author: WALLACE, Circuit Judge:

text:
    K-2 SKI COMPANY, a corporation, Plaintiff-Appellant, v. HEAD SKI CO., INC., a Delaware corporation and William Crocker, Defendants-Appellees. K-2 SKI COMPANY, a corporation, Plaintiff-Appellee, v. HEAD SKI CO., INC., a Delaware corporation and William Crocker, Defendants-Appellants.
    Nos. 72-2823 and 72-2497.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1974.

      Theodore J. Collins (argued), Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for appellant and cross-appellee.
    Don Paul Badgley (argued), Bogle Gates, Dobrin, Wakefield & Long, Seattle, Wash., for appellees and cross-appellants.
    Before MERRILL and WALLACE, Circuit Judges, and SKOPIL, District Judge.

       Honorable Otto R. Skopil, Jr., United States District Judge, District of Oregon, sitting by designation.

   OPINION

WALLACE, Circuit Judge:

K-2 Ski Company (K-2), a Washington corporation with its principal place of business in Washington, brought this action based upon diversity jurisdiction against Head Ski Company (Head), a Delaware corporation with its principal place of business in Maryland, and William Crocker, a citizen of Maryland, seeking damages and injunctive relief. K-2 alleged that subsequent to his employment by K-2, Crocker began working for Head and disclosed trade secrets. The district court issued a preliminary injunction against Head and Crocker in April, 1970. That action was reversed by us in July 1972. In the interim, the district court had appointed a special master to hear this case. The master made detailed findings of fact and concluded that Head had unlawfully used K-2 trade secrets. Accordingly, the district court issued a permanent injunction barring Head from using one of the K-2 trade secrets for one year and another secret for two years.

Head appeals contending (1) that K-2 is barred from claiming trade secret protection because it failed to take reasonable precautions to maintain secrecy, (2) that the duration of the injunction was excessive, (3) that the district court erred in awarding attorney’s fees to K-2 and (4) that the district court erred in taxing the special master’s fees against Head. K-2 cross-appeals contending that the court erred (1) in not finding the entire K-2 ski to be a trade secret and (2) in not awarding damages to K-2. We reverse the award of attorney’s fees, remand the injunction and damage issues and affirm the remainder of the case.

I. THE FACTS

Head and K-2 are competing ski manufacturers. In the early 1960’s, Head’s metal-laminated skis dominated the quality ski market. By 1967, the new K-2 fiberglass skis had been marketed and the demand for the K-2 skis had grown significantly. Crocker was employed by K-2 from May, 1967, to February 13, 1970. Prior to Crocker’s employment with K-2, he had no knowledge of the construction or production of skis nor had he had any background in engineering, manufacturing, shop practice or purchasing. Crocker had majored in political science in college and had been primarily involved in appliance and furniture retailing prior to joining K-2. By January 1, 1968, Crocker had advanced to the position of general superintendent of the K-2 manufacturing operations. In that position, he supervised all aspects of the production of skis, purchased all the materials and hired and fired employees. In July, 1969, Crocker’s responsibilities were transferred to another employee and by the end of 1969, Crocker had become dissatisfied with his job at K-2 and contacted Head concerning employment. On January 26, 1970, after visiting the Head plant in Maryland, Crocker was offered a job at Head. Coupled with the offer of a base salary was a bonus which was contingent upon production of 5,000 skis with a wet-wrap process by the end of 1970. Crocker joined Head on February 16, 1970, but did not disclose to K-2 the name of his new employer. This action was filed on March 23, 1970.

II. SECRECY

Head argues that K-2 cannot claim trade secret prptection because K-2 failed to take reasonable precautions to maintain the secrecy of its method of manufacturing its skis. In this diversity action we must look to state law for the substantive law of trade secrets. Since there is no Washington law on the issue before us and Maryland law relies on the Restatement of Torts § 757, Servomation Mathias, Inc. v. Englert, 333 F.Supp. 9, 14 (M.D.Pa.1971); Space Aero Products Co. v. R. E. Darling Co., Inc., 238 Md. 93, 208 A.2d 74, cert. denied, 382 U.S. 843, 86 S.Ct. 77, 15 L.Ed.2d 83 (1965), we agree with the district court that there is no choice of law problem and the general common law and section 757 of the Restatement of Torts should apply.

There are two common law doctrines on secrecy: (1) absolute secrecy and (2) relative secrecy. The better view, and the one we think both Washington and Maryland would espouse, is the majority view of relative secrecy which has been adopted by the Restatement of Torts § 757. 12 Business Organizations, Milgrim, Trade Secrets § 2.-07[2] at 2-48 (1974). This view requires a substantial element of secrecy, Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972), and that reasonable measures under the circumstances be taken to protect the secret. 12 Business Organizations, Milgrim, Trade Secrets § 2.04, at 2-16 (1974). The necessary determination of “[wjhether such a degree of secrecy existed in a particular case is a question of fact[,]” Clark v. Bunker, supra, 453 F.2d at 1010, accord, Mil-grim, supra, § 2.07, at 2-44, and the trier of fact must consider “the entirety of circumstances surrounding use” of the secret. Milgrim, supra, § 2.04, at 2-16. Thus, the clearly erroneous standard of review applies to this issue. Fed.R.Civ.P. 52(a).

Two particular instances which Head cites as examples of the lack of secrecy by K-2 merit brief attention. The Pellón Corporation, which supplied K-2 with a material which was vital to the production of K-2 skis, sought to exhibit K-2 skis in its display at a conference in Washington, D. C. Crocker agreed to send the skis. The conference was held the same month Crocker left K-2 to go to work for Head. K-2 sent a “competition” model ski which was intact and a “holiday” model which had been cut lengthwise. None of the Head personnel attended the conference and there is no evidence of attendance by any other ski manufacturer. The district court found that this did not constitute a public disclosure and this finding is not clearly erroneous. See Clark v. Bunker, supra, 453 F.2d at 1009-1010.

Occasionally, limited tours of the K-2 plant were conducted but personnel from competitor ski manufacturers were not permitted to view the ski manufacturing operation. The district court found that during these tours it was impossible to discover the K-2 procedure. The district court also found that even though the security at the plant was not tight, this did not destroy secrecy because the plant was located in a remote area. None of these findings aro clearly erroneous.

III. THE INJUNCTION

The district court found that K-2 had established two trade secrets and that Head had unlawfully utilized them in its production of skis. Relying upon Winston Research Corp. v. Minnesota Mining & Manufacturing Co., 350 F.2d 134, 141-142 (9th Cir. 1965), and Plant Industries, Inc. v. Coleman, 287 F.Supp. 636, 645 (C.D.Cal.1968), the district court enjoined Head from using the base subassembly trade secret for two years and the surfacing veil secret for one year. We are satisfied that the appropriate duration for the injunction should be the period of time it would have taken Head, either by reverse engineering or by independent development, to develop its ski legitimately without use of the K-2 trade secrets. The district court properly determined the period for injunctive relief but, in issuing its permanent injunctions, apparently did not take into account the period of time that Head had already been under the preliminary injunction.

Head argues that since the preliminary injunction lasted for 27 months, the two- and one-year injunctions are barred because Head has already been enjoined beyond the appropriate period of time necessary to deprive it of the benefits of using the K-2 trade secrets. This issue was not raised before the trial judge. While the general rule prohibits an appellate court from considering issues not urged before the lower court, we have said:

This [restraint] is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial [forum] is . .to decide [and] in order that the litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence. Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037.

There is, however, no rigid and undeviating judicially declared practice under which courts of review invariably and under all circumstances decline to consider all questions which have not previously been specifically urged. Indeed there could not be without doing violence to the statutes which give federal appellate courts the power to modify, reverse or remand decisions “as may be just under the circumstances.” 28 U.S.C.A. § 2106. Exceptional cases or particular circumstances may prompt a reviewing court, where justice might otherwise result or where public policy requires, to consider questions neither pressed nor passed upon below. The power to raise and decide questions sua sponte is, however, to be exercised sparingly and with full realization of the restrictions and limitations inherent in its employment.

Nuelsen v. Sorensen, 293 F.2d 454, 462 (9th Cir. 1961) (footnote omitted). Because the record does not contain any transcript of proceedings before the special master, we do not know whether Head argued there that the permanent injunctions should not issue because the preliminary injunction had already been in effect for over two years. The record does reflect that the trial judge read the master’s report.

In Nuelsen, we stated:

Rather than consider the matter sua sponte, of course, the appellate court may note the existence of the unargued, undecided question and remand the case to the lower court. This makes the decision on the matter one reflecting the consideration of a trial court and the counsel in the ease.

293 F.2d at 462 (footnote omitted). We remand this issue to the trial court to consider the effect of the twenty-seven-month preliminary injunction on the one- and two-year permanent injunctions. In its determination, the trial court should consider whether the preliminary injunction served the same purpose as the permanent injunctions and whether it properly deprived Head of the benefits reaped by the use of the K-2 trade secrets. If the preliminary injuntion had the same effect or accomplished the same result as the permanent injunctions would have, then the permanent injunctions may have been improper. On the other hand, if the preliminary injunction did not serve the same purpose and did not deprive Head of any benefits, then the permanent injunctions may have been the proper way to compensate K-2 for the unlawful use by Head of the K-2 trade secrets. This issue is more appropriate for a trial court determination because K-2 has argued that Head did not comply with the preliminary injunction and the trial judge is in a better position to resolve this conflict and the question of whether the preliminary injunction accomplished the same result as the permanent injunctions.

