text:
    Arthur H. BARBE, Admr., Plaintiff-Appellee, v. David N. DRUMMOND et al., Defendants-Appellees, David N. Drummond, Defendant-Appellant.
    No. 73-1390.
    United States Court of Appeals, First Circuit.
    Argued Sept. 5, 1974.
    Decided Nov. 26, 1974.

      Henry D. White, Boston, Mass., for David N. Drummond, appellant.
    John A. Donovan, Jr., Boston, Mass., with whom Thomas D. Burns and Burns & Levinson, Boston, Mass., were on brief, for Arthur H. Barbe, appellee.
    Before McENTEE and CAMPBELL, Circuit Judges, and CLARY, District Judge.

       Senior District Judge of Eastern District of Pennsylvania sitting by designation.

   McENTEE, Circuit Judge.

This admiralty suit was commenced by the administrator of Janet Barbe’s estate to recover for her pain and suffering following the sinking of a motorboat owned and operated by defendant Drummond in which she was a passenger. In a non jury trial the court concluded that Drummond had been negligent and awarded the plaintiff $15,000 plus interest for her conscious pain and suffering and $1,500 plus interest for her funeral expenses. The defendant’s appeal raises three issues: whether the evidence warranted a finding of negligence, whether damages for conscious suffering can be awarded under the Death on the High Seas Act (DOHSA) or under general maritime law, and whether funeral expenses can be awarded under DOHSA or the general maritime law.

I

In considering the first issue the standard of review in this court is clear. “In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous.” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). We can conclude that a finding is clearly erroneous only if after reviewing the entire evidence we are “left with the definite and firm conviction that a mistake has been committed.” Id. In the instant ease it is clear that no mistake has been made in finding Drummond negligent.

On Friday, May 16, 1969, the defendant took possession of a used 26-foot Owens Sea Skiff named “Diane D” which he had purchased from Boston Boat Sales, Inc. Late in the afternoon of the next day, with Miss Barbe as his guest, he set out from Marshfield, Massachusetts, intending to arrive at Sesuit Harbor in East Dennis, Massachusetts, around 10 o’clock that evening. This course required the craft to go out the North River to Massachusetts Bay and then across to Sesuit Harbor. In passing under the bridge that carries Route 3A across the North River, the defendant hit the bridge pilings. The testimony conflicted as to how many times contact was made and whether both sides of the boat hit the bridge. Two witnesses testified that the boat did not follow the course of the river from that point, but instead cz'ossed over some mussel beds and proceeded erratically outside the channel and foz'ced two other boats to seek safety outside the path of the Diane D. One witness testified that near the mussel beds there were cement blocks that had once been moorings. The defendant stated that he inspected the Diane D for damage both after his passage under the bridge and when he reached the mouth of the river. Near sunset, when the boat was about five miles off Manomet Point, the defendant observed a small quantity of water slopping up over the flooring in the cabin. Recognizing that the boat was flooding, he started the bilge pump, but confused the air vent pipe with the bilge pump and tried to make the air vent pipe reach the water by adding an extension to it. When the engine died almost immediately, he tried to restart it. When that failed, he tried to radio for help, but could get no answer. Since sinking seemed imminent, defendant fashioned a makeshift raft from floatable cushions and an inner tube and launched this with Miss Barbe on it. She died of exposure one to three hours later, but defendant was rescued the next morning.

Examination of the Diane D, which was recovered fz'om the bay, disclosed that it flooded because of a long opening along a seam between two pieces of plywood planking under the hull on the starboard side. Testimony from marine suzweyors showed that the opening must have resulted from striking an object such as a lobster buoy or a log. The impact had broken a frame in the area, and the seam could have gradually opened up from driving the boat into the sea. The defendant had heard over the boat z-adio before leaving the marina that small craft warnings were posted until sunset, and he acknowledged that the Diane D had pounded against the water and banked on the waves. Small craft warnings, in the opinion of one witness, would pertain to any boat under 65 feet long.

