author: DAVID W. WILLIAMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David L. LINCOLN, Defendant-Appellant.
    No. 73-2679.
    United States Court of Appeals, Ninth Circuit.
    March 20, 1974.

      Minoru Inadomi (argued), Forgy, Thamer & Inadomi, Santa Ana, Cal., for defendant-appellant.
    Stephen W. Peterson, Asst. U. S. Atty. (.argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.

      Before CHOY and WALLACE, Circuit Judges, and WILLIAMS, District Judge.

       The Honorable David W. Williams, United States District Judge for the Central District of California, sitting by designation. ,

   OPINION

DAVID W. WILLIAMS, District Judge:

This is an appeal from a judgment of conviction by a jury of violations of 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963, dealing with conspiracy to import marijuana, importing marijuana, conspiracy to import marijuana with intent to distribute, and possessing marijuana with intent to distribute. Prior to the trial, appellant’s motion to suppress the evidence was heard and denied. The', Government’s motion to compel appellant to produce handwriting exemplars, filed less than one week prior to the original trial setting, was granted, and on the Court’s motion a new trial date was set four days away. Appellant and co-defendant Thibodeaux moved to sever their case from co-defendant Robles-Padilla but this motion was denied. The Court ordered a further postponement of the trial for 10 days because of a congested calendar over appellant’s objection. On the new trial date the Government moved to sever the appellant’s case from that of the other two defendants, stating as its reason an anticipated disposition of the Robles-Padilla case and possible evidentiary problems in a joint trial of the appellant with co-defendant Thibodeaux. This motion was granted over appellant’s objection.

FACTS

On December 14, 1972, Customs Special Agent Zumwalt and Border Patrol Agent Caldwell were maintaining a lookout at the Wisteria checkpoint located on the All-American Canal. The agents were maintaining their watch from approximately three-quarters of a mile away with the aid of binoculars.

At about - 6:50 A.M., Zumwalt observed people on foot on the south side of the check. He then observed a car heading eastbound on the south side of the canal towards the Wisteria crossing. The automobile then turned north proceeding through the Wisteria check. Zumwalt and Walker followed the car, later identified as a 1971 Ford Galaxie, approximately 10 to 12 miles north into El Centro, California, where it was parked. The driver of the Ford, later identified as co-defendant Robles-Padilla, then proceeded to a taxi stand where he entered a taxi and returned to Mexico.

From approximately 7:10 A.M. until 10:45 A.M., the unattended Ford was under constant surveillance by Zumwalt and other agents. At 10:45 A.M., as Walker was relieving Zumwalt, he observed a green Volkswagen approach the Ford. A white female, later identified as co-defendant Thibodeaux, exited the Volkswagen, being driven by the appellant, entered the Ford and drove away. No attempt was made at this time to stop or search the occupants of either car. Agent Zumwalt followed the Volkswagen and later stopped it about eighteen miles west of El Centro. Agent Walker followed the Ford and stopped it about sixteen miles west of El Centro.

Walker approached the driver of the Ford, co-defendant Thiobodeaux, and asked her if she knew what was in the trunk and if she had a key to the trunk. After receiving a negative response, Walker entered the car whereupon he encountered the smell of marijuana. He then removed the rear seat and saw what appeared to be kilo packages of marijuana.

In the meantime, Zumwalt had stopped the Volkswagen and asked the appellant for some identification. Receiving the appellant’s driver’s license, he went back to his car and using his radio learned that marijuana had been found in the Ford. Appellant Lincoln was then arrested.

At trial the Government produced the sales manager of University Oldsmobile who identified the appellant as the person who purchased a 1971 Ford Galaxie in October of 1973 under an assumed name. A pretrial identification was also made by the sales manager based on a group of photos shown him including the appellant’s driver’s license, copies of other drivers licenses, and other photos.

The Government also produced Sgt. Schoonover of the San Diego Police Department, a handwriting expert, who compaired the handwriting exemplars of the appellant taken prior to trial with the signature of the purchaser of the Ford and formed the opinion that the signatures were one and the same.

Sgt. Schoonover also formed the opinion that the signature on a hotel receipt dated December 11, 1972, from the Plaza Hotel in Mexicali, Mexico was that of the appellant. This receipt had been found in the possession of co-defendant Thibodeaux at the time of her arrest.

I.

The first issue presented on appeal is whether the search of the Ford Galaxie constituted a valid border search. It is well settled that Customs Agents need not meet the Fourth Amendment requirements of probable cause to conduct a border search. United States v. Weil, 432 F.2d 1320 (9th Cir. 1971).

The appellant contends that Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), is controlling here. In that case, a search was conducted by a roving patrol of the United States Immigration and Naturalization Service. The defendant was stopped and searched some 25 miles from the Mexican border, without a warrant and without probable cause.

Here, unlike Almeida-Scmchez, the 1971 Ford had been under constant surveillance since it was spotted crossing over the Wisteria check. This is not a situation involving a search by a roving patrol of governmental agents having no past information that the defendant was carrying contraband. Rather, the search was conducted after the Ford had been under surveillance for some four hours and 25 miles. It follows that Al-meida-Sanchez is distinguishable and therefore not controlling.

This case is an example of a properly extended border search. We are convinced that the trial court found sufficient facts to support the inference that the Ford had come from Mexico. It was first seen by the customs agents as it was traveling in an easterly direction near the Wisteria checkpoint along the dirt road on United States soil just south of the All-American Canal. Calexico lies about 3% miles east of the checkpoint, but the area to the west, from whence the car came, is uninhabited for many miles. The Wisteria checkpoint is a bridge crossing the canal. The canal is located approximately 50 to 75 feet from the International Boundary. A locked gate bars the checkpoint since it is not a legal point of entry into this country. The customs officers observed a small group of men approach the checkpoint on foot from the direction of Mexico and saw one of them open the locked gate to permit the load car to cross the bridge into the United States.

Although we find the facts sufficient to support the inference that the Ford crossed the border, one case seems to suggest that under circumstances similar to these, it is not necessary to establish with certainty the fact that the searched vehicle had itself crossed the border. United States v. Markham, 440 F.2d 1119, 1121 and 1122 (9th Cir. 1971). Close proximity to the border has been held to not be required to establish a border search, provided the vehicle searched had been under surveillance. Lannom v. United States, 381 F.2d 858 (9th Cir. 1967). Constant surveillance, however, is not required. Alexander v. United States, 362 F.2d 379 (9th Cir. 1966). We therefore conclude that the search of the Ford constituted a valid extended border search. We need not reach the issue of probable cause.

II.

Appellant next contends that the stopping of the Volkswagen and seizure of his driver’s license violated his rights guaranteed by the Fourth Amendment.

We have held that a temporary detention of a vehicle may be made by border agents beyond the scope of a border search, when based on a “founded suspicion”, which may be less than probable cause. United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir. 1973); United States v. Barron, 472 F.2d 1215 (9th Cir. 1972); United States v. Roberts, 470 F.2d 858 (9th Cir. 1972).

The facts as known to Agent Zumwalt are sufficient to create a “founded suspicion” in his mind that illegal activity was afoot. He had previous experience with similar operations in the area and had been a member of the team which had the Ford under surveillance since crossing the Wisteria cheek. He was able to observe the Volkswagen, driven by the appellant, approach the parked Ford and drop off a passenger who proceeded to drive off in the Ford. He also observed the two ears proceeding in tandem on the highway before separating. Such knowledge is sufficient to create a “founded suspicion” in the mind of Zumwalt and the temporary detention was therefore valid.

Turning now to the seizure of the appellant’s driver’s license, we have held that if after a valid investigatory stop, based on a “founded suspicion”, probable cause arises, the search may then be made. United States v. Bugarin-Casas, supra; United States v. Roberts, supra; United States v. Blackstock, 451 F.2d 908 (9th Cir. 1971).