IV. ATTORNEY’S FEES

The Supreme Court recently summarized the law of granting attorney’s fees in federal court:

Although the traditional American rule ordinarily disfavors the allowance of attorneys’ fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys’ fees when the interests of justice so require. Indeed, the power to award such fees “is part of the original authority of the chancellor to do equity in a particular situation,” Sprague v. Ticonic National Bank, 307 U.S. 161, 166, [59 S.Ct. 777, 780, 83 L.Ed. 1184] (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever “overriding considerations indicate the need for such a recovery.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392, [90 S.Ct. 616, 625, 24 L.Ed.2d 593] (1970); see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, [87 S.Ct. 1404, 1407, 18 L.Ed.2d 475] (1967).
Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” 6 J. Moore, Federal Practice ¶ 54.-77[2], p. 1709 (2d ed. 1972); see, e. g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968); Vaughan v. Atkinson, 369 U.S. 527, [82 S.Ct. 997, 8 L.Ed.2d 88] (1962); Bell v. School Bd. of Powhatan County, 321 F.2d 494 (CA4 1963); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (CA4 1951). In this class of cases, the underlying rationale of “fee-shifting” is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of “bad faith” on the part of the unsuccessful litigant.

Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945, 36 L.Ed.2d 702 (1973) (footnotes omitted). In Monolith Portland Midwest Co. v. Kaiser Aluminum & Chemical Corp., 407 F.2d 288, 298 (9th Cir. 1969), we said in a trade secret case that “[t]here is no general federal rule or policy favoring an award of attorney’s fees to prevailing defendants in nonpatent cases.”

The special master recommended that each party bear its own attorney’s fees. The trial judge, however, decided to award K-2 $25,000 in attorney’s fees. Although the trial judge disagreed with the special master on this issue, he did not make any findings of fact in relation to this award. The master, however, found that there was no wrongful inducement of Crocker by Head and that Head did not solicit the trade secrets from Crocker. Neither the district court’s findings of fact nor the record reflects that in these instances Head acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Accordingly, the award of attorney’s fees must be reversed.

V. COSTS OF THE SPECIAL MASTER

The order appointing the special master provided that each party would pay one-half of the fee and that the prevailing party could tax the entire expense as costs. Head argues that the court erred in assessing all of the costs of the master against Head.

The compensation of a master is fixed by the court and paid as the court may direct. Fed.R.Civ.P. 53(a). The prevailing party has a right to recover moneys paid for the master “as a part of its recoverable costs . . . . ” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2608, at 798 (1971); accord, 6 J. Moore, Federal Practice ¶ 54.77[3], at 1718 (2d ed. 1974). Federal Rule of Civil Procedure 54(d) provides that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs . . ” Thus, the awarding of these costs is discretionary with the trial judge, 9 C. Wright & A. Miller, Federal Practice and Procedure § 2608, at 795 (1971); C. Wright, Law of Federal Courts § 98, at 438 (2d ed. 1970); 6 J. Moore, Federal Practice ¶ 54.70 [4], at 1310, ¶ 54.70[5], at 1312 (2d ed. 1974), and we will not overturn his decision unless it has been abused.

Head contends that since K-2 prevailed on only two of its 12 alleged trade secrets and that since considerable expense of the master was spent in establishing the contentions of both parties, the cost should be divided by the parties.

In general, a party in whose favor judgment is rendered by the district court is the prevailing party . . Although a plaintiff may not sustain his entire claim, if judgment is rendered for him he is the prevailing party.

6 J. Moore, Federal Practice ¶ 54.70 [4], at 1306-1307 (2d ed. 1974) (footnotes omitted); accord, Hines v. Perez, 242 F.2d 459, 466 (9th Cir. 1957).

K-2 was the prevailing party in this action and the district court did not abuse its discretion in allowing the master’s compensation to be taxed as costs.

VI. CROSS-APPEAL

A. Entire Ski as a Trade Secret

In its cross-appeal, K-2 argues that the trial court erred in not finding that the entire process for making the K-2 ski is a trade secret. K-2 urges that Head be enjoined from producing this type of ski for the period of time it would have taken Head to have developed it independently without the use of the K-2 trade secrets. Citing Head Ski Co., Inc. v. Kam Ski Co., Inc., 158 F.Supp. 919 (D.Md.1958), and ILG Industries, Inc. v. Scott, 49 Ill.2d 88, 273 N.E.2d 393 (1971), K-2 argues that the injunction should cover the entire ski and not merely some of its component parts.

The question of whether the entire process is a trade secret is a factual determination. Thus, K-2’s argument would have been more appropriately directed to the trier of fact. On appeal we are limited to determining whether the findings of fact are clearly erroneous. Fed.R.Civ.P. 52(a). K-2 has not argued that the findings are clearly erroneous and, upon our review of the record, we conclude that they were not. The trial court did not err in failing to find that the entire process for making the K-2 ski was a trade secret.

B. Damages

K-2 contends that the trial court erred in not awarding damages for skis manufactured by Head using the K-2 trade secrets. Head has not responded to this argument. K-2 asked for both injunctive relief and damages in its complaint. Either or both forms of relief may be awarded in a trade secret case. 12 Business Organizations, Milgrim, Trade Secrets § 7.08[3] [a], at 7-71 (1974). K-2 asserts that the special master refused to let them go into this area during the trial and that this issue should be remanded for a determination of damages. We agree.

The trial judge heard arguments of counsel after the filing of the special master’s report. K-2’s counsel brought up the damages issue and the trial judge stated that he would decide that issue and write a memorandum on it. The record does not show that the trial judge did so nor did he mention the issue of damages in the findings of fact or conclusions of law. The trial judge’s order merely adopted the master’s findings and conclusions with one exception, i. e., he ordered that Head pay the attorney’s fees of K-2. Head’s counsel had argued to the judge that damages or a reasonable royalty should be awarded instead of the injunction requiring Head to hold the skis off the market. Although the record shows that the trial judge said that he was “more or less” in agreement with this contention, the record does not show that this issue was ever decided. Head’s counsel also stated that it was understood by the parties, and the master had so instructed, that the damage issue would be reserved for a later determination and that was why the master made no findings on the value of the skis. The trial judge responded “we will work something out” and his last statement to counsel was that he might need some additional information to decide the question of damages. The record does not reflect that this issue was ever decided and we, therefore, remand this issue to the trial court to determine if damages are appropriate.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . Maryland law, which adopts the relative secrecy view, provides that absolute secrecy is not necessary but a substantial element of secrecy must exist. Servomation Mathias, Inc. v. Englert, 333 F.Supp. 9, 14 (M.D.Pa. 1971); accord, Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir. 1972) (citing Restatement of Torts § 757); E. I. duPont deNemours & Co., Inc. v. Christopher, 431 F.2d 1012, 1015 (5th Cir. 1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971) (citing Texas law, based upon the Restatement, requiring reasonable precautions to maintain secrecy).

      . Milgrim states that the absolute secrecy doctrine, which he submits has appeared in cases only as dicta, is the minority and less sound view. 12 Business Organizations, Milgrim, Trade Secrets § 2.07 [2], at 2-46 (1974).

      . Head has argued that Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), enunciate a federal policy that state unfair competition laws cannot protect unpatented ideas. That argument lias been dispelled by the Court. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974). In Winston we said that Sears “preclude [d] judicial recognition of a legally protectible interest in the secrecy of industrial information as such, as distinguished from an interest in the integrity of confidential employer-employee relationships.” 350 F.2d at 138 (footnote omitted). We are not persuaded that Kewanee Oil affects the proper injunctive period as described in Winston.


source: Caselaw Access Project

author: HEANEY, Circuit Judge. GIBSON, Circuit Judge PER CURIAM. GIBSON, Chief Judge, with whom STEPHENSON and WEBSTER, Circuit Judges,

license: Public Domain

text:
    James William STIDHAM, Appellant, v. Harold R. SWENSON, Warden, Appellee.
    No. 20685.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided March 28, 1974.
    On Rehearing En Banc Nov. 26, 1974.

      Mark M. Hennelly, St. Louis, Mo., for appellant.
    John C. Danforth, Atty. Gen., and David Robards, Asst. Atty. Gen., Jefferson City, Md., for appellee.
    Before GIBSON, HEANEY and BRIGHT, Circuit Judges.
   HEANEY, Circuit Judge.