There was testimony from the defendant that he had experience racing sailing boats and running small motor boats, but had never previously owned a power boat. The defendant admitted that he had never used the boat radio to call anyone, and thus had no personal knowledge whether it transmitted. Other testimony indicated that there are increased risks in operating boats at night. The only navigational aids are those buoys which are lighted. Objects floating in the water are more likely to be hit than to be seen and avoided. Rescue is more difficult if trouble develops, and operation of the boat in heavy weather is more difficult when you cannot see the wave formation.

Viewing this and other evidence, the court concluded that negligence and proximate cause were both established:

“Mr. Drummond had no business going out when he did under the conditions that he did, in the light of his inexperience with this type of boat and in the light of his lack of knowledge of the condition of various of its safety devices. .
“I find that he was negligent in other respects, each of which were [sic], under the combination of circumstances, proximate causes [:] . his disinclination to take additional instructions and a test drive from the Boston Boat Sales people . ; his confusion as to the method of operation of the bilge pump; his lack of knowledge whether there was or was not a proper grounding of the radio; his poor driving of the craft as it went under the tunnel
. . I consider that it was negligent on his part not to have discovered the water sooner than he did. He discovered the water when there was a film of water on the floor of the craft. The craft had to get a solid smash of which any person aboard would have been very much aware.
[T]here was a positive smash such that should have made him inspect the water condition of that hull more often than he did.
“I consider, furthermore, that had he sooner discovered the water, the radio, whether or not it was grounded, could in all probability have been employed to have summoned [sic] help.”

After carefully examining the entire transcript, we conclude there was evidence to support each finding of negligence made by the trial court. Not only was there some evidence, but the weight of the evidence supported the trial court’s findings. Hence they were definitely not clearly erroneous and must stand.

II

We turn now to appellant’s claim that damages for conscious pain and suffering cannot be awarded to the plaintiff under either DOHSA or the general maritime law. The recovery DOHSA provides is “a fair and just compensation for the pecuniary loss sustained . . . .”46 U.S.C. § 762 (1970). This language has been held to exclude pain and suffering as an element of damages. Dennis v. Central Gulf S. S. Corp., 453 F.2d 137 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972); Canillas v. Joseph H. Carter, Inc., 280 F.Supp. 48 (S.D.N.Y.1968); Decker v. Moore-McCormack Lines, Inc., 91 F.Supp. 560 (D. Mass.1950). Thus plaintiff cannot sustain any damages for pain and suffering by relying on DOHSA.

But plaintiff advances three possible theories based on the general maritime law to support his recovery of damages for pain and suffering. The first theory is to look to state law for a survival statute and use that to supplement federal maritime law. See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). It is clear that if Miss Barbe had lived, she would have had a federal cause of action in admiralty for the pain and suffering she endured. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). Though she did not live, according to this theory her action can still be maintained by the administrator of her estate if a state survival statute applies. Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941). Since the plaintiff, the defendant, and the victim were all residents of Massachusetts and since the boat was moored there, we look to Massachusetts law and apply its survival statute, Mass.Gen.Laws ch. 228, § 1(2) (a) (1958).

The advantage of this theory — and the reason it was accepted in a recent ease, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir. 1971) — is that it avoids the apparent conflict with DOHSA that results if pain and suffering is held to be an element of damages under the recently recognized federal maritime wrongful death action. See the discussion infra of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). This reasoning holds that DOHSA did not preempt the separate and distinct remedy given by state survival statutes, and thus it is proper to award damages under the latter statutes. On the other hand, the disadvantages of this theory are twofold. It requires a federal court to divine whether the state survival statute was meant to apply to admiralty claims, which may be difficult enough for torts occurring in state territorial waters but is even more difficult in a case like this where the death occurs on the high seas. Cf. Moragne, supra, at 393 n. 10, 90 S.Ct. 1772. This theory also makes recovery by an admiralty plaintiff turn on whether the concerned state has enacted a survival statute.