There can be no question but that federal agents upon validly stopping a vehicle may ask for some identification of the driver. Such is necessarily a part of any law enforcement agency’s procedure. Appellant’s real contention is that the subsequent seizure of the license, in that it was never returned to him, violated the Fourth Amendment.

The Government contends that the retention of the license was necessary for investigative purposes. The record indicates that appellant refused to allow Polaroid pictures taken of himself which necessitated Agent Zumwalt resorting to the driver’s license for the pretrial photo spread. United States v. Blackstock, supra, supplies the answer for us here. In Blackstock, this Court held that the temporary detention of the defendant was based on a “founded suspicion” and that for purposes of further inquiry, the stopping of the ear was justified. Upon stopping the car, the agent detected the smell of marijuana coming from the car. This was held sufficient to establish probable cause for the subsequent search.

In the present case, Zumwalt, upon validly stopping the Volkswagen, radioed his other unit and learned that marijuana had been found in the Ford. This additional information is sufficient to establish probable cause for the subsequent retention of the driver’s license for purposes of investigation.

The facts are therefore sufficient to warrant a temporary detention of the Volkswagen. Also upon learning that marijuana had been discovered in the Ford, probable cause was established to justify the seizure of the appellant’s driver’s license.

III.

The appellant contends also that the compelled production of the handwriting exemplars violates the Fourth and Fifth Amendment right against self-incrimination. It has long been held that the compelled display of physical characteristics infringes no interest protected by the privilege against self-incrimination. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).

It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence.

As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant.

As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).

Dionisio relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office.” The physical characteristics of a person’s voice or handwriting are constantly exposed to the public, hence no intrusion into a person’s privacy results from the compelled execution of a handwriting exemplar. We find no Fourth or Fifth Amendment violation to exist.

IY.

The appellant next contends that pursuant to Rule 16(f) of the Federal Rules of Criminal Procedure, the government’s motion to produce was not timely because not made within 10 days after arraignment. Rule 16(f) dealing with time for motions applies only to defendants. In the Matter of Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2nd Cir. 1962).

V.

Appellant contends also that the pretrial photographic identification procedure was so impermissibly suggestive as to give rise to an irreparable misidentification at trial. Each case involving pretrial initial identification by photographs must be considered on its own facts; and convictions based on eyewitness identification at trial following such pretrial identification will be set aside on the ground of prejudice only if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967).

Appellant relies on United States v. Fowler, 439 F.2d 133 (9th Cir. 1971), in support of his contention. In Fowler, the pretrial photo identification was conducted with only two photographs, both of the defendant.

In the case at bar, no less than nine photos were shown to the car salesman. One was the color photo on appellant’s driver’s license and the others were either black and white copies of driver’s licenses or other types of photos. This in and of itself is not impermissibly suggestive so as to give rise to the very substantial likelihood of irreparable misidentification at trial.

The record also shows that the salesman had been in direct visual contact with the appellant for about a half-hour during the sale. At trial the salesman also testified that his in-court identification was based on his recollection of the sale of the auto and not on the pretrial photo identification.

Such factors indicate that the likelihood of irreparable misidentification was very low in this case and that the conviction should stand because of the reliability of the in-court identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

VI.

Appellant relies on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in support of his contention that appellant was denied a speedy trial. A claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which the conduct of both the prosecution and the defendant are weighed. Courts should consider such factors as length of the delay, reason for the delay, the defendant’s assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, in determining whether a defendant’s right to a speedy trial has been denied. Barker v. Wingo, supra. This case involves a delay of fifteen days. These facts do not fall within Barker. On balance, the fifteen day delay was not lengthy nor were the reasons for the delay primarily with the Government. The appellant was not denied his Sixth Amendment right to a speedy trial.

VII.

The final contention of appellant is that the evidence is insufficient to support the jury’s finding of guilt. When determining the sufficiency of the evidence to sustain a conviction, the evidence must be taken in a light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969); United States v. Ramos, 476 F.2d 624 (9th Cir. 1973). The reviewing court must assume that the trier of facts resolved all matters of credibility of witnesses, evidentiary conflicts, and drew all reasonable inferences from proven facts in a manner which would support the verdict. United States v. Nelson, supra.

We find the evidence sufficient to sustain the conviction of the appellant.

Affirmed.

      . The Wisteria check area is located 100 feet from the Mexican-American border and approximately three and one-lxalf miles west of Calexico, California. The Wisteria check is an illegal port of entry into the United States. The All Ameriean Canal parallels the Mexican-American border for some two to three miles east of the Wisteria check and for some seven miles west of the check before it turns north. There are dirt roads leading south from the Wisteria check into Mexico and another road which runs just south of the border from Mexicali to the check and beyond.


source: Caselaw Access Project

author: GARTH, Circuit Judge.

license: Public Domain

text:
    SCOOPER DOOPER, INC., Appellant, v. KRAFTCO CORP., Appellee.
    No. 73-1836.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 25, 1974.
    Decided March 26, 1974.

      Nathan L. Posner, Victor Wright, Donald Brown, Philadelphia, Pa., for appellant; Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., of counsel.
    William H. Lowery, Richard R. Rulon, John F. Wilson, III, Philadelphia, Pa., for appellee; Dechert, Price & Rhoads, Philadelphia, Pa., of counsel.
    Before BIGGS, GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

Appellant Scooper Dooper, Inc., requests that this Court undertake a full-scale analysis of the antitrust implications of a qualified refusal to deal by Kraftco Corporation. Considerations of proper judicial administration require us to decline the invitation to measure Kraftco’s conduct against the proscriptions of the Sherman Act. On the basis of collateral estoppel, we affirm the District Court’s grant of summary judgment in favor of Kraftco.

I. PROCEDURAL HISTORY

Defendant-appellee Kraftco (formerly National Dairy Products) manufactures and distributes ice cream products under the trademarks of Sealtest and Breyers and also under private labels. Among its several plants, Kraftco operates Breyers Division processing factories in Long Island City (New York) and in Philadelphia. Kraftco’s collective bargaining agreements with the New Jersey and New York locals of the Milk Drivers and Dairy Employees Union contain the following provision:

“The Company agrees for the term of this Agreement not to remove its manufacturing operations from the area of [the Local] and to continue to manufacture within the area of [the Local], and the Company, including any affiliates or subsidiaries, agrees that it shall not establish or operate a plant for production of ice cream or frozen dessert products outside of [the Local] area for sale or distribution of such products in the Metropolitan Area; . . .”

The “Metropolitan Area” consists of New York City, the counties of Suffolk and Nassau in New York State, and the counties of Union, Essex, Bergen, Hudson, Passaic, Middlesex, Ocean, Somerset, Morris, Monmouth, Hunterdon, Sussex and Warren in New Jersey.

Plaintiff-appellant Scooper Dooper, Inc., a distributor of ice cream products, has found its business threatened by the above bargaining provision. Since 1963, Scooper Dooper distributed ice cream produced by Kraftco’s Philadelphia plant to retailers in Delaware, Pennsylvania, and southern New Jersey. At some point in the late 1960’s, Scooper Dooper began selling this Philadelphia-based ice cream in northern New Jersey. Kraft-co’s New York and New Jersey unions, recognizing that this new policy meant that ice cream produced by Kraftco in Philadelphia would be sold within the Metropolitan Area, protested that their collective bargaining agreement with Kraftco had been violated. In 1969, the matter was submitted to arbitration. The arbitrator ruled that the new marketing policy violated the bargaining agreement and contravened the parties’ intent to protect the labor standards achieved in the Metropolitan Area. The arbitrator ordered Kraftco to cease and desist from supplying products from its Philadelphia plant to Seooper Dooper for delivery in the Metropolitan Area.

