author: McCREE, Circuit Judge.

text:
    STATE OF OHIO ex rel. William J. BROWN, Attorney General of the State of Ohio, Plaintiff-Appellant, v. Howard H. CALLAWAY, Secretary of the Army, et al., Defendants-Appellees.
    Nos. 73-2119 to 73-2121.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 13, 1974.
    Decided June 6, 1974.

      William S. Fein, Asst. Atty. Gen., Columbus, Ohio, for plaintiff-appellant; William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, on brief.
    Irwin L. Schroeder, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Charles G. Heyd, Louis F. Gilligan, Cincinnati, Ohio, for intervening plaintiffs-appellants; Bauer, Morelli & Heyd, Cincinnati, Ohio, on brief.
    Roger L. Sabo, Columbus, Ohio, for intervening defendants-appellants; Knepper, White, Richards & Miller by John A. Jenkins, Columbus, Ohio, on brief.
    Before WEICK and McCREE, Circuit Judges, and CONTIE, U. S. District Judge.

       The Honorable Leroy J. Contie, Jr., U. S. District Judge for the Northern District of Ohio, sitting by designation.

   McCREE, Circuit Judge.

This appeal requires us to decide whether the district court erred in refusing to enjoin all construction of two reservoir projects because the Environmental Impact Statements filed by appellees failed to meet the requirements of Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332, and whether the district court erred in refusing to permit certain conservation groups, certain property owners affected by the projects, and the Ohio Contractors Association to intervene. We hold that the district court did not abuse its discretion when its injunction permitted limited construction to proceed despite appellees’ failure to file sufficient Environmental Impact Statements, but determine that the conservation groups, landowners, and the Ohio Contractors Association are entitled to intervene as of right.

In 1938 the United States Congress authorized construction of flood control reservoirs in the Ohio River basin. Flood Control Act of June 28, 1938, 52 Stat. 1215 (1938), 33 U.S.C. § 701a et seq. Among the reservoirs authorized, are the two challenged in this appeal: the Caesar Creek Lake Project in Warren County, Ohio, and the East Fork Reservoir Project in Clermont County, Ohio. In 1962 the economic feasibility of these projects was reconsidered, and, after a favorable evaluation, funds were appropriated by Congress for preparation of detailed plans. Land acquisition for the projects began in 1967 and is now nearly completed.

The projects were originally authorized as flood control measures, but when this action was filed, the flood control aspects accounted for less than fifty percent of the annual benefits expected to result. The works are also expected to improve water supply and quality, to provide recreational facilities, and to promote economic development. Recreational considerations alone account for approximately forty percent of the anticipated Caesar Creek benefits and forty-five percent of the expectation from the East Fork project.

After land acquisition had begun but before construction had commenced, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., became effective. In accordance with Section 102 of the Act, 42 U.S.C. § 4332, the Corps of Engineers for the United States Army, on October 9, 1970, circulated to state and federal agencies for comment, draft Environmental Impact Statements (EIS) for both the Caesar Creek and East Fork Projects. Both drafts were also made available to the public for comment. In response to the requests for comments, the Ohio Department of Natural Resources indicated by letter, dated November 23, 1970, that it approved the draft statements concerning both projects. Thereafter, the Corps prepared and filed with the Council on Environmental Quality a seven page final EIS on Caesar Creek and a final five page statement on the East Fork Project. The latter document was subsequently supplemented by a twenty-one page statement about the anticipated quality of the water to be impounded in the East Fork reservoir.

On August 30, 1971, the Corps began construction on the Caesar Creek Project. This project, which is scheduled for completion in December 1975, consists of an earth and rock dam across the Caesar Creek Valley three miles above the confluence of Caesar Creek and the Little Miami River. The project also includes four saddle dams and a separate spillway that will be cut through the valley wall. When completed, the Caesar Creek Project will create a large slack-water pool of fluctuating dimensions which will inundate up to seventeen and one-half miles of the Caesar Creek Valley.

Construction of the East Fork Project had already begun on May 16, 1970. This project, which is scheduled for completion in December 1976, consists of a similar earth and rock dam located twenty-one miles above the East Fork’s confluence with the Little Miami River. A saddle dam and concrete-lined spillway are its other major features.

Each project, intended to convert a free-flowing stream into an impounding lake behind a dam and spillway, requires the stripping of land, the excavation of approximately 11,000 acres of topsoil and subsoil, the destruction of wildlife habitat, the construction of coffer dams and work roads, the siltation of streams, the flooding of substantial areas of land and other significant alteration of the environment. Each project is also expected to have a substantial impact on traffic, land use, and local development.

Affidavits submitted to the district court indicate that the amount of money not yet expended on both projects exceeds $50,000,000 and that over fifty percent of the money already expended is attributable to land purchase expenses that are recoverable. The estimated cost of suspending or terminating the projects, including restoration of the environment to its natural condition where possible, is $250,000 per project, less than one percent of the amount unexpended.

On July 19, 1973, the State of Ohio, believing that the environment of the project areas would be adversely affected if the projects should continue, initiated an action in the district court for declaratory, injunctive, and other appropriate relief. The complaint alleged that the Corps, by beginning construction of the projects without filing sufficient Environmental Impact Statements, had violated the National Environmental Policy Act (NEPA). It also alleged that the Corps had violated the Flood Control Act of 1938, 33 U.S.C. § 701a, the Water Supply Act of 1958, 43 U.S.C. § 390b, the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq., the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq., the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq., and Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq.

On the same day, July 19, 1973, certain conservation groups and property owners whose land is unquestionably affected by the projects filed motions to intervene as plaintiffs. They sought intervention as of right pursuant to Rule 24(a)(1) of the Federal Rules of Civil Procedure and 33 U.S.C. § 1365(b)(1)(B), and Rule 24(a)(2), and by permission pursuant to Rule 24(b). On August 10, the Ohio Contractors Association filed a motion to intervene, as of right or by permission, on the side of the Corps.

In the meantime, the district court on July 24, 1973, had granted a temporary restraining order enjoining further work on the projects and had “tentatively granted” the motions to intervene filed by the property owners and by the conservation groups. The subsequent motion filed by the Contractors Association was also “tentatively granted.”

Thereafter, the district court conducted a hearing to determine whether a preliminary injunction should issue against the Corps, and whether the motions to intervene should be granted. On August 24, the district court issued an opinion and order granting only part of the injunctive relief requested. The district court found that the Environmental Impact Statements filed by the Corps did not comply with the requirements of the NEPA, that the future contracts would have a substantial impact on the environment, and that the environmental damage incident to the execution of contracts awarded had already occurred but that completion of these contracts “will not significantly damage or otherwise affect the environment . ” Accordingly, the court ordered the Corps to comply with Section 102 of the NEPA by submitting adequate Environmental Impact Statements; enjoined the Corps from “executing additional contracts on either of said projects; from clearcutting trees, from removal of brush and groundcover, from stripping away and destruction of topsoil, from relocating and closing roads, and from any other construction activity which would alter the natural environment of the project area.” At the same time, however, the district court permitted the completion of specific phases of the contracts already awarded by the Corps and also permitted the Corps to continue land acquisition for the projects.

On August 31, the district court issued an order denying all motions to intervene either as of right or permissively. It found that because it had reserved judgment on the merits of Ohio’s allegation that the Corps was violating the Federal Water Pollution Control Act, the Act was “not involved at this time in this matter,” and that, accordingly, movants could not avail themselves of the unconditional right to intervene conferred by that statute. Moreover, the movants could not intervene as of right under Rule 24(a)(2) or permissively because their interests were adequately represented by existing parties. The court did, however, welcome their participation as amici curiae.

After entry of the preliminary injunction, Ohio filed a Motion for Clarification and a Motion to Alter or Amend Judgment on August 27, 1973. Before ruling on these motions, the district court personally inspected the project sites and, on September 7, 1963, issued a Supplementary Order which identified specifically the phases of the contracts that could be performed by the Corps. On the same day, Ohio filed an appeal from the partial denial of the preliminary injunction sought.

In this appeal, Ohio contends not that the district court abused its discretion in refusing to enjoin all activities relating to the two projects, but that the district court, having determined that the Corps had not complied with the NEPA by its failure to file adequate Environmental Impact Statements, had no discretion to exercise and was therefore required to issue the injunction requested.