The second theory for sustaining the plaintiff’s recovery depends on Moragne, supra. In that case, the Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and held that general maritime law provides a cause of action for wrongful death caused by unseaworthiness. Part of the plaintiff’s claim in Moragne was an unseaworthiness claim based on the Florida wrongful death statute. Prior to the Court’s decision in Moragne, a state wrongful death statute could be used in admiralty, but the state claim had to be enforced “as an integrated whole, with whatever conditions and limitations the creating State has attached.” The Tungus v. Skovgaard, 358 U.S. 588, 592, 79 S.Ct. 503, 506, 3 L.Ed.2d 524 (1959). Thus, when the Florida Supreme Court, answering the question certified to it by the Fifth Circuit Court of Appeals, held that the Florida wrongful death statute did not encompass unseaworthiness as a basis of liability, the Fifth Circuit was forced to dismiss that part of Moragne’s claim. The Supreme Court, however, reexamined the wisdom of the rule announced in The Harrisburg, upon which The Tungus was based, and decided to recognize a maritime cause of action for wrongful death, thus freeing maritime remedies for wrongful death from the control of state law.

Moragne left the exact dimensions of the maritime action for wrongful death to further litigation in the courts:

“We do not determine this issue [the proper schedule of beneficiaries for the newly recognized claim] now, for we think its final resolution should await further sifting through the lower courts in future litigation. . If still other subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts will not be without persuasive analogy for guidance. Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades. . . .”

398 U.S. at 408, 90 S.Ct. at 1792. Plaintiff directs our attention to two circuit court cases which recognize pain and suffering as compensable in a Moragne wrongful death action. Greene v. Vantage S. S. Corp., 466 F.2d 159 (4th Cir. 1972); Dennis v. Central Gulf S. S. Corp., 453 F.2d 137 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972). A major difficulty with applying the reasoning in Greene and Dennis to the instant case is that both of those cases involved accidents in state territorial waters. When an accident occurs in state territorial waters, where DOHSA does not apply, see 46 U. S.C. §§ 761, 767 (1970), it is easy to apply Moragne reasoning and conclude that the previous absence of a federal cause of action for wrongful death has been remedied. But in a case like the instant one, where the accident occurred on the high seas, it is not so easy to apply Moragne to generate a cause of action. The distinction is that Moragne provided a cause of action where one did not previously exist, but here a congressionally provided cause of action already exists, namely, DOHSA. The reason plaintiff finds DOHSA unsatisfactory is that it does not provide recovery for pain and suffering prior to death.

We find the third theory presented by plaintiff to be the most persuasive. This theory follows a middle course between the difficulties presented by the two prior theories. Specifically, we believe that the policy enunciated by the Supreme Court in Moragne provides ample support for us to hold that there is a federal maritime survival action, created by decisional law, for pain and suffering prior to death. This conclusion comports well with the philosophy of Moragne, in that it remedies the non-existence of a federal cause of action and thereby avoids the problem of making plaintiff’s recovery turn on the existence of a state survival statute, as under the Dugas theory. It also avoids a conflict with DOHSA, since survival and wrongful death actions have long been recognized as distinct causes of action. See Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575-576 n. 2, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974).

It may be objected that Congress could have placed a survival provision in DOHSA if it had wanted one, and thus a conflict with DOHSA is not really avoided. However, this argument proves too much. Congress could well have extended the wrongful death action provided by DOHSA for the high seas all the way to the shore, thus remedying legislatively the vacuum which Moragne filled decisionally. Yet this was not accepted by the Supreme Court in Moragne as a reason for declining to fill the legislative void. Similarly, we decline to accept it in the context of filling the void created by the absence of a survival provision. We are supported in this result by Spiller v. Thomas M. Lowe, Jr. & Associates, Inc., 466 F.2d 903 (8th Cir. 1972): The absence of a survival provision from DOHSA did not prevent the Eighth Circuit Court of Appeals from recognizing a federal survival provision rooted in general maritime law. Id. at 909-911. Consequently, we affirm the award of damages for pain and suffering.

Ill

We turn now to the issue of funeral expenses. A number of recent cases applying the Moragne doctrine have allowed awards of funeral expenses in wrongful death actions. The most recent and important case to do so is Sea-Land Services, supra. In that case the United States Supreme Court, in a 5-4 decision, held that a longshoreman’s wife could bring a Moragne wrongful death action even though her husband had recovered damages for his injuries in his lifetime. Justice Brennan’s opinion for the Coui’t made these observations about funeral expenses as an item of damages:

