source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Henry SKRYPECK and Joan K. Cavanagh, Appellants.
    No. 74-1888.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 30, 1974.
    Decided Oct. 23, 1974.
    As Amended Oct. 29, 1974.

      Henry Skrypeck, pro se; Joan K. Ca-vanagh, pro se; James Drew, Atty. Ad-visor (appointed by the United States District Court), for appellants.
    David T. Stitt, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
   PER CURIAM.

Appellants are charged with second degree burglary, destruction of the property of a foreign government, and harassment of an official of a foreign government. After preparation of a report by the District of Columbia Bail Agency, the Federal Magistrate released the appellants on their personal recognizance.

At their arraignment, appellants were informed by the court that they had to report to the Probation Office and submit to an interview that would initiate the presentence report investigation. This condition for continued release pending trial was imposed under U.S.D.C.D.C. local rule 2-7(c)(2) which provides:

At arraignment a mandatory condition of continued bail shall be that the alleged offender immediately provide the Probation Office with formal data, not related to the offense, concerning schooling, family status, military record, medical history, employment, and the like, so that routine inquiries may be initiated while the case is pending, looking toward a more prompt preparation of a presentence report when required. Information developed by this procedure shall be destroyed in the event of acquittal or dismissal and it shall be disseminated only as the judge to whom the case is assigned shall by order direct.

Upon appellants’ refusal to comply with the order, the District Judge issued bench warrants for appellants’ arrests. Appellants appealed from the Court’s order and this Court stayed the imposition of the condition during the pendency of the appeal. After oral arguments, the record in the case was remanded to the District Court to conduct an evidentiary hearing to ascertain the nature and extent of the presentence inquiry.

The requirement of submission to the Probation Office interview is imposed after the court has made its bail determination.- There is no pretence that the interview is to serve any purpose other than the preparation of the presentence report.

When conditions are imposed on the release of a person accused of a crime, the court must comply with the provisions of the Bail Reform Act of 1966. That act provides that any person who is charged with an offense must be released pending trial without condition other than the execution of an unsecured personal appearance bond, “ . . . unless the officer determines that such a release will not reasonably assure the appearance of the person as required.”

Under the procedure mandated by the local rule, the determination of the defendant’s inclination to appear at trial is complete and bail is set before he is ordered to report to the Probation Office. The condition acts as a device to cut short a release that has already been ordered. As such it is a coercive measure that insures the cooperation of the accused in the presentence investigation by threatening a penalty that the Bail Reform Act forbids.

While the presentence report serves an important function in our system of criminal justice, it must not be forgotten that the preparation of the report entails a significant intrusion by the government into the private life of its citizens. The investigation puts the employer, the school, and the neighbor on notice that a person they have readily accepted in the past may now be guilty of a crime. If the investigation is conducted before the adjudication of guilt, the acquitted defendant is forced to explain away the inquiry and fight to regain his good name.

On the other hand, the early preparation of the report may result in the reduction of delay between entry of a guilty plea or adjudication of guilt, and the imposition of sentence. A person hopeful of receiving probation may well desire expedition of the sentencing process.

Local rule 2 — 7(c) (2) robs the individual of the right to make a meaningful election between the two courses of action. Under the present practice the defendant can either submit to the intrusion or be relegated to a cell. The impact of such a one sided choice is clear. The defendant is the person who either gains or loses from the pre-trial investigation. It is only proper that the choice be left with him.

Federal Rule of Criminal Procedure 32 requires a prompt imposition of sentence. The Probation Office personnel testified that local rule 2-7.(c) (2) serves to shorten the time required after adjudication of guilt for the preparation of the presentence report. It is apparently the practice in the District of Columbia that there are supplementary interviews after conviction and that the presentence reports are filed within thirty days of conviction. This consideration may have merit, but it cannot justify expeditions gained through conditions on release that conflict with the Bail Reform Act. We also note that the probation authorities prepare pre-sentence reports on defendants in confinement without the benefit of pre-con-viction interviews.

It is difficult to devise a system that will permit the defendant to arrive at an intelligent and uncoerced choice. Written questions handed to the defendant at arraignment and returned after consultation with an attorney might give the accused an opportunity to decide the degree to which he wishes to assist the Probation Office, if at all. It is for the courts and the Probation Office to decide the exact procedures to be followed consistent with the Bail Reform Act and the accused’s right of privacy.

Because local rule 2-7(c)(2) is inconsistent with the Bail Reform Act of 1966, it must be set aside. The order of the Court imposing compliance with the rule by the appellants as a condition for continued release is reversed. This case is remanded to the District Court.

So ordered.

APPENDIX I

APPENDIX II

APPENDIX III

      . 22 D.C.Code § 1801(b) (1973).

      . 18 U.S.C. §§ 970, 1116(c) (1970 Supp. II).

      . 18 U.S.C. §§ 112(b), 1116(b) (1970 Supp. II).

      . The local rule was approved by the Judicial Council. While some weight is accorded the approval, the Court is not bound by it. See In re Imperial “400” National, Inc., 481 F.2d 41, 42 (3d Cir), cert. denied, Judicial Council of the Third Circuit v. Nolan, 414 U.S. 880, 94 S.Ct. 68, 38 L.Ed.2d 125 (1973). Moreover, the issue presented in this case was not identified at the time of Council consideration of this rule.

      . U.S.D.C.D.C. local rule 2-7 (c) (2) specifically provides that the purpose of the interview is to initiate the presentence investigation.

      . 18 U.S.C. § 3146 et seq. (1970).

      . 18' U.S.C. § 3146(a) (1970).

      . After arraignment the Probation Office conducts an interview with the defendant without counsel being present. The Probation Officer then fills out either “Probation form 1 (long form) (February 1966)” or “Probation form la (short form) (March 1966).” A copy of each of these forms is contained in Appendix I.
      The Officer follows up the interview by sending “Probation form 14 E (March 1964)” to the defendant’s school. A copy of this form is contained in Appendix II. We note that the form advises the recipient that the Probation Office is investigating the defendant.
      “Probation form 14 D (March 64)” is sent to the defendant’s employer. A copy of this form is contained in Appendix III. This form also advises the recipient that the defendant is under investigation.

      . See, American Bar Association. Project On Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures 209 (Approved Draft, 1968).

      . Testimony of Edward Doeekal, Presen-tence Unit Supervisor, United States Probation Office. Transcript at 18.

      . The Government relies on language in Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), as supporting the Probation Office in its pre-trial preparation reports. However, Gregg doesn’t suggest that pre-conviction preparation of presentence reports may be conducted in a manner that violates the Bail Reform Act, nor does it approve the intrusions on privacy permitted by U.S.D.O. D.C. local rule 2-7 (c) (2).

      . Testimony of Edward Doeekal. Transcript at 22.


author: HANNUM, District Judge. ROSENN, Circuit Judge

text:
    UNITED STATES of America v. Pasquale FALCONE et al. Appeal of Pasquale FALCONIO in No. 73-2013. Appeal of Wally BERGER in No. 73-2109.
    Nos. 73-2013, 73-2109.
    United States Court of Appeals, Third Circuit.
    Argued May 28, 1974.
    Decided Sept. 30, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1338, 1339.
    See also, D.C., 364 F.Supp. 877.

      Jonathan L. Goldstein, U. S. Atty., Newark, N. J., John J. Robinson, James A. Rothschild, Dept, of Justice, Washington, D. C., for appellee.
    Kenneth J. McGuire, Stein, Bliabliss & Goldman, Newark, N. J., for appellant, Pasquale Falconio.
    Graham Roskein, Newark, N. J., for appellant, Wally Berger.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.

      . Title 21 U.S.C. § 841.

   OPINION OF THE COURT

HANNUM, District Judge.

Appellants, Pasquale Falconio and Wally Berger, were convicted in the United States District Court for the District of New Jersey on multiple counts of conspiracy to import and distribute heroin, violations of the Travel Act, and use of interstate facilities in the furtherance of these conspiracies.

The Government’s proof at trial revealed that the appellants participated in a scheme to smuggle twenty pounds of heroin into the United States from Canada. The scheme was foiled by Royal Canadian Mounted Police working in league with United States authorities.

This appeal alleges numerous grounds for reversal of the convictions below. For the sake of clarity, they can be grouped into two general categories: wiretap violations and trial errors.

I. WIRETAP VIOLATIONS

Appellants contend that damaging evidence introduced at trial and obtained through the interception of telephonic communications (wiretaps) should have been suppressed. Eight reasons are assigned for this contention: the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) is unconstitutional; the authorization of the application for the wiretap by the Attorney General for submission to the Court was defective; the finding of probable cause for the wiretap was insufficient; the finding of necessity for the wiretap was insufficient; the Government failed to minimize non-relevant conversations; the Government failed to secure independent authorization for a pen register; the Government failed to seal promptly the tape recordings of the wiretaps; and the Government failed to comply with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General.