We hold that this contention is without merit. The NEPA has been construed not to require the immediate cessation of all work commenced before an EIS was determined to be inadequate. Environmental Defense Fund, Inc. v. Froehlke, 348 F.Supp. 338 (W.D.Mo.1972), aff’d 477 F.2d 1033 (8th Cir. 1973). Thus, for example, this court in Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972), approved the issuance of a preliminary injunction that excepted road surfacing on sites already cleared and permitted the continuation of survey and mapping activities although an adequate EIS had not been filed. In Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), the court reversed the denial of a preliminary injunction in a highway construction project for which an adequate EIS had not been filed but permitted land acquisition to continue in hardship cases. Finally, in Environmental Defense Fund Inc. v. Froehlke, supra, the court of appeals affirmed a preliminary injunction that permitted certain phases of the construction of a reservoir project to continue while an EIS was being prepared. See also Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50 (N.D.Cal.1972), supplemental environmental statement upheld 356 F.Supp. 131, aff’d 487 F.2d 814 (9th Cir. 1973), Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 393, 463 F.2d 796 (1971), Cape Henry Bird Club v. Laird, 359 F.Supp. 404 (W.D.Va.), aff’d 484 F.2d 453 (4th Cir. 1973), Lee v. Resor, 348 F.Supp. 389 (M.D.Fla.1972).

It is clear, therefore, that the determination that an EIS is inadequate does not divest a court of discretion to permit specified further project activity. Instead, “general principles of equity are applicable and . . . application of those principles . . . controls the exercise of the Court’s discretion under the circumstances.” Environmental Defense Fund v. Froehlke, 348 F.Supp. 338, 356 (W.D.Mo.1972), aff’d 477 F.2d 1033 (8th Cir. 1973). Our review is therefore limited to determining whether the district court abused its discretion under traditional principles of equity, in denying part of the relief requested by appellant. E. g., Environmental Defense Fund v. Froehlke, supra, Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972).

We recognize the importance of Section 102 of the NEPA to preserving our threatened environment, and we are mindful of its prescription that prior to committing resources to a project that is likely to have significant impact on the environment, the federal agency proposing it must prepare a “detailed statement” analyzing those environmental effects and the feasibility of alternative project designs to achieve the same purpose. The draft EIS that emerges is required to be circulated among all interested agencies and to agencies possessing a measure of expertise in any environmental problem raised by the project. The opinions and comments requested are then returned to the agency proposing the project to enable it to prepare an informed Environmental Impact Statement. The final EIS is a basic document for planning any project that may have a substantial impact on the environment. The filing of a complete EIS is not a formality but a step that is critical to the proper evaluation of environmental factors. Environmental Defense Fund v. Tennessee Valley Authority, supra.

The district court, in formulating the preliminary injunction challenged, properly considered whether appellant had established the four prerequisites for the equitable relief requested: (1) that a substantial question is at issue; (2) that there is a possibility of success on the merits; (3) that a balancing of injuries to the parties requires preliminary injunctive relief; and (4) that the public interest would be served by such preliminary relief. Environmental Defense Fund v. Tennessee Valley Authority, supra, Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), aff’d sub nom., Sierra v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The district court found that the failure of the Corps to file adequate Environmental Impact Statements was a substantial issue and that it was certain that appellant would succeed on the merits of this limited issue. It found, however, that appellant had not established that it was likely to succeed in compelling abandonment of the project. In balancing the consequences to all interested parties that would result from granting or denying the relief requested, the district court determined that if the relief requested were granted, the interests of the three contractors who have already been engaged to participate in the construction of the projects would be substantially harmed because they had already committed their resources, both human and material, to the projects. On the other hand, the court found that if these three contractors were permitted to continue construction the environment would not be significantly impaired. Under the circumstances, the court concluded that the public interest would not be served by restraining these three contractors from performing their contracts. Thus, in formulating relief, the court permitted execution of these three contracts but prohibited appellees from clearcutting trees, from removing brush and ground cover, from stripping away and destroying topsoil, from relocating and closing roads, and from engaging in any other construction activity that would significantly or irreparably alter the natural environment of the project areas. We cannot say that the district court, in tailoring the relief granted to the particular circumstances of this case, abused its discretion. Accordingly, we affirm that order.

The Motions to Intervene

All of the applicants for intervention alleged before the district court that they were entitled to intervene as of right under Rule 24(a)(1) and Rule 24(a) (2), and as a matter of the court’s discretion under Rule 24(b). The district court, in denying the motion to intervene under Rule 24(a)(1), held that neither the property owners, nor the conservation groups, nor the Ohio Contractors Association had an unconditional right to intervene in the main action because “any discussion of a reservoir not already in existence, and therefore not able to meet any existing Ohio water quality control standards, is at best speculative and not before the Court at this time.”

We believe, however, that 33 U.S.C. § 1365(b)(1)(B) confers upon all applicants an unconditional right to intervene under Rule 24(a)(1), and therefore reverse the district court’s order denying intervention.

In its action for declaratory and injunctive relief, the State of Ohio alleged that appellees’ action of impounding waters in the challenged projects would violate water qualify standards imposed by the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., and that appellees had violated the same Act by their failure to obtain a determination from the Administrator of the United States Environmental Protection Agency of the need for, value of, and impact of water storage for water quality control as required by 33 U.S.C. § 1252(b). That subsection provides, in relevant part:

(b) (1) In the survey or planning of any reservoir by the Corps of Engineers, . . . consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source.
(2) The need for and the value of storage for regulation of streamflow (other than for water quality) including but not limited to navigation, salt water intrusion, recreation, esthetics, and fish and wildlife, shall be determined by the Corps of Engineers
(3) The need for, the value of, and the impact of, storage for water quality control shall be determined by the Administrator, and his views upon these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage.

We believe that the failure of the Corps to obtain the determination from the Administrator required by 33 U.S.C. § 1252(b)(3) is not, as the court determined, “speculative”. Moreover, we are reluctant to prohibit persons from challenging expected violations of water quality standards until reservoirs are actually constructed if it is alleged that the present plan for construction will necessarily cause such a violation.

As we have previously noted, the Federal Water Pollution Control Act confers an unconditional right to intervene upon any citizen in an action brought by a state to enforce the Act. Section 1365(b)(1)(B) of Title 33 provides:

No action may be commenced if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (Emphasis added.)

Citizen is defined by the Act as “a person or persons having an interest which is or may be adversely affected.” 33 U. S.C. § 1365(g). Moreover, Congress has explained that “citizen” should be interpreted in light of the Supreme Court’s decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), where the Court held that persons, or associations of persons, have the requisite interest to seek review if they allege that they have been or will be harmed by the challenged action. 1972 U.S.Code Cong, and Admin.News p. 3823. There is no question that the property owners have an interest sufficient to confer standing upon them because they have alleged that they own real property that is subject to condemnation for the projects by the United States. The conservation groups have alleged that their members use and enjoy the property that will be adversely affected by the projects and therefore have standing to maintain their action. The Ohio Contractors Association has alleged that its ability to collect dues from its members is dependent upon the amount of construction work that they are able to obtain, and that some of its members are contractors who are directly affected by the relief sought in the main action. Although we question whether the Association’s interest in collecting dues is an interest sufficient to permit intervention, we believe that the interest of certain of its members to proceed without delay to complete their contracts with the Corps gives it standing.

Accordingly, we hold that the district court erred in denying the motions for intervention under Rule 24(a)(1), and, in view of our disposition, we need not decide whether these movants should have been permitted to intervene as of right under Rule 24(a)(2) or permissively under Rule 24(b).

Affirmed in part, reversed in part, and remanded for further proceedings.

      . That section provides :
      The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—
      (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment;
      (B) identify and develop methods and procedures, in consultation with the Counoil on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations;
      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannpt be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which lias jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
      (D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources ;
      (E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolution, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment;
      (F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
      (G) initiate and utilize ecological information in the planning and development of resource-oriented projects ; and
      (II) assist the Council on Environmental Quality established by subchapter II of this chapter.

      . The State of Ohio filed two nearly identical complaints in federal district court, one challenging the legality of the Caesar Creek Lake Project and the other, the East Pork Project. The district court consolidated the eases for all purposes, and the appeals from the order' of the district court denying in part the injunctive relief requested in both cases are similarly considered here.

      . These conservation groups who sought to intervene in both cases are: Sierra Club, National Audubon Society, Little Miami, Inc., Rivers Unlimited, Southwestern Ohio Sportsmen’s Club, Ohio Waste Watchers Inc., and Caesar Creek Preservation Association.

      . The eases were originally assigned to the Honorable Timothy S. Hogan who consolidated them and, on July 24, 1973, issued a temporary restraining order halting all constructions pending a hearing on the application for a preliminary injunction on August 13. On that day, Judge Hogan recused himself, and the Honorable Carl B. Rubin heard the application the next day. It is from his partial denial of the preliminary injunction on August 24 that these appeals are taken.