“[Djamages for funeral expenses may be awarded under the maritime wrongful death remedy in circumstances where the decedent’s dependents have either paid for the funeral or are liable for its payment. A majority of States provided for such recovery under their wrongful death statutes. Furthermore, although there is a conflict over whether funeral expenses are compensable under the Death on the High Seas Act, compare The Culberson, 61 F.2d 194 (CA3 1932), with Moore v. The O. S. Fram, 226 F.Supp. 816, aff’d, 328 F.2d 868 (CA5 1963), it is clear that funeral expenses were permitted under the general maritime law prior to The Harrisburg, see e. g., Hollyday v. The David Reeves, 12 F.Cas. 386 (No. 6,625) (D.C.Md.1879). We therefore find no persuasive reason for not following the earlier admiralty rule and thus hold that funeral expenses are compensable.”

414 U.S. at 591, 94 S.Ct. at 818 (footnotes omitted). Sea-Land Services and the other five eases that have allowed recovery for funeral expenses, including the two cases cited by the district court, were all cases where the accident giving rise to the suit occurred in state territorial waters, with one exception. In that single exception, the court assumed without discussion that Moragne applied, even though the accident occurred on the high seas. Nye v. A/S D/S Svendborg, 358 F.Supp. 145 (S.D.N.Y.1973). Since DOHSA clearly provides a cause of action for wrongful death in this case, we fail to see how Moragne applies. We hold that the measure of damages for wrongful death provided by DOHSA, namely, “pecuniary loss,” controls in the instant case. The Supreme Court in Moragne stated that the recognition of a maritime wrongful death action would not “require the fashioning of a whole new body of federal law, but merely removes a bar to access to the existing general maritime law.” 398 U.S. at 405-406, 90 S.Ct. at 1790. Yet there is a substantial difference between removing a decisional bar like The Harrisburg and circumventing a statutory mandate like DOHSA. We believe that to cast aside DOHSA in favor of the Moragne cause of action would be to engage in a “tabula rasa restructuring of the law of admiralty,” Sea-Land Services, Inc., supra, 414 U.S. at 596, 94 S.Ct. at 806, 820 (dissenting opinion), of the sort Moragne counseled against.

It does not undermine our holding to argue that if the Supreme Court had intended pecuniary loss to be the sole measure of damages in maritime wrongful death actions, it would have restricted the courts to federal statutes, and not have allowed reliance on state wrongful death acts in devising the measure of damages under Moragne. Even if this argument is persuasive within the compass of Moragne actions, we do not find it persuasive in this case. Nor is it relevant that the general maritime law prior to The Harrisburg, e. g., Hollyday v. The David Reeves, 12 F.Cas. 386 (No. 6,625) (D.C.Md.1879), permitted recovery for funeral expenses. We are only free to revive that part of the general maritime law if we are free to ignore DOHSA. Once Congress passed that statute, recovery for funeral expenses was no longer possible if DOHSA provided a measure of damages for wrongful death which excluded funeral expenses from coverage.

The Supreme Court in Sea-Land intimates that the meaning of “pecuniary loss” may be broad enough to include funeral expenses. The only case which our research has disclosed where funeral expenses were allowed under DOHSA is Moore v. The O. S. Fram, 226 F.Supp. 816 (S.D.Tex.1963), aff’d sub nom. Wilhelm Seafoods, Inc. v. Moore, 328 F.2d 868 (5th Cir. 1964). The district court did not discuss the legal basis for the award, and the short per curiam opinion of the court of appeals did not even mention the award of funeral expenses. Furthermore, the Fifth Circuit Court of Appeals distinguished and sharply limited Moore in Cities Service Oil Co. v. Launey, 403 F.2d 537, 540 (5th Cir. 1968) (disallowing funeral expenses under Jones Act): “The trial judge [in Moore] apparently based his decision on the assumption that under Texas law the wife became legally obligated for the funeral expenses. Without expressing an opinion as to Texas law on this point, it appears clear that in Louisiana the estate, and not the surviving widow, is liable for funeral expenses.”