We note at the outset that this Court has held the federal wire interception statute, 18 U.S.C. §§ 2510-2520, (Title III Omnibus Crime Control and Safe Streets Act of 1968) to be constitutional: United States v. Cafero, 473 F.2d 489 (3d Cir. 1972). That holding stands. So far as the finding of necessity for the wiretap, the Government’s minimization of non-relevant conversations, and the Government’s compliance with the delimiting Manual for the Conduct of Electronic Surveillance promulgated by the Attorney General, we affirm the thoughtful and thorough opinion of the district court on these issues. The remaining issues merit discussion.

AUTHORIZATION

The appellants contend that the wiretaps in the instant case were not properly authorized since the Attorney General’s signature was affixed by Sol Lindenbaum, his Executive Assistant. 18 U.S.C. § 2516, the authorization provision, states that the Attorney General, or any Assistant Attorney General specifically designated by the Attorney General, may authorize applications for wiretaps. The recent companion cases of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), examined this provision and set forth guidelines for what constitutes proper authorization.

In Giordano, the Court held that Title III does not permit the authorization of wiretap applications by the Attorney General’s Executive Assistant, and that evidence secured through wiretaps so authorized should be suppressed.

In Chavez, the Court held that misidentifying the Assistant Attorney General as the official authorizing the wiretap application when the Attorney General, himself, had given the approval does not run afoul of Title III, and, therefore, does not require suppression of evidence so obtained.

It is clear from a reading of these cases that the important consideration is not whose name appears on the authorization, and certainly not who signed the authorization. Rather, the important consideration is who actually granted the authorization for the wiretaps.

Turning to the instant case, Sol Lindenbaum, Executive Assistant to the Attorney General, signed the name of the then Attorney General, Richard G. Kleindienst, to the authorization for the wiretap. This act, however, was preceded by a telephone conversation between Lindenbaum and the Attorney General during which the former advised the latter of the contents of a memorandum, recommending that the authorization be granted, prepared by the Assistant Attorney General in charge of the Criminal Division, Henry Peterson. The Attorney General approved the request and directed Mr. Lindebaum to sign the Attorney General’s name to the authorization and to. inform the Assistant Attorney General of the approval. Three days later the Attorney General, himself, entered a file memorandum verifying the verbal authorization he had given to Mr. Lindenbaum.

From these facts, viewed in the light of Giordano and Chavez, we conclude that the authorization here was proper. Crucial to this conclusion is the fact that the Attorney General, fully aware of the facts of the specific case, had personally authorized the wiretap.

PROBABLE CAUSE

The appellants contend that probable cause was lacking for the issuance of the order for the wiretaps. In support of this contention, appellants submit that Berger v. New York, 388 U. S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1966) require a more vigorous degree of probable cause for a wiretap than ordinarily required for a search warrant, and that this more vigorous degree of probable cause was lacking. We reject this submission and, in addition, hold that the facts contained in the wiretap applications meet the standards for what constitutes probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Probable cause is not a matter of degree. Although Berger and Katz call for extra vigilance in the supervision of electronic eavesdropping, neither case separates probable cause into degrees. Moreover, no special probable cause requirement can be found in the statutory scheme. 18 U.S.C. § 2518(3) (a), (b) and (d). Certainly if a higher degree of probable cause were intended, Congress would have so stated.

PEN REGISTER

The next question presented for resolution is whether a separate order authorizing the use of a pen register is required when a valid order authorizing a simultaneous wiretap has issued ? That is to say, is the authorization for a wiretap sufficient to permit the concomitant implementation of a pen register ?

In the instant case, the Government, after securing an order for a wiretap on Falconio’s telephone, installed both a tape recorder and a pen register. Separate authorization for the pen register was never obtained. Appellants contend that the use of the pen register under these circumstances requires suppression of evidence so obtained. For the reasons which follow we find this contention unpersuasive.

The threshold issue is whether use of a pen register is subject to the provisions of 18 U.S.C. § 2518 which requires authorization for the interception of wire or oral communications? “Intercept” means the “. . . aural acquisition of the contents of any wire or oral communication. . . ” 18 U.S.C. § 2510(4). An “aural acquisition” by definition engages the sense of hearing. Since a pen register does not possess this sense, it is not an interception within the meaning of 18 U.S.C. § 2510(4), and therefore not subject to the authorization provisions of 18 U.S.C. § 2518. United States v. Giordano, 416 U.S. 553, 94 S.Ct. 1845 (1974) (dissenting opinion); United States v. Focarile, 340 F.Supp. 1033 (D.Md.1972), aff’d sub. nom., United States v. Giordano, 469 F.2d 522 (4th Cir. 1972) rev’d on other grounds, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970), rev’d on other grounds, 472 F.2d 973 (5th Cir. 1973).

The next issue to be determined is whether 47 U.S.C. § 605 prohibits the use of a pen register. For two reasons we hold that it does not. First, § 605 was amended in 1968 to proscribe the interception of “any radio communication”, this amendment clearly omits telephonic communications. Second, the legislative history of the 1968 Amendment to § 605 reveals that Congress intended to shift all control of electronic surveillance operations to 18 U.S.C. §§ 2510-2520. 1968 U.S.Code Cong. & Admin.News, p. 2178. Thus, having concluded that § 605 does not now control the use of pen registers, we set to one side those cases antecedent to the 1968 amendment which held otherwise and upon which the appellants mistakenly rely. We do not conclude from this analysis that no authorization for the use of pen registers is required. We only conclude that pen registers are neither prohibited by § 605 nor require authorization under § 2518.

Nor must we decide, under the facts of this case, what authorization is necessary when a pen register is used alone. However, when used in conjunction with a wiretap, we conclude that an order permitting interception under Title III for a wiretap provides sufficient authorization for the use of a pen register, and no separate order for the latter is necessary. The reasoning for this conclusion is based on an analysis of the operation of a pen register.

A telephone number is only a symbol for a series of electrical impulses. When a telephone number is dialed from a wiretapped phone, the pen register and the tape recorder are activated simultaneously. Both record the dialing of the phone. And both can be used to determine the telephone number dialed. The pen register records the electrical impulse and automatically translates it back into the number dialed. The tape recorder records the aural manifestation of the electrical impulse which also discloses, if played at a slower speed and examined by an expert, the telephone number dialed. A pen register functions to facilitate the decipherment of the number dialed. It is a mechanical refinement which translates into a different “language” that which has been monitored already. Simply stated, the pen register avoids a mechanical step; it translates automatically and avoids the interpreter.

We hold for the aforementioned reasons that where a valid wiretap order has issued, use of a pen register is comprehended within the terms of that order.

DELAY IN SEALING THE TAPES

Appellants finally contend that the wiretap evidence should not have been admitted because it was not promptly sealed as required by 18 U.S.C. § 2518(8) (a). This section provides that “. . . [¡Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions . . .”.

There is no doubt but that the tapes were not sealed in accordance with the statute. However, it does not follow therefrom that the evidence obtained must be suppressed. As in United States v. Giordano, supra, and United States v. Chavez, supra, we must look to the statutory scheme to determine if Congress has provided that suppression is required for this procedural error.

18 U.S.C. § 2515 provides that wiretap evidence may not be introduced at a criminal trial, “if the disclosure of that information would be in violation of this chapter.” Those violations requiring suppression are provided for in 18 U.S.C. § 2518(10)(a):

“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”

Paragraphs (ii) and- (iii) are inapplicable because the sealing requirement is statutory and not part of the order. Therefore, if suppression is required, we must find it in paragraph (i). United States v. Giordano, supra, holds that paragraph (i) includes every “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1832.

Viewed in this framework, the issue becomes whether the sealing requirement limits the use of interception procedures ?

The legislative history reveals that the sealing requirement was intended to insure the integrity of the tapes after interception. (Emphasis supplied). 1968 U.S.Code Cong. & Adm. News, p. 2193-2194. The sealing requirement is in nowise “to limit the use of interception procedures ...” Rather, its function is to maintain the integrity of the tapes for evidentiary purposes. We conclude, therefrom, that the sealing requirement is not to limit the use of interception procedures, and, that failure to seal promptly does not render the communication “unlawfully intercepted,” and therefore such failure does not necessitate suppression under the statute.

A second consideration strongly supports this conclusion. 18 U.S.C. § 2518 (8) (a) provides that the “presence of [a] seal . . or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use ... of any [wiretap] . . . ” By this provision Congress has provided for an alternative to the sealing requirement. It would follow from such an alternative that failure to seal the tapes promptly is not such a violation that requires suppression as a matter of law.

In United States v. Poeta, 455 F.2d 117 (2d Cir. 1972), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), police confusion over the applicable law was held a sufficient explanation to overcome the absence of a seal. Here administrative delay may also be a satisfactory explanation. The crucial factor, however, is the integrity of the tapes themselves. This fact must be proved to the trial judge. In the case at bar, after an extensive pre-trial hearing and evidence at trial the court below made a specific finding of fact that the tapes had not been tampered with.

Therefore, all we hold is that where the trial court has found that the integrity of the tapes is pure, a delay in sealing the tapes is not, in and of itself, sufficient reason to suppress the evidence obtained therefrom.

We hasten to add that this holding, of course, does not deprecate the importance of the sealing requirement. Certainly, it should be complied with in all respects. As this case so aptly demonstrates, compliance would have avoided considerable uncertainty and delay.