      . On August 31, 1973, Judge Rubin indicated in chambers to the parties that he would not enjoin the completion of the phases of construction now challenged by the State of Ohio. Accordingly, the State withdrew its motion, with the court’s consent, in order to prosecute this appeal. On September 7, 1973, the Honorable John W. Peek of this court granted an injunction prohibiting all major construction pending this appeal. On September 11, Judge Peck vacated his order and adopted Judge Rubin’s Supplementary Order that had been issued on September 7.
      We have been informed by the State of Ohio, in its brief, that during the pendency of this appeal major construction of the projects has continued and that it has been requested to approve a stream bank stabilization operation downstream of the Caesar Creek Project necessitated by the rapid erosion of the stream bank caused by the flow of a diverted stream coming out of a diversion conduit. In addition, counsel for the State has informed the court that he was notified that during the week of November 26, 1973, several miles of land were flooded by water impounded behind a coffer dam that the district court permitted to be built at Caesar Creek. These developments should, of course, be brought to the attention of the district court.

        On December 21, 1973, the Corps of Engineers issued and circulated for comment an apparently complete draft impact statement on each of the two projects at issue. Each of the drafts contains approximately one hundred pages of text and two hundered pages of technical exhibits.

      . Rule 24 of the Federal Rules of Civil Procedure provides, in relevant part:
      Intervention of Right.
      (a) Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene ; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
      (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action . . . when an applicant’s claim or defense and the main action have a question of law or fact in common .... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Francis V. HEATER, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
    No. 73-1133.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 30, 1973.
    Decided June 5, 1974.

      John H. Gobel, James R. Gannon, Chicago, 111., for defendant-appellant.
    David P. Schippers, Chicago, 111., for plaintiff-appellee.
    Before CLARK , Associate Justice, and CUMMINGS and PELL, Circuit Judges.

       Associate Justice Tom C. Clark (Retired) of the United States Supreme Court is sitting by designation.

   PELL, Circuit Judge.

Francis Heater, plaintiff-appellee, brought this action to recover damages for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. The jury awarded damages to the plaintiff in the amount of $100,000. The defendant, the Chesapeake and Ohio Railway Company, appeals.

Viewing the evidence, as we must, from the point of view most favorable to the party prevailing on trial, it fairly establishes the following. Heater was employed by the defendant railroad as a carman, a job which required that he inspect and repair railroad cars. On March 3, 1969, the railroad’s car foreman asked Heater and another employee to assist him in moving a load of yokes which were partially projecting through the door opening of a boxcar. Each yoke was approximately forty inches long, seven to eight inches wide at one end and ten to eleven inches wide at the other end, and each weighed over two hundred pounds. The yokes were stacked inside the boxcar approximately three levels high and six to eight across. The men did the work entirely by hand without the aid of any mechanical equipment.

While lifting one of the yokes, Heater felt a sharp pain in his back. Heater hesitated for a minute before he did any further work. He later mentioned to the foreman that he would like to take a short rest. Heater did, however, continue working that day. A few days thereafter the Trainmaster saw Heater limping and sent him to a doctor. In June 1971, surgery was performed on Heater’s back. He had continued to work from the time of the accident until the operation. Thirteen days after the surgery, Heater suffered a heart attack and has not worked since then.

The railroad raises a number of issues on appeal: (1) whether the district court properly submitted the matter to the jury; (2) whether the court abused its discretion in permitting plaintiff’s counsel to call the car foreman as an adverse witness; (3) whether the court committed error in connection with the giving of instructions.

I

The defendant contends that the plaintiff failed to present sufficient evidence of either negligence or causation to create a jury question. With respect to negligence, the railroad argues that yokes were often lifted by hand in repair work. There was, moreover, no mechanical device which could be effectively used, according to the defendant, to rearrange yokes inside a boxcar. The railroad thus contends that the mere fact that Heater was required to move the yokes by hand was not evidence of negligence. The railroad further argues that even if the requirement that the yokes be lifted is deemed negligence, the plaintiff failed to prove that the lifting was the cause of his back injury and subsequent heart problem. In particular, the defendant points out that, at the trial, Heater himself admitted not knowing the cause of his back pain:

“. . .1 don’t know whether I lifted crooked, whether I slipped, or anything — I don’t know whether I done that, but I sure felt a pain in my back.”

Under the Federal Employers’ Liability Act, the plaintiff must show both negligence on the part of the employer and causation. “The Act does not make the employer an insurer.” In-man v. Baltimore & Ohio R. R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959).

Having accorded the customary, albeit somewhat psittacistie, deference to the non-insurer aspect of the FELA defendant, we will now proceed to discuss that statute as it is. Before doing so, we observe that while the FELA in its terms does not purport to border on a workman’s compensation act, certain parallelisms may be found. We will not assume that Congress is unaware of the judicial gloss that the Act has received. If the Act as it has been interpreted and applied does not correctly reflect what was intended by the legislative branch then the change must be made there. The duty of this court is to follow what is now well-established authority.

The quantum of evidence necessary to establish liability is much less in a FELA case than it would be in an ordinary negligence case. The FELA “was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers v. Missouri Pac. R. R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed. 2d 493 (1957) (footnotes omitted).

The test of a jury case, under the FELA, “is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Id. at 506 (emphasis added). The fact that there may have been a number of causes of the injury is, therefore, irrelevant as long as one cause may be attributable to the railroad’s negligence. In passing on the issues of fault and causality, moreover, the jury has a broad power to engage in inferences. “The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). The jury’s verdict can only be set aside “when there is a complete absence of probative facts to support the conclusion reached.” Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). The Supreme Court has repeatedly warned that in FELA cases, “courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & Pekin Union Ry. Co., supra at 35.

In the present case, under the established standards to which we have adverted, plaintiff presented sufficient evidence of both negligence and causation to present a jury question. The railroad had assigned only three men— Heater, the car foreman, and another employee — to the task of rearranging the yokes. Heater and the foreman worked together, each lifting one end of the same yoke. This meant that each man was continually lifting a heavy load. Moreover, the railroad admitted that it would have been possible to have the men push the yokes out of the boxcar on to the ground, without lifting the yokes. A mechanical crane could then have been used to reload the yokes. Such a procedure might have been inefficient in the sense that it would have taken more time, but it was, nonetheless, possible and would have avoided having the men lift the yokes by hand. Furthermore, the ear foreman testified that this procedure would probably not have harmed the yokes. The jury could reasonably have inferred, on the basis of such evidence, that the railroad was negligent in failing to use a mechanical crane or, at least, in failing to assign more men to the task.

There was also sufficient evidence for the jury to find that Heater’s back pain and subsequent heart attack were caused, at least in part, by the lifting of the yokes. Admittedly, Heater could not say whether the pain arose from lifting or whether his foot also slipped or he bent over at an odd angle. Heater did testify, however, that the pain definitely began while he was doing the lifting. Moreover, a cardiologist testified that Heater’s heart problems were the direct result of the operation on Heater’s back. The jury could reasonably conclude that the lifting of the yokes was at least part of the cause of Heater’s back pain and heart attack. “Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.” Rogers v. Missouri Pac. R. R. Co., supra at 506-507 (emphasis added).

The question is not whether we would have reached the same conclusion as did the jury but rather whether there was sufficient evidence to permit the jury to reach the conclusion it did. Under established standards we must answer the question in the affirmative.

II

The railroad next contends that the district court erred in permitting the plaintiff to call the railroad’s car foreman, Henry Rzyski, as an adverse witness under Rule 43(b), Fed.R.Civ.P. this ruling prejudiced defendant’s case, it is argued, since it allowed plaintiff’s counsel to cross-examine and impeach Rzyski.

Rule 43(b) provides, in pertinent part:

“A party may call an adverse party or an officer, director or managing agent of a public or private corporation . which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party . . . . ”

(Emphasis added.)

Rzyski was clearly not an officer or director of the railroad. The issue becomes whether the district court could correctly characterize him as a “managing agent” of the railroad.

Rule 43(b) “does not provide that any employee of an adverse party may be called adversely.” Hosie v. Chicago & North Western Ry. Co., 282 F.2d 639, 641 (7th Cir. 1960). An employee is a “managing agent” only if he acts with supervisory authority, being invested with general powers to exercise his discretion and judgment in dealing with corporate matters and his interests are identified with those of the corporation. Skogen v. Dow Chem. Co., 375 F.2d 692, 701 (8th Cir. 1967); Brandon v. Art Centre Hosp., 366 F.2d 369, 372 (6th Cir. 1966).