Undaunted, Seooper Dooper and Kraftco sought (in the Southern District of New York) a declaratory judgment invalidating both the bargaining agreement and the arbitration award to the extent that they precluded Seooper Dooper from reselling Kraftco’s Philadelphia ice cream in the Metropolitan Area. The co-plaintiffs argued that under the doctrine of United States v. Arnold, Schwinn & Company, 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), the exclusion of Kraftco’s Philadelphia goods from the northern New Jersey market constituted a per se violation of Section 1 of the Sherman Act. District Judge Frankel disagreed. In National Dairy Products Corp. v. Milk Drivers & Dairy Employees Union, Local 680, 308 F.Supp. 982 (S.D.N.Y. 1970), judge Frankel held that:

1) Schwinn was distinguishable, in that the plaintiffs before Judge Frankel had not alleged a conspiracy;

2) Schwinn was inapplicable, since territorial restrictions of the type discussed in Schwinn had not been imposed; and

3) Even if the scheme were similar to that • condemned in Schwinn, antitrust exemptions precluded interference by the judiciary.

Accordingly, Judge Frankel ordered Kraftco to stop selling its Philadelphia products to Seooper Dooper for resale in the Metropolitan Area.

Neither of the co-plaintiffs appealed Judge Frankel’s decision.

Business relations between Kraftco and Seooper Dooper deteriorated after the above-mentioned litigation. In response to measures allegedly taken by Kraftco to exclude appellant from the Metropolitan Area, Seooper Dooper resumed its practice of reselling Kraftco’s Philadelphia ice cream in northern New Jersey. Kraftco, in February and March of 1971, warned Seooper Dooper that it would cease selling ice cream to Seooper Dooper if the latter continued to violate Judge Frankel’s order. When Seooper Dooper failed to accede to Krafteo’s demands, Kraftco notified Seooper Dooper that it would not sell its products to Seooper Dooper after March 19, 1971.

Seooper Dooper filed this action in the Eastern District of Pennsylvania on March 24, 1971. Plaintiff’s complaint, as amended, charges that the enforcement of the collective bargaining provision (quoted above) constitutes a violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Treble damages and injunctive relief are requested pursuant to 15 U.S.C. §§ 15 and 26.

After taking testimony for five days, the District Court denied plaintiff’s motion for a preliminary injunction on May 5, 1971. The Court held that the collateral estoppel consequences of Judge Frankel’s decision, as well as the fact that Kraftco was merely complying with Judge Frankel’s order, undermined the probability that plaintiff would ultimately succeed in its bid for a permanent injunction. The District Court also found that Scooper Dooper had not demonstrated the irreparable injury necessary to obtain an injunction pendente lite. Without discussing either collateral estoppel or antitrust law, we affirmed the District Court’s exercise of discretion at 460 F.2d 1204 (3d Cir. 1972).

Subsequently, Kraftco moved for summary judgment or, alternatively, judgment on the pleadings. The District Court, finding no genuine issue of material fact, and relying upon both the labor exemption from the antitrust laws and the collateral estoppel consequences of the litigation in the Southern District of New York, ruled in favor of Kraftco on July 25, 1973.

Scooper Dooper appeals from the July 25th order granting summary judgment.

II. COLLATERAL ESTOPPEL

The doctrine of collateral estoppel precludes the relitigation of issues actually decided in former judicial proceedings. It is commonly recognized that the following three requirements must be satisfied before collateral estoppel may be utilized:

a) The issue decided in the prior litigation must be identical with the issue presented in the action in question;

b) The prior litigation must have resulted in a final judgent on the merits; and

c) The party against whom the estop-pel is asserted must have been a party, or in privity with a party, to the prior adjudication.

See, e.g., Blonder-Tongue v. University of Illinois Foundation, 402 U.S. 313, 323-324, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (quoting from Justice Traynor’s opinion in Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 813, 122 P.2d 892, 895 (1942)). Classical estoppel doctrine appended a fourth element, a requirement of mutuality. This element mandates that the party asserting the estoppel also be a party, or in privity with a party, to the prior adjudication. See Restatement of Judgments, § 93 (1942).

The doctrine of mutuality has come under severe attack in recent years. See generally Blonder-Tongue v. University of Illinois Foundation, supra. This Circuit has been in the forefront of the attack. Provided that the party against whom the plea is asserted has had a full and fair opportunity to present his claim in the prior litigation, collateral estoppel is available as a defense in this Circuit regardless of whether or not the party asserting the plea was a party (or privy) to the prior litigation. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert, denied, 340 U.S. 865, 71 S.Ct. 87, 95 L. Ed. 632 (1950); Township of Hopewell v. Volpe, 446 F.2d 167, 171 (3d Cir. 1971).

The virtual obliteration of the mutuality doctrine in this Circuit undermines an argument advanced by Scooper Dooper to avoid the exercise of collateral estoppel herein. Pointing to the fact that Kraftco and Scooper Dooper were co-plaintiffs in the action before Judge Frankel, appellant contends that the non-adverse relationship of the parties in the prior litigation vitiates the collateral estoppel consequences of Judge Frankel’s decision. In response, appellee relies upon a line of eases which first tangentially and then frontally attacks the adversity requirement. While in other jurisdictions such cases might be necessary to overcome the adversity requirement, this Circuit’s nullification of the mutuality requirement renders non-adversity irrelevant to the doctrine of collateral estoppel. In this Circuit, a total stranger to a prior litigation may, in a subsequent suit, estop a party from re-litigating a claim which he lost in the prior controversy, provided that the initial opportunity to present the claim was full and fair. We see no reason to treat a co-plaintiff more harshly than a total stranger. Accordingly, we hold that the mere fact that Scooper Dooper and Kraftco were non-adverse co-plaintiffs before Judge Frankel does not preclude the applicability of collateral estoppel in the instant case.

There has been no demonstration that Scooper Dooper was denied a full and fair opportunity — procedurally, substantively, or evidentially — to present its case before Judge Frankel. Thus, collateral estoppel will apply here if the three requirements identified by Justice Tray-nor in Bernhard are satisfied. There is no dispute with regard to the second and third factors: clearly, Scooper Dooper (the party against whom the es-toppel is being asserted) was a party to the prior litigation, which litigation resulted in a final judgment on the merits. The sole controversy is whether the issues as to which Kraftco asserts estop-pel are “identical” to the issues adjudicated by Judge Frankel.

Appellee contends that Scooper Dooper is collaterally estopped from relitigating both the antitrust validity of the collective bargaining provision and the availability of the labor exemption from the antitrust laws. Scooper Dooper responds by charging that the factual situation (as to both the antitrust liability and exemption) has changed since 1970, thereby vitiating the identity of issues necessary for application of collateral es-toppel. To evaluate this contention, we must first define, in general, the extent to which changed factual circumstances may be said to destroy the “identity” of issues.

It is well settled that changed factual circumstances can operate to preclude the application of collateral estoppel. See Long v. Parker, 390 F.2d 816, 821 (3d Cir. 1968); Hodgson v. Royal Crown Bottling Co., 465 F.2d 473, 475 (5th Cir. 1972); see generally IB Moore’s Federal Practice, j[ 0.448. Carried to its extreme, the concept of changed factual circumstances could totally undermine the application of collateral estoppel. Rare would be the case in which counsel could not conjure up some factual element that had changed between adjudications. Analysis of Commissioner of Internal Revenue v. Sunnen, however, indicates the manner in which the doctrine of changed circumstances may be recognized without undercutting the doctrine of collateral estoppel. In finding changed circumstances, the Court declared in Sunnen that collateral estoppel would be confined to cases where the issue raised in the second suit is “ . . . identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged. . . . [W]here the situation is vitally altered between the time of the first judgment and the second, the prior determination is not conclusive.” 333 U.S. at 599-600, 68 S.Ct. at 720 (Emphasis added). Thus, where the changed circumstances are not material, and therefore do not amount to controlling facts, collateral estoppel remains applicable. Cf. Bankers Mortgage Company v. United States, 423 F.2d 73, 80-81 (5th Cir.) cert, denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (collateral estoppel applied because the changed circumstances did not constitute controlling facts).

We must, therefore, determine whether the changed circumstances alleged by Scooper Dooper constitute “controlling facts” so as to destroy the identity of issues necessary for the application of collateral estoppel.