II. TRIAL ERRORS

In addition to the alleged violations in the gathering of evidence, appellants alleged that the trial court committed reversible error at trial and at sentencing.

At trial, testimony was admitted to the effect that appellant, Falconio, had been previously involved in a separate heroin transaction not the subject matter of this case. Appellant contends that this testimony should not have been admitted since it was evidence only of prior criminal conduct.

Although inadmissible to show a mere propensity or disposition to commit crime, evidence of other crimes is admissible to show one’s intent, plan, scheme, design, or modus operandi. United States v. Todaro, 448 F.2d 64 (3d Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 924, 30 L.Ed.2d 732 (1972); United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1968); United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Without commenting in detail, the evidence complained of showed an intent on the part of Falconio to sell heroin to one of his co-conspirators, and, further, showed a preexisting business relationship between the two, evidence highly probative of the existence of a conspiracy. Moreover, since the evidence indicated that Falconio owed this co-conspirator $30,000.00 from the previous narcotics transaction, the evidence was probative to show motive for the subsequent narcotics transaction for which he was prosecuted. Thus, there being sufficient grounds for the admission of this evidence, there is no error.

Next appellants allege that the trial court erred when it failed to grant their motion for a mistrial following a question propounded by the Government Attorney and directed to one of its witnesses. Specifically, the Government Attorney asked of the witness, a chemist who was called to testify about the size and quality of average street sales of heroin, whether the narcotic substances in this case were purchased by undercover agents acting for the City of Newark in a drive on narcotics. It is contended that the reference to “drive on narcotics” aroused the passion of the jury against the appellants because of the narcotic problems existent in the Newark area.

Objection to this question was sustained and the jury was instructed to disregard it. In addition, the court made inquiry to determine whether any jurors had been prejudiced by this reference. A review of the record makes clear that an appropriate instruction was given and a mistrial was not required in these circumstances.

Finally, appellant, Falconio, contends that the trial judge should have recused himself before sentencing. In this regard, he filed an affidavit pursuant to 28 U.S.C. § 144.

For a motion to recuse to be granted, the affidavit must allege bias or prejudice from a source other than the Court proceedings in the case, United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967). As we said in United States v. Thompson, “The facts [in the affidavit] must show the bias is personal, as opposed to judicial, in nature.” Appellant did not allege in his affidavit that the trial judge’s bias was extrajudicial. An allegation of “judicial” bias is not grounds for a motion to recuse. United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973). The motion was properly denied.

The Court finds the remaining contentions in this appeal without merit. The Court also finds that the trial was fair and free of error. Thus, the convictions of the appellants, Falconio and Berger, must be and are affirmed.

ROSENN, Circuit Judge

(dissenting).

I respectfully dissent because I believe that the Government’s inability to provide a “satisfactory explanation” for its failure to have the recordings sealed “immediately” by the court requires that the recordings be suppressed in accordance with the language of the statute, 18 U.S.C. § 2518(8)(a).

Two wiretaps are involved in this case. The first, the Fort Lee wiretap, was authorized by Judge Lacey of the District Court of New Jersey on August 28, 1972. The authorization was valid for twenty days, and successive twenty-day extensions were granted on September 15 and October 5. The wiretap was removed on October 16, although the final extension did not expire until October 25. Nevertheless, the tapes were not presented to the court for sealing until December 1, forty-five days after the removal of the wiretap.

The second wiretap, the Philadelphia wiretap, was authorized by Judge Davis of the Eastern District of Pennsylvania on November 30, 1972. The initial fifteen-day authorization was extended for an additional fifteen days on December 15. Actual surveillance terminated on December 15, and the authorization expired on December 30. However, the tapes were not presented to the court for sealing until January 30, 1973, also forty-five days after the removal of this wiretap.

Eighteen U.S.C. § 2518(8) (a) provides specifically that “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” (Emphasis supplied.) In both of the wiretaps before us it cannot be said that the protracted delay in presenting the recordings to the appropriate court for sealing was consistent with the explicit statutory requirement that the sealing follow “immediately upon the expiration of the period of the order, or extensions thereof . . ” The majority’s conclusion that in this ease “[tjhere is no doubt but that the tapes were not sealed in accordance with the statute” is, therefore, inescapable.

Congress clearly intended that violation of the § 2518(8) (a) sealing requirement be governed by the final sentence of § 2518(8)(a). This provision states that “[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom . . . ,” (Emphasis supplied.)

I therefore turn to the question of whether the Government has provided the “satisfactory explanation” for the protracted delays in sealing the tapes which is a “prerequisite” to their admissibility into evidence. The Government’s asserted explanation for the delay in sealing the tapes was that “the tapes were used to make a composite tape and to transcribe certain of the tapes.” Brief for Appellee at 27.

I do not believe that this is in any sense a “satisfactory” explanation within the contemplation of the statute. The Government’s witnesses testified at trial that there was always a “back-up recorder” simultaneously activated with the primary recorder by the lifting of the telephone receiver. Except for such occasions when one or the other of the machines malfunctioned, therefore, two recordings were made of all intercepted conversations. There was thus a duplicate tape available from which the Government could have made a composite tape and transcribed the conversations. The Government has not offered any reason why it could not have immediately submitted one of the sets of tapes for sealing and used the other set to make the composite tape.

Even were all or some of the conversations recorded on only a single set of tapes, the Government’s delay of over a month in sealing the tapes is inexcusable. The penultimate sentence of § 2518(8) (a), see note 1 supra, specifically provides that duplicate recordings may be made by the Government for use or disclosure. The Government could have readily copied the tapes by high speed reproduction methods immediately after the surveillance on each telephone was completed, and thereupon presented the original copies to the court for sealing. The feasibility of this procedure is apparent in light of the Government testimony at the pre-trial suppression hearing that the originals of the tapes were reproduced for defense counsel by high speed methods while the Government agent waited.

The only case of which I am aware which treats the question of what constitutes a “satisfactory explanation” for delayed sealing of tapes under § 2518(8) (a) is United States v. Poeta, 455 F.2d 117 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972). In that case the state court judge who had issued a wiretap order was on vacation when the order expired. Because of a provision of the New York Criminal Procedural Law, the police believed that only that same judge could accept the tapes for sealing. Finally, 13 days after the wiretap order had expired, the recordings were brought to another state judge who ordered them sealed. The court stated:

We are satisfied that the delay of the police in delivering the tapes for sealing was entirely excusable in light of the wording of the New York statute. No claim is made that the tapes were altered or that the appellant was in any way prejudiced by the delay.

455 F.2d at 122.

In the instant case, unlike Poeta, the Government does not and could not contend that there is any ambiguity in the explicit statutory requirement that the tapes be “immediately” sealed. The delays in sealing the tapes were about a month and one-half in each instance in contrast to the 13 days in Poeta. Moreover, in contrast to Poeta, the defendants in the instant case did raise the possibility at the suppression hearing that certain of the tapes had been altered, although the district court found this contention to be without merit. I believe, therefore,, that Poeta does not provide support for the majority’s position.

The majority appears to hold that even though the Government may not have provided a satisfactory explanation for the delay in sealing the tapes in this case, the tapes were properly admitted into evidence because of the district court’s finding of fact that the tapes had not been tampered with before being sealed. This rationale would appear to excuse even a total failure by the Government to seal the tapes and a total failure by the Government to provide an explanation for the lack of a seal.

I do not believe that this rationale, which is in effect a “harmless error” rule, can be the stirrup upon which the Government can mount its effort to avoid the consequences of its failure to comply with the explicit statutory requirement that the tapes be immediately sealed. I find support for this view in the recent cases of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and, United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). In those cases the Supreme Court dealt with the question of what constitutes an “unlawful” interception which must be suppressed under § 2518(10)(a). The Court held that interception was unlawful under that statutory provision

where there is a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.

416 U.S. at 527, 94 S.Ct. at 1832.

In the instant case, there is no need to apply this standard because § 2518(8) (a), rather than § 2518(10)(a), applies. Nevertheless, to the extent that the standard is useful in determining whether an implied exception should be read into the clear language of § 2518(8) (a), I believe that the quoted language supports my position that the wiretaps in this case must be suppressed. Section 2518(8) (a) contains numerous procedures for the handling of wiretap records. The legislative history of the section makes clear that these requirements were intended as “safeguards designed to insure that accurate records will be kept of intercepted communications.” S. Rep.No.1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2193. One of the reasons for these requirements, including the sealing requirement, is obviously to protect citizens, when they are called upon to defend themselves, from intentional or inadvertent alterations of the wiretap records secured by means of this extraordinary and secretive investigative device. Such alterations may be very difficult to detect, and fact finding by the district court is inherently less reliable than a strict sealing requirement. Perhaps in recognition of these possibilities, Congress expressly selected a strict requirement that the tapes not be admitted into evidence unless a satisfactory explanation is offered for a failure to seal them. Congress having expressly chosen a standard offering significant protection to the citizen, I believe, in the language of Giordano, that the strict sealing requirement “directly and substantially implements the congressional intention” of maintaining the integrity of the tapes. Therefore, it is my view that the majority is unjustified in creating an exception to the express language of § 2518(8)(a).