Arrayed against the single reported district court case allowing funeral expenses are a number of cases: Cities Service Oil Co. v. Launey, supra (Jones Act and by implication DOHSA) ; The Culberson, 61 F.2d 194 (3d Cir. 1932); First National Bank v. National Airlines, Inc., 171 F.Supp. 528 (S.D.N.Y.1958), aff’d, 288 F.2d 621 (2d Cir. 1961). These cases rest on the rationale that since the estate would be liable for funeral expenses had death occurred naturally, such expenses unlike lost earnings do not represent a pecuniary loss resulting from the tortious conduct and their recovery would represent a windfall. Should our holding be thought to create an anomalous gap in the scope of recovery, since Sea-Land allows funeral expenses for deaths wrongfully caused within state waters, we note that the same gap apparently exists under FELA, which has been construed not to allow recovery for funeral expenses, see, e. g., Heffner v. Pennsylvania R. R., 81 F.2d 28, 31 (2d Cir. 1936), although it completely preempts state wrongful death statutes under which funeral expenses might well be compensable, see New York Central & H. R. R. R. v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 61 L.Ed. 1194 (1917). But see Hoffman v. Reading Co., 12 F.Supp. 1010 (D.N.J. 1935). We do not believe it is open to us at this late date to interpret “pecuniary loss” in DOHSA to include funeral expenses, particularly when such a decision would affect laws other than DOHSA, e. g., FELA and the Jones Act. See Cities Service Oil Co. v. Launey, supra, 403 F.2d at 540.

The award of the district court is modified to reduce the damages from $16,500 to $15,000 plus interest, and is affirmed as modified. Costs are awarded to the plaintiff.

      . “State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action.” 358 U.S. at 373, 79 S.Ct. at 480 (footnotes omitted).

      . Two problems in applying Just should be noted. First, Just spoke of supplementing federal maritime law with the state survival statute to maintain the claim against the estate of the deceased tortfeasor, not to maintain the claim for the benefit of the estate of the deceased victim, as in this case. This distinction does not dictate a different result, however. O’Leary v. United States Lines Co., 215 F.2d 708, 710-711 (1st Cir. 1954) (dicta), cert. denied, 348 U.S. 939, 75 S.Ct. 360, 99 L.Ed. 735 (1955).
      The second, and more significant problem, is that Just supplemented federal maritime law in a case where the tort occurred in state territorial waters, where DOHSA does not apply, 46 U.S.O. §§ 761, 767 (1970) (DOHSA applies “beyond a marine league from the shore”), but in this case the tort occurred where DOHSA applies, thus precluding recovery for pain and suffering after the death of the tort victim. Decker v. Moore-McCormack Lines, Inc., 91 F.Supp. 560 (D.Mass.1950). Contra, Montgomery v. Goodyear Tire & Rubber Co., 231 F.Supp. 447 (S.D.N.Y.1964). Bearing in mind that DOIISA only provides a wrongful death remedy and is silent about any survival action, Montgomery, supra, one can argue that DOIISA does not apply to the pain and suffering claim, and thus the plaintiff is not put in the position of “supplementing” a statute that arguably applies and denies him relief. There would be no constitutional objection to allowing state law to operate on the high seas. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264 (1907), made clear that in the absence of congressional action a state statute can constitutionally apply to a case like the one at bar.

      . The pertinent part of this statute reads:
      “In addition to the actions which survive by the common law, the following survive:
      (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person . . . .”
      This statute keeps a negligence action for pain and suffering viable despite the death of the tort victim. Gaudette v. Webb, 1972 Mass.Adv.Sh. 1131, 284 N.E.2d 222 (1972).

      . Other cases adopting this route to award damages for pain and suffering to an admiralty plaintiff in cases like this one are In re Farrell Lines, Inc., 339 F.Supp. 91 (E.D.La.1971), and In re Sincere Navigation Corp., 329 F.Supp. 652 (E.D.La.1971). See also Nye v. A/S D/S Svendborg, 358 F. Supp. 145 (S.D.N.Y.1973) (allowing damages for pain and suffering, but theory unclear).

      . But see Sennett v. Shell Oil Co., 325 F. Supp. 1, 7 (E.D.La.1971) : “Though Morate dealt with the problem of death in coastal waters, which was uniquely complex, nothing in the opinion suggests that the maritime right is to be denied those whose death is brought about wrongfully on the High Seas. As Moragne pointed out, the policy implicit in the state and federal wrongful death statutes indicates that recovery for maritime death should be permitted absent ‘a legislative direction to except a particular class of cases.’ [398 U.S. at 393, 90 S.Ct. at 1783].”