III. CHANGED CIRCUMSTANCES

Scooper Dooper contends that unilateral “actions” taken by Kraftco after the date of Judge Frankel’s decision have operated, in combination, to preclude it from doing business in the Metropolitan Area. It is appellant’s theory that: (1) the “actions” operate to exclude it from the Metropolitan Area; and (2) this exclusion is analogous to the territorial exclusion condemned by the Supreme Court in United States v. Arnold, Schwinn & Company, 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967).

Although appellant’s theory causes us some difficulty, we do not pause to resolve it at this juncture. Kraftco has moved for summary judgment in relevant part on the theory that Scooper Dooper is collaterally estopped from relitigating the availability of the antitrust exemption — an exemption which, if applicable, operates to immunize Kraftco from all of Scooper Dooper’s antitrust claims. If, as Kraftco contends, we are bound by collateral es-toppel to apply the exemption herein, Scooper Dooper’s liability claims will become moot. Accordingly, we shall first examine the availability of the antitrust exemption.

As discussed above, Kraftco’s defense of collateral estoppel on the exemption issue will not be successful if changed circumstances of controlling significance are present. Inasmuch as we are reviewing a grant of summary judgment we must determine (1) whether there exists a genuine factual issue as to such changed circumstances; and (2) whether, as a matter of law, such changed circumstances have occurred. A negative answer to both determinations will require this Court to affirm the grant of summary judgment on the basis of the collateral estoppel consequences of Judge Frankel’s ruling on the antitrust exemption.

The use of the summary judgment device by a party asserting collateral estoppel is not uncommon. Provided that there is no genuine factual dispute as to the identity of the parties, the nature of the prior judgment, or the similarity of the issues, summary judgment is available to establish the collateral estoppel defense. Cf. 6 Moore’s Federal Practice, j| 56.17 [52].

It is well settled that the party moving for summary judgment has the burden of proving that there exists no genuine issue of fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). Where the moving party initially sustains its burden, summary judgment will be granted unless the opposing party can set forth countervailing evidence establishing a genuine factual dispute. See generally 6 Moore’s Federal Practice, If 56.15 [3]. In the instant case, Kraftco undoubtedly met its initial burden. By introducing Judge Frankel’s opinion, it established, with respect to the antitrust exemption, that: (a) the party against whom collateral estoppel is sought (Scooper Dooper) was a party to the prior litigation; (b) the prior litigation resulted in a final judgment on the merits; and (c) the issue involved herein — the availability of the antitrust exemption to the collective bargaining provision quoted at the outset of this opinion- — -is identical to the issue litigated before Judge Frankel.

We focus, then, upon whether Scooper Dooper, the opposing party, has set forth countervailing evidence that would present a genuine issue of fact. On appeal, Scooper Dooper contends that it produced evidence before the District Court creating a dispute as to whether or not controlling facts had changed, so as to defeat the exemption upon which Kraftco relies. The evidence to which Scooper Dooper refers is an affidavit signed by Delmar Mota, a former Scooper Dooper employee. This affidavit indicates that in October 1972, Mota purchased Kraftco ice cream bearing the Philadelphia plant code from three retail stores located in northern New Jersey.

In evaluating the Mota affidavit, the District Court assumed (although plaintiff did not so state) that Scooper Dooper’s purpose in introducing the affidavit was to demonstrate a collusive attempt by Kraftco and its unions to drive plaintiff out of the Metropolitan Area. A showing that Kraftco’s unions had acted in concert with Kraftco to intentionally drive Scooper Dooper out of the northern New Jersey market would undermine any asserted exemption from antitrust liability. See United Mine Workers v. Pennington, 381 U.S. 657, 663, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Thus, if Scooper Dooper were able to demonstrate that such collusion did in fact occur after the date of Judge Frankel’s decision, there would be present changed circumstances of such significance as to vitiate the plea of collateral estoppel on the issue of exemption.

We agree with the District Court that the granting of summary judgment was proper on the issue of the antitrust exemption, since we are convinced that: (a) Scooper Dooper did not present countervailing evidence of a genuine issue of material fact; and (b) Scooper Dooper had full opportunity to make such a presentation.

For a number of reasons, we find that Scooper Dooper’s affidavit is insufficient to establish a genuine issue of material fact. First, we are unable to locate in the record any articulation by Scooper Dooper of the relevance of the Mota affidavit to the issue of antitrust exemption. We will not speculate that the purpose of the affidavit is to establish collusion in the absence of a clear indication of said purpose in the record.

Secondly, even if we were to assume that plaintiff’s purpose in filing the affidavit was to establish collusion, we do not believe that the affidavit contains sufficient factual allegations of collusion to withstand the grant of summary judgment herein. The only possible hint of collusion offered by plaintiff is the fact that Kraftco’s Philadelphia ice cream was discovered in northern New Jersey. Although we recognize our responsibility to view the Mota affidavit in the light most favorable to Seooper Dooper, we nevertheless are unable to reasonably infer collusion from that fact. The presence of Philadelphia-manufactured ice cream in northern New Jersey is, standing alone, a completely equivocal fact. It no more suggests collusion than it suggests infinite other theories to account for the discovery of the ice cream in New Jersey. Where documentary evidence is, like the Mota affidavit, so equivocal as to be devoid of inferential value, it will not suffice to establish the existence of a genuine issue of material fact. See Tripoli Company v. Wella Corporation, 425 F.2d 932, 935 (3d Cir.), cert, denied 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970).

This is not to say that the affidavit (if supplemented by other factual allegations) could not have supported a charge of collusion. Recognizing that Seooper Dooper could have defeated summary judgment had factual assertions probative of collusion been submitted, we are somewhat wary of the possibility that we may be summarily resolving a factual dispute. To alleviate this concern, we reviewed the entire record to determine: (1) whether, in fact, any allegations of collusion had been made and (2) if not, whether Seooper Dooper had the opportunity to discover and present such material.

Aside from the Mota affidavit discussed above, there is nothing either in Seooper Dooper’s answering brief nor in any other portion of the record to suggest that Seooper Dooper either had or was aware of any evidence of collusion. Nor can we blame the District Court’s time schedule for plaintiff’s failure to properly advance a theory of collusion. Our review discloses the following chronology:

April 16, 1973 — Kraftco gave notice of its motion for summary judgment.
April 26, 1973 — Seooper Dooper filed an answering brief.
June 11, 1973 — Seooper Dooper informed the District Court that it would be able to submit the affidavit discussed above within a few days of the hearing on Kraftco’s motion.
June 12, 1973 — The hearing on Kraft-co’s motion was held.
June 20, 1973 — Seooper Dooper’s affidavit was filed.
June 27, 1973 — Kraftco’s counter-affidavits were filed.
July 25, 1973 — The District Court’s order granting summary judgment was filed.

Seooper Dooper had, at a minimum, two months to develop a theory of collusion. Despite the fact that the Federal Rules specifically provide for the granting of continuances in favor of the party opposing summary judgment, the record is barren of any request by Scooper Dooper for a continuance or an adjournment in order to develop facts to resist summary judgment. Given the ample time period and the failure to apply for any type of continuance, we conclude that Scooper Dooper had an adequate opportunity to develop a theory (based upon factual allegations) sufficient to place the existence of “collusion” in issue.

In sum, the record discloses no genuine issue of fact material to the antitrust exemption. Scooper Dooper stated simply that Philadelphia ice cream was found in northern New Jersey. Kraftco confirmed this observation, but then proceeded to explain the delivery in non-collusive terms. Scooper Dooper chose not to reply. Indeed, it did not even take recourse to Federal Rule 56(f) so as to probe the assertions found in Kraftco’s affidavits. Instead, Scooper Dooper said and did nothing, leaving open to speculation the- purpose of its own affidavit and leaving uneontradict-ed the factual assertions of non-collusive conduct set forth in Kraftco’s affidavits.

Accordingly, there being no genuine issue of material fact and no changed circumstances of controlling legal significance, we hold that the issue of antitrust exemption raised herein is, as a matter of law, “identical” to the issue heretofore litigated before Judge Frankel.