I recognize that adoption of my position as expressed in this dissent would put to naught in this case considerable investigative and prosecutorial effort by the Government, as well as considerable judicial effort expended in the lengthy hearings and trial in the district court. Moreover, I am aware that some charge courts with unjustifiably expanding the rights of the accused beyond the parameters intended by Congress or by the framers of the Constitution. In this case, however, it is Congress that has expressly spoken in favor of protecting an accused whose conversations have been secretly recorded. It is Congress that has in its wisdom expressly stated that under the circumstances before us the recorded conversations may not be admitted into evidence. The principle of protecting a citizen from the possibilities of altering or tampering with his intercepted conversation recorded by secret devices is so precious that it should not be diluted by any inclination to excuse the Government from its own serious dereliction. The Supreme Court’s recent holding in Giordano that wiretaps which were not personally authorized by the Attorney General, as specifically required by statute, must be suppressed, affected 60 cases, 626 defendants and immeasurable effort and expense on the part of the Organized Crime Section of the Criminal Division of the Justice Department. See United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849 (1974) (Douglas, J., concurring and dissenting). Nonetheless, the Supreme Court required adherence to the terms of the Congressional statute. We can do no less in this case. I would therefore reverse the convictions at issue on this appeal.

      . Also known as Falcone, Falcon.

      . Title 21 U.S.C. § 952.

      . Title 18 U.S.C. § 1952.

      . Title 21 U.S.C. § 843(b).

      . Evidence used at trial was obtained from wiretaps of two telephones. One telephone was registered to Paul Falcon, appellant. This wiretap commenced on August 28, 1972 and continued until October 16, 1972. The Order for this wiretap, as well as extensions thereof, was signed by The Honorable Frederick B. Lacey of the District Court of New Jersey. The other telephone was registered in Philadelphia, Pennsylvania to Michael De Vito. This wiretap commenced on November 30, 1972 and continued until December 18, 1972. The Honorable John Morgan Davis of the United States District Court for the Eastern District of Pennsylvania executed the Order authorizing this wiretap as well as the subsequent extension on December 15, 1972. Thereafter, appellants filed a motion to suppress the evidence secured through the use of these wiretaps which resulted in a twelve day suppression hearing commencing on August 27, 1973. The trial court denied the motion, 364 F.Supp. 877 (D.N.J.1973), and the trial proceeded.

      . AVe include in this reason appellants’ additional reason that the Government failed to advise the District Court of the existence of an informer at the center of the alleged conspiracy.

      . Accord, United States v. Whitaker, 474 F.2d 1246 (3d Cir. 1973).

      . United States v. Falcone. 364 F.Supp. 877 (D.N.J.1973).

      . 416 U.S. at 530, 94 S.Ct. at 1834.

      . 416 U.S. at 568, 94 S.Ct. at 1853.

      . See, United States v. Chavez, 568 U.S. at 416, 94 S.Ct. at 1853 and in particular Footnote 2.

      . Appendix to tire Brief of Appellant, Paul Falconio, at A-l (hereinafter referred to as Appendix).

      . Appendix at A-3.

      . Appendix at A-3.

      . Brief of Appellees at 16.

      . E. g., “The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping.” Berger v. New York, 388 U.S. 41, 56, 87 S.Ct. 1873, 1882, 18 L.Ed.2d 1040.

      . “A pen register is a mechanical device attached to a given telephone line and usually installed at a central telephone facility. It records on a paper tape all numbers dialed from that line. It does not identify the telephone numbers from which incoming calls originate, nor does it reveal whether any call, either incoming or outgoing, was completed. Its use does not involve any monitoring of telephone conversations.” United States v. Giordano, 416 U.S. at 549, 94 S.Ct. at 1842 (dissenting opinion).

      . The Oxford English Dictionary defines “aural” as : (1) Of or pertaining to the organ of hearing; (2) Received or perceived by the ear.

      . United States v. Dote, 371 F.2d 176 (7th Cir. 1966); United States v. Caplan, 255 F.Supp. 805 (E.D.Mich.1966).

      . Clearly, the permissibility of its use by law enforcement authorities would depend “entirely on compliance with the constitutional requirements of the Fourth Amendment.” United States v. Giordano, 416 U.S. 553, 94 S.Ct. at 1845 (dissenting opinion).

      . See, United States v. King, 478 F.2d 494 (9th Cir. 1973).

      . United States v. King, 335 F.Supp. 523, 549 (S.D.Cal.1971).

      . Id.

      . Nor is the analysis affected by a “touch tone” pdione and use of a pen register equipped with a touch tone decoder. In this regard, see, United States v. Focarile, 340 F.Supp. 1033, 1039 (D.Md.1972).

      . Brief of Appellees at page 27.

      . “ [In G-iordano] ... we did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communcations ‘unlawful.’ To establish such a rule would be at odds with the statute itself.” United States v. Chavez, 416 U.S. at 574, 94 S.Ct. at 1856.

      . Transcript at 770.

      . Transcript at 1686 to 1695, especially 1695.

      . 18 U.S.C. § 2518(8) (a) states:
      (8) (a) The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.

      . In light of this conclusion it is unnecessary to consider at this time the defendant’s contention that the tapes then available must be sealed immediately upon the expiration of the original authorization as well as upon the expiration of each extension of the original order.

      . As the majority properly notes, a violation of the sealing requirement does not mean that “the communication was unlawfully intercepted,” and so suppression is not required under § 2518(10)(a).

      . See note 1 supra.

      . I agree with the implication in United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), that § 2518(8) (a) requires that a satisfactory explanation be provided not only for the Government’s total failure to obtain a seal for the tapes, but also for a failure “immediately” to seal the tapes. Any other construction of the statutory language would completely undercut the statutory purpose of protecting the integrity of the tapes.

      . In moving at trial for suppression of the tapes, counsel for the defense pointed to undisputed evidence at the pre-trial minimization hearing that (1) a privileged conversation (which should not have been recorded) which a Government agent testified to having overheard when previously listening to the tapes did not appear on the tape when played in open court, and (2) a conversation listed in the Government’s log did not appear on the tapes, and the beginning of the following conversation which was on the tapes appeared to be missing.
      The court found that there was “no basis at all in the entire record” to doubt the testimony of the Government agent in charge of the case that there was no tampering with the tapes.

      . Of course, fact finding may still be required even if the Government does comply with the sealing requirement, since the tapes need not be sealed until all the recordings pei'mitted pursuant to the same court order have been made. Congress’ failure to provide absolute protection to the defendant, however, does not justify our weakening the protective structure that Congress does provide.


author: CARL B. RUBIN, District Judge.

text:
    Boyce E. CHUMBLER, Plaintiff-Appellant, v. Marguerite Wallace McCLURE, Executrix of the Estate of Dr. C. C. McClure, Jr., and Ayerst Laboratories, Defendants-Appellees.
    No. 74-1169.
    United States Court of Appeals, Sixth Circuit.
    Oct. 23, 1974.

      Franklin D. Brabson, W. Gary Blackburn, Malcolm L. McCune, Blackburn & McCune, Nashville, Tenn., Joseph W. Bolin, Clinton, Ky., for plaintiff-appellant.
    W. A. Moody, Carrol D. Kilgore, William J. Harbison, Nashville, Tenn., for defendants-appellees.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and RUBIN , District Judge.

       Honorable Carl B. Rubin, United States District Judge for the Southern District of Ohio, sitting by designation.

   OPINION

CARL B. RUBIN, District Judge.

This matter comes before the Court as a diversity case alleging medical malpractice against Marguerite Wallace McClure, Executrix of the Estate of Doctor C. C. McClure, Jr., and product liability against Ayerst Laboratories, Inc. The trial was to a jury and the trial judge directed a verdict in favor of defendant Ayerst at the conclusion of the plaintiff’s ease and directed a verdict in favor of the defendant Estate of Dr. C. C. McClure, Jr. at the conclusion of all evidence. We affirm.

The factual background of this case indicates that in April, 1971, the plaintiff consulted Dr. C. C. McClure, a neurosurgeon in Nashville, Tennessee, in connection with injuries sustained by Chumbler in an electrical explosion. Dr. McClure diagnosed Chumbler’s illness as cerebral vascular insufficiency and prescribed a female hormone known as Estrogen, produced and marketed commercially as Premarin by defendant Ayerst Laboratories. Dr. McClure also prescribed Pavabid, a drug which dilates blood vessels. Known side effects of Premarin include an enlargement of the breasts and a loss of libido. While plaintiff also sought damages for impotence and menopausal symptoms, that issue need not be reached.

Plaintiff’s appeal raises issues of whether the District Court acted properly in directing verdicts for the defendants on whether Dr. McClure violated the accepted medical standards in his community in his treatment of Chumbler and whether defendant Ayerst acted negligently in the production or sale of Pre-marin. Further, the plaintiff-appellant asserts that the District Court erred in excluding all testimony on the issue of plaintiff’s informed consent to his drug treatments.