      . AVe believe the dictum in Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932), that the maritime law does not provide for survival of personal rights of action in tort is no longer good law after Moragne.

      . The issue of funeral expenses was not separately treated in tlie brief of either party in this court. The issue, as raised in the briefs, was “AVhetlier damages for conscious suffering and for funeral expenses can be awarded under the Death on the High Seas Act or under general maritime law.” The discussion of this Quoted question was devoted solely to the pain and suffering aspect. AVe infer that the parties thought that however the pain and suffering issue was disposed of, the funeral expenses issue would be decided similarly. Though we disagree with this assumption, we regard the award of damages for funeral expenses as properly before us for review.

      . Greene v. Vantage S.S. Corp., supra; Dennis v. Central Gulf S.S. Corp., supra; Nye v. A/S D/S Svendborg, supra-, Mascuilli v. United States, 343 F.Supp. 439 (E.D.Pa. 1972), rev’d on other grounds, 483 F.2d 81 (3d Cir. 1973) ; In re Farrell Lines, Inc., supra.

      . Greene v. Vantage S.S. Corp., supra; Dennis v. Central Gulf S.S. Corp., supra.

      . Section 7 of DOHSA, 46 U.S.C. § 767 (1970), provides that “[t]he provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter.” It would be possible to interpret this section to allow a state wrongful death statute to operate where the death occurs on the high seas, but the better authority rejects this view, Jennings v. Goodyear Aircraft Corp., 227 F.Supp. 246 (D.Del.1964) ; Petition of Gulf Oil Corp., 172 F.Supp. 911, 916, 917 n. 29 (S. D.N.Y.1959) ; Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954) (reviewing legislative history). This theory also presents anew the problem of divining whether the state wrongful death statute was meant to operate in the area of torts on the high seas. Perhaps most objectionable of all is that this theory, by once again relying on state law to secure admiralty remedies, takes a step backward — in the opposite direction from that counseled by Mor-agne.

      . Even in that arena the argument seems to assume that the Supreme Court actually answered the questions it explicitly stated it did not need to determine. See 398 U.S. at 408, 90 S.Ct. 1772.

      . This distinction provides no help for plaintiff here. Under Massachusetts law the estate of the decedent is primarily liable for the decedent’s funeral expenses. See Magrath v. Sheehan, 296 Mass. 263, 5 N.E.2d 547 (1936) ; Constantinides v. Walsh, 146 Mass. 281, 15 N.E. 631 (1888). Since we liave sustained the award for pain and suffering, it is clear that Miss Barbe has an estate from which funeral expenses can he recovered.


source: Caselaw Access Project

author: IRVING R. KAUFMAN, Chief Judge:’

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Joseph MAURO, Appellant.
    No. 379, Docket 74-2124.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 6, 1974.
    Decided Nov. 25, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1426.

      Aaron Schacher, Brooklyn, N. Y. (Arnold E. Wallach, New York City, of counsel), for appellant Mauro.
    Paul B. Bergman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E.D.N. Y., Lee A. Adlerstein, Asst. U. S. Atty., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:’

The inevitably uneven pace at which amendments to the Federal Rules of Criminal Procedure must be adopted presents us in this ease with a novel question concerning the requirement of timeliness for motions to suppress. Joseph Mauro, convicted on several charges of counterfeiting, attacks on this appeal the denial of his suppression motion which was made for the first time during the course of trial. We affirm.

A statement of the convoluted facts will assist in making clear that the motion to suppress was untimely. Shortly after his release from prison in June of 1970, Louis Stoppiello found himself in need of money. Unable to acquire sufficient income to satisfy his needs through the custoniary channels, he turned to borrowing. Accordingly, he was introduced by Sal Seminara to Joseph Mauro, who loaned sums of money to Stoppiello. By October of 1971 Stop-piello had fallen far behind in his steep interest payments, and he and Mauro commenced discussions on ways in which the repayment might be made. The method ultimately arrived at proved satisfactory to both, though it contributed little to the solution of the current problem of inflation. Mauro undertook to supply Stoppiello with counterfeit bills in denominations of $10 and $20, and Stoppiello sold them at about 30% of the face amount. The proceeds of the sales were applied toward accrued interest on the debt owed Mauro.