The sole issue on this habeas corpus appeal is whether James Stidham’s confession that he participated in the brutal slaying of a fellow inmate during a riot at the Missouri State Penitentiary was properly received in evidence at his state trial for murder. The state trial court held that the confession was voluntary and properly received in evidence. This ruling was affirmed by the Missouri Supreme Court. State v. Stidham, 305 S.W.2d 7 (Mo.1957), denial of motion to vacate sentence affirmed, 403 S.W.2d 616 (Mo.1966). The voluntariness of the confession was again sustained in a state post-conviction proceeding and the Missouri Supreme Court affirmed in State v. Stidham, 449 S.W.2d 634 (Mo. 1970). The United States District Court, Western District of Missouri, subsequently denied Stidham’s habeas corpus petition without an evidentiary hearing. It too found that Stidham’s confession was voluntary. Stidham v. Swenson, 328 F.Supp. 1291 (W.D.Mo. 1970). This Court reversed the District Court, holding that the state court had failed to comply with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), in determining the voluntariness of the confession. We remanded to the District Court. The Supreme Court of the United States reversed, holding that the post-conviction determination was procedurally adequate and substantially acceptable under the due process clause. Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972), modified, 410 U.S. 904, 93 S.Ct. 955, 35 L.Ed.2d 266 (1973). The Supreme Court remanded the matter to this Court with instructions to determine whether Stidham’s confession “was involuntary and inadmissible as a matter of law.” Swenson v. Stidham, supra at 409 U.S. 231, 93 S.Ct. at 363.

In making this determination, we must consider the totality of the circumstances and cannot override the state court’s determination unless it is established by “ * * * convincing evidence that the state courts’ determination [is] erroneous.” LaVallee v. Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 1206. 35 L.Ed.2d 637 (1973); Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

An independent examination of the record convinces us that the state erred in finding the confession to be voluntary. This record, as that in Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967), documents a shocking display of barbarism which should not escape remedial action.

The undisputed evidence is that James Stidham was confined to the Missouri State Penitentiary in May, 1952, pursuant to a twenty-five year sentence for robbery. In January, 1953, he was placed in solitary confinement for an attempted escape. The cell to which he was confined was fiye feet by seven feet. It had a wash basin, a toilet and a steel bunk with a straw tick as a mattress. It was infested with cockroaches, rodents and pigeons. It was poorly ventilated. He remained in the cell until July 12, 1954, when he was transferred to another cell where the conditions were substantially the same as those in the cell which he had just left, other than the new cell had no bunk on which to place the straw tick. Throughout the entire period, Stidham was not permitted to visit with family or friends. He left his cell on only one occasion, that for a court appearance.

At 6:30 P.M. on September 22, 1954, a riot occurred in the prison. About one hour later, Stidham was released from his cell by other rioters. At 10:00 P.M., the severely mutilated body of inmate Walter Donnell was found in a cell near the one in which Stidham had been confined. The riot was quelled in the early morning hours of September 23. On that day, several prisoners signed statements implicating Stidham as one of those participating in Donnell’s murder. Stidham was returned to his cell on death row immediately after the riot was brought under control. At that time, the floor was covered with water and his straw tick was soaked. He slept in a sitting position on the commode.

On September 23, 24, 25 and 26, Stidham was questioned about twenty-five times in his cell and once in the classification room by prison guards and state patrolmen with respect to his part in the Donnell murder. He consistently denied that he was guilty. He was given little or no food or water during the four-day period. He wrote a letter to his family on one of the days asking them to get him counsel. He delivered the letter to prison authorities, but they failed to mail it.

On September 27, Stidham was taken from his cell and removed to the prison field house. He was again interrogated in a small hot room with his hands handcuffed behind his back in the presence of at least two armed highway patrolmen and four armed St. Louis police officers. The questioning was persistent, but he continued to assert his innocence for about one-half hour. He then broke down and admitted that he had participated in Donnell’s murder. He followed this oral admission with a written statement of guilt.

Stidham was then returned to another cell and held there for two more days with little or no food or water and without opportunity to see anyone from outside the prison. He was arraigned two days later without the benefit of counsel even though he requested one in open court.

Stidham was at no time advised of his right to remain silent or to have the assistance of counsel.

The state argues on appeal that Stidham’s claim for relief must be denied unless we accept his testimony that he was hung by his wrists and beaten. It cites Stidham’s testimony that he confessed only after he was beaten for the proposition that no other conduct was coercive. We reject this reasoning. It is for this Court to determine whether under the totality of the circumstances the confession was an involuntary one, and we hold they were. See Brooks v. Florida, supra; Clewis v. Texas, supra; Davis v. North Carolina, supra; Townsend v. Henderson, 405 F.2d 324 (6th Cir. 1968).

If a confession

* * * is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse of voluntary. * * *

Watts v. Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949).

Here, the pressure on Stidham was sustained and unyielding. It included eighteen months of solitary confinement in subhuman conditions; persistent questioning by armed guards over a four-day period; deprivation of food and water over the same period; denial of an opportunity to have contact with counsel, family or friends; failure to advise as to the right to remain silent and the right to assistance of counsel; and a final interrogation by six heavily armed law officers in a remote field house. Contrary to the statement of the Missouri Supreme Court in State v. Stidham, supra at 449 S.W.2d at 643, there is not a scintilla of evidence that state witnesses had “categorically or implicitly refuted” Stidham’s claims as outlined in this paragraph. We have scoured the record from beginning to end, as we are sure that Judge Collinson did before us, and are thoroughly satisfied that the circumstances were as stated. What we have then is not a question of credibility but a dispute over whether the actual circumstances considered in their totality were such as to render the confession an involuntary one. Judge Collinson believed they were not. We believe they were.

We recognize that Stidham had been in solitary confinement for twenty months before the riot, and that conditions in the cell were probably not much worse after the riot than before. But this neither changes the fact that these conditions were at all times subhuman nor excuses the failure of prison officials to give him adequate food and water and an opportunity to contact someone from the outside after he was put back in solitary confinement In the light of all of the circumstances and in view of the persistent questioning in the face of his repeated denials, it must have become painfully evident to Stidham that he must either confess or continue to be treated as an animal. The state’s ease in no way explains why a hardened criminal such as Stidham would figuratively sign his own death warrant by confessing to a murder committed in a prison, save through the testimony of the law enforcement officers who conducted the confrontation in the prison field house and who, as we have noted, testified that they did not beat Stidham or hang him by the arms. This testimony does not refute the evidence of motive as introduced by Stidham, showing the confession as bottomed upon coercion.

The state also argues that some of the testimony relied upon by Stidham to establish the involuntariness of his confession was not alluded to at his initial trial and was brought forth as an after thought for the first time in the post-conviction proceeding. The best answer to this contention is that the state had a clear opportunity to refute any new testimony and failed to do so.

As we read the record, the testimony at the post-conviction hearing developed more thoroughly the fact that the defendant had been deprived of nourishment during the four-day period prior to his confession. The state’s only answer to this testimony was that the defendant did not complain of the absence of food or drink when he was brought to the field house, and that he appeared to be in good health. It offered no direct testimony that Stidham was, in fact, given food or water during this period.

Stidham did testify for the first time at his post-conviction hearing that he wrote a letter to his family which the prison authorities failed to deliver. The state did not deny that a letter had been delivered to it, nor did it offer any testimony which would tend to show that the passage of years had made it impossible for it to adduce evidence on the point.

The question of Stidham’s guilt or innocence is not now before us. We repeat that the issue is one of the voluntariness of a confession and we are unable to reach any conclusion other than that the defendant’s confession was coerced.

The record would indicate that Stidham was not a model prisoner, and there is substantial testimony in the record indicating that he participated in the brutal killings; but these facts do not excuse the use of an extorted confession. We remain a government of laws, and those charged with law enforcement have a special responsibility to see that the guilty as well as the innocent are given the protection of the Constitution. If we depart from this principle, we deal the administration of justice a heavy blow.

The judgment of the District Court denying the petition for writ of habeas corpus is vacated and the case is remanded. On remand, the District Court will enter appropriate orders consistent with this opinion, allowing the state reasonable time in which to retry the appellant if it desires to do so.

GIBSON, Circuit Judge

(dissenting).

I dissent. I believe the majority has made a grievous misapplication of the law relating to the voluntariness of confessions to the facts of this case. This is not a case in which the “so-called facts and their constitutional significance [are] ... so blended that they cannot be severed in consideration.” Townsend v. Sain, 372 U.S. 293, 315, 83 S.Ct. 745, 758, 9 L.Ed.2d 770 (1963), quoting Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). Petitioner’s claims do not present a difficult or novel problem for decision. In such a case the district court can be reasonably certain that the state court would have granted relief if it had believed petitioner’s allegations. Townsend v. Sain, supra, 372 U.S. at 315, 83 S.Ct. 745. This case is remarkably similar to La Vallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973), where the Supreme Court concluded:

Here, not only is there no evidence that the state trier utilized the wrong standard, but there is every indication he applied the correct standards. His determination was made on the “totality of the circumstances” and, in this pre-Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), pre-Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), situation, the court also considered the facts that respondent was not warned of his rights to the assistance of counsel and against self-incrimination before confessing.

La Vallee v. Delle Rose, supra, 410 U.S. at 695, 93 S.Ct. at 1205.

The District Court properly determined that Stidham’s confession was voluntary. It was thus bound to deny the petition. I would affirm its denial of relief.

As the Supreme Court has held in this case, the state procedure was adequate to determine petitioner’s claim of involuntariness. The correct standard, “the totality of the circumstances,” was applied. The only permissible conclusion then is that the state court disbelieved petitioner’s allegations of physical and mental coercion, as it surely would have granted relief if all his allegations were found to be true. Where the state court has by its finding of voluntariness indicated a partial or complete rejection of petitioner’s testimony, I believe that the district court, and on appeal a court of appeals, is bound to deny the petition. See, United States ex rel. Delle Rose v. La Vallee, 468 F.2d 1288, 1290 (2d Cir. 1972), rev’d on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973):

Still * * * we cannot tell in this instance whether the New York courts credited Delle Rose’s story of the circumstances surrounding his confession * * * or based their holding of voluntariness on a partial or complete rejection of his testimony, in which event the district judge would have been bound to deny the petition, (emphasis supplied).