The law is well settled in this circuit and elsewhere that in a diversity case, the trial judge is bound by state law as to the sufficiency of evidence. Moskowitz v. Peariso, 458 F.2d 240 (6th Cir. 1972); Thompson v. Illinois Central Railroad Company, 423 F.2d 1257 (6th Cir. 1970); Dean v. Southern Railway Co., 327 F.2d 757 (6th Cir. 1964). This Court, in Wallace v. Louisville & N. R. Co., 332 F.2d 97 (6th Cir. 1964), found that the rule in Tennessee required the court:

“to look to all the evidence, to take as true the evidence for the plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for the plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion for a directed verdict must be denied.” Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 284, 326 S.W.2d 461, 464 (1958); Baggett v. Louisville & Nashville Railroad Co., [51 Tenn.App. 175] 365 S.W.2d 902, 904-905 (1960).

Accord, Osborne v. Frazor, 58 Tenn. App. 15, 425 S.W.2d 768, 774 (1968); Goings v. Aetna Cas. & Sur. Co., 491 S.W.2d 847 (Tenn.App.1972). The rule remains the same in Tennessee today and has recently been summarized in other terms. See, e. g., Phelps v. Magnovox Co., 497 S.W.2d 898 (Tenn.App.1972) (no evidence in the entire record from which a jury could have based a verdict for the plaintiff); Keller v. East Tennessee Prod. Credit Ass’n., 501 S.W.2d 810 (Tenn.App.1973) (where a reasonable mind could only draw one conclusion from the evidence).

Against this standard, we find that the trial court did not err in directing a verdict for defendant Ayerst Laboratories. Plaintiff failed to prove participation of Ayerst in any alleged experiments by Dr. McClure, any over-promotion, or a lack of warning concerning side effects of Premarin. From the evidence adduced at trial, we find that taking the strongest legitimate view of the evidence for the plaintiff and resolving all inferences in his favor, reasonable minds could only have found in favor of defendant Ayerst Laboratories. Based upon the foregoing conclusion, we find that the District Court acted properly in directing a verdict for defendant Ayerst.

We reach the same conclusion concerning the directed verdict for the Estate of Dr. McClure. Since Dr. McClure was deceased, the plaintiff was confronted with the Tennessee Dead Man’s Statute, Tenn.Code Ann. § 24-105 , see Worthington Corp. v. Lease Management, Inc., 352 F.2d 24 (6th Cir. 1965), cert. den. 383 U.S. 937, 86 S.Ct. 1068, 15 L.Ed.2d 854 (1967). Its applicability to tort cases in Tennessee is well established, See, e. g., Christofiel v. Johnson, 40 Tenn.App. 197, 290 S.W.2d 215 (1956) While the general approach is to construe narrowly the exclusion of testimony, McDonald v. Allen, 67 Tenn. 446 (1874); Christofiel v. Johnson, supra, “transactions” encompass a large range of excludable testimony on things done in the deceased’s presence to which he might testify from his own personal knowledge. Waggoner v. Dorris, 17 Tenn.App. 420, 68 S.W.2d 142 (1933).

We hold that the trial court did not err in excluding all testimony on the alleged lack of informed consent by the plaintiff-appellant concerning his drug treatment. Such testimony would inevitably relate to conversations with the deceased doctor or to transactions involving that doctor. The testimony which plaintiff sought to proffer as to his state of mind as it bore on informed consent also falls well within the bounds of proscribed testimony and well outside the “independent facts” exception to the Dead Man’s Statute.

Plaintiff asserted that proof of his informed consent is an affirmative defense and, consequently, that the burden lies upon the defendant. The trial court properly found that the burden rested on the plaintiff. Since consent does not ordinarily relieve a physician from liability where he has not conformed to accepted medical standards for treatment and since the party offering testimony barred by the Dead Man’s Statute has the burden of proving competency, we believe the trial judge was correct. Martin v. Morris, 163 Tenn. 186, 42 S.W.2d 207 (1931); Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417 (Tenn.Sup.Ct.1937); Story v. Saunders, 27 Tenn. 663 (1848). The harshness of this statute may be as severe as plaintiff argues in effectively making it impossible to obtain a judgment against any deceased doctor. While not deciding this issue, this Court must point out that relief lies not with the courts but with the Legislature of the State of Tennessee.

As the trial court properly refused to admit testimony barred by the Dead Man’s Statute, we may now consider plaintiff’s third ground for appeal — that a directed verdict in favor of the doctor’s estate was erroneous. Deviation from accepted medical practices and community standards is a prerequisite for maintenance of a medical malpractice suit. Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970); Perkins v. Park View Hospital, Inc., 61 Tenn.App. 458, 456 S.W.2d 277 (1970); Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964); Wooten v. Curry, 50 Tenn. App. 549, 362 S.W.2d 820 (1961); Beech v. Hunter, 14 Tenn.App. 88 (1931).

The record in this case is devoid of evidence of such deviation. The most favorable interpretation that may be placed on the testimony adduced at trial below is that there is a division of opinion in the medical profession regarding the use of Premarin in the treatment of cerebral vascular insufficiency, and that Dr. McClure was alone among neurosurgeons in Nashville in using such therapy. The test for malpractice and for community standards is not to be determined solely by a plebiscite. Where two or more schools of thought exist among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medical authority, it is not malpractice to be among the minority in a given city who follow one of the accepted schools. Gresham v. Ford, 192 Tenn. 310, 241 S.W.2d 408 (1951); Perkins v. Park View Hosp. Inc., supra; Ison v. McFall, supra; Ball v. Mallinkrodt Chem. Works, 53 Tenn. App. 218, 381 S.W.2d 563 (1964); Wooten v. Curry, supra.

Were this not true, an anomaly might occur where nine neurosurgeons in Memphis, Tennessee, prescribed Premarin for cerebral vascular insufficiency and where nine neurosurgeons in Nashville prescribed other treatment. Should one Memphis neurosurgeon move to Nashville and continue to prescribe Premarin, he might be liable for malpractice. Such a result would impose a standard of practice upon the medical profession which would be totally unsupported by logic and unreasonable in concept. See the cases cited, supra.

Scrutiny of the testimony below leads to no other conclusion. The doctors who testified asserted only that Dr. McClure was alone in Nashville among neurosurgeons in prescribing Premarin. Accompanying testimony as to the medical acceptability of this practice and of the drug itself leave no other possible outcome other than plaintiff’s failure to present even a prima facie case of malpractice. Under Tennessee law on directed verdicts, we find that the trial court acted properly in directing a verdict for the doctor’s estate at the close of all the evidence. Accordingly, for this and reasons mentioned before, the actions of the trial court, both as to defendant Estate of Dr. C. C. McClure, Jr. and defendant Ayerst Laboratories, Inc. are hereby affirmed.

APPENDIX

Testimony of Dr. Ray W. Hester, p. 78:

Q. Do you of your knowledge know of anyone in this community that’s a neurosurgeon or a neurologist that prescribes Premarin in the treatment of cerebral vascular insufficiency other than Dr. McClure?

A. Well, Dr. McClure did, and of my own personal knowledge, I don’t know of any of the other neurosurgeons who do, No, sir.

Page 91:

Q. Now, based on that, and based on your knowledge and based on reasonable medical certainty, etc. should that drug [Premarin] have been used on Boyce Chumbler for anything other than pro-static carcinoma?

A. Again, that’s a difficult question to answer. First of all, we have just quoted two articles that one is for and the other is against. Now there are other articles in the literature where the drug has been used and has been tried and they also have conflicting evidence.

BY THE COURT: Are you saying there is a split of opinion in the medical profession as to whether or not this drug should or should not be used for a vascular insufficiency or vascular accident?

A. Yes, sir. At least at one time there was and I think the physician must come to his own conclusion from what, you know, has been read and his medical knowledge at the time . . .

Page 98:

Q. . . . As I understand and you correct me if I am wrong, there are two schools of thought in medicine as to the use of Premarin in the treatment of a possible vascular situation ?

A. Yes, sir.

Q. All right. One school of thought promotes and uses Premarin, another school of thought to which you belong does not believe in the use of Premarin ?

A. That’s correct.

Page 104:

Q. Now, as you are a neurosurgeon and as you do meet with a group of neurosurgeons, do you have knowledge of the standard that is followed by internists, general practitioners, general surgeons and family doctors in this area with regard to the diagnosis and treatment of symptoms similar to Mr. Chum-bler’s . . .

BY THE COURT: Just let me ask him — -Dr., is this condition we are talking about, is it a medical condition which based on the local standards of this community falls primarily in the field of neurosurgery ?

A. No, sir.

Q. Then I believe I asked you, are you familiar with the standard that is followed by internists, by general surgeons and family practitioners, just plain old doctors in this area, in treating these conditions and prescribing Premarin ?

A. I am not nearly so familiar with that and .

BY THE COURT: Well, now, Doctor, I don’t mean to be abrupt about this matter, but in this matter I think you are going to have to say either you are or you are not.

A. Well, I am not.

Page 119:

Q. Dr. Hester, you didn’t intend to tell the jury, did you, that Dr. McClure didn’t use the standard of care requisite for neurosurgeons in this community in diagnosing the man’s condition, did you ?

