important to require the union to demonstrate unambiguously that the statutory requirement has been met.

Since the record of the Convention proceedings fails to demonstrate that the majority vote requirement of § 101(a)(3)(B) of the Act was satisfied, that issue must be resolved by trial.

Plaintiffs have raised additional issues which we need not decide. Assuming the statutory requirement of a majority vote has been satisfied, the question whether the Union constitution has been breached raises issues of state law. Under the doctrine of pendent jurisdiction, there is no doubt'that the federal district court would have power to decide such issues and, if appropriate, to grant relief. United Mineworkers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218. But whether the district court should exercise that power is another question which should be addressed by that court in the first instance. We merely decide that it was error to enter summary judgment. After the actual weighted vote has been determined, it will be time to face whatever issues may remain for decision.

“Except in the case of a federation of national or international labor organizations, the rates of dues and initiation fees payable by members of any labor organization in effect on September 14, 1959, shall not be increased, and no general or special assessment shall be levied upon such members, except—
sfc sj? % % sfr
“(B) in the case of a labor organization, other than a local labor organization or a federation of national or international labor organizations, (i) by majority vote of the delegates voting at a regular convention, or at a special convention of such labor organization held upon not less than thirty days’ written notice to the principal office of each local or constituent labor organization entitled to such notice.

Reversed and remanded.

      . Rule 14 covered the procedure for voting by delegates:
      “Rule 14. (A) The manner of voting shall be either by voice or a showing of hands at the option of the Chair. If the Chair is in doubt, he shall call for a division by a standing vote.
      “(B) A roll call vote (a vote by each delegate in accordance with his voting strength as shown on his credential) may be ordered by the Chair or upon the request of a two.-thirds [sic] of the delegates present and voting provided this is done before any other business is taken up by the Convention. Once a roll call vote is ordered by the presiding officer, no recess shall take place nor shall any delegate be permitted to leave the hall until the result of the vote has been announced. The roll call list shall be the list of delegates present at the time roll is ordered as reflected in the most current report of the Committee on Credentials.” Brief for Appellants at 9.

      . Proceedings of the 24th Regular and Tenth Quadrennial Convention of the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees Held at Miami Beach, Florida Fon-tainebleu Hotel Friday and Saturday, May 28, 29, 1971, pages 303-304.

      . Proceedings, pages 304-305.

      . In its Memorandum Opinion and Order the district court stated: “Plaintiffs do not contend that the challenged increase was not approved by a majority vote of the delegates voting.” A. 138.

      . See Wirtz v. Bottleblowers Assn., 389 U.S. 463, 473, 475, 88 S.Ct. 643, 19 L.Ed.2d 705; Hall v. Cole, 412 U.S. 1, 8-9, 14, 93 S.Ct. 1943, 1948, 1950, 36 L.Ed.2d 702 (May 21, 1973).

      . See 29 U.S.C. § 411(a) (3) (A).

      . The fact that plaintiffs had filed their own motion for summary judgment is not inconsistent with the position that there are genuine factual issues. See M. Snower & Co. v. United States, 140 F.2d 367, 369-371 (7th Cir. 1944); Begnaud v. White, 170 F.2d 323, 327 (6th Cir. 1948).

      . We assume that most of the critical facts can readily be developed by appropriate discovery and stipulations, under the supervision of the district court, and that the trial need not include the testimony of 1,235 witnesses.

      . The relevant portion of the statute provides :


author: MURRAH, Senior Circuit Judge.

text:
    UNITED STATES of America, for the Use and Benefit of MATERIAL SERVICE DIVISION OF GENERAL DYNAMICS CORPORATION, Plaintiff-Appellant, v. The HOME INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 72-1435.
    United States Cburt of Appeals, Seventh Circuit.
    Argued April 20, 1973.
    Decided Nov. 8, 1973.

      Harry M. Coven, Howard M. Turner, Chicago, 111., for plaintiff-appellant.
    Jesse H. Brown, Chicago, 111., Harry M. Brostoff, Oak Brook, 111., for defendants-appellees.
    Before HASTINGS and MURRAH , Senior Circuit Judges, and PELL, Circuit Judge.

       The Honorable Alfred P. Murrah, Senior Circuit Judge of the Tenth Circuit, is sitting by designation.