IV. CONCLUSION

Each of the requirements necessary to estop Scooper Dooper from relitigating the availability of the antitrust exemption is satisfied herein. With the protection of this exemption, Kraftco is immune from the Sherman Act charges advanced by Scooper Dooper. The grant of summary judgment in favor of Kraft-co will therefore be affirmed.

      . The District Court found that Scooper Dooper did not commence selling the Philadelphia products in the Metropolitan Area until early in 1969. Scooper Dooper asserts that this finding of fact is clearly erroneous, suggesting instead that the new marketing-policy began in 1967. Inasmuch as the actual date is irrelevant to the issues before us, we shall not attempt to resolve this factual dispute.

      . In Schwinn, the Supreme Court held that it was per se unreasonable for a bicycle manufacturer to restrict areas in which or persons with whom its products may be traded after the manufacturer parted with dominion over the products. 388 U.S. at 379, 87 S.Ct. 1856.

      . Judge Frankel explained that Seooper Dooper was not, in fact, excluded from the Metropolitan Area, since ice cream manufactured at Kraftco’s Long Island City plant was still available for resale in the Metropolitan Area.

      . See 15 U.S.C. § 17, 29 U.S.C. §§ 52, 101-115.

      . In non-diversity cases (such as the instant action), we are free to apply our own rules of collateral estoppel without the constraints of state law. See Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 90 L.Ed. 970 (1946).

      . Professor Moore is a prime advocate of the “adversity” requirement advanced by appellant. He states as a general proposition tliat collateral estoppel is unavailable in sub-’ sequent litigation between co-parties unless the co-parties were actual adversaries in the prior litigation. See IB Moore’s Federal Practice U 0.411 [2], See also Dobbins v. Barnes, 204 F.2d 546, 548 (9th Cir. 1953) ; Kimmel v. Yankee Lines, 224 F.2d 644 (3d Cir. 1955) (applying Pennsylvania law) ; Restatement of Judgments, § 82 (1942).

      . See National Bondholders Corp. v. Seaboard Citizens National Bank, 110 F.2d 138, 144 (4th Cir. 1940) (finding an exception to the adversity requirement when “ . . some finding of fact is made in the first suit which is an essential element in a claim or action subsequently brought by one [co-party] against the other.”) ; Livesay Industries, Inc. v. Livesay Window Co., 202 F.2d 378, 382 (5th Cir.), cert, denied, 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369 (1953) (same).

      . See Diamond Shamrock Corp. v. Lumber-mens Mutual Casualty Co., 416 F.2d 707 (7th Cir. 1969).

      . Thus, Professor Moore — a long-standing advocate of the mutuality doctrine as well as of the adversity requirement — concedes that adversity would be unnecessary in jurisdictions that have repudiated mutuality. He states:
      “One further exception to the adversity requirement can arise in the small number of jurisdictions that have abandoned the principle of mutuality in the doctrine of judicial finality. In these jurisdictions, an adverse judgment can be urged against the unsuccessful litigant by one who was a stranger to the proceedings in which the judgment was rendered; and no reason is apparent to prevent similar use of such a judgment by one who was a non-adverse co-party with the unsuccessful litigant in those proceedings.”
      IB Moore’s Federal Practice, j[ 0.411 [2].

      . Appellant suggests that collateral estoppel is unavailable inasmuch as the relitigation sought to be avoided involves legal, rather than factual, issues. This argument misconceives the nature of the issues involved in the instant matter. Both the claims of antitrust liability and the assertion of the labor exemption involve issues of mixed fact and law. Such issues are subject to the bar of collateral estoppel. See Yates v. United States, 354 U.S. 298, 336, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957).

      . 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948).

      . Appellant charges that: (1) for a period ranging from February of 1970 until the time at which the instant suit was commenced, Kraftco maintained a dual price structure, charging Scooper Dooper more for products manufactured in New York than for the identical products made in Philadelphia ; (2) after Judge Frankel’s order, Kraftco raised the preticketed (manufacturer’s suggested) price of the Sealtest ice cream products manufactured in Kraftco’s New York plant; (3) Kraftco has taken no steps since Judge Frankel’s order to qualify its New York plant in Pennsylvania, thereby precluding the sale of the New York products in Pennsylvania; (4) products formerly available to Scooper Dooper at the Philadelphia plant were not made available to the distributor at the New York plant after Judge Frankel’s order; and (5) after Judge Frankel’s order, Kraftco required prepayment (twenty-four hours before delivery) from Scooper Dooper at its New York plant, while in Philadelphia Scooper Dooper was able to pay at the time of delivery.
      In its brief on appeal, Kraftco disputes certain of these charges and attempts to justify the remainder. Appellee’s Brief at 17-18, n. 10. Inasmuch as we are reviewing a grant of summary judgment, we cannot resolve these factual disputes herein. Given our treatment of the antitrust exemption issue, infra, we find that these factual disputes are immaterial.

      . We do not believe that the last three charges listed in Fn. 12 could have had an appreciable effect in excluding Scooper Dooper from the Metropolitan Area. More importantly, we question whether the Schwinn per se rule against territorial restrictions would apply even if the combination of “actions” actually did exclude appellant from the Area. In Tripoli Company v. Wella Corporation, 425 F.2d 932, 935 (3d Cir.), cert, denied 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970) this Court, sitting in bane, expressly limited Schwinn to its factual context. We indicated that where a manufacturer’s restriction is related to a legitimate business purpose, Schwinn may be inapplicable. 425 F.2d at 936-937, n. 3. The apparent objective of the exclusions herein — the preservation of work standards —would appear to represent just such a purpose.

      . Congress has seen fit to grant labor unions a limited exemption from antitrust liability. See 15 U.S.C. § 17, 29 U.S.C. §§ 52, 101-115. Provided that unions act in their own self-interest in an area which “is a proper subject of union concern,” and provided that unions do not combine and conspire with non-labor groups, the statutory exemption is available. See United States v. Hutcheson, 312 U.S. 219, 232, 61 S.Ct. 463, 85 L.Ed. 788 (1941) ; see also Intercontinental Container Transport Corp. v. New York Shipping Association, 426 F.2d 884, 887 (2d Cir. 1970).
      In the prior litigation, Judge Frankel held that even if Kraftco’s unions were guilty of antitrust violations, the labor exemption from the antitrust laws would immunize the unions from antitrust liability. In the instant case, it is the employer (Kraftco) and not the unions who seeks to invoke the antitrust exemption.
      We reject Scooper Dooper’s contention that the labor exemption is unavailable to employers. Such a proposition would undermine the vitality of the exemption by discouraging bargaining on the part of management. To preserve the integrity of the negotiating process, employers who bargain in good faith must be entitled to claim the antitrust exemption. See Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462, 499 (E.D.Pa. 1972).
      We similarly reject any contention that the issues faced by Judge Frankel and this Court differ merely because the party claiming the exemption herein (Kraftco) differs from the parties (the unions) which claimed same in the prior litigation. The labor exemption to the antitrust laws applies to the bargaining agreement, the product of negotiations between unions and management. See Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 689, 85 S.Ct. 1596, 1601, 14 L.Ed. 2d 640 (1965) (“Employers and unions are required to bargain about wages, hours and working conditions, and this fact weighs heavily in favor of antitrust exemption for agreements on these subjects.”). Judge Frankel ruled, in effect, that the bargaining provision quoted at the outset of this opinion gives rise to the labor exemption. Kraftco is asserting no more in the instant case.

      . See p. 845, supra.

      . The District Court, although assuming the “collusive” purpose of the Mota affidavit, nevertheless was unpersuaded by Scooper Dooper’s submission. The Court relied instead upon counter-affidavits which explained that Kraftco’s Philadelphia ice cream had been shipped to New Jersey on an emergency basis after the New York plant was beset with equipment problems and a wildcat strike.