A. No, sir, I did not.

Q. . Now, he had a different idea about the medication that might be used from your own ideas, I understand it?

A. Yes, he did.

Q. Are you saying he was violating the professional standards in the community in prescribing it [Premarin], doctor ?

A. Well, I think I have already answered that question earlier when I said the standard in our community was not to prescribe Premarin for cerebral vascular insufficiency and to my knowledge none of us do. Now whether this is just opinions or whether you are going to call this the standard, I don’t know how you are going to arrive at that. In Memphis, maybe the neurosurgeons do, I don’t know, but here we don’t go so far except for Dr. McClure.

Q. All right, but now you are aware that it is widely used by many doctors for many different things, aren’t you ?

A. Yes, sir.

Q. All right, isn’t it a matter of medical judgment which drug to prescribe in the last analysis?

A. It certainly is.

Testimony of Dr. Gerald Feniehel, p. 309:

Q. Doctor, is it your opinion and within that, that Premarin is accepted therapy for cerebral vascular insufficiency?

A. No, it is not.

Q. Is there anyone in this community of neurologists or neurosurgeons that you have knowledge of that uses Premarin in the treatment of cerebral vascular in-sufficiencies ?

A. I can only speak for the neurologists in the city. There are nine. At our last society meeting, of which seven were present, all said they had never used • Premarin for the treatment of cerebral vascular insufficiency . . .

BY THE COURT: ... Are you saying, doctor, that it’s ineffective, is that what you are saying?

A. It has never been demonstrated to be effective as a treatment for cerebral vascular insufficiency.

Page 334:

Q. In the treatment of cerebral vascular problems as it existed beginning in April, 1971, am I correct in assuming there was an honest difference of opinion as to the various approaches among the specialists at that time?

A. Are you referring to all the treatments or just the estrogen therapy?

Q. Any kind of treatment.

A. There have been — that is correct, there is no specific established treatment for cerebral vascular disease.

Q. And especially, some general practitioners honestly disagree as to whether or not there was one proper approach to it?

A. I think they all agreed there was no one established approach.

Page 336:

BY THE COURT: All right, based on the standard that existed in this community in April of 1971, now go ahead and finish your question.

(By Mr. Brabson, continuing)

Q. Was Premarin a drug to use in cerebral vascular insufficiency?

A. ... to the best of my knowledge, Dr. McClure was the only person in the community using Premarin in the treatment of cerebral vascular disease.

Testimony of Dr. Oscar F. Nowell, p. 401:

Q. In your opinion, has Premarin been or can it be an effective medication for the prevention of strokes?

A. In xny way of thinking, yes.

Q. Have you ever used Premarin?

A. Oh, yes, I’ve used it for many years.

Q. And have you—

A. But not for that purpose.

Q. All right, sir, have you ever used Premarin for heart problems?

A. No, I am not a cardiologist . . but I do know it has been recommended for this purpose.

Q. And you do know that it is being used locally for this pux-pose?

A. Yes, sir.

Page 399:

BY THE COURT: Doctor, do you know the standard of medicine in this area with reference to whether or not —I mean with reference to the standard in the medical practice in Nashville, Tennessee ?

A. Yes, sir.

BY THE COURT: All right.:

(By Mr. Moody, continuing)

Q. Doctor, do you know whether or not, basing your knowledge upon the factors that you know about in the practice of medicine in Davidson County, Tennessee, is Premarin used for the treatment of cerebral vascular insufficiency ?

A. Yes, sir.

Q. How is it used and why is it used for that purpose?

A. . .Now the important thing is to enlarge the diameter of these blood vessels so that more blood can get through and at the same time use some kind of drug that will decrease the physiological age of these blood vessels.

Q. Is Premarin one of the drugs?

A. And one of these drugs is Pre-marin to reduce the physiological age of the blood vessels in question . . .

      . § 24r-105 states, in pertinent part:
      In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify by the opposite party ....

      . See attached Appendix for the salient testimony relating to medical standards in Nashville and elsewhere.


author: MOORE, Circuit Judge:

text:
    Ralph Kakumi HARA, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 73-3605.
    United States Court of Appeals, Ninth Circuit.
    Oct. 23, 1974.
    Certiorari Denied Feb. 18, 1975.
    See 95 S.Ct. 1138.

      William T. Richert (argued), Fresno, Cal., for defendant-appellant.
    Brewster Q. Morgan, Asst. U. S. Atty. (argued), Fresno, Cal., for plaintiff-appellee.
    Before MOORE, BROWNING and CHOY, Circuit Judges.

       The Honorable Leonard P. Moore, Senior United States Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation.

   OPINION

MOORE, Circuit Judge:

Defendant-appellant, Ralph Kakuma Hara, was indicted on two counts of violating 50 U.S.C.App. Section 462 (Selective Service Act of 1967, § 12. Offenses and Penalties). Count I charged failure to report for induction into the armed forces, Count II failure to keep the Local Board advised of appellant’s current address. The case was tried, upon consent, by the court without a jury. At the close of the case Count II was dismissed for failure of proof, the government consenting thereto. The case was then submitted to the court upon written argument. The court’s decision is contained in its “Memorandum and Order.” Appellant was convicted on Count I. Imposition of sentence as to imprisonment was suspended, probation for a period of five years was imposed as was a fine of $3,000 payable at the rate of $50 per month. From the judgment of conviction, appellant appeals.

On appeal, appellant raises three points of error (1) admission of an unidentified entry in his Selective Service file of his failure to report for induction; (2) failure of the Local Board to grant appellant an interview with its Medical Advisor; and (3) failure of the Local Board to consider his student deferment status.

The facts are quite simple. Chronologically, on December 19, 1968, appellant was classified 1-A; on May 13, 1969, he received his pre-induction physical examination; on May 21, 1969, he was examined by a psychiatrist; and on June 18, 1970, he was ordered to report for induction on July 16, 1970.

The government’s proof to establish the charges contained in Count I consists solely of appellant’s original Selective Service file which was produced by Mrs. Magdalene Barker, Executive Secretary for some six years of Local Board #74 at Yisalia, California. Mrs. Barker testified that she was the custodian of the original file and that the entries therein were made by the personnel of the Board, i.e., the staff and the Board members. The salient entry appears on page 11 under the heading “Minutes of Actions by Local Board and Appeal Board and an Appeal to the President,” as follows: “JUL 24 1970 Failed to Report for Induction on 16 JULY 1970.”

Appellant argues that this entry, since the entrant was unidentified and unknown, was inadmissible hearsay and, despite 28 U.S.C. § 1733(a), should have been excluded as “double hearsay.” This proof, appellant claims, was too vague and tenuous as a matter of law to remove reasonable doubt as to appellant’s failure to report.

The district court’s opinion held that the “hearsay objection to the admissibility of ‘Failed to Report’ being stamped in the file has been laid to rest by United States v. Richardson, 9th Cir. #73-1245 [484 F.2d 1046], which found it admissible under 28 U.S.C. 1733(a).” The Court further said that the entry “was corroborated by the fact that defendant was in court and would have been in the Army if in fact he had reported.”

In Richardson, supra, the trial court found Richardson guilty of a failure to report for physical examination and not guilty of a failure to report for induction. The majoi’ity held that a stamped entry “Failed to Report,” on the minute sheet of his Selective Service file was admissible under 28 U.S.C. § 1733(a), citing United States v. Hudson, 479 F.2d 251 (9th Cir. 1972) and United States v. Grans, 472 F.2d 597 (9th Cir. 1972) in support thereof. Judge Hufstedler in her dissent in Richardson, supra, although recognizing that “Hudson permitted the admission of an anonymous hearsay entry contained in Selective Service file * * expressed the view that “Hudson is plainly wrong” both for reasons given by Judge Lumbard in his dissent therein and also because she believed that it was in conflict with decisions in this Circuit and with Supreme Court authority.

There is no doubt that the creation of a status of sanctity to “Books or records of account or minutes of proceedings of any department or agency of the United States” thereby making them “admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.” 28 U.S.C. § 1733(a), is a far cry from the days of the “shop book” rule. However, times have changed— particularly in government and in the enormous expansion of its agencies with their thousands of employees. It would be utterly impractical in most cases to attempt to identify, as has been suggested, the persons who made the entries or ascertain the information, and source thereof, upon which the entries were based. Probably no one in any department would be able, after the expiration of a comparatively few years, to even trace the name of the entrant or the nature or the extent of his or her knowledge. But we need not confront these broader problems in this case.

As stated in 5 Wigmore on Evidence § 1635 (3d ed. 1940) there are exceptions to any personal knowledge requirement in

eases in which the officer’s duty clearly does involve ascertainment of facts occurring out of his presence and requiring his resort to sources of information other than his own senses of observation; for example, an assessor’s record of the value of real estate and of its occupancy, or a registrar of voters’ record of electors’ residences. When such a duty clearly exists, the general doctrine above, that a witness should have personal knowledge, need not stand in the way, for (as already noted) it has its conceded limitations; and where the officer is vested with a duty to ascertain for himself by proper investigation, this duty should be sufficient to override the general principle.

Id. at § 1635, at 531. This exception to the “personal knowledge” rule is consistent with the fundamental theory underlying the official documents exception to the hearsay rule, that where “an official duty exists to make an accurate statement, . . . this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment. . . . It is the influence of the official duty, broadly considered, which is taken as the sufficient element of trustworthiness, justifying the acceptance of the hearsay statement.” Id. § 1632, at 514.