In the present ease, Rzyski was essentially a “gang boss.” He personally inspected cars, wrote repair orders, and worked alongside his men on their jobs. His supervisory duties were limited to assigning carmen day by day to jobs, certifying that the men were at work, instructing men on how jobs were to be done, and seeing that accident reports were filled in and that injured men got to a doctor. Rzyski received his orders from a “car supervisor.” Rzyski, moreover, had no power to hire or fire the men for his crew.

We find that such limited supervisory powers as Rzyski had are insufficient to make him a “managing agent” of the railroad. Rzyski, although he directed the work of his men, was far removed from having any general discretionary or managerial powers. See Dowell, Inc. v. Jowers, 182 F.2d 576 (5th Cir. 1950), in which the Court held that an engineer in charge of the crew on which the plaintiff was working when injured was not a “managing agent.”

The error in permitting Rzyski to be called as an adverse witness, however, in our opinion, does not require reversal. Having reviewed Rzyski’s entire testimony, we are not convinced that the plaintiff gained any significant advantage by being able to cross-examine the foreman. We note, moreover, that if the plaintiff had not called Rzyski as an adverse witness, it is reasonable to assume that the railroad would have been under tactical compulsion to call him as a defense witness since Rzyski was in charge of the men lifting the yokes and was present when the injury occurred. If the railroad had so called Rzyski as a defense witness, plaintiff’s counsel would have been able to cross-examine the foreman and impeach his testimony.

The trial of a law suit has been termed a quest for the truth and we do not assume that the information to which Rzyski testified would have been less truthful if he had been called other than as an adverse witness. We do not look with approval upon the district court not adhering to the plain language of the Federal Rules of Civil Procedure, which are to govern the trial when applicable, but instead following the practice which apparently prevails in the state courts of the state in which the district court was sitting. We decline, however, to visit our displeasure on the successful litigant where we are not convinced that the error was other than harmless.

Ill

The railroad argues, finally, that the district court erred in connection with the instructions which it gave to the jury.

The defense complains that the district court committed reversible error in giving an “assumption of risk” instruction. This instruction, using statutory language, essentially told the jury that the defense of assumption of risk is not available to a defendant in an FELA case.

As the plaintiff concedes, the use of an assumption of risk instruction in an FELA case has been condemned by this and other courts. Such an instruction is a confusing, negative statement which refers to issues not involved in an FELA case. “[T]he statutory elimination of the defense of assumption of risk, when read to the jury in FELA cases where that ‘defense’ has been neither pleaded nor argued, serves only to obscure the issues in the case.” Casko v. Elgin, Joliet & Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir. 1966). See also Almendarez v. Atchison, Topeka & Santa Fe Ry. Co., 426 F.2d 1095, 1098 (5th Cir. 1970); Dilley v. Chesapeake & Ohio Ry. Co., 327 F.2d 249, 253 (6th Cir. 1964); Seaboldt v. Pennsylvania R. R. Co., 290 F.2d 296, 300 (3d Cir. 1961). Despite the clear admonitions of this and other courts, however, the plaintiff, nevertheless, requested and obtained just such an assumption of risk instruction.

We are seriously concerned with whether or not reversal may be required by the giving of this instruction. The warnings of this court should not be ignored. In the instant case, assumption of the risk was not an issue. Arguably a jury might be confused when suddenly presented with an uncontested issue in jury instructions. We find no case, however, in which the giving of the improper assumption of risk instruction in an FELA case was alone held to be reversible error. Although a close question is created, particularly in view of the combination with the matter of treating Rzyski as an adverse witness, we will follow Casko in the present case and not reverse. We do wish to emphasize, however, that use of the improper assumption of risk instruction may be sufficient in other cases, when combined with other more substantial error, to constitute reversible error.

The railroad complains next of the district court’s instruction concerning the present value of future damages. At the trial neither the plaintiff nor the defendant introduced any evidence suggesting a method for computing present value. In its instructions to the jury, the district court charged that any damage for loss of future earnings must be reduced to “present cash value.” The court did not instruct, however, on the method for computing present cash value. Although defense counsel neither tendered nor requested an instruction explaining the method of computation, the railroad now contends that the district court committed reversible error in failing so to instruct.

In raising this objection, the defense relies upon Ballantine v. Central R. R., 460 F.2d 540 (3d Cir. 1972), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 in which the Third Circuit held that where recovery is sought for future lost earnings, the plaintiff must submit evidence and the trial court must instruct on the method of reducing lost future earnings to present worth. The Third Circuit based its holding on the belief that “the application of the present worth rule is generally conceded to be beyond the understanding and capabilities of most lay persons serving on juries.” 460 F.2d at 543.

We cannot accept such a dismal evaluation of the capabilities of the average juror. Rather, we prefer the position taken by the Sixth Circuit in Pennsylvania R. R. Co. v. McKinley, 288 F.2d 262 (6th Cir. 1961). In that case the court held that it was not reversible error to fail to instruct on the method of reducing an award to present value where the defense had not requested such an instruction. The Sixth Circuit specifically noted that:

“[A] jury, unaided by specific testimony as to money values, could themselves, being told that the award should be only money value, properly apply the applicable rule. Jurors are presumed to be intelligent people, generally aware, from today’s economy and their own experience with it, of the earning value of money when placed in safe investments.” 288 F.2d at 265.

The Eighth Circuit has recently taken the same position in Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 87 (8th Cir. 1973). In Duncan, as in McKinley, the court held that a general instruction that future damages must be reduced to present worth was sufficient, in absence of a request by defense for a specific charge concerning the method of computation.

In the present case, the district court did instruct the jury that any damages for loss of future earnings must be reduced to “present cash value,” a phrase which was then defined for the jury. Had the railroad wanted an instruction explaining the method of computation, defense counsel could easily have submitted one. This they failed to do. We hold that, under these circumstances, the instruction given by the district court was sufficient.

We have considered the other contentions raised with regard to the giving and refusing of instructions and are of the opinion that the district court adequately instructed the jury on both negligence and contributory negligence and that no reversible error is shown.

For the reasons set forth in this opinion the judgment of the district court is

Affirmed.

      . As one commentator has noted, the Rogers formulation of the test for a jury case under the FELA “reduce [s] the extent of the negligence required, as, well as the quantum of proof necessary to establish it, to the ‘vanishing point.’ While it is still undoubtedly true that there must be some shreds of proof both of negligence and of causation, and that ‘speculation, conjecture and possibilities’ will not be enough, there appears to be little doubt that under the statute jury verdicts for the plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action.” Prosser, The Law of Torts § 80, at 536 (4th ed. 1971) (footnotes omitted).
      The Supreme Court itself has stated that “the power of decision in these actions [is] exclusively in the jury in all but the infrequent cases.” Rogers, supra at 510.

      . Had the railroad failed to call Rzyski to testify, this failure to do so would undoubtedly have been the subject of comment by plaintiff’s counsel, and such comments might well have been more detrimental to the railroad’s case than plaintiff’s cross-examination of Rzyski. Further, the failure to have called him in this event could have left plaintiff’s testimony uneontradicted insofar as Rzyski did not agree with it.

      . In its instruction the court charged, inter alia, that:
      “In computing the damages arising in the future because of injuries, because of future medical expenses, or because of the loss of future earnings, you must not simply multiply the damages by the length of time you have found they will continue or by the number of years you have found that the Plaintiff is likely to live. Instead, you must determine their present cash value. ‘Present cash value’ means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of damages, expenses, and earnings at the time in the future when the damage from the injury will be suffered, the expenses must be paid, or the earnings would have been received.”

      . It is conceivable that a detailed and technical instruction, in the absence of trial testimony, as to the method of computing present value might be more confusing to a jury than would be the bare enunciation of the principle to which they could apply their common sense.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. George William RINGLAND, D.O., Appellant.
    No. 73-1924.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 17, 1974.
    Decided May 30, 1974.
    Rehearing and Rehearing Eh Banc Denied June 25, 1974.

      William S. Rader, Cape Girardeau, Mo., for appellant.
    Frederick J. Dana, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   STEPHENSON, Circuit Judge.

This appeal from a jury conviction in a criminal case challenges the denial of a change of venue because of pretrial publicity and questions the giving of the “Allen Charge” as part of the jury in- ’ structions.

Appellant Ringland was convicted by a jury on Count I of distributing a nonnarcotic controlled substance in violation of 21 U.S.C. § 841(a)(1) and on Counts V, VI, VII and VIII of unlawfully failing to maintain accurate records with respect to non-narcotic controlled substances in violation of 21 U.S.C. §§ 827(a)(3) and 842(a)(5). He was acquitted on Counts II, III and IV of distributing non-narcotic controlled substances in violation of 21 U.S.C. § 841(a)(1). He was sentenced to five years’ imprisonment followed by a special parole term of two years on Count I. Sentences of one year each were imposed on the remaining counts to run consecutively with each other but concurrently with the sentence on Count I.