      . United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

      . This Court will go to great lengths to protect the opposing party’s ability to develop genuine issues of fact. See, e. g., Ward v. United States, 471 F.2d 667, 670 (3d Cir. 1973).

      . Fed.R.Oiv.P. 56(f) provides that:
      Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

      . See Fn. 15, supra.


author: CAMPBELL, Senior District Judge. PELL, Circuit Judge,

text:
    Teresa SIMPSON, Administratrix of the Estate of Raymond K. Simpson, Deceased, et al., Plaintiffs-Appellees, v. MOTORISTS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 72-1702.
    United States Court of Appeals, Seventh Circuit.
    Argued June 7, 1973.
    Decided March 27, 1974.
    As Amended on Denial of Rehearing May 29, 1974.
    Pell, Circuit Judge, concurred and filed opinion.

      Emerson Boyd, Indianapolis, Ind., for defendant-appellant.
    Earl C. Townsend, Jr., John F. Townsend, Jr., Indianapolis, Ind., for plaintiffs-appellees.
    Before PELL and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge.*
   CAMPBELL, Senior District Judge.

Plaintiffs’ decedent was killed in an automobile accident caused by the negligence of Thomas Penman, Jr., who was driving a vehicle owned by Sylvester Griffin. Griffin was insured by the defendant Motorists Mutual Insurance Company. In a prior negligence action, the plaintiff sued Penman and Griffin for wrongful death, and the court there entered a judgment in favor of the plaintiff and against Penman in the amount of 1210,000.0o. Motorists Mutual provided Penman a defense to the prior cause of action, but at all times denied coverage to him under the policy. Following the conclusion of the prior action, Penman assigned his rights under the policy to the plaintiff herein and this suit was commenced.

The plaintiffs’ complaint is stated in two counts, the first alleging that Penman was an insured under Motorists Mutual’s policy of insurance which provided $10,000.00 of coverage, and the second charging that Motorists Mutual acted in bad faith in refusing to pay its $10,000.00 policy limit in settlement of the plaintiffs’ wrongful death claim against Penman. Under count 1 of the complaint, the plaintiff sought the $10,000.00 policy coverage, plus interest on the entire $210,000.00 tort judgment, and sought the balance of the tort judgment in count 2. The jury returned a verdict in favor of the plaintiff on both counts, awarding her the $10,000.00 policy coverage, plus interest of $59,386.84 on the full tort judgment, under count 1, and under count 2 awarded the plaintiff the balance of the tort judgment, amounting to $200,000.00. The defendant appeals from that verdict and the subsequent judgment entered thereon.

Under the terms of the insurance policy, coverage was extended to the named insured, Sylvester Griffin, and within the definition of “first-named insured” any relative of either the insured or his spouse while such relative was a resident of the insured’s household. The policy also covered any person using the insured’s automobile provided such use was by or with the permission of the named insured.

The coverage issues in count 1 of the complaint were tried on the alternative theories that Penman was either a relative residing in the household of the named insured or was a permissive user. The bad faith issue stated in count 2 of the complaint was tried on several factual theories, including that the defendant had abused Penman’s position in the prior tort action in order to obtain admissions from him relative to the coverage questions, had failed to communicate properly to Penman the settlement offer in the tort cáse, and had refused to disclose to Penman the policy limits or the coverage provisions of the policy.

While the defendant raises numerous issues on appeal, the principal thrust of its position is directed toward the sufficiency of the evidence to support the jury’s verdict. In this regard, error is assigned to the district judge’s denial of the defendant’s motion for a directed verdict at the close of all of the evidence, and the defendant’s post-trial motion for judgment notwithstanding the verdict. Viewed in its light most favorable to plaintiff, we conclude that the evidence contained more than ample support for the jury’s verdict.

The record shows that in July of 1965, Penman was discharged from the Navy after ten years of service. At the time of his discharge, he had been stationed in Chicago. He then returned to Cincinnati, bringing all of his personal effects with him. Upon arriving in Cincinnati, he visited briefly with his mother in her Cincinnati apartment. On that occasion, Penman’s sister, Mrs. Sylvester Griffin, invited him to take up residence with her and her husband and child at their home in Cincinnati. Penman stored his Navy clothing in one of his mother’s empty rooms, and went to the Griffin household where he lived with them for a period of approximately two weeks. While living with the Griffins, Penman slept in the Griffin household, took his meals there with the family, and kept all of his civilian clothing at the Griffin household.

After approximately two weeks, Penman went back to Chicago for several weeks, returning to the Griffin household on September 27, 1965. His plans for the future were uncertain at that time, and he discussed with the Griffins the possibility of re-enlisting in the Service. He stayed with the Griffins until the evening of October 1, 1965. On that evening, Penman asked Griffin if he could use his ear, and Griffin willingly gave Penman his permission. Penman did not state the purpose for which he intended to use the car, nor did Griffin place any limitation on its use.

On the evening of October 1st, Penman and a woman named Ann Berry apparently spent the evening and part of the next day’s early morning hours in a Cincinnati restaurant and lounge. Penman then took the woman home and drove to his mother’s house where he awakened his sister, Jewel Green, and in the early morning of October 2, 1965, they left Cincinnati in Griffin’s automobile and drove toward Chicago. Penman stated that his purpose in going to Chicago was to re-enlist in the Navy. The accident resulting in the death of plaintiffs’ decedent occurred in Benton County, Indiana, as Penman and his sister were traveling towards Chicago.

Penman was hospitalized for a period of time after the accident, and upon his discharge frojn the hospital he returned to the Griffin household. Sylvester Griffin never raised any question concerning Penman’s use of the automobile. Also, when Griffin filed his proof of claim with Motorists Mutual on October 4, 1965, the Monday following the accident, he listed Penman’s residence as the Griffin household.

This evidence strongly supports the jury’s verdict on the coverage questions. The jury was adequately instructed on the legal significance of the terms residence and permission. Under the set of facts outlined above, the jury could easily have concluded that Penman was either a permissive user or a relative of the insured residing in his household, or both.

With respect to the bad faith count, we feel that the evidence is equally compelling in the plaintiffs’ favor. Concerning the liability of an insurer in this situation, we wish to note our agreement with the defendant that it is the law of Ohio, rather than Indiana as urged by the plaintiff, which governs the scope of the defendant’s liability in this case. The contract of insurance here, entered into in the State of Ohio, provided coverage to an Ohio resident for a vehicle registered in Ohio. Moreover, the conduct giving rise to the permission to use the vehicle and to Penman’s residency occurred in Ohio. Only the underlying tort occurred outside of Ohio.

The decisions of the Supreme Court of Ohio provide that in order for an insured to recover the amount of a judgment rendered against him in a tort action in excess of the policy limit, the insured must prove a lack of good faith on the part of the insurer either in negotiations respecting a settlement of the claim against the insured or in the conduct of the trial of the tort action on behalf of the insured. Wasserman v. Buckeye Union Casualty Co., 32 Ohio St. 2d 69, 290 N.E.2d 837 (1972); Slater v. Motorists Mutual Insurance Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962); Hart v. Republic Mutual Insurance Co., 152 Ohio St. 185, 87 N.E.2d 347 (1949). While acknowledging that “bad faith” is a term not susceptible to concrete definition, the Ohio courts have indicated that it embraces more than negligence, and imports a dishonest purpose or conscious wrongdoing. Wasserman v. Buckeye Union Casualty Co., 32 Ohio St.2d 69, 290 N.E.2d 837, 840 (1972). We have examined the district judge’s instructions on the issue of bad faith and find them to be in conformity with the Ohio courts’ definition of the term. While the defendant complains that the district judge refused its tendered instruction, which was approved by the Supreme Court of Ohio in Wasserman, we find no error in the district court’s charge to the jury since it incorporated the principal elements of bad faith as viewed by the Ohio courts.