The pressures of the task of distributing counterfeit money proved to be somewhat wearing on Stoppiello, leading to his admission to the Brooklyn Veterans’ Administration Hospital. But his hope that he could be shielded in a hospital setting from the strains of his venture were short-lived, for on December 10, 1971 he received a visit there from his friend Seminara, who was accompanied by a man introduced as “Mickey.” Unknown to Stoppiello, Seminara had agreed to cooperate with the Government, and his companion was in fact Secret Service agent Michael Reilly. Always alert to new business opportunities, Stoppiello sold Reilly eight $10 bills, telling him at the same time that larger transactions could be arranged, although the price would have to be set by his supplier, “Joe.” In a later telephone conversation, Stoppiello quoted Joe’s figure at $27 per $100 face amount. The two men met again on December 30, after Stoppiello’s release from the hospital, at which time Reilly was given two more counterfeit bills. Shortly thereafter, they agreed to exchange $5000 in false bills on January 4, 1972, at Bay Parkway and 72nd Street in Brooklyn.

On the morning of January 4, Stop-piello met with Mauro and one Lenny Bilz at Anton’s Luncheonette, a store located close to where the transaction was to take place. When Reilly failed to appear at the scheduled hour, Stoppiello telephoned him and arranged a new appointment for 2:00 P.M. the same afternoon. Mauro in the meantime had become apprehensive over Reilly’s trustworthiness, and so he instructed Stop-piello and Seminara, who had just arrived, that they were to make the transfer. Accordingly, Stoppiello removed the money from between some magazines in the back seat of Mauro’s light green 1967 Mustang which was parked nearby, and took it to the basement of his apartment house located opposite from Anton’s Luncheonette.

Shortly after 2:00 P.M. Reilly, accompanied by agent Rick Zaino, arrived at Bay Parkway and 72nd Street in a blue Cadillac. Approximately seven other agents were stationed in the immediate vicinity. Stoppiello and Seminara appeared momentarily, then departed to retrieve the counterfeit bills from Stop-piello’s apartment, as Reilly drove into a nearby gasoline station to telephone his office. While he was on the telephone, Mauro drove into the station in his green Mustang, accompanied by Bilz. Mauro watched Reilly intently during his conversation, then walked over to him, as he was leaving the telephone, and frisked him. Had Reilly been carrying a gun — which he was not' — it would have confirmed Mauro’s suspicion that he was an agent. After the two had returned to their respective cars, Mauro maneuvered his Mustang to within two car lengths of Reilly’s Cadillac, where he remained throughout the unfolding events.

Stoppiello and Seminara soon returned, and Seminara entered the Cadillac, carrying the money in a brown paper bag. Reilly then opened the trunk of his car — a signal to the seven agents nearby. Mauro and Bilz were immediately arrested and simulated arrests were also made of Reilly, agent Zaino, and Seminara. Stoppiello, who had fled, was apprehended at his apartment several hours later. As a result of the foregoing, Mauro’s Mustang was seized and delivered to the Custom’s Bureau Seizure Room for forfeiture pursuant to 49 U.S.C. §§ 781, 782 (1970).

After his arrest and appropriate warnings, Stoppiello spoke freely with the agents about Mauro’s involvement, but refused to testify against Mauro. Apparently because the Plan for Achieving Prompt Disposition of Criminal Cases in the Eastern District of New York might require dismissal of the charges for failure to proceed to trial against Mauro, the complaint against him was dismissed upon the Government’s motion on February 15, 1972. Stoppiello, however, was indicted, and on March 3 he agreed to cooperate. He informed agent John Yiggiano that the steering column of Mauro’s Mustang had several counterfeit bills hidden in it. Without a warrant, Viggiano quickly went to Max-ford’s Garage in Manhattan, where the car was stored, and extracted from the steering column five $10 bills whose serial numbers matched those printed on the money Seminara had given Reilly on January 4. Ten days later Mauro petitioned for reclamation of the car, and upon its return repaired the steering column at a cost of $150. The forfeiture proceedings which had been instituted were then abandoned by the Government.