The Supreme Court, in reversing, found that the state court, having applied the correct standard, could not have found the facts as petitioner portrayed them. Neither could the Missouri courts in our present case. The majority’s approach appears to me to be a bald usurpation of power and a radical departure from prior cases in that it would deny the state courts the power to assess credibility or find the facts adverse to petitioner absent direct state evidence to the contrary. As noted by the Missouri Supreme Court on appeal of the denial of state post-conviction relief, State v. Stidham, 449 S.W.2d 634, 643 (Mo.1970):

In any event all these witnesses, all produced by the state, categorically or implicitly refuted all of Stidham’s claims of mistreatment, either physical or mental, (emphasis supplied).

The state contends that .the state court could consider the fact that many of Stidham’s allegations were first made in the Mo.Sup.Ct. Rule 27.26, V.A.M.R., proceedings, 13 years after the original trial, in assessing their credibility. It is no answer to this contention to say that the state had a clear opportunity to refute any new testimony and failed to do so. Ante, p. 481. First, this denies the trier of fact the ability to make a credibility determination absent direct proof to the contrary, and ignores the evidence that by implication refutes petitioner’s allegations. Second, such statement is not warranted by the record.

Leaving aside the difficulty or impossibility of refuting certain of petitioner’s claims 14 years after the time the confession was obtained, it is clear that the state was not apprised of many of petitioner’s claims of coercion until his testimony at the Rule 27.26 hearing. Rule 27.26 “is designed to discover and adjudicate all claims for relief in one application and avoid successive motions by requiring motions to be in questionnaire form.” State v. Stidham, 415 S.W.2d 297, 308 (Mo.1967). The pertinent parts of Stidham’s 27.26 motion are set out below. These show that no inference should be raised against the state for a failure to offer direct testimony rebutting certain of petitioner’s assertions.

Two state trial judges had the opportunity to see and hear Stidham. Both determined the facts against him. On both occasions their determination was upheld by the Missouri Supreme Court. Although we are to make an independent determination on the ultimate issue of voluntariness, due regard for the coequal responsibilities of the state courts in determining constitutional issues and a recognition of their superior ability to determine factual issues in this type of case where the state court has seen and heard the witnesses mandate that we accept their resolution of the facts against petitioner. The state courts employed a procedure acceptable under the due process clause; they found the facts against petitioner, and, applying the correct constitutional standard, determined his confession to be voluntary. Now, some twenty years after the events in question, the majority on a cold record determines that the facts are not as the state courts found them to be and upsets what I view as a valid conviction. This sorely points out the continuing need for some measure of finality in our criminal process if we are to restore public confidence in our system of criminal justice.

I would accept the several state courts’ determinations that Stidham’s confession was voluntary, and their resolution of the factual issues adverse to his claim. However, as the majority has determined the facts in contradiction to the state’s determination, I must register my disagreement with their conclusion.

The only factual issues in this record that the state courts could not have determined against Stidham are that he was in solitary confinement 20 months before his confession, that he was not advised of his right to remain silent and to the assistance of counsel, and that his confession was obtained as a result of interrogation September 27, 1954, at the prison field house.

Of these facts, only the failure to advise him of his right to remain silent and to the assistance of counsel is significant in determining the voluntariness of his confession, but this in itself is not enough to warrant reversal. Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). These factors go “only to the weight to be given other evidence of actual coercion,” and are “not in themselves coercive.” Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 489, 27 L.Ed.2d 524 (1971).

Stidham was in solitary confinement from January, 1953, to July, 1954, in E-Hall and from July 12, 1954, to the date of his confession, September 27, 1954, on Death Row. This was for an attempted escape in January, 1953. While we must recognize that placing a suspect or prisoner in solitary confinement is one of the circumstances the Supreme Court has cited in support of a determination of involuntariness, Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967); Davis v. North Carolina, supra, the rationale of those decisions does not apply to Stidham’s confinement. Stidham’s solitary confinement largely antedated and was for a reason wholly unrelated to the murder investigation. The state did not remove him from his regular cell to “an oppressive hole” in order to break down his resistance. We are not dealing, as the Court was in Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), with a person never before in trouble with the law, who, after being subject to custody with little or no contact with anyone but the police, might be particularly susceptible to this type of influence. Here, Stidham had successfully withstood solitary confinement for some 20 months; it marked no abrupt change from the conditions to which he had become accustomed. Further, even if Stidham’s straw tick mattress was waterlogged and he was forced to nap on a commode after being returned to his cell after the riot, this could surely be no more than excusable neglect on the part of the state officials. Stidham was an acknowledged leader of at least some of the 800 inmates who ran amok September 22, burning buildings and destroying property, among which were the water pipes that created the puddles of water on the floor now complained of. The inmates must surely have recognized during the riot that this damage could not be immediately corrected. It must be recognized as a part of the totality of the circumstances that the state officials had more pressing duties in restoring order at the time they returned Stidham to his cell than checking to see that he had a dry mattress to sleep on. Considering this as a possible coercive influence is akin to voiding the confession of a prisoner charged with burning his mattress because he then couldn’t sleep on the burnt mattress. I suppose that in the majority’s view the State would be charged with coercion if the firelight from the burning buildings made it impossible for Stidham to sleep.

Also uncontroverted on this record is that the confession occurred during interrogation by six armed officers at the prison field house. At his original trial the only evidence relied upon by Stidham to show coercion was his claim that he was twice hung from the ceiling of the field house by his wrists, the second time beaten with a corkball bat until he indicated his willingness to confess. He reiterated this claim at the 27.26 hearing. His account was directly contradicted by all the officers present during the questioning and has not been credited by any court.

Stidham’s primary claim now, and his only claim at trial, was that his confession was involuntary because of the beating and torture. No court has credited his completely uncorroborated claims. Thus on the record this beating and torture did not occur. Of course, it does not necessarily follow that since these events did not occur, Stidham's will was not overborne by other pressures. However, as we are attempting to assess the subjective effect of the totality of the circumstances upon Stidham’s will, his total reliance on the alleged abuse at the original trial and continued reliance on it at the 27.26 hearing would indicate that all these other factors, belatedly asserted by Stidham, did not “overbear his will” and cause him to involuntarily confess.

I do not believe the evidence in this record warrants crediting Stidham’s allegations regarding other coercive influences. Accepting that the beating and torture did not occur, which the majority reservedly does, we must recognize that this casts serious doubt upon the credibility of his other claims. He alleges protracted and intense interrogation by relays of officers. At his original trial he explained that as the officers made their regular rounds, they would stop at his cell and ask him if he knew anything about the murder, and that each time he would deny it. At the evidentiary hearing 13 years later the events were considerably embellished. He now remembers that immediately upon his return to his cell these groups of officers began questioning him and making threats, even that they would shoot him if he didn’t tell what he knew.

The majority states that Stidham was deprived of food and water over the four-day period between the end of the riot and his confession. Ante, p. 481. There is absolutely no evidence in the record that he was deprived of water during this time; his testimony was that he was without food or water during his confinement in O-Hall after his confession. He also, as an afterthought, alleged he was deprived of food the four days before his confession. This testimony is inherently unbelievable. At his original trial in 1955 no mention was made of a deprivation of food these days, while he did testify that he was without food from the time he was returned to O-Hall after his confession (he stated approximately 12:45 p. m. the 27th) until 8:00 a. m. the 29th. It is incredible to believe that this matter slipped petitioner’s mind or that he failed to recognize its importance when he testified with such specificity about his deprivations after the confession was obtained. The State also established that Stidham made no complaints to any of his questioners regarding this alleged lack of food, and the officers testified he appeared in good health. Although this is not direct testimony that he was given food and water, it surely is compelling enough to support the State’s determination that its witnesses categorically or implicitly refuted his claimed deprivations.

Nor do I credit Stidham’s claim that he was held incommunicado before his confession. The only evidence indicating that Stidham was denied access to anyone was his testimony that a Father Clark tried to visit him after his confession and was not allowed to do so. He did testify that Father Stevens talked with him on Death Row after the riot and before his confession. On cross-examination he could not recall when his last visit was before the riot. On direct examination he testified that no one had visited him in the approximately 18 months he was in solitary confinement in E-3, nor did he testify that anyone attempted to visit him before his confession and was denied access.

Stidham testified that before his confession he wrote a letter that the prison authorities did not mail. How did he know this? There is no indication in the record how he determined it was not mailed, or that this was known to him before his confession, the only time material to our inquiry. In light of his own testimony that state officials informed each prisoner that they could write a letter to inform relatives that they were safe after the riot, it is more reasonable to assume on this record that if Stidham did write a letter, it was mailed by prison officials.