   MURRAH, Senior Circuit Judge.

This is an appeal from an order dismissing a Miller Act claim ***by a materialman against a general contractor and its statutory surety on the ground that the suit was not commenced within the prescribed one-year period. The Act requires the- giving of written notice within 90 days and the commencement of the suit within one year of the date when the last materials were supplied. The statute is remedial and to be liberally construed, but the giving of notice and bringing of suit within the prescribed time is a condition precedent to the right to maintain the action.

The uncontroverted facts are that Pathman Construction Company, general contractor on a federal housing project at Fort Sheridan, Illinois, subcontracted the installation of gypsum wallboard for the project to Tri-State Drywall Corporation, and Tri-State contracted to purchase the wallboard from Material Service. Under the terms of the oral agreement, Material Service was to deliver the wallboard inside the buildings under construction. Most of the wallboard was carried by rail to the railroad siding at Fort Sheridan, unloaded there by a Material Service subcontractor, and by it delivered inside the buildings at the job site. If structures were not ready for delivery, the wallboard was stored temporarily near the railroad siding and delivered as needed.

In the fall of 1966 Tri-State abandoned the Fort Sheridan project, and its Pathman subcontract, without having fully paid Material Service for the wallboard delivered. This suit was commenced after extended but unsuccessful negotiations with Pathman over the unpaid balance.

The complaint specifically alleged that the materials were sold and delivered to Tri-State between March 25 and November 21, 1966, that written notice was given to the contractor within 90 days of the delivery of materials, as provided by § 270b(a), and that the suit was brought within one year. The contractor and the surety answered separately, admitting the demand but generally denying liability. Detailed interrogatories were propounded and answered, but unfortunately no definitive pretrial order emerged, and the case came on for trial on the issues framed by the complaint and general denials.

Apparently in support of the aver-ments of its complaint, Material Service introduced copies of two registered letters to the contractor. The first letter, dated November 2, received November 3, transmitted an itemized statement as of September 30, 1966, “setting forth total drywall material deliveries to the subject project,” and the amounts received, with a balance due of $46,445.94. The letter specifically stated that it was being transmitted in accordance with the requirements of the Miller Act. The second letter, dated the following December 8, transmitted an itemized statement as of November 30, 1966, listing undated invoices of “all dry-wall material delivered” by Material Service in the execution of its contract. The November 30 statement transmitted in the December 8 letter brought forward all of the invoices listed in the November 2 letter and only added an invoice for $2,359.29 for one carload of material not previously billed, leaving a new balance of $48,805.23. Suit was brought on November 13, 1967, a year and 11 days after the November 2 Miller Act notice, but within a year of the December 8 Miller Act notice transmitting the November 30 statement.

Treating the letters and the statements as the measure of the time of delivery of materials for purposes of the one-year statutory requirement, the trial court specifically found that the letter and statement of November 2 showed an unpaid balance for “materials previously delivered to the project,” and that the last delivery of material was consequently prior to November 2, 1966 — more than a year before suit was filed. Apparently referring to the December 8 letter, the court found that the added invoice (M-17489) was “an earlier invoice inadvertently omitted [and] later included,” and that none of the listed invoices tended to show the delivery of any material subsequent to November 2. The court also referred to a certified statement of December 9, not formally introduced but read into evidence and relied upon by both parties. This statement lists all of the invoices contained in the December 8 letter and bears a notarized certification by the president of TriState that “the above listed invoices represent material delivered to the Path-man Job.” As to this instrument, the trial court observed that “said Affidavit could only have been based on knowledge on or prior to October 28, 1966,” the date on which the court found that TriState abandoned the project, and that it therefore confirmed the correctness of the statements contained in the November 2 letter. The court thus found the proof insufficient to establish the one-year jurisdictional requirement of the Miller Act, and the case was consequently dismissed.