Venue. Appellant contends he was unduly prejudiced by pretrial publicity and that because of this publicity he could not receive a fair trial within the Southeastern Division of the Eastern District of Missouri. He charges that the trial court erred in refusing to transfer the case to some other division or district.

The pretrial publicity complained of consisted of a front-page news article, which appeared in the local newspaper, entitled “Search office of indicted osteopath,” which described a search and seizure of appellant’s office on October 9, 1973, of drugs having a street value of $50,000. The article appeared on October 19, 1973, approximately two weeks in advance of the instant trial which commenced November 1, 1973. The article also indicated that “It was previously reported that the osteopath was alleged to have given drugs to Richard E. Krewinghaus of Cape Girardeau,” and that he had been sentenced for a firearms violation and seven drug-related charges. Krewinghaus testified on behalf of the government in appellant’s trial.

Docket entries indicate that on October 25, 1973, appellant filed several pretrial motions, including a motion for transfer or, in the alternative, to fix place of trial in St. Louis, Missouri, and that the court ruling was as follows: “Said Motion for transfer etc., denied without prejudice — after Jury Panel has been questioned, may be refiled.” No further motion to transfer or objection to the jury panel was made. We are advised by the government in its brief that only 6 of the 39 veniremen stated during the voir dire that they had heard or read anything about the case, and all stated that they were capable of listening to the evidence and giving both parties a fair trial. No challenges for cause were made.

It is our view that the trial court was well within its discretion in denying the motion for a change of venue. Rule 21(a) of the Federal Rules of Criminal Procedure provides that the court upon motion of the defendant shall transfer the proceedings as to him to another district if the court is satisfied there exists in the district where the prosecution is pending so great a prejudice he cannot obtain a fair and impartial trial in the district.

The mere fact that defendant received publicity by itself is not sufficient to require a change of venue. “The proper test is whether the prospective juror ‘can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’” United States v. Woods, 486 F.2d 172, 174 (CA8 1973); United States v. McNally, 485 F.2d 398 (CA8 1973).

Here it is difficult to say that there had been widespread publicity, although it must be conceded that in a comparatively small community one news article could conceivably be sufficient to require a change of venue. The test is what effect did it have on the prospective jurors. Here the trial court in denying the motion to transfer specifically provided that its ruling was without prejudice to its renewal after the jury panel had been questioned. Only six jurors had heard or read about the case and they indicated that they could listen to the evidence and give both parties a fair trial. No further objections were made. Under the circumstances we cannot say that the trial court abused its discretion in failing to change venue.

The Allen-Type Charge. This case was submitted to the jury at approximately 3:00 p. m., on Friday. They were allowed to recess for the evening about 5:30 p. m. They resumed their deliberations Saturday at about 9:30 a. m. At approximately 11:30 a. m., they requested that the instructions be reread. The trial court informed counsel that in addition to re-reading the instructions it would add an Allen-Type Charge, to which appellant objected. The record is not clear but apparently the verdict was returned some 30 to 40 minutes later.

Appellant urges us to prohibit the giving of the Allen Charge. This we decline to do. United States v. Skillman, 442 F.2d 542, 558 (CA8 1971); Hodges v. United States, 408 F.2d 543, 552 (CA8 1969).

It is further claimed that the giving of the instruction in this case after the jury had deliberated only approximately five hours with no report of deadlock was prejudicial error. We have recognized that attacks on the Allen-Type Charge are increasingly frequent. United States v. Skillman, supra, 442 F.2d 542, 558 (CA8 1971). We have also recognized that the giving of this type of charge as a part of the regular instructions before a deadlock has developed does not have the coercive impact of the Allen Charge after disagreement. Id. at 559-560. See, United States v. Wynn, 415 F.2d 135 (CA10 1969); American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Approved Draft 1968, at 145-57.

Here the charge was not given as a part of the original instructions but it was given as an added part of all of the original instructions, which the jury requested be re-read. There was no report of deadlock. The verdicts reflect discriminating attention by the jury to each of the eight counts of the indictment. There was a conviction on a felony count (Count I) and on four misdemeanor counts. We hold there was no error.

Affirmed.

      . Now, ladies and gentlemen, this is an important case and the trial has been extensive for both sides. Your failure to agree upon a verdict will necessitate another trial equally as expensive. The Court is of the opinion that the case cannot again be tried better or more exhaustively than it has been on either side.
      It is, therefore, very desirable that you should agree upon a verdict. In a large proportion of cases and perhaps strictly speaking in all cases, absolute certainty cannot be. attained or expected, and although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions and not a mere acquiescence to the conclusion of his fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other.
      You should consider that the case must at some time be decided and that you are selected in the same manner and from the same source from which any future juror must be, and there is no reason to suppose that the case will ever be submitted to twelve men and women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or on the other. And with this view, it is your duty to decide this case, if you can conscientiously do so.

      . Additional errors charged do not merit discussion. They are as follows: (1) Production of wiretap and transcripts of conversations with defendant — the government informed the court that no wiretaps or electronic surveillances were used; discovery motions: (2) Bill of particulars, (3) Production of investigative reports, (4) Production of confessions and statements against interest — all were in substance complied with by the court directing the government to produce its file for appellant, which appellant’s counsel concedes was done. These points were not pressed in the oral argument before us and require no further comment.


author: WINTER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Paul F. GREGORIO, Appellant.
    No. 72-2429.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 10, 1974.
    Decided May 31, 1974.

      Franklin P. Hall, Richmond, Va. [Court appointed counsel] (Hall, Hall & Warren, Richmond, Va., on brief), for appellant.
    Michael E. Marr, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before WINTER, CRAVEN and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

In a trial by jury, Paul F. Gregorio was found guilty of conspiracy to violate the federal narcotics laws and making, or aiding and abetting making, six sales of cocaine hydrochloride not in the original stamped package. From aggregate sentences of forty years, he appeals. He asserts six grounds for reversal, but we find none of them meritorious and so affirm the judgments. We will discuss the asserted errors seriatim, stating separately the facts which relate to each.

I.

A seven-count indictment (Criminal No. 71-0358-M) was returned against Gregorio on August 20, 1971, after the complaining witnesses had appeared before the grand jury and had testified in person. Gregorio was arraigned on this indictment and he pleaded not guilty to each and every count. He was not tried promptly, however, because successive postponements which he requested were granted.

The original indictment alleged certain acts which the government expected to prove by the testimony of Ralph Caputo. However, on the eve of trial, Caputo could not be located and it was feared that he would be unavailable for trial. Thereupon the government requested and was granted a continuance in order to seek a superseding indictment from the grand jury in which all references to acts which could be proved only by the testimony of Caputo were stricken. The district court directed that any superseding indictment be served on defendant by September 6, 1972, and fixed September 18 as the date for trial.

The superseding indictment (Criminal No. 72-0464-M) was returned on September 5, 1972, just before the term of the then existing grand jury was about to expire. It was obtained on the testimony of a special agent of the Treasury Department who had no firsthand knowledge of the matters on which the indictment was requested, and his testimony appears to have been a hearsay statement of the evidence which had been presented to the grand jury which had returned the original indictment.

Gregorio moved to dismiss the superseding indictment on the ground, inter alia, that it had been returned solely on the basis of hearsay evidence in violation of his fifth amendment right to indictment by grand jury. The motion was denied, and then the government, apparently having located Caputo, moved to abandon and dismiss the superseding indictment and to proceed to trial on the original indictment. The government’s motion was made on the morning of trial. Defendant objected to proceeding to trial on the original indictment. The district court sustained the objection and required defendant to be tried on the superseding indictment.

Before us, defendant contends that the indictment on which he was tried and convicted was invalid because it was based solely on hearsay evidence. He cites United States v. Arcuri, 282 F.Supp. 347 (E.D.N.Y.1968), aff’d, 405 F.2d 691 (2 Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), in support of his argument. We see no occasion, however, to decide defendant’s contention on its merits. The fact is that the superseding indictment differed from the original indictment only in omission of the allegations which depended upon the testimony of Caputo. No claim could be made that the original indictment was returned solely on hearsay evidence. The allegations in the superseding indictment had initially been made on the basis of testimony which was admissible under strict rules of evidence by witnesses who appeared before the grand jury, who were subject to questioning, and whose demeanor and credibility could be judged. More importantly, defendant was given the option of proceeding to trial on the original indictment, the validity of which he could not and did not challenge. He declined to exercise this right. We hold, therefore, that on the special circumstances of this case defendant waived his right to complain about the hearsay basis of the superseding indictment on which he was tried, even if as an abstract proposition of law his contention might otherwise be meritorious.