This long-suffering case, with its many hearings before different state and federal courts, renders itself into an issue of credibility Yet on the issue of credibility, the majority totally ignores evidence by third parties that rather conclusively establishes petitioner’s participation in the riot and murder. This evidence has a direct bearing upon Stidham’s credibility. His trial testimony, maintained to the present, was that he had nothing to do with the riot and murder. Yet the evidence indicates his involvement in both. Stidham was a ringleader in the riot; a deliberate and concerted effort was made by the inmates to break through the three doors into Death Row to free him so that he could lead them in their riotous pillaging of the institution and vicious attacks on those inmates who had incurred their wrath.

Further, there was eyewitness testimony that Stidham participated in the murder. Trout personally saw Stidham enter the murdered inmate’s cell and heard the cries for mercy. Creighton, who immediately prior to the murder had been attacked by the same group and only escaped a like fate by jamming his cell lock, identified Stidham as a participant. This evidence rather persuasively indicates that Stidham’s credibility is poor.

In short, the majority is willing to accept all of the petitioner’s unsupported allegations, while denying to the state the benefit of the contrary inferences arising from the evidence inconsistent with his version of the facts. All of these allegations of coercion came out at the evidentiary hearing 13 years after the trial. During the hearing at the original trial and again before the jury, no mention was made of these “facts” by the petitioner. If we are to preempt the state’s fact-finding role, a course which I feel the majority has erroneously taken, we should not compound that error by requiring direct evidence to rebut unbelievable assertions from a petitioner so obviously lacking in credibility.

I would affirm the decision of the district court denying relief.

ON PETITION FOR REHEARING EN BANC

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON and WEBSTER, Circuit Judges, en banc.

PER CURIAM.

On March 28, 1974, a panel of this Court held that James Stidham’s confession was coerced and, therefore, improperly received in evidence. Stidham v. Swenson, Slip Opinion No. 20,685. The panel directed that his state court conviction for murder be set aside and that he be released from confinement in the Missouri State Penitentiary unless he was ’"retried within a reasonable period of time. Thereafter, the State of Missouri petitioned for a rehearing en banc. That petition was granted and the matter was reargued before the full Court.

A majority of the Court now decides that not all of the material facts were adequately developed at the state court hearing and that an evidentiary hearing should be held by the United States District Court to adequately develop all material facts. See, 28 U.S.C. § 2254(d)(3). The matter is, therefore, remanded to the United States District Court for the purpose of taking evidence and making specific findings with respect to:

(1) The size of the cells in which Stidham was held in solitary confinement from January, 1953, until September of 1954;

(2) The facilities available in said cells;

(3) The extent, if any, to which the cells were infested with cockroaches, rodents and pigeons;

(4) Whether the cells were or were not poorly ventilated;

(5) Whether Stidham was permitted to visit with family or friends during the time that he was held in solitary confinement;

(6) The extent, if any, to which Stidham was given food and water in the period between the prison riot and his confession;

(7) Whether Stidham was given an opportunity to rest during the period from the prison riot to his confession;

(8) Whether officials of the prison refused or neglected to mail a letter from Stidham to his family in which he requested that counsel be appointed for him in the period between the riot and his confession; and

(9) Such other matters as it may feel appropriate.

After evidence has been taken and specific findings made with respect to the above matters, the District Court shall, on the basis of the entire record, redetermine whether the confession was voluntary or involuntary. Thereafter, the matter shall be resubmitted to this Court without further action of the parties.

GIBSON, Chief Judge, with whom STEPHENSON and WEBSTER, Circuit Judges,

concur, dissenting.

I respectfully dissent. I do not agree with the majority’s conclusion that the material facts were not adequately developed at the prior state court hearings. This conclusion flies in the teeth of the Supreme Court’s holding in this case that the state proceedings were procedurally adequate and substantively acceptable. Swenson v. Stidham, 409 U.S. 224, 229-230, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972). Thus the state court’s findings are entitled to a presumption of correctness with the burden being upon Stidham to establish by convincing evidence that the factual determination by the state court was erroneous. 28 U.S.C. § 2254(d); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). The majority’s conclusion would strip the state court findings of this presumption. This might be understandable had the determination come at some prior stage in this litigation; coming as it does now, after the ease has been considered by the District Court, twice by panels of this court, and once by the Supreme Court, with no indication of the inadequacy of the facts developed in the state hearings, it defies understanding. Stidham, a state prisoner, is to have not merely his day in court but years in the federal courts engaged in a never-ending search for error.

As I have stated before, this is a case where the District Court could be reasonably certain that the state court would have granted relief if it had believed Stidham’s allegations. Cf. LaVallee v. Delle Rose, supra at 694-695, 93 S.Ct. 1203. The matter in question is whether the state court could be justified in rejecting Stidham’s allegations of coercion. In the light of his continuing protestations of innocence in the face of the substantial evidence of his guilt exclusive of the confession; his continuing reliance on his testimony of beatings and torture directly contradicted by six state officers and not accepted by any court; his testimony of deprivations of food and water before his confession 13 years after the fact when at trial less than one year after the fact he testified with specificity in regard to deprivations occurring after the confession with no mention of these newly asserted deprivations; and his assertion of a weight loss of 25 pounds as a consequence of these deprivations, an assertion which, although uncontradicted in the record, even the previous panel majority could not accept, the record fully justifies the state court’s rejection of his testimony.

Where the petitioner’s testimony is rejected by the state court after a procedurally adequate and substantively acceptable hearing, we are bound to deny the petition for relief. See United States ex rel. LaVallee v. Delle Rose, 468 F.2d 1288, 1290 (2d Cir. 1972), rev’d on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).

The matters upon which the District Court is directed to make specific findings are in the main irrelevant and immaterial to a determination of the voluntariness of Stidham’s confession. What has the size of his cell, in which he had been incarcerated for some 21 months, to do with the voluntariness of his confession? It obviously was not a tiger cell. What is material is that the state .courts’ finding of voluntariness can only be viewed as a rejection of Stidham’s testimony; this rejection is fully supported by the record of the state court proceedings, both the original trial and 27.26 hearing; and this record was made during hearings the Supreme Court has found to be procedurally adequate and substantively acceptable. As stated previously:

[D]ue regard for the co-equal responsibilities of the state courts in determining constitutional issues and a recognition of their superior ability in this type of case where the state court has seen and heard the witnesses mandate that we accept their resolution of the facts against petitioner.

Stidham v. Swenson, No. 20,685 (8th Cir., filed March 28, 1974) (Slip op. at 13) (Gibson, J. dissenting).

I view the state courts’ proceedings as procedurally adequate and their findings substantively correct and would affirm the finding of the District Court, Stidham v. Swenson, 328 F.Supp. 1291 (W.D.Mo.1970), that Stidham’s confession was voluntary without a remand for an evidentiary hearing.

      . Stidham testified at trial that he was hung by his wrists to the ceiling and beaten by his interrogators. The interrogators testified to the contrary. We accept the fact-finder’s determination that Stidham was neither beaten nor hung even though there is independent evidence in the record to support Stidham’s version.

      . This statement of the undisputed facts is essentially the same as that adopted by the United States District Court. It found :
      It is necessary to review the uncontroverted facts in order to determine this issue. Tiie murder was committed on September 22, 1954 and Stidham confessed on September 27, 1954. I-Ie was questioned intermittently up until that time concerning his part in the murder. He had very little food and very little sleep. At no time during this period was he informed of his right to counsel or to remain silent. In fact, he asserts that an attempt to get an attorney was thwarted when the prison authorities refused to allow a letter to be mailed. On the 27th, Stidham was taken to the Athletic Building and questioned by a number of officers who had hand guns and riot guns in their possession. Stidham asserts that he was physically abused and rendered unconscious at this time, and these acts resulted in Ids confession. Before and after the interrogations Stidham was in solitary confinement and no visitors, including parents or priest were allowed to see him. Other uncontradicted facts indicated that Stidham was deprived of food for two days after his confession and that he lost 25 pounds during the period of interrogation.
      He had consistently denied all involvement in the murder up until the time of his confession.
      Stidham v. Swenson, supra at 328 F.Supp. 1295-1296.
      A careful review of the record convinces us that there is a doubt as to whether Stidham lost twenty-five pounds during the period of interrogation. We, therefore, reject that finding. The additional facts that we find to be relevant to the question of voluntariness of the confession are the size and condition of tire cell before and after the riot. Stidham’s testimony on these matters was easily refutable by available government witnesses if not true.

      . The majority in its previous decision attempted to reverse Stidham’s conviction for murder on, in my opinion, a hyper-technical ruling on the Missouri procedure of submitting the issue of the voluntariness of a confession. The Supreme Court reversed without deciding that issue, holding the post-conviction review on voluntariness was adequate. In discussing the State’s contention of error in the majority’s holding, the Supreme Court said:
      The issue, then, is not free from doubt, but it is evident that we need not decide it in this case, for the Court of Appeals erred in another respect that requires reversal of its judgment.
      Stidham v. Swenson, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972).

      . Even the dissent in LaVallee v. Delle Rose, supra, 410 U.S. at 700, 93 S.Ct. at 1208, recognized that a state court could properly reject testimony as incredible, without direct evidence to the contrary.
      “It is possible, of course, that the state court rejected all of respondent’s testimony as incredible and therefore properly held the confessions voluntary.”