The evidence of bad faith in this record is particularly strong. The defendant knew certainly after the accident that it resulted from Penman’s negligence and that the damage, involving the death of a 37 year old man who left a wife and three dependent children surviving him, substantially exceeded the ten thousand dollar policy limit. As stated, Sylvester Griffin filed a proof of claim with the defendant the Monday following the accident and listed Penman’s address as his household on the claim form. That same day, one of the defendant’s representatives instructed an Indiana adjuster for the company to visit Penman in his hospital room and to obtain a statement from him relative to his use of the vehicle and his legal residence. The adjuster had prepared a statement inserting the declaration that Penman resided with his mother. Penman signed the statement, but the adjuster was unable to validate it with clearance from hospital authorities since Penman was under the influence of drugs at the time his signature was obtained.

Other evidence shows that although the defendant recognized Penman’s liability from the outset, it attempted to avoid any payment on its part on the basis of a policy defense. Penman was advised by the attorneys retained by Motorists Mutual that the defendant would provide a defense to him, that the suit was for an amount in excess of policy limits, that Penman was free to retain his own counsel, but that in any event Motorists Mutual denied coverage under the policy. Penman was never informed by the defendant of the specific policy limits.

Moreover, although the plaintiffs offered to settle the tort action for the policy limits, the attorneys retained by defendant rejected the policy limit offer and refused to make any payment in settlement of the claim. This was done without even consulting Penman or inviting him to participate in the negotiations in any respect. To be sure, Penman was advised of the offer and rejection, but since he had not been advised of the amount of the policy limits, or of his right to independently negotiate with plaintiff and her attorneys, he was effectively denied any opportunity to independently settle the tort litigation within the terms of the offer of settlement made by plaintiffs’ attorneys.

Additionally, although Penman was advised that coverage was being denied, the sole basis of the denial was that he did not have permission to use Griffin’s automobile at the time of the accident. Penman was never advised by defendant or the attorneys retained by defendant to provide Penman’s defense that the insurance policy extended coverage to relatives of the insured while those relatives were residents of the insured’s household.

We think this record resoundingly supports the jury’s verdict. The defendant knew that Penman’s liability was clear and that the damages were far in excess of the policy limits. Moreover, in an attempt to support its contention that Penman’s use of the automobile was beyond the scope of the permission granted by the owner, defendant’s representative attempted to procure from an injured and sedated Penman information which would favor only the defendant’s interests. In addition, the attorneys retained by defendant to “represent” Penman, by withholding critical information from him, deprived him of any opportunity to effectuate a reasonable settlement of the tort litigation. Bad faith, encompassing a dishonest purpose or a conscious wrongdoing, is forcefully demonstrated by this record.

The defendant also contends that certain evidence was improperly excluded from the jury’s consideration. This evidence consists of certain proceedings in a prior declaratory judgment action initiated by the defendant on this same policy and pertaining to the identical coverage questions. The evidence included the findings of fact and conclusions of law entered by District Judge Eschbach in the prior declaratory action which had been filed in the district court for the Northern District of Indiana. Judge Eschbach had determined that there was no coverage of Penman on the policy in question. However, this court, upon concluding that the requisite jurisdictional amount had not been met in the prior action, reversed the judgment of the district court and remanded with directions that the suit be dismissed. Motorists Mutual Insurance Company v. Simpson, 404 F.2d 511 (7th Cir. 1969). At this‘point, the district court’s judgment in the declaratory action became a nullity and was hardly admissible in the instant case on the coverage issue. Moreover, the defendant was permitted to show that it had commenced a declaratory judgment action on the coverage questions and had asked that action be advanced for speedy hearing. Defendant was further permitted to introduce the entire correspondence between itself and its attorneys with respect to the declaratory judgment-action. Accordingly, we find no error in the evi-dentiary rulings on this point.

Error is also assigned to the admission into evidence of certain communications between the defendant and its attorneys in the tort action. In this respect, the defendant asserted the attorney-client privilege in an effort to preclude the introduction of such evidence by the plaintiffs herein. It should be remembered, however, that the plaintiff is suing here as the assignee of Thomas Penman. The defendant’s attorneys were also the attorneys for Penman in the prior action. In this situation, the law of Ohio recognizes that where the same attorney represents two parties having a common interest, and each party communicates with the attorney, the communications are privileged from disclosure at the instance of a third person. Those communications are not privileged, however, in a subsequent controversy between the two original parties. See Netzley v. Nationwide Mutual Insurance Co., 34 Ohio App.2d 65, 296 N.E.2d 550, 561-562 (1971).

For the reasons stated, the judgment of the district court is affirmed.

Affirmed.

PELL, Circuit Judge,

concurring.

On principles of justice and pursuant to guidelines established in the law of contracts, courts should scrutinize very closely cases such as the present one. The courts, it appears to me, should be extremely reluctant to provide an insured, who has only paid for a minimal amount of liability insurance, with what amounts to umbrella coverage.

I do concur in the majority opinion after close scrutiny because, if we accept, as we must, the evidence favorable to the appellee, the insured here did not get that for which he paid his premium. Included in that for which he paid was coverage for a permissive user and for a relative residing in his household. The jury could well have concluded on the evidence of this case that had the named insured been driving the vehicle at the time of the accident, the insurance company would have accepted with alacrity an offer of settlement within the policy limits. The named insured paid for equal coverage for a permissive user or for a relative residing in his household. The coverage was not afforded.

      . The cause against the defendant Griffin resulted in a judgment in 1ns favor.


author: OAKES, Circuit Judge:

text:
    William MAYER, Appellant, v. Julius MOEYKENS, Appellee.
    No. 572, Docket 73-2473.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 20, 1973.
    Decided March 27, 1974.
    Certiorari Denied May 28, 1974.
    See 94 S.Ct. 2633.

      Henry Mark Holzer, Brooklyn, N. Y., for appellant.
    Raymond L. Betts, Jr., Asst. Atty. Gen. (Kimberly B. Cheney, Atty. Gen. of Vermont, of counsel), for appellee.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is from appellant’s second habeas corpus petition filed in federal district court in connection with his state conviction for armed robbery for which he is currently serving a six- to ten-year term. His conviction was affirmed by the Vermont Supreme Court. State v. Mayer, 129 Vt. 564, 283 A.2d 863 (1971). His first habeas petition was denied by Judge Waterman, acting as district judge, Mayer v. Smith, Civ. No. 6464 (D.Vt. Sept. 15, 1972), and that decision was affirmed on appeal to this court by an order dated April 27, 1973. In the present appeal, appellant raises three new issues decided adversely to him in the court below: (1) whether his arrest was based on an arrest warrant unsupported by probable cause, and, if so, whether his conviction must be reversed; (2) whether appellant’s due process rights under the fourteenth amendment were violated by Vermont’s failure to accord him a “probable cause” hearing after his arrest, and, if so, whether such a violation requires reversal of his conviction; and (3) whether appellant’s constitutional rights were violated by the requirements placed upon him by the Vermont “notice-of-alibi-defense” statute, 13 Vt.Stat.Ann. §§ 6561, 6562. We reject appellant’s contentions.

Appellant’s first and most substantial claim would, were we to accept appellant’s phraseology, have us resolve the validity of his arrest and events subsequent thereto (i. e., the search of his motel room where a revolver was found) by looking to the sufficiency of the arrest warrant (or complaint) while ignoring the question whether the arresting officers, Police Chief James Mulcahy and Sergeants Gadhue and Bernard, had probable cause to arrest appellant irrespective of the existence of an invalid or a valid arrest warrant. As appellant incorrectly states the case from the outset, he was supposedly arrested “[o]n the strength of the warrant alone .” Brief for Appellant at 4.