Material Service introduced but never relied on the November 2 letter as truly reflecting the delivery dates of the material set forth in the itemized statements. On trial the writer of the Miller Act letters did not deny the correctness of the statements included therein, but testified that he sent the November 2 letter under the mistaken impression that the materials were being delivered inside the buildings at the job site without delay, and that he did not know that “a substantial amount” of the materials were being stored at the track siding to be delivered later as needed. The record shows, however, that the December 8 letter was written after investigation and with knowledge of the true facts. Indeed, Material Service now relies -on the statements contained in that letter, certified by the president of Tri-State on December 9, as a receipt or acknowledgment of materials supplied on that date. As a matter of fact, neither the letters nor any of the statements purport to show the actual delivery dates of any of the materials covered by the invoices listed therein. None of the listed invoices in any of the statements bear dates indicating delivery of material covered thereby. The most that can be said is that they constitute an acknowledgment by Material Service and the president of Tri-State that the materials covered in the statements were considered delivered prior to the dates of the statements. And, insomuch as the December 8 letter did not reflect the delivery of any material subsequent to November 2, the trial court found that the last date of delivery was sometime prior to that date.

The essence of the contention on appeal is that we should now disregard the allegations of the complaint and the acknowledgment of delivery dates in both Miller Act letters and the billing dates set forth in the itemized statements, relied upon by Material Service at trial, and decide the lawsuit on a theory first asserted on appeal, to the effect that the last delivery was in March, 1967, and that by some legerdemain it relates back to the December 9 certified statement that the materials had been previously delivered.

Material Service is entitled to have its lawsuit considered and decided on the basis of its pleadings and proof. See, e. g., Kansas City, St. L. & C. R. Co. v. Alton R. Co., 124 F.2d 780, 783 (7th Cir. 1941). See also, e. g., Hillyer v. Pan American Petroleum Corporation, 348 F.2d 613, 615 (10th Cir. 1965). If the proof varies from the pleadings it is entitled to amend the pleadings to conform to the proof. See Fed.R.Civ.P. 15(b), and 3 Moore’s Federal Practice ¶ 15.13 [2] (2d ed. 1972). The spirit and the design of the rules dictate that every suitor shall either prevail or fail on the justness of his cause, not the technical niceties of the pleadings. But the pleader is the architect and master of his own lawsuit and at some stage of the trial proceedings he must articulate the theory or theories upon which he expects to prevail. Although the rule is not absolute, a litigant cannot ordinarily .expect to lose in the trial court on one theory and win on appeal under another. See, e. g., Granite City Steel Company v. Koppers Company, Inc., 419 F.2d 1289, 1290 (7th Cir. 1969).

There was, to be sure, proof showing that March, 1967, was the last delivery date. But there is nothing in the record or briefs to indicate that Material Service ever sought to amend its complaint to rely upon that date as the last date of delivery for purposes of computing the one-year requirement. Indeed, on appeal Material Service invokes the March, 1967, delivery date only to repudiate the evidentiary effects of the letters and statements introduced by it at trial and to invoke a relation-back theory first asserted on appeal, apparently to satisfy both the 90-day notice and one-year filing period required for the suit. Regardless of the merits or motives for this manipulation of the facts and dates, we are certain that the underlying theory cannot be asserted for the first time on appeal.

Material Service also seeks to invoke estoppel, but it was neither alleged nor invoked in the trial and is therefore unavailable here. See Fed.R.Civ.P. 15(b). Reviewing only the lawsuit that was tried and decided in the trial court, we affirm the judgment.

      . Under the circumstances of this ease 40 U.S.C. § 270b authorizes a supplier to a subcontractor on a government project to sue the general contractor and his surety in federal court for materials furnished for which full payment has not been made.

      . United States v. General Insurance Company of America, 6 Cir., 339 F.2d 194 (1964). See also MacEvoy v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 88 L.Ed. 1163 (1943), and T. F. Scholes, Inc. v. United States, 10 Cir., 295 F.2d 366, 369 (1961).

      . “There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). See also Wagner v. Retail Credit Co., 338 F.2d 598, 602 (7th Cir. 1964); Schenfeld v. Norton Company, 391 F.2d 420 (10th Cir. 1968); Hidden Splendor Mining Co. v. General Ins. Co. of America, 370 F.2d 515 (10th Cir. 1966).

      . It is true that in the district court Material Service asserted that title did not pass until the wallboard was actually placed in the building and that this occurred in March of 1967. Nevertheless, after adverting to such delay Material Service in the district court declined to give the March, 1967, date determinative significance.