      . “8. State concisely all grounds known to you for vacating, setting aside or correcting your conviction and sentence.”
      Stidham’s answer, as pertinent, was :
      “(b) the overwhelming evidence was that the statement was involuntary and was the exclusive product of coercion used and practiced upon movant by members of the Missouri Highway Patrol and St. Louis Police.” (emphasis supplied).
      “9. State concisely and in the same order the facts which support each of the grounds set out in (8) * *

        His answer was :
      “1. (a) Petitioner was held incommunicado prior to making the confession.
      (b) Petitioner was expressly denied the assistance of counsel prior to giving the aforesaid confession.
      (c) Petitioner was protractedly and intensely interrogated twenty-six times by relays of officers during the five-day period before a confession was obtained.
      (d) Petitioner was taken to a distant, lonely and isolated place where the confession was obtained.
      (e) Petitioner’s hands were handcuffed behind his back, and numerous officers armed with sidearms and riot guns had petitioner encircled until the moment a confession was made, in the gruelling atmosphere on the hot day.”
      It can be seen that there is no claim regarding the alleged subhuman conditions of confinement, his alleged starvation or the wet mattress which figure so prominently in the majority’s decision.

      . Stidham was moved from E-Hall to Death Row along with one of his co-defendants on the murder charge to break up and separate a group of prisoners because the warden felt there was trouble brewing. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 301 (1956). The warden was evidently correct in his judgment.

      . Brooks v. Florida, supra, 389 U.S. at 412-413, 88 S.Ct. 541, 19 L.Ed.2d 643.

      . There is a conflict in the evidence as to whether Stidham’s straw tick mattress was on the floor of his cell. At the original trial (T-212) it was testified that some of the cells had beds and some just straw tick on the floor. At the evidentiary hearing (EH-84), it was testified that Stidham had a bed in his cell. Stidham testified that it was on the floor.

      . All the officers were wearing sidearms and two carried riot guns. It is clear that this was for their safety during the tense days following the riot and not as an attempt to influence petitioner to confess. The room petitioner was questioned in was approximately 20 by 30 feet in size, and although undoubtedly warm, the record shows a fan was in ojjeration. The field house was located at the baseball diamond, within the prison wall, close to other prison buildings and a distance estimated at 200 yards to half a mile from Death Row. This field house was only one of several locations within the prison where prisoners were interrogated about the events of the riot.

      . The majority’s statement that there is some independent evidence in the record to support Stidham’s version of the beating and torture is disturbing and inaccurate. Although stopping short of finding that this did occur, contrary to the testimony of the six state officers and the findings of the state courts who heard all the witnesses, this reluctance to accept the fact that the beating and torture did not occur manifests itself throughout the majority’s opinion. Thus it is stated:
      The state’s case in no way explains why a hardened criminal such as Stidham would figuratively sign his own death warrant by confessing to a murder committed in a prison, save through the testimony of the law enforcement officers who conducted the confrontation in the prison field house and who, as we have noted, testified that they did not heat Stidham or hang him hy the arms.

        Ante, p. 481 (emphasis supplied).
      In recognizing that the state did present testimony explaining the confession, the majority manifests its rejection of the testimony of the officers regarding the events in the field house. Further, by apparently requiring the state to show a psychological motivation on Stidham’s part for confessing, the majority would immunize hardened criminals from having any confession used against them, since surely they would not have confessed unless coerced.

      . It is appropriate to note here what I consider more than coincidental between petitioner’s assertions and the language in certain of the Supreme Court cases dealing with confessions decided just prior to the evidentiary hearing in this case.
      Justice Clark in his dissent in Davis v. North Carolina, supra, 384 U.S. at 755, 86 S. Ct. at 1771, noted “[t]here was no protracted grilling. Nor did the police officers operate in relays.” Stidham alleges “[petitioner was protractedly and intensely interrogated twenty-six times by relays of officers •{c ^ % ff

      Stidham testified at the 27.26 hearing, “I was under complete control and domination of the prison officials of the Missouri Highway Patrol and St. Louis Policemen * * *_» Note the language from Brooks v. Florida, supra, 389 U.S. at 414, 88 S.Ct. at 542. “For two full weeks he saw not one friendly face from outside the prison, but was completely under the control and domination of his jailers.”
      Stidham also testified, “They give you a real meager diet three times a day.” Brooks mentions that the prisoner “was fed a ‘restricted diet’ * * * three times daily.” Brooks, supra at 414, 88 S.Ct. at 542. And in Davis, while agreeing there was no showing of an attempt at starvation, the Court said, “ [nonetheless, the diet was extremely limited * * Davis, supra, 384 U.S. at 746, 86 S.Ct. at 1767.

      . Defendant was asked to compare the conditions in O-Hall with those of his previous solitary confinement. He testified :
      “Didn’t have anything at all to eat in ‘O’ Hall. Didn’t feed you anything. No water, didn’t have no water. All it was was just a bare floor and as I recall the only thing I had was a pair of pants on, and as far as that goes, even after I was returned to my regular Death Row cell, after the riot had completed, I didn’t have anything to eat at all till the day I went over to Jefferson City to Court.”

      . The majority evades the issue of credibility by pretending it is not present. Although they recognize the substantial evidence of guilt, and Stidham’s continued denial of involvement, they still attempt to portray Stidham as an innocent victim of the alleged coercive practices of the State of Missouri. That Stidham denied participation in the murder, that he alleged fictitious beating and torture, and that he alleged a 25 pound weight loss during his period of interrogation is ignored in crediting his other allegations, which are the only evidence in the entire record supporting his claims of coercion.

      . And once freed he was introduced to the inmates as their leader. He replied, “Well men, I am ready to work.” Testimony of Witness Trout.

      . Stidham v. Swenson, No. 20,685 (8th Cir., filed March 28, 1974) (Slip op. at 9) (Gibson, J. dissenting).

      . This principle was recognized even in the dissent in LaVallee v. Delle Rose, supra 410 U.S. at 700, 93 S.Ct. at 1208.
      It is possible, of course, that the state court rejected all of respondent’s testimony as incredible and therefore properly held the confessions voluntary.


author: MULLIGAN, Circuit Judge: NEWMAN, District Judge

text:
    UNITED STATES of America, Appellee, v. William Michael FARUOLO and Anthony Bernardez, Appellants.
    Nos. 1126 and 1227, Dockets 74-1350 and 74-1802.
    United States Court of Appeals, Second Circuit.
    Argued July 17, 1974.
    Decided Oct. 29, 1974.

      Bruce F. Smith, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the Eastern District of New York, Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    James E. Eagan, New York City, for appellant Faruolo.
    William Epstein, New York City (William J. Gallagher, Legal Aid Society, New York City), for appellant Bernárdez.
    Before MULLIGAN and WINTER Circuit Judges, and NEWMAN, District Judge.

       Of the United States Court of Appeals, Fourth Circuit, sitting by designation.

       Of the United States District Court, District of Connecticut, sitting by designation.

   MULLIGAN, Circuit Judge:

These are appeals taken by Anthony Bernárdez and William Faruolo from judgments of conviction entered on March 8, 1974 in the United States District Court for the Eastern District of New York, following the acceptance, on November 12, 1973, by District Judge Edward R. Neaher, of their pleas of guilty to the second count of a two-count indictment. Count one charged the appellants and six others with receiving and possessing goods stolen from interstate commerce, 18 U.S.C. §§ 2 & 659, and count two charged the same defendants with conspiracy to receive and possess the same stolen goods, 18 U.S.C. § 371. Bernárdez and Faruolo. were sentenced to probationary terms of three years and five years respectively, with Bernárdez’ terms to commence upon his release from state prison.

Appellants’ sole contention on these appeals is that the district court erred in denying, after a hearing, their motion to suppress contraband which was seized without a warrant from Faruolo’s home. We agree with the district court that Faruolo voluntarily consented to the search and therefore affirm.

I

On August 10, 1972, Special Agent John Egan of the FBI received a report that a truckload of women’s dresses and wearing apparel, which was being transported by Interstate Dress Carriers, Inc., had been hijacked earlier in the day. During the subsequent investigation, the truck driver provided a description of the hijackers, as well as of the cargo, a portion of which had been packed in special hangerpack cartons bearing the printed name “Hangerpack.” Information from reliable informants indicated that defendant John Pastore, a known hijacker, was involved in the theft and further led to the surveillance of the Staten Island residence of Richard Marco, Sr.

At approximately 11:13 on the morning of August 14, 1972, Egan observed a U-Haul rental truck pull away from the front of the Marco residence. The truck had a lock on the back and was followed by a green Cadillac with New Jersey license plates. After losing sight of the vehicles for a short time, Egan located them parked in the vicinity of the Staten Island home of appellant William Faruolo, where the truck was being unloaded by Faruolo, his son and several of the other named defendants. Its contents, which included some “Hangerpack” containers, were being carried from the truck into Faruolo’s house through a side door.

At about 12:45 p. m., the unloading operation completed, Egan followed three of the defendants to the Country Club Diner on Staten Island where they met with John Pastore. Defendant Richard Marco, Jr. and Pastore left the meeting together and the two were observed to drive to 45 Vera Street, Staten Island. There, Marco picked up a second U-Haul which he drove to Faruolo’s home, where it was unloaded by several of the defendants. Special Agent William Edwards, who had joined Egan in the investigation, saw them taking large brown “Hangerpack” cartons, as well as hanging garments in plastic bags, from the truck into the Faruolo house.