II.

Before charging the jury, the trial judge held a conference in chambers with counsel for defendant and the government to hear argument on requested jury instructions and, in accordance with Rule 30, F.R.Cr.P., to make and advise counsel of his rulings thereon. Gregorio, then in custody, was not present at this conference. Although neither Gregorio nor his counsel objected to the defendant’s absence from the conference on jury instructions, the failure to have the defendant present is claimed on this appeal to be reversible error. Although not articulated as such, we consider the contention as one that defendant’s- absence constituted “plain error” which we should consider even in the absence of formal request or formal objection.

Defendant asserts two bases for his contention that he had a right to be present during the conference on jury instructions: the due process clause of the fifth amendment, and Rule 43, F.R.Cr.P. As we shall show, defendant’s asserted right under Rule 43 is the more ancient one and decision of it also serves to decide defendant’s asserted due process right. We begin therefore with consideration of Rule 43.

In pertinent part, Rule 43 provides that

[t]he defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.

The advisory committee’s note explained that this part of the rule was no more than a “restatement of existing law,” citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), and Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912), two early Supreme Court cases applying the common law right of presence in federal criminal cases. In Lewis, the Court held that a federal defendant had a common law right “to be brought face to face with jurors at the time when the challenges were made,” and in Diaz, a non-capital case, the Court ruled that a defendant not in custody could waive his right to be present during trial, defining the right in broad, often quoted language.

In cases of felony our courts, with substantial accord, have regarded [the defendant’s right to be present] as extending to every stage of the trial, inclusive of the impaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. 223 U.S. at 455.

Since the language in Rule 43 relied on by defendant is a crystallization of these statements of the common law, we believe that the rule should be interpreted in light of the evolving meanings and purposes of the common law.

The earliest and most forceful rationale for the common law privilege of presence undoubtedly derived from the English common law rule, finally abolished by Act of Parliament in 1836, which denied accused felons — though not misdemeanants — the assistance of counsel. If a defense was to be made, the accused felon had to be present to make it; and since the death penalty was then more often imposed in felony cases than now, the accused’s presence occupied a position of even greater importance. However, the common law prohibition against assistance of counsel for felons was largely rejected by the constitutions and statutes of the American colonies, see Powell v. Alabama, 287 U.S. 45, 61-65, 53 S.Ct. 55, 77 L.Ed. 158 (1932), in part because of the “inherent irrationality of the English limitation.” United States v. Ash, 413 U.S. 300, 306, 93 S.Ct. 2568, 2572, 37 L.Ed.2d 619, 625 (1973). As a result, in American opinions — and in 19th and 20th century English decisions — other reasons behind the common law right of presence have come into sharp relief, although the distinction between a misdemeanant’s and felon’s right of presence has persisted. Today — apart from the constitutionally based sixth amendment right of confrontation which is not implicated in this case — there appear to be two reasons behind the right of presence: (1) assuring nondisruptive defendants the opportunity to observe — and, it is to be hoped, to understand — all stages of the trial not involving purely legal matters generally incomprehensible to the layman in order to prevent the loss of confidence in courts as instruments of justice which secret trials would engender; (2) protecting the integrity and reliability of the trial mechanism by guaranteeing the defendant the opportunity to aid in his defense.

We think neither rationale behind the right of presence is applicable to a purely legal conference on jury instructions. First, the defendant lacked the legal abilities necessary to make a contribution of significance to his defense. Second, had the defendant been present he probably would have been thoroughly confused by the legal argument on proposed jury instructions. An opportunity to observe the conference in chambers would not have improved any sense that justice was being done and possibly might have decreased it; Gregorio did, of course, observe and hear the end product of the conference — the actual giving of the instructions. Furthermore, if the court or counsel had attempted to explain the proceedings to the defendant, the conference would have been unavoidably disrupted and a not insubstantial amount of time might well have been consumed without any significant compensating improvement in the defendant’s sense “that justice was being done.” Certainly a private conference between defense counsel and the defendant would better serve the explanatory function since it could focus exclusively on conveying an understanding of the legal issues involved in the jury instructions.

Our determination that Rule 43 does not confer on criminal defendants the right to attend a purely legal conference on jury instructions is also supported by consideration of Rule 43 in conjunction with Rule 30. Rule 43 requires the presence of the “defendant” (emphasis added) at every stage of the trial “except as otherwise provided by these rules . . . .” Rule 30, in pertinent part, requires the court to “inform counsel of its proposed action upon the [jury instruction] requests prior to their arguments to the jury . . . .” (Emphasis added). Rule 30 does not compel the presence of the accused at this time. Significantly, it says only that “counsel” need be informed and thus, by implication, that the “defendant” referred to in Rule 43 need not be in attendance.

Our analysis of the policies behind Rule 43’s right of presence is fully applicable to defendant’s due process claim. Indeed, we note one distinguished commentator’s statement that Rule 43 implements the sixth amendment right of confrontation and “embodies the common-law privilege of presence as well as the due process right of the accused to be present.” Moore, supra, n. 2, at |f 43.02 [1]. Thus, we conclude that defendant has no right founded in the common law or in the Constitution to be present in chambers while jury instructions are formulated by counsel and the trial judge.

However, defendant argues that our decision in Near v. Cunningham, 313 F.2d 929 (4 Cir. 1963), compels the contrary conclusion that the due process clause of the fifth amendment requires the defendant’s personal attendance during a conference on jury instructions. In Near, we were concerned vith an agreement between the judge and the attorneys, reached in the absence of the accused and without consultation with him, that the jury would not be sequestered during recesses of the court. We concluded that this decision might have been “fateful to the defendant” because it was alleged that the jury had been “prejudiced by statements of spectators on the courthouse lawn made in the presence of the jurors during recesses of the trial” which included “opinions of the spectators as to the proper punishment of the petitioner, including opinions that the petitioner should be killed.” 313 F.2d at 930-931. Thus, our holding in Near turned on the dual circumstances of “the prisoner’s absence from the conference” which he could have understood and might have affected “combined with the allegations of serious consequences which are said to have flown from the decision.” 313 F.2d at 932. Significantly, we noted in Near that “the conference involved more than a discussion of legal principles which the defendant could not be expected to understand or to contribute anything of value.” Id. While both defendant in the instant case and the defendant in Near were absent from a conference in chambers where an important decision was reached, in Near petitioner made non-frivolous allegations of prejudice resulting from his absence and the nature of the conference was such that the defendant could be expected to understand the proceedings and perhaps affect the outcome, while in the instant case defendant has neither shown prejudice to either of the two policy interests involved in the right of presence, nor advanced a plausible argument that he would have understood the proceedings much less affected them. Thus, Near is no bar to our conclusion that the failure to include the defendant in a purely legal conference on jury instructions did not deprive him of any right vouchsafed by the fifth amendment’s due process clause. See Schwab v. Berggren, 143 U.S. 442, 449, 12 S.Ct. 525, 36 L.Ed. 218 (1892) (Harlan, J.) (quoted in n. 9 supra.); United States v. Sinclair, 438 F.2d 50, 52 (5 Cir. 1971); Pope v. United States, 287 F.Supp. 214, 219 (W.D.Texas 1967), aff’d, 398 F.2d 834 (5 Cir. 1968). See generally Snyder v. Massachusetts, 291 U.S. 97, 105-106, 113, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Cardozo, J.); Deschenes v. United States, 224 F.2d 688 (10 Cir. 1955).

Thus, we conclude that there was not plain error in defendant’s absence when jury instructions were considered. This is not to say that a district judge might not, in the exercise of his discretion — particularly if unusual factors are present in the case, or if the defendant is possessed of unusual characteristics — properly accede to a timely request that the defendant be present. But it was not, nor would it be, error or plain error to exclude him from a conference of the type that was held here.

III.

As part of the government’s case, the testimony of several witnesses was presented who were, or had been, drug users. One witness, Brenda Conn, testified that she had sniffed cocaine for about a year or two but that she had never “shot” cocaine. She did not testify that she was an addict. Another, Ralph Caputo, who was located by the government for trial, testified that he had used cocaine countless times and that he was on a methadone maintenance program. A third, Conchita Wynn, described how she inhaled or “snorted” cocaine on numerous occasions, but she did not admit to being an addict. Yet another witness, Susan Carolyn Rowland, testified about her repeated use of cocaine, admitted that she had been addicted to heroin, and stated that she was presently on a methadone maintenance program. Finally, the witness Carol Dizeo, also known as Tracey Lee, admitted that she was an addict, but said that she, too, was on a methadone maintenance program. All of these witnesses offered testimony which incriminated the defendant to a greater or lesser degree.