On this basis, appellant argues that the case is controlled by Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), holding that an arrest warrant obtained by a sheriff based solely on a complaint and containing no statement of operative facts to show probable cause was insufficient, because it could not alone support the “independent judgment of a disinterested magistrate.” 401 U.S. at 565, 91 S.Ct. at 1035. Judge Waterman held Whiteley inapplicable, first because it was decided after the arrest here and therefore did not, under, e. g., Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), have to be given retrospective application, and second because in Whiteley the warrant was issued on the basis of an “informal complaint drawn up by a county sheriff” while here it was issued on “an information presented by the deputy state’s attorney, sworn to on his oath of office.” With all respect, we disagree. Whiteley, we feel, did not state law sufficiently novel in scope as to call for prospective application only. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). The oath of office required of the Vermont state’s attorneys (or their deputies) does not make the information any less conclusory than the sheriff’s complaint in Whiteley, supra; in neither case is the magistrate to whom application is made enabled to make an independent judgment on whether the warrant should issue. It is that independent judgment which the cases require. See Giordenello v. United States, 357 U.S. at 486, 78 S.Ct. 1245. The magistrate, we were advised by United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746, is “to perform his detached function and not serve merely as a rubber stamp for the police.”

But this does not end the case, as appellant would have it. Concluding that the warrant was not supported by probable cause, the Court in Whiteley then proceeded to the next question, argued in the alternative by the State of Wyoming, whether the officer who actually effected the arrest in that case had independent knowledge sufficient to meet the probable cause burden exacted by the fourth amendment. The opinion of the Court, by entertaining this alternative ground advanced by the State to support the arrest, implicitly made the obvious point: the central determination in deciding whether an arrest is constitutionally valid is whether there was probable cause for that arrest. The Whiteley opinion makes it clear that probable cause may be shown either through a properly executed arrest warrant or through the actual, as opposed to theoretical, knowledge of the arresting office prior to arrest. It goes without saying that any proper law enforcement officer in possession of a valid warrant may execute that warrant without having personal knowledge of the facts which support that warrant. It is equally clear that, in the absence of a valid warrant, personal knowledge of facts sufficient to sustain a valid warrant will sustain an arrest and subsequent search incident thereto by the officer possessing that knowledge. United States v. Hall, 348 F.2d 837, 841 (2d Cir.), cert, denied, 382 U.S. 947, 86 S.Ct. 408, 15 L.Ed.2d 355 (1965).

Here there is no claim by appellant that the arresting officers did not have probable cause to arrest appellant based on their own personal knowledge. Were there such a claim, it would have to be presented first in any event to the state court under the familiar exhaustion of remedies rule applicable to this habeas corpus proceeding. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). As Picard held, 404 U.S. at 278, 92 S.Ct. at 513, “the substance of a federal habeas corpus claim must first be presented to the state courts”; here the claim that the warrant was insufficient is different in substance from the claim that the arresting officers did not have probable cause to make the arrest. Cf. United States ex rel. Curtis v. Warden of Green Haven Prison, 463 F.2d 84, 86 (2d Cir. 1972).

Appellant’s second point raised on appeal is that Vermont’s “failure” to afford him a probable cause hearing prior to his incarceration amounted to a deprivation of due process of law that must be redressed by the reversal of his conviction. There may well be merit to appellant’s argument, reasoning by analogy from the Supreme Court’s decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that one accused of a crime is entitled, as a matter of constitutional law, to some kind of hearing prior to or soon after the State exercises its power of pretrial detention. The Vermont Supreme Court has itself recently denominated this right to a “probable-cause” hearing to be “fundamental,” and it is not of little import that that court, in reaching its conclusion, stated at the outset that the “right” had been denied to someone “unable to raise bail” and who had therefore been “held in custody seven months pending trial.” State v. Perry, 131 Vt. 75, 76, 300 A.2d 615, (1973). But the Perry decision looks to the question — we think correctly— whether a person may be deprived of his liberty without a prior hearing in terms of the fourth and fifth amendments, not whether such a deprivation affects per se the fundamental fairness of legal proceedings that result from the charge against him. On these facts, there is no reason to believe that the trial of appellant was in any way affected by a denial to him of a “probable-cause” hearing. His present status is the result of his conviction under state law, not the result of his arrest or pretrial detention. Had he brought a habeas action in federal or state court to secure this “right” subsequent to his arrest and prior to conviction, his argument would be well supported by the decision in Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971). The problem we face here, unlike that faced by the Brown court, is that we have no power, in a postconviction habeas corpus action, to remedy, retrospectively, a possible denial of a “fundamental” right which has no bearing on appellant’s present incarceration. Appellant argues that this “fundamental” right is meaningless unless enforced by reversal of his conviction; we do not agree. The remedy sought here by appellant, in effect release from prison, is one to be sought prior to conviction.

Appellant’s final point, that his forced compliance with Vermont’s notiee-of-ali-bi statute absent any reciprocal discovery rules was violative of the Supreme Court’s decision in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), was conceded at oral argument to have no merit in light of Vermont’s exceptionally liberal criminal discovery rules in effect since 1961. 13 Vt.Stat.Ann. §§ 6721-6727, supplanted by Rules 15 and 16, Vt.Rules Crim.Proc. (eff. Oct. 1, 1973). See P. Langrock, Vermont’s Experiment in Criminal Discovery, 53 A.B.A.J. 732 (Aug. 1967).

For the reasons herein stated, the judgment of the district court is affirmed.

      . The Vermont state’s attorney’s oath required him not to swear to an information unless he believed probable cause existed to arrest and try the accused. In re Davis, 126 Vt. 142, 224 A.2d 905 (1966) ; State v. Donaldson, 101 Vt. 483, 486, 144 A. 684 (1929). The procedure of issuing a warrant on a state’s attorney’s information has now been changed to require the statement of a factual background to support the application for a warrant. Rule 4(a), Vt.Rules-Crim.Proc. (eff. Oct. 1, 1973) (supplanting 13 Vt.Stat.Ann. § 5503). No. 118, Acts of 1973, §§ 26, 28.

      . This may be because prior to appellant’s arrest, the police had received a description of the perpetrator from the victim of the crime. The victim sometime later, although the transcript does not reveal when, selected from a group of 11 photographs two photographs of appellant as the perpetrator. The standards to guide a court in making the overall determination of probable cause in fact were said by Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971), to be “at least as stringent as the standards applied with respect to the magistrate’s assessment.” Although the Whiteley Court left open the possibility that the standards imposed upon the arresting officer might, in some circumstances, be higher than those imposed on a magistrate, it cannot be doubted that the actual identification of appellant by the victim through photographs goes beyond mere suspicion and would, in the language of Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (probable cause not found), be “sufficient to warrant a prudent man in believing that the [appellant] had committed . . . an offense.” See also Brinegar v. United States, 338 U.S. 160, 175-176 (1949).
      Appellant was registered under his own name at the Best Haven Motel in South Burlington, Vermont, within a few miles of the scene of the crime. The photos identified were evidently known to the police to be of William Mayer. Apparently the police were informed that William Mayer was registered at the Best Haven Motel; although the record does not make it explicit, it can be assumed that they were so informed prior to the arrest. We do not know whether the photos were shown to the victim as a consequence of that information or through some other circumstance — perhaps the victim’s description. It also appears that at least two of the arresting officers had been informed personally by an employee of the motel at which appellant was arrested that she had found a holster in appellant’s room — indeed, in the refrigerator in his room — on the day before appellant’s arrest. The record makes it tolerably clear that this information came into the officers’ possession prior to the arrest; as such it would be an additional factor lending weight to a finding of probable cause, although not enough alone to support it.

      . Since the exhaustion doctrine is a matter resting on comity and not a limitation on jurisdiction, absent very clear lack of merit, dismissal for want of exhaustion is without prejudice. Dirring v. Massachusetts, 459 F. 2d 953 (1st Cir. 1972).

      . In Brown, the petitioner had been placed in a state of “arrest” which he was permitted to challenge by a writ of mandamus even though he was not subjected to actual deten- • tion. Had appellant here raised his claim during his detention, habeas corpus jurisdiction would certainly lie under 28 U.S.C. § 2241(c)(3), as he would not be seeking “to litigate a federal defense to a criminal charge, but only to demand enforcement of the [State of Vermont’s] affirmative constitutional obligation [to grant him a hearing prior to his pre-trial detention].” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973) (speedy trial right).