At approximately 3:30 or 4:00 p. m., when it appeared that they were finished and that some of the defendants were about to leave, Edwards, accompanied by a number of other agents, moved in to make the arrests. Edwards, with his gun drawn, proceeded to the back yard of the Faruolo home where he found Faruolo standing alone near a blue panel truck. Through the truck window, he could see that it was fully packed with hanging garments and on the ground beside the truck were folded “Hanger-pack” cartons. After placing Faruolo under arrest, Edwards advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), except that he omitted to advise him that he had the right to have counsel appointed if he could not afford an attorney. Faruolo just placed his head in his hands, evidencing a state of disbelief. Edwards did not search him for weapons or place handcuffs on him at that time but he did keep his gun drawn for several minutes until he thought that the situation was under control. He requested that Faruolo be seated at a picnic table and they waited for other agents. Faruolo made no statements during this time other than giving his name, admitting ownership of the house and identifying his seventeen-year old son, who stepped out into the yard for a brief period. Edwards did not speak to the young man but he did suggest to Faruolo that he should direct him to return to the house, which was occupied by Faruolo’s wife, among others.

When Egan and Agent Thomas Armstrong arrived, at most, no more than five minutes after Faruolo’s arrest, Edwards holstered his gun and informed Egan that the individual under arrest was Faruolo, that it was his house and that he had been given his Miranda rights. Egan then advised Faruolo that he was an FBI agent investigating a hijacking and asked him for permission to search his house. Faruolo was informed that he did not have to permit the search if he did not want to and that the house would not be searched without his consent. Egan, however, did point out that if Faruolo did not consent, a search warrant would be applied for and further conveyed his belief that one would be issued. He also stated that a warrant, because of the late hour, probably could not be obtained until the following morning, and that, consequently, the FBI would have to keep his house under surveillance to prevent the removal of its contents. Faruolo then, after quietly thinking a minute or two, signed a consent to search form which Egan had previously read to him and which Faruolo had said he understood.

Faruolo was subsequently left in the custody of Special Agent Charles Stead-man, while Egan and Edwards proceeded with the search. Faruolo and Steadman went into the house where Steadman correctly and fully advised Faruolo of his Miranda rights. Faruolo consented to an interview, during which he admitted that he knew the merchandise was stolen, but he then indicated that he would like to speak to an attorney before answering any more questions and the interrogation terminated.

II

Appellants’ principal argument on appeal is that the facts established at the suppression hearing failed to show by clear and convincing evidence that Faruolo’s consent was freely and voluntarily given. Specifically, it is urged that Faruolo reluctantly signed the consent form because he feared that the agents would arrest his seventeen-year old son whom they had observed unloading the contraband and also because of Egan’s representation that he could get a search warrant.

We adhere to the view reaffirmed in United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) that we must look to the “totality of the circumstances” in determining whether a consent to a search is voluntary or not. Looking at all the circumstances, we conclude that the Government here satisfied its burden of establishing that Faruolo’s consent was freely and voluntarily given. After an evidentiary hearing in which agents Egan, Edwards and Steadman as well as the appellant Faruolo testified, the district court found that:

Egan did not state that Faruolo’s wife or son would be prevented from leaving the house [if a warrant could not be obtained until the following morning]. Nor did he, or any other agent, threaten that either wife or son would or could be arrested.

Record at 376. These findings were consistent with the testimony of the agents and the only evidence to the contrary was Faruolo’s testimony which Judge Neaher said he disbelieved. Id. The issue was one of credibility which the district court, who saw and heard the witnesses, resolved in favor of the agents. United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972).

The argument is reduced therefore to the proposition that Egan’s statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts have held to the contrary. Here the defendant had been given partial Miranda, warnings, he was told that he did not have to consent to the search (in United States v. Mapp, supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained. The district court found that Egan’s advice was well grounded. There was no deceit or trickery. The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question. The house and the defendants had been under surveillance. Faruolo was apprehended practically in flagrante delicto in his own back yard unloading the stolen goods which he later admitted, after full Miranda warnings, he knew had been stolen.

In United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), the defendant was arrested while in possession of drugs but he did not consent to a search of his residence until he was advised that a warrant would be obtained. Judge Smith’s opinion, in which he noted that a finding of voluntariness by a district court should not be lightly overturned by an appellate court, emphasized that “the consent was with knowledge that the agents could and would obtain a warrant.” Id. at 525. More recently, this Court affirmed “upon the well considered opinion” of the district court, United States v. Kohn, 495 F.2d 763 (1974) (per curiam), the denial of a motion to suppress the fruits of a consent search, 365 F.Supp. 1031 (E.D.N.Y.1973). There, approximately ten minutes after observing the delivery of a suitcase of hashish to the defendant’s apartment, agents entered the apartment and placed the defendant under arrest. Upon being asked where the bag was located, the defendant inquired whether the agents had a warrant. They advised that they had a “right” to get one and because of the hour they would “secure” the premises until morning. At that point, the defendant consented to a search of the apartment. Like Bracer, Kohn implicitly rejects any suggestion that the agents were employing any impermissibly coercive tactic: “Kohn knew of his right to require a search warrant. He specifically asked whether the agents had a warrant and seemed to fully understand the subsequent conversation about the agents getting one.” 365 F.Supp. at 1034.

In our view, in light of these cases, the well founded advice of a law enforcement agent that, absent a consent to search, a warrrant can be obtained does not constitute coercion. There is an admission by the officer that he has no right to proceed unless the defendant consents. There was in fact, here, a fair and sensible appraisal of the realities facing the defendant Faruolo. No person, even the most innocent, will welcome with glee and enthusiasm the search of his home by law enforcement agents. However, in view of all the circumstances which we have detailed, we are persuaded that after realizing the facts, including that he had the right not to consent, Faruolo decided freely and voluntarily to consent to the search.

The argument that Miranda warnings are a prerequisite to an effective consent to search is not at all persuasive. The contrary was implicit in United States v. Mapp, supra, 476 F.2d at 76-79, where no Miranda warnings were given, and explicit in United States v. Kohn, supra, 365 F.Supp. at 1034. There is no possible violation of fifth amendment rights since the consent to search is not “evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966).

Affirmed.

NEWMAN, District Judge

(concurring) :

This case involves determination of the voluntariness of consent to a search obtained in response to an agent’s statements concerning his procuring of a search warrant. I concur in the Court’s opinion affirming the convictions because the decision to affirm is no more than an application of controlling precedents of this Circuit to the issues presented. However, the case is for me a close one, and I think additional words are appropriate to indicate the seriousness of defendant’s claim and to suggest that in cases of this sort, the line surrounding permissible governmental statements about search warrants should be drawn not one whit beyond the facts of this ease.

It has become a frequent practice for courts to state as a general rule the Government’s heavy burden to establish the voluntariness of consent to a search and then to find that burden met. Assessment of the “totality of the circumstances,” United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973), and a reluctance “lightly” to overturn trial court fact-finding on the issue of consent, United States v. Bracer, 342 F.2d 522, 524 (2d Cir. 1965), have combined to produce a rarely broken line of cases in which findings of consent have been upheld. See, e. g., cases collected in Annot.: Validity of Consent to Search Given by One in Custody of Officers, 9 A.L.R.3d 858 (1966). Neither consideration, however, should insulate cases of this sort from careful scrutiny. The Supreme Court has recognized that despite abundant evidence of willingness to permit a search, consent sufficient to validate a warrantless search is not properly found when obtained in response to certain representations by law enforcement officei’s on the subject of warrants. Bumper v. North Carolina, 391 U.S. 543, 38 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper consent was found wanting because obtained in response to an officer’s statement that he had a search warrant — a warrant whose validity the State declined to defend. The effect of the officer’s statement was deemed sufficiently coercive to undermine the trial court’s finding of consent, a finding based on a totality of circumstances that included virtual eagerness by the householder to permit the search. Moreover, as Bumper also indicates, trial court fact-finding concerning the underlying facts does not insulate from review the conclusion as to whether the underlying facts constitute sufficient consent to validate a warrantless search.

In this case, the District Judge made the following finding of fact as to what the agent said to the defendant concerning a search warrant:

Egan further stated that if Faruolo did not consent to a search, a search warrant would be applied for, and he conveyed to Faruolo the belief that a warrant would be obtained.

The danger inherent in predicating consent upon a defendant’s response to such a statement is perhaps more clearly discernible if the facts are transposed to the analogous context of waiver of an indictment. Both the warrant and the indictment procedures are designed to assure that a neutral fact-finder intervenes to determine whether probable cause has been established before a home can be searched or a defendant placed on trial. The requirement of a warrant can be obviated if there is voluntary consent; an information can be filed if the accused waives indictment. Generally, waiver of indictment occurs only after a meticulous inquiry of the defendant by the trial judge, in which the defendant is told (a) what a grand jury is, (b) that he has a right to have his case considered by a grand jury, (c) that a grand jury may either indict or decline to indict, and (d) the consequences of each alternative action. One may speculate whether an accused would be considered to have validly waived indictment if the waiver proceeding consisted solely of the prosecutor’s telling him that if he did not consent to a prosecution by information, an indictment would be applied for and, in the prosecutor’s view, an indictment would be obtained.