The defendant made numerous requests that the jury be instructed that “it is a well recognized fact that a drug addict is inherently a perjurer where his or her own interests are concerned” and that “it is a well recognized fact that a drug addict is inherently a perjurer where his or her own interests are concerned and it is therefore manifest that such testimony should be received with suspicion and acted upon with caution.”

The district court denied defendant’s requests for addict instructions. The district court did instruct the jury that Ralph Caputo and Brenda Conn were paid informers, that the testimony of an informer who provides evidence “for pay or for immunity from punishment or for personal advantage or vindication must be examined and weighed by the jury with greater care than the testimony of an ordinary witness,” and that the jury must decide whether the informers’ testimony “has been affected by interest or by prejudice against the Defendant.” The jury was also told that Carol Dizeo, Ralph Caputo, Conchita Wynn, Brenda Conn, and John D’Anna, as well as others, were defendant’s accomplices, that an accomplice is not incompetent to testify, but that “the jury should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a Defendant upon the unsupported testimony of an alleged accomplice unless you believe that unsupported testimony beyond a reasonable doubt.” Thus, of the admitted drug users, or former addicts — Conn, Caputo, Wynn, Rowland and Dizeo — only Dizeo was not mentioned by name in one or both of the special instructions; and her testimony was merely cumulative. In addition to the special instructions, the jury was cautioned generally in passing upon credibility, “to scrutinize the testimony given by each witness, the circumstances under which each has testified, and his intelligence, his or her motive and state of mind, and his or her demeanor and manner while on the witness stand.”

Despite the instructions on paid informers, accomplices, and the credibility of witnesses, defendant argues that his requested instructions cautioning the jury in receiving the testimony of drug addicts should have been granted. He places principal reliance on United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d 566 (1972); United States v. Griffin, 382 F.2d 823 (6 Cir. 1967), and Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321 (1946), which held that a cautionary instruction was required when a paid addict informer’s testimony was the government’s sole evidence on one or more material elements of the case. While it does not appear that this circuit has yet addressed the question of addict instructions, we note that several circuits in addition to the District of Columbia Circuit and Sixth Circuit have recently spoken approvingly of addict instructions. See, e. g., Virgin Islands v. Hendricks, 476 F.2d 776, 779-780 (3 Cir. 1973); United States v. Collins, 472 F.2d 1017, 1018-1019 (5 Cir. 1972). We conclude, for the reasons hereafter stated, that the district court was not in error in denying defendant’s requested addict instructions.

The leading case of United States v. Kinnard identified the special dangers that paid addict informers would fabricate testimony. These addiction-related motivations to prevaricate are the addict’s fear of retribution from higher-ups in the drug trade, his desire to avoid the harsh penalties for narcotic violations, and, most importantly, his fear that a failure to secure conviction would mean that he could no longer support his habit — and might face withdrawal symptoms — either because he would no longer be free from incarceration and thus have access to his regular source of supply “in the street,” or because he would no longer receive drugs or money as informant’s pay.

However, in Griffin and Fletcher the crucial operative fact of addiction was clear and in Kinnard the defendant erroneously had been foreclosed from establishing it. Accord, United States v. Masino, 275 F.2d 129, 131-132 (2 Cir. 1960). In the instant case, the status of the witnesses as “addicts” is unclear. The record does not contain such strong proof of addiction that we may conclude in the first instance that the witnesses were addicts, and it has not been suggested that the district court precluded establishment of the fact of addiction.

Moreover, the significance of cocaine or methadone “addiction” is not certain. In each of the three cases in which an addict instruction has been held necessary — and in the two recent decisions indicating approval of such an instruction — heroin addiction has been involved. In regard to heroin addiction, we feel at liberty to take judicial notice of the fear which a witness addicted to heroin might have of the brutal and physiologically verifiable withdrawal symptoms connected with that drug, but the consequences of deprivation of cocaine or methadone from the viewpoint of the addict, whether physiological or psychological, are not sufficiently known that we may take judicial notice of them. Without expert testimony, we cannot say that methadone or cocaine addicts predictably will behave like heroin addicts in similar circumstances.

But even if the factual predicates to an addict instruction had been established, the instruction sought in this case was improper. The defendant’s request, repeated numerous times, that the jury be instructed that a drug addict is “inherently a perjurer” was excessive and would have entirely emasculated the witnesses’ testimony rather than have simply cautioned the jury before receiving it. In rejecting the “inherently a perjurer” language, Judge Van Dusen stated:

Defendant took this “inherently a perjurer” language from Fletcher v. United States, 81 U.S.App.D.C. 306, 158 F.2d 321, 322 (1946). While the court in Fletcher was concerned with the reliability of an addict-informer, the court’s decision was to allow such testimony but to require that a cautionary instruction be given. To suggest that a cautionary instruction should contain the words “inherently a perjurer” is to misread Fletcher, for such an instruction would in effect make the testimony incompetent altogether. The district court was correct in not giving the proposed instruction. Virgin Islands v. Hendricks, 476 F.2d 776, 779 (3 Cir. 1973).

We accept this reading of Fletcher, particularly since the District of Columbia Circuit, itself, has held that the use of the “inherently a perjurer” language in a jury instruction is reversible error. Godfrey v. United States, 122 U.S.App.D.C. 285, 353 F.2d 456 (1966). The District of Columbia Circuit explained that “it was error for the Trial Judge to couch his ‘cautionary instruction’ to the jury about addicts in the same terms as the appellate rationale for the need for an instruction about the testimony of paid informants who are addicts.” Id. at 458 n. 1. (Emphasis in original). Thus, the trial court did not err in rejecting defendant Gregorio’s proffered instruction.

Furthermore, following Hendricks, supra, 476 F.2d at 779, Collins, supra, 472 F.2d at 1018-1019, Kinnard, supra, 465 F.2d at 568, 575-577, 580, Griffin, supra, 382 F.2d at 828-829, and Fletcher, supra, 158 F.2d at 321, 322, we hold that the fact that the trial court did not on its own motion draft a more moderate addict instruction was not plain error since the non-addict testimony in this case fully corroborated the testimony of those witnesses claimed to be addicts, covered all material elements of the case, and was, by itself, sufficiently strong that it would have supported the guilty verdict absent all alleged addict testimony.

IV.

We see no merit in defendant’s contention that the evidence was not legally sufficient to permit the jury to find beyond a reasonable doubt that the white, powdery, crystalline substance involved in the sale transactions described in the indictment was cocaine hydrochloride. Admittedly, no samples were admitted into evidence, no samples were subjected to chemical analysis, and there was no expert testimony from medically or scientifically trained persons. There was, however, an abundance of lay testimony from users of cocaine who had sampled the substance that its identity as cocaine was unmistakable. Furthermore, there was other compelling circumstantial proof (secrecy and deviousness of transactions, high prices paid in cash for the substances, lack of complaint on the part of purchasers, descriptive language of participants in transactions, and descriptions of the physical appearance of the substance). These factors were recognized in United States v. Aguecci, 310 F.2d 817, 828-829 (2 Cir. 1962), as legally sufficient to prove the identity of a substance as a drug. See also United States v. Atkins, 473 F.2d 308 (8 Cir. 1973).

V.

After the jury found defendant guilty as charged but before he was sentenced, the prosecutor made a statement to the press which was the subject of an article in each of Baltimore’s two daily newspapers. In the articles it was reported that defendant had been convicted, that he was, according to the prosecutor, the largest drug pusher to be convicted in Maryland, and that the prosecutor intended to request the maximum 70-year prison term at the time of sentencing. The prosecutor indicated that his request was in accord with a statement by President Nixon approving harsh sentences for drug pushers.

Defendant moved for a new trial, or in the alternative for a mistrial, because of this post-conviction publicity. The district court denied the motion, stating that the newspaper articles would have no effect upon it in passing sentence, that it would sentence solely on the basis of the argument of counsel, the evidence at trial, and facts properly contained in the presentence report. The court stated that it would not impose any sentence because the President of the United States or anybody else said that it should be imposed.

We find no error in denial of the motion. We accept completely the statement of the district court that it would impose sentence solely upon the facts heard during the trial, information properly contained in the report of presentence investigation, and the arguments of counsel. While imposing a justifiably severe sentence, the district court did not fix the sentence in accordance with the prosecutor’s request.

While we have no doubt of the ability of district judges generally to resist improper comments by the prosecutor to the press, and specifically the ability of the district judge in this case to confine himself to the record, we disapprove of the prosecutor making out-of-court presentence comments to the press regarding a recommended punishment or a characterization of the defendant which goes beyond the evidence theretofore adduced at trial. It is not enough that the court was invulnerable to what was said; there is a duty on the part of counsel not to tempt that invulnerability.