The regulations that prescribe the relationship between the induction center and the local boards that feed registrants to it for induction impose official duties upon the local boards that serve to insure the reliability of the kind of entry that is the subject of this appeal. The local board is responsible for assembling registrants for delivery to the induction center. Absences at the forwarding site are to be noted on the Delivery List, Selective Service System Form 261, which is sent to the induction center along with the registrants. 32 C.F.R. § 1632.15(a) (1974). After induction proceedings have taken place, the commanding officer of the induction center is required to return the original Form 261 to the local board, “indicating in column 4 the disposition of each registrant forwarded for induction.” Id. § 1632.20(a)(1).

Thus the regulations impose a duty on the commanding officer of the induction center to transmit facts on Form 261 to the local board that are based either on the commanding officer’s own perception or that of his subordinates. The regulations also impose a duty on the local board to file this information. This duty to report and record suggests a line of responsibility analogous to and perhaps stronger than that running from subordinate to superior, and information running along this line of responsibility should be recognized as equally reliable.

The record does not affirmatively establish Form 261 as the source of the entry in appellant’s file. But even if that form was not the source of the information, it is reasonable to infer a duty on the part of the executive secretary or other staff personnel of the Local Board to verify a failure to report against the Form 261, either at the time of the entry in the registrant’s file or before forwarding his file to regional or national headquarters for a decision on whether or not the registrant should be prosecuted. The “official duty to make an accurate statement” in a registrant’s file “will usually suffice as a motive to incite the officer to its fulfillment.” Cf. Wigmore on Evidence § 1632, at 514. Entries made pursuant to that duty are sufficiently trustworthy to justify their admission into evidence in a case such as this.

If every entry has to be proved through the mouth of the entrant who is then to be subjected to cross-examination, then such books and records would be of value only to refresh a witness’ recollection. This would not appear to be the intent of Congress in enacting section 1733.

The district court’s finding that the Local Board has no reason to review appellant’s medical status in view of the fact that he “was found medically qualified for induction, even after special psychiatric consultation by the Armed Forces doctors,” is supported by the record as is the finding that on the facts appellant was not entitled to a II-S (student deferment) classification.

Judgment affirmed.

      . § 1733. Government records and papers; copies
      (a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.


author: PER CURIAM:

text:
    CONSERVATION COUNCIL OF NORTH CAROLINA et al., Appellants, v. Col. Albert C. COSTANZO, Wilmington District Engineer, Corps of Engineers, U. S. Army, et al., Appellees.
    No. 74-1881.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 4, 1974.
    Decided Nov. 8, 1974.

      Thomas J. Schoenbaum, Chapel Hill, N.C., and Norman B. Smith, Greensboro, N.C. (Smith, Carrington, Patterson, Fol-lín & Curtis, Greensboro, N.C., on brief), for appellants.
    David A. Nash, Wilmington, N.C. (Hogue, Hill, Jones, Nash & Lynch, Wilmington, N.C., on brief), for appellee Carolina Cape Fear Corp.
    Joseph W. Dean, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., on brief), for appellees.
    Norton F. Tennille, Jr., Washington, D.C. (Richard J. Wertheimer and Arnold & Porter, Washington, D. C., on brief), for amici curiae.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
   PER CURIAM:

Conservation Council of North Carolina sought a preliminary injunction restraining Carolina Cape Fear Corporation from further construction of a marina on Bald Head Island and requiring Constanzo, District Engineer of the Army Corps of Engineers, to prepare and file a detailed environmental impact statement as required by 42 U.S. C. §4332(2) (C).

Bald Head Island is located in the Atlantic Ocean at the mouth of the Cape Fear River and comprises approximately 12,000 acres, 9,000 of which are described as either submerged lands and/or high marsh. In 1970 the island was purchased by Carolina Cape Fear Corporation for development as a residential resort community. To date, development includes a golf course, an inn, several homes and numerous road beds. Pivotal in the overall development of the island is a plan to construct a marina to furnish water access to the resort community. It is over the construction of the marina that the present dispute arises.

To complete the marina, which is to be built entirely on high ground, the Corporation must dredge a channel into the Cape Fear River below the mean high water mark. This dredging, representing only two percent of the total construction, requires a permit from the Corps of Engineers under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1970). Upon-the Corporation’s application for a permit accompanied by its own Environmental Assessment of the proposed project, the Corps solicited public comment, including comment from various state and federal agencies. The response was overwhelmingly in favor of the permit’s issuance, save for opposition from several conservationists numbering among them the plaintiffs in this action. The Corporation, in its plans, had not been wholly oblivious to environmental concerns. In fact, it had made numerous concessions in the construction plans, evidencing its concern in this regard, including strict erosion controls, limitations on dredge-spoil fill areas, guarantees to leave 400 acres of highland marine forest in its natural state, and, not least of all, a grant by quitclaim of 9,000 acres of marshes and lowlands to the State of North Carolina.

On May 24, 1974 the District Engineer issued a permit under 33 U.S.C. § 403, authorizing the Corporation to dredge an access channel to its marina. The District Engineer’s written findings concluded that the revised project for marina construction gave proper consideration to public resources in the area and that the issuance of the permit did not constitute a major federal action “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2) (c), thus not requiring a detailed environmental impact statement.

On June 5, 1974, this action was filed by the plaintiffs challenging the District Engineer’s decision. Plaintiffs additionally sought to enjoin construction under the Federal Water Pollution Control Act, 33 U.S.C. § 1311(a) (1972), asserting that the dumping of dredge spoil on salt meadows near the marina site required a Corps of Engineers’ permit even though the area was above the mean high water mark. After a full hearing, the District Court denied plaintiffs’ motion for a preliminary injunction and dismissed the action on the grounds that the plaintiffs had failed to meet the standing requirement of Section 10 of the Administrative Procedure Act, 5 U.S.C. § 702.

On July 24, 1974, the District Court denied plaintiffs’ motion for an injunction pending appeal. On July 26, 1974 plaintiffs moved this Court, pursuant to Rule 8, Federal Rules of Appellate Procedure, for an injunction pending appeal. After hearing oral argument on the motion, the Honorable J. Braxton Craven, Jr. granted a limited injunction pending appeal enjoining defendants from opening any channel between the Cape Fear River and the site of the proposed marina, but otherwise leaving defendants free to continue their construction.

I.

. Standing under Section 10 of the Administrative Procedure Act, 5 U. S.C. § 702, exists only when a plaintiff can satisfactorily demonstrate that the agency action complained of will result in an injury in fact and that the injury is to an interest “arguably within the zone of interests to be protected” by the statute in question. Data Processing Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). Directly addressing the injury in fact question in an environmental context, the Supreme Court, in Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), recognized aesthetic and environmental concerns as cognizable interests within the meaning of the statutory language. Mere special interest by a plaintiff in the environment is not, however, sufficient to confer standing as a person “adversely affected” or “aggrieved”; a plaintiff must allege an individualized interest at stake which would place him among the injured. Id. at 738-740, 90 S.Ct. 1361. The claimed injury need not be great or substantial; an “identifiable trifle”, if actual and genuine, gives rise to standing. United States v. SCRAP, 412 U.S. 669, 687-689, n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

In this case, plaintiffs seek to distinguish themselves as having a direct stake in the outcome of the litigation by allegations of recreational uses of Bald Head Island. Unlike the claims in Sierra Club and SCRAP which involved recreational uses of national parks, these plaintiffs assert prior uses of the privately owned highland areas. To the extent that standing is predicated upon plaintiffs’ recreational use as either a licensee or a trespasser, this Court finds little difficulty in holding that they have suffered no injury due to any impairment of their use of the highlands. There is no indication that Carolina Cape Fear Corporation will permit a continuation of such use and without the possibility of future use, the challenged construction cannot harm the plaintiffs.

Plaintiffs also claim, as a matter of right, use of the area of the island below the mean high water mark, or at least a right to travel through or otherwise use the navigable portions of the submerged land. Because the allegations and findings below are too general to permit a determination of what use, if any, is made of these areas, we are unable to reach this question. Although the activities alleged in the complaint seem typically related to use of the privately owned highlands, plaintiffs may be able to demonstrate a prior legitimate, non-permissive use of certain lowland areas and that the proposed development will injure their continued enjoyment of those public areas. Accordingly, we remand to the District Court for further hearings on these questions.

II.

The decision to grant a preliminary injunction is discretionary with the District Judge and may not be set aside on appeal unless an abuse of discretion is shown. West Virginia Highlands Conserv. v. Island Creek Coal Co., 441 F.2d 232, 235 (4th Cir. 1971); Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42, 45 (4th Cir. 1932). In general, four factors are to be considered: the threat of irreparable injury to the plaintiff should preliminary injunctive relief be denied; injury to other parties should the injunction issue; the probability that the plaintiff will succeed on the merits; and the interests of the public. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); First-Citizens Bank & Trust Company v. Camp, 432 F.2d 481, 483 (4th Cir. 1970); Airport Comm. of Forsyth County, North Carolina v. C.A.B., 296 F.2d 95, 96 (4th Cir. 1961); Virginia Petroleum Job. Ass’n v. Federal Power Com’n, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958).