The analogy is not exact, but it does highlight the dangers involved. Were the slate clean, I would be inclined to reject a finding of voluntariness obtained in response to statements about the obtaining of a warrant that did not in some way affirmatively communicate the discretionary aspect of the warrant-issuing process. If a person is confronted with only the choice of permitting an immediate search without a warrant or waiting the brief interval necessary for a warrant to be obtained, he is misled into believing that the only variable in the choice is time, rather than the far more important variable of whether the warrant will be issued at all. If he consents because he has been led to believe that obtaining a warrant is a virtually automatic formality, then regardless of his apparent willingness to permit the search, he has responded to a situation as “instinct with coercion” as the one in Bumper, where the officer gained entry not with the assurance that a warrant could be obtained, but with the statement that he had already obtained one. Bumper v. North Carolina, supra, 391 U.S. at 550, 88 S.Ct. 1788. If the waiver on which consent to a search is premised is really to be the “intentional relinquishment . . . of a known right,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), there ought to be some indication that the warrant-issuing process is not automatic and that resort to it affords the householder the protection that a warrant will not issue unless a magistrate has found the existence of probable cause.

On two occasions this Court has left open the significance of an agent’s statement concerning the likelihood of obtaining a search warrant. In United States v. Jordan, 399 F.2d 610 (2d Cir. 1968), the defendant heard one agent say to another that a warrant could be obtained in any event. This Court upheld a finding of consent because “[e]ven if this last statement were held to be coercive,” it did not vitiate the oral consent that had preceded it. Id. at 614. In United States v. Curiale, 414 F.2d 744 (2d Cir. 1969), the defendant himself said to the agent, “If I don’t sign this, you are going to get a search warrant,” to which the agent replied, “I don’t want you to sign [the consent to search form] on that basis. If you are going to sign it, do it voluntarily.” Id. at 746. Perceiving the dangers lurking in such conversations, this Court specifically declined to decide whether the voluntariness of the consent “would have been compromised by the agents’ complete failure to respond to the appellant’s statement.” Id. at 747.

Two other decisions, however, uphold a finding of consent in response to statements no more coercive than what was said here. In United States v. Bracer, 342 F.2d 522 (2d Cir. 1965), consent was found notwithstanding that it was given “with knowledge that the agents could or would obtain a warrant.” Id. at 525. In United States v. Kohn, 495 F.2d 763 (2d Cir. 1974), consent was found notwithstanding the agent’s statement that they “had the ‘right’ to get one, and that since it was so late they would have to ‘secure’ the premises, leave a guard, and return with a warrant in the morning.” United States v. Kohn, 365 F.Supp. 1031, 1033 (E.D.N.Y.1973).

I agree with Judge Mulligan that these decisions permit a finding of consent to be made notwithstanding an agent’s having expressed his well-founded view that a warrant can be obtained. But two qualifications ought to be emphasized.

First, the agent should be permitted to do no more than give his prediction. Even if he need not explain the discretionary aspect of issuing warrants, he surely should not be permitted to convey the idea that no discretion exists. Any intimation that the warrant will automatically be issued should be considered as coercive as the announcement of an invalid warrant in Bumper. Drawing the line at this point admittedly makes validity of consent turn in some instances on subtle shifts of wording by the agent. But words spoken in the process of obtaining consent to waiver of a constitutional right ought to be chosen with care. The officers are not proceeding in haste to make a split-second decision of their authority to apprehend a fleeing suspect. They face a situation that normally calls for the delay necessary to obtain a search warrant. If they are to forego this requirement, it should not be too much to ask that they take care not to confront the accused with a choice that totally obliterates the important protective function of the warrant-issuing process. The agent can always be on the safe side of the line by plainly indicating that he will apply for a warrant and believes one will be issued, but that the decision whether to issue the warrant rests with the judge or magistrate to whom the agent will apply. Here, according to the District Court’s finding, the agent stated he would apply for a warrant and predicted its issuance. Whether the prediction was reasonable should not be determinative. That inquiry focuses on what was in the mind of the agent. But determination of consent must focus on the effect of the agent’s words upon the defendant. While the words used here did little to convey the discretionary aspect of issuing warrants, they at least did not conceal it.

Secondly, trial courts considering the voluntariness of consent obtained in response to statements about procuring warrants need not rush to find consent whenever the agent’s verbal formula falls within the ambit of language approved in Bracer, Kohn, and this case. If consent is really to be determined upon a totality of the circumstances, then the extent to which an agent minimizes the nature of the choice confronting a householder ought to weigh significantly against a finding of consent. Nearly fifty years ago Judge Learned Hand urged District Judges considering search and seizure questions to “search the testimony in such cases with care, remembering that the protection of defendants must in most cases rest finally with them.” Marsh v. United States, 29 F.2d 172, 173 (2d Cir. 1928).

      . The other defendants were John Pastore, Richard Marco, Jr., Frank Felumero, Vincent DiModica, Lester Sellitti and Joseph Bruns.

      . Following the district court’s decision on the motion, counsel for the defendants and the Assistant United States Attorney stipulated that the defendants would plead guilty to the conspiracy count, on condition that the suppression issue be preserved for appeal. The agreement further provided that the defendants could withdraw their guilty pleas should this Court reverse and that the Government would agree to the dismissal of the substantive count if this Court affirmed. Judge Neaher accepted the stipulation. This procedure of pleading guilty while preserving an issue for appeal has previously been approved by this Court. United States v. Rothberg, 480 F.2d 534, cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); United States v. Doyle, 348 F.2d 715 (1965); cf. United States v. Selby, 476 F.2d 965 (1973).

      . The district court found that “after being advised of rights to counsel and of his right to refuse permission for a search, Faruolo made no objection, asked no questions or in any other way indicated lack of understanding of his situation, or opposition to a search.” Record at 377.

      . Judge Neaher denied a motion to suppress these admissions in a memorandum opinion filed on November 14, 1973. The court found Faruolo’s statements admissible irrespective of the validity of his prior consent to the search.

      . The Government did not challenge Bernárdez’ standing below on this appeal and, in view of our disposition here and of the fact that Faruolo clearly does have standing to contest the search, we do not consider the issue. United States v. Cangiano, 491 F.2d 906, 912 (2d Cir. 1974).

      . In United States v. Culp, 472 F.2d 459, 461 n. 1 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 161, 36 L.Ed.2d 692 (1973), the court pointed out that “[m]any cases imply where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant that such a statement cannot serve to vitiate an otherwise consensual search.” (emphasis in original). For example, in United States v. Savage, 459 F.2d 60, 61 (1972) (per curiam), cert. denied, 415 U.S. 949, 94 S.Ct. 1470, 39 L.Ed.2d 564 (1974), the Fifth Circuit held that “[t]he consent was not rendered involuntary by reason of the fact that before signing the form the defendant asked the police officer if the officer could get a search warrant and the officer replied ‘Yes, we probably can.’ The officer’s statement was in response to defendant’s inquiry, and it was not a misrepresentation of the facts.”

      . Our opinions in United States v. Jordan, 399 F.2d 610, cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968) and United States v. Curiale, 414 F.2d 744, cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969), upon which appellants rely, do not suggest that the consent given here was involuntary. In Jordan, we did not even consider whether a law enforcement officer’s statement regarding the availability of a warrant was coercive in nature since it was not made until after the defendant had consented to the search and therefore it could not have influenced his decision. The Curíale case involved a consent search where there was no probable cause basis for the issuance of a warrant and the agents were apparently aware of that fact. Tims, when the defendant remarked, “If I don’t sign this, you are going to get a search warrant,” an agent responded, “I don't want you to sign it on that basis.” Although we expressed some reservation about what the result would have been had the agent allowed the defendant to base his consent upon the mistaken belief that a warrant could be obtained, we upheld the consent as voluntary since the defendant was aware of his right to resist and the agent had not misled him.

      . The district court stated that the conclusion that a warrant could be obtained was “based in large part, but not exclusively, on the information supplied by the two informants, the fact that Pastore had been personally arrested by Agent Egan on prior hijacking charges, as well as the amount of corroborative evidence independently obtained in the course of surveillance, and in particular, the eyewitnessing of movements of cartons and presence of garments, at [Faruolo’s home].” Record at 385-86.

      . The district court pointed out that “there is no claim or evidence, that at any time other than the gun incident, that Faruolo was physically coerced, restrained or threatened.” Record at 377. With respect to the drawn gun the district court found that it “had no lasting effect.” Id. at 387. The court further found that “at no time prior to giving consent to the search, were any statements made by tlie agents which threatened or could have been viewed as threatening to Faruolo’s wife or son,” id. at 377, and that he “had no cause to be in apprehension for his own safety or that of his family,” id. at 378. Moreover, “[t]he Court [did] not believe that Faruolo was ‘scared,’ and [found] him to have been no more anxious than any other person placed under arrest while in the act of cornmitting what was charged to be criminal activities.” Id. “Faruolo, at the time of his arrest, evidenced a state of mind or [sic] disbelief or shame, rather than fear.” Id. at 377.

      . The householder’s testimony included the following: “I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to . . . I let them search, and it was all my own free will.” Bumper v. North Carolina, supra, at 547, n. 8, 88 S.Ct. at 1791.