VI.

Finally, defendant advances the novel contention that his right to due process of law was denied because the government declined to grant immunity to a defense witness who invoked the privilege against self-incrimination and declined to testify. Defendant constructs an elaborate argument as to how he was prejudiced, but the argument fails because the record does not show that the grant of immunity was requested.

The identity of a witness, Odel Griffin Coffey, Jr. (Schoolboy), was disclosed in the testimony of government witnesses. Called to the stand by defendant and having had his fifth amendment rights explained, “Schoolboy” declined to testify. When defense counsel suggested that “Schoolboy’s” declination was due to his lack of immunity, “Schoolboy” was asked if he would testify if he were granted immunity, even though the government had made known its firm refusal to grant immunity to him. To this question, “Schoolboy” also invoked his right against self-incrimination. Defense counsel did not request a grant of immunity and withdrew the witness. On this record, we therefore conclude that defendant’s contention was not preserved for decision.

We decline to pass on defendant’s contention under the “plain error” rule. If a motion to grant immunity or to require the government to grant immunity had been made to the • district judge, he undoubtedly would have required defense counsel to make a proffer of the witness’ testimony or at least to provide some relatively precise indication of what was hoped to be proved by it. Thus, defense arguments that immunity for defense witnesses in a particular case was necessary to protect the reliability of the trial as a mechanism for ascertaining the truth, or that the absence of defense immunity in the particular case denied the defendant a fair trial, or that defense immunity was necessary under a due process fairness principle if prosecutorial immunity was accorded, could be evaluated. In addition, proffered testimony or some equivalent substitute would provide a basis for understanding and evaluating the prosecutor’s argument that, upon the subsequent trial of the defense witness, it would be impossible to prove that the government’s evidence was free of taint as is required under the controlling use immunity standard. Absent proffered testimony or its equivalent, we would be required to decide these issues in a factual vacuum without the views of the district judge on the credibility and importance of the defense witness’ testimony in the context of the whole case. Because the issue is not ripe for decision, we decline to explore the issue of defense immunity under the “plain error” rule.

Since we find no reversible error, the judgments are

Affirmed.

      . Gregorio is represented by different counsel on appeal.

      . “Presence in capital cases may not be waived in any respect.” 8A J. Moore, Federal Practice, ¶ 43.02 [2] (2 ed. 1973). But of. generally Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . Diaz is some authority, albeit dictum, that a defendant in custody such as Gregorio cannot waive his right to be present “because his presence or absence is not within his own control.” See United States v. Crutcher, 405 F.2d 239, 243 (2 Cir. 1968), Moore, supra note 2, at n. 7. See also Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629, 633 (1963), Pearson v. United States, 117 U.S.App.D.C. 52, 325 F.2d 625 (1963). In light of our conclusion that there is no common law or constitutional right to be present during legal conferences on jury instructions, we do not have to reach and assess the legal significance of Gregorio’s custody.

      . See Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Moore, supra n. 2, at ¶ 43.02 [1],

      . See Id. Obviously, this historic rationale behind the privilege of presence would have much more direct bearing on a case where a defendant was proceeding pro se.

      . See, e. g., Fed.R.Crim.P. 43 (advisory committee’s note explains that accused misdemeanants may waive the right of presence because “appearance in court may require considerable travel, resulting in expense and hardship not commensurate with the gravity of the charge.” Schwab v. Berggren, 343 U.S. 442, 445, 12 S.Ct. 525, 30 L.Ed. 218 (1892) (Harlan, J.) (see quote infra note 11), Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (Harlan, J.).

      . “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Black, X).

      . See generally Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

      . See Moore, supra n. 2, at ¶ 43.03 [1] & [2], Schwab v. Berggren, 143 U.S. 442, 449, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892) (Harlan, X) (“neither reason nor public policy require that [the defendant] shall be personally present pending proceedings in an appellate court whose only function is to determine whether, in the transcript submitted to them, there appear any error of law to the prejudice of the accused; especially, where, as in this case, he had counsel to represent him in the court of review.”) Cf. Gideon v. Wainwright, 372 U.S. 335, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1963), Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

      . One of the best expressions of this rationale behind the right of presence is found in Rex v. Bodmin Justices [1947] K.B. 321, 325 [1947] 1 All Eng. 109, a criminal case in which a witness was interrogated by the court in the absence of the defendant. In that case, Lord Goddard said:
      That is a matter which cannot possibly he justified. I am not suggesting for one moment that the justices had any sinister or improper motive in acting as they did. It may be that they sent for this officer in the interests of the accused; it may be that the information which the officer gave was in the interests of the accused. That does not matter. Time and again this court has said that jiistiee must not only be done but must manifestly be seen to be done . . .. (Emphasis added).
      A strong statement of similar import was made by Justice Roberts’ dissent in Snyder v. Massachusetts, 291 U.S. 97, 131-132, 54 S.Ct. 330, 342, 78 L.Ed. 674 (1934), in which Justices Brandéis, Sutherland, and Butler joined:
      [T]he privilege goes deeper than the mere opportunity to cross-examine, and secures [the defendant’s] right to be present at every stage of the trial. The cases cited in the margin, while by no means exhausting the authorities, sufficiently illustrate and amply sustain the proposition that the right is fundamental and assures him who stands in jeopardy that he may in person, see, hear and know all that is placed before the tribunal having power by its finding to deprive him of liberty or life. (Footnote omitted).
      Although a dissent, it has had continuing influence. See, e. g. Near v. Cunningham. 313 F.2d 929, 932 n. 1 (4 Cir. 1963). Seo generally Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927) (right of presence at rendering of verdict) (dictum), Bustamante v. Eyman, 456 F.2d 269 (9 Cir. 1972) (right of presence during replay of recorded jury instructions), Barton v. State, 67 Ga. 653, 44 Am.Rep. 743 (failure to secure presence of accused felon in custody “at all stages of the trial, — especially at the rendition of the verdict” is reversible error) quoted with approval in Diaz v. United States, 223 U.S. 442, 456, 32 S.Ct. 250, 56 L.Ed. 500 (1912).

      . See Schwab v. Berggren, 143 U.S. 442, 448, 12 S.Ct. 525, 527, 36 L.Ed. 218 (1892).
      The personal presence of the accused, from the beginning to the end of a trial for felony involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defense, and cannot be dispensed with.
      Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (defendant’s presence important to exercise of jury challenges in elaborate collateral proceeding not part of the common law “trial”); 4 W. Blackstone, Commentaries *353 (defendant’s presence necessary to assist counsel in making preemptory challenges) followed in Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

      . In the first part of this century it was necessary for federal courts to delineate carefully and to examine separately the sources of the right of presence, see Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 78 L.Ed. 674 (1934), Frank v. Mangum, 237 U.S. 309, 338-345, 35 S.Ct. 582, 59 L.Ed. 969 (1915), for then due process had not yet developed to the point that it included such fundamental rights as trial by jury, see Snyder, supra, 291 U.S. at 105; Frank, supra, 237 U.S. at 340, the privilege against self-incrimination, see Snyder, supra, 291 U.S. at 105; see Frank, supra, 237 U.S. at 342, and — most importantly for the privilege of presence — the right of confrontation. See Snyder, supra, 291 U.S. at 106; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). However, under the currently applicable totality of the circumstances test appropriate to due process, we find no warrant to reject or to dilute the two policies behind the privilege of presence simply because the due process rubric has been invoked. Furthermore, no additional reasons solely or specially connected to a due process analysis have been proffered by defendant or disclosed by our own research.

      . “The addict’s habit makes him uniquely subject to constant surveillance and susceptible to arrest — he is in a perpetual status of violating the law.15 For the ad-
      15 [original footnote] [T]he addict lives in almost perpetual violation of one or several criminal laws, and this gives him a special status not shared by other criminal offenders. Together with the fact that he must have continuous contact with other people in order to obtain drugs, it also gives him a special exposure to police action and arrest . . .. [The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Narcotics and Drug Abuse] at 10. See also [A. Lindesmith, The Addict and the Law] at 46 [(1965)].
      diet, arrest is harassment of a special sort, for he is forced to undergo the beginnings of withdrawal symptoms.16 At
      [original footnote] Among the symptoms of the withdrawal sickness, which reaches peak intensity in 24 to 48 hours, are muscle aches, cramps, and nausea. [Task Force Report at 2.]
      this stage, a bribe of heroin or the promise of immediate release and return to the habit seem irresistible.”
      465 F.2d at 571 & nn. 16 & 17 (Bazelon, C. J., concurring).