In this case, we find no abuse of discretion in the District Court’s denial of a preliminary injunction. First, the plaintiffs have yet to demonstrate that the continued construction of the marina will injure them. Second, should the Corporation be enjoined from carrying out the work under the permit, delays in construction may result in increased construction costs and postponed enjoyment by property owners of water access to the island. Third, and most significantly, plaintiffs have not shown a great likelihood of success on the merits. Although recognizing that under certain circumstances the issuance of a Corps of Engineers’ permit may require filing of an environmental impact statement, we note, without expressing an opinion on the merits, the similarities between this case and Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973). Finally, although the public interest may favor preservation of wilderness areas, it does not demand a halt to construction on private lands that has not been shown to threaten public areas.

Accordingly, we vacate the order of the District Court dismissing the action and remand for further proceedings consistent with this opinion. In the interim, Judge Craven’s order of July 26, 1974 is to be continued with leave to the District Court to dissolve it at its discretion or pending final resolution of the merits.

Vacated and remanded.

      . Conservation Council of North Carolina, joined by the local chapter of plaintiff-interveuor Sierra Club, are voluntary unincorporated associations composed of citizens of North Carolina dedicated to the conservation and protection of North Carolina’s seacoast. Four individual members of the Conservation Council are named as plaintiffs, each alleging individual injury to a prior recreational use of the island.

      . The relinquishment of the 9,000 acres was made a condition for granting the permit. It is only through the issuance of the permit that the public will acquire any undisputed right to the lowland areas of Bald Head Island.

      . Plaintiffs alleged and the District Court found that the four individually named plaintiffs had previously made use of the privately owned highland areas. One plaintiff, a biology teacher, had on occasion taken her classes to the island for study and educational purposes; other plaintiffs had allegedly either fished “at Bald Head Island,” camped on the highlands, or engaged in bird watching there. Members of the Sierra Club had twice, with the express authorization of the defendant Corporation, made field trips to the island.


author: COFFIN, Chief Judge.

text:
    Frederick H. DUNKER, Jr., Petitioner-Appellant, v. Douglas VINZANT, Respondent-Appellee.
    No. 74-1166.
    United States Court of Appeals, First Circuit.
    Argued Sept. 6, 1974.
    Decided Nov. 1, 1974.
    Catherine Clement, Mass. Defenders Committee, Boston, Mass., for petitioner-appellant.
    Barbara A. H. Smith, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief Appellate Section, Boston, Mass., were on brief, for respondent-appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and CLARY , District Judge.

       Sitting by designation.

   COFFIN, Chief Judge.

The appellant, indicted in Massachusetts for murder in the first degree, was tried and convicted of murder in the second degree. He sought a writ of habeas corpus from the district court and appeals from the denial of that relief.

Appellant’s claim is that the closing argument of his counsel was so ineffective as to constitute an admission of guilt. The appellant does not challenge the thoroughness of his attorney’s preparation or the adequacy of his prior experience, see Rastrom v. Robbins, 440 F.2d 1251 (1st Cir. 1971), nor does he claim any failure to cross-examine prosecution witnesses or to present defense witnesses. Indeed, he concedes the adequacy of representation up to the point of closing argument. Appellant asks us to reexamine our “farce and mockery” standard for effective assistance of counsel and apply instead the standard that requires “reasonably competent assistance of [counsel] acting as his diligent conscientious advocate.” Under the latter standard, appellant argues, the closing argument of his attorney at trial fell measurably below the acceptable level.

Although adequacy of representation until the penultimate moment was conceded, the court has carefully reviewed the entire trial transcript, the closing arguments, and instructions of the judge, in addition to the several cases which have passed on this matter already. Having done so we find that the representation provided did not fall below either standard of effectiveness.

The trial out of which this claim arises took place over a period of seven days. The case presented by the prosecution relied primarily on the victim’s dying accusation of the defendant and the statement of two prisoners who were in jail with the defendant and testified that he had confessed to them. This was countered by alibi evidence that the defendant was forty miles away with relatives and friends at the time of the fatal shooting. The verdict turned entirely on the jury’s assessment of the credibility of the witnesses. Trial counsel carefully and aggressively attacked the prisoner-witnesses, asking them if they were known as “stoolies” and if the other prisoners had such strong feelings against them that they had to be segregated from the regular prison population. He objected strenuously and repeatedly to the admission of the dying declaration and argued to the court that the victim did not have reason to believe he was dying and in fact lived for several days after the shooting.

In beginning the presentation of his client’s case, trial counsel indicated a preference for avoiding long dissertations to the jury and said, instead, that he preferred the testimony itself to weigh most heavily. He put forward alibi witnesses and the defendant in a cogent presentation of the defense. The closing argument was relatively short, covering approximately twenty-three pages of trial transcript. Appellant relies on a small portion of the whole:

“Now, under our law, no man is permitted to go to trial without being represented by counsel. By counsel I mean a lawyer. You know that. And I was appointed by the Court to do this. And I am just as obligated to him as a court appointed lawyer as if he had paid me a tremendous fee. And I must exert every bit of experience, acumen, skill and artistry that I possibly can to prove his innocence.
“Now I am sure that during the course of your lives you have put a question to a fellow or somebody else who was trained to legal terms. Supposing a man comes to you and he says he is guilty of a crime, shall you defend him? And you know, Mr. Foreman and ladies and gentlemen of the jury, that has been on the bar examination so many times it is ridiculous. Your duty is — if you answer no, you flunk. You must answer you must defend him because it is the duty of the Commonwealth to prove that he is guilty beyond a reasonable doubt. And if you don’t do that, you are remiss in your duty and you are not an advocate; neither are you a lawyer.”

This portion is quoted to us by the appellant, but it is followed by the conclusion “the defendant steps before you innocent”.

Subsequently having argued throughout the trial that the dying declaration was not like the testimony of a witness because it could not be challenged, he summarized in closing;

“You even have a situation that went so far as when the defendant was apprehended, that the man who was deceased, Crowley, was still alive; still aware of his circumstances; and there could have been a confrontation.
“Mr. Foreman, ladies and gentlemen of the jury, if that happened, we wouldn’t be here. Couldn’t be here. I take that back. We could be here because it would still be my duty to defend this man if I was appointed by the Court and defend him to the best of my ability.
“And even if there were three choices; plead the man guilty, plead him not guilty and try him, or refuse to take the case; what do you think my duty is? I will tell you what it is. I must take that case, plead him not guilty and defend him, because it is not my duty to prove that he is not guilty.”

These quoted passages were indeed maladroit, and the entire argument was, as the Supreme Judicial Court of Massachusetts observed, “disjointed”. Commonwealth v. Dunker, Jr., 1973 Mass. Adv.Sh. 981, 985, 298 N.E.2d 813 (1973). The references to court appointment were, to say the least, questionable strategy. But the arguments followed a seven day trial accurately characterized by the Supreme Judicial Court as “hard fought” where counsel on each side may have “manifested an excess of zeal”. As for the words themselves, no direct admission of guilt can be claimed; at most they might permit an inference of such a conclusion. But when read in context, we must agree with the Massachusetts court that “when the evidence was all in, there was no rational basis for the jury to believe that the defendant, who testified, and his counsel were not contesting the Commonwealth’s case fully and wholeheartedly to the end.” Commonwealth v. Dunker, Jr.,- Mass, at 984, 298 N.E.2d at 816. That court found that the remarks were addressed to the issue of burden of proof. We agree.

We note that in reaching this conclusion the district court below and the Massachusetts court employed the standard which the appellant asks us to apply. The Supreme Judicial Court has recently elucidated its standard in effectiveness of counsel claims:

“[Wjhatever the attempted formulation of a standard in general terms, what is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Libby, 358 Mass. 617, 621-622, 266 N.E.2d 641 (1971). Commonwealth v. Bernier, 359 Mass. 13, 19-24, 267 N.E.2d 636 (1971).” Commonwealth v. Saferian, - Mass. -, 315 N.E.2d 878 (1974).

The appellant has had the extraordinary opportunity of having three courts pass upon the facts he presented, applying the demanding standard of examination he sought to impose. It is the factual circumstances of his case, not the application of a lenient legal standard that disentitle him to relief.

Affirmed.

      . Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974); Bottiglio v. United States, 431 F.2d 930 (1st Cir. 1970). This test has been said to rest on the theory that the ineffectiveness claim is grounded in the due process clause. See, e. g., United States v. DeCosta, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (D.C.Cir. 1973).

      . United States v. DeCosta, 159 U.S.App.D. C. 326, 487 F.2d 1197, 1202 (1973). Although the standard has been articulated somewhat differently by the circuits which have adopted it, they all agree that the standard is based on the requirements of the Sixth Amendment. See Beasley v. United States, 491 F.2d 687 (6th Cir. 1974); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973). See also United States v. Hayes, 444 F.2d 472 (5th Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1971); Moore v. United States, 432 F.2d 730 (3d Cir. 1970) (en banc); Coles v. Peyton, 389 F.2d 224, 225 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968).

      . If this were a matter under our supervisory power we would be strongly inclined to proscribe such references.