Despite these adversities, Mauro continued undaunted in his lending activities. He continued to meet with Stop-piello, pressing him for the still unpaid principal and interest. Stoppiello, whose sentence was adjourned after a plea of guilty to passing two counterfeit notes on December 30, 1972, agreed to continue his cooperation with the Government by concealing a small transmitting device on his person to record his conversations with Mauro. Tapes of their discussions on June 15, June 28, and July 12, 1972 provided full substantiation of Mauro’s involvement in the January 4 transaction. In the course of the July 12 conversation Mauro also stated that he and his then attorney, George Rosen-baum, had learned of Stoppiello’s role in the discovery of the bills in the steering column of the Mustang from the files at the Bureau of Customs.

Because of Stoppiello’s belated testimony and the information contained in the tapes, an indictment was returned against Mauro on July 13, 1972, charging possession and transfer of the 500 counterfeit bills which Seminara had given Reilly, and conspiracy to possess and sell counterfeit money. After pretrial proceedings on January 8, 1974, Aaron Schacher — who replaced Rosen-baum as Mauro’s counsel — made extensive requests relating to the taped conversations. The Government furnished Schacher with a full transcript of the conversations on January 14, 1974 and Schacher and Mauro listened to the tapes on January 26, 1974. On March 4, seven days after the trial had begun, Mauro moved — on the basis of material supplied several days before by the Government pursuant to 18 U.S.C. § 3500— to suppress the money found in the steering column of his car. The district court denied this motion, finding the warrantless search and seizure reasonable since the Mustang had lawfully been seized for forfeiture, and also because there had been no unreasonable delay in the forfeiture proceedings. Moreover, Judge Mishler held that the motion to suppress was untimely. Mauro was subsequently convicted of conspiracy to deal in counterfeit money, 18 U.S.C. § 371 (1970), possession of 500 counterfeit $10 Federal Reserve Notes, 18 U.S.C. § 472 (1970), and transfer of these 500 notes, 18 U.S.C. § 473 (1970). Because we agree that the motion to suppress was untimely we affirm the conviction.

A proper understanding of new Fed. R.Crim.P. 41(f), governing motions to suppress in the federal district courts, requires a brief examination of its predecessor, old Rule 41(e), as well as a cursory review of the amendments of the Federal Rules which may have left the meaning of present 41(f) unclear. Prior to 1972, Rule 41(e), governing motions both for return of property and for suppression, provided:

A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained . . . . The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.

The requirement that motions to suppress be made in advance of trial, although not incorporated in a rule until 1946, was in fact no more than a restatement of the existing law and practice. Advisory Committee Notes to Fed.R.Crim.P. 41(e), 18 U.S.C.A. at 213 (1961); United States v. DiRe, 159 F.2d 818, 820 (2d Cir. 1947) (L. Hand) (dic-turn), aff’d, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The requirement that objections be timely made served a number of important purposes. Foremost among these, of course, was the need to avoid interruptions of a trial in progress with auxiliary inquiries which not only broke the continuity of the jury’s attention, but also interfered with that “[djispatch in the trial of criminal causes [which] is essential in bringing crime to book.” Nardone v. United States, 308 U.S. 338, 341-342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). Prompt objection to evidence which may have been illegally seized serves other objectives as well. A motion in advance of trial avoids the serious personal inconvenience to jurors and witnesses which would result from interruptions and delay once the jury had been selected and the trial had commenced. United States v. Bennett, 409 F.2d 888, 901 (2d Cir.), rehearing denied, 415 F.2d 1113, cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969). Cf. United States v. Allied Stevedoring Corp., 241 F.2d 925, 931 (2d Cir. 1957) (L. Hand, J.) The more telling argument is that the waste of prosecutorial and judicial resources occasioned by preparation for a trial could be avoided if a timely and successful motion were made in advance. United States v. Salli, 115 F.2d 292, 293 (2d Cir. 1940). In addition, we cannot ignore the right of immediate appeal provided to the Government by the Omnibus Crime Control Act of 1968, as amended, 18 U.S.C.A. § 3731 (Supp. 1974) (appeal from pre-trial grant of motion to suppress); see also 18 U.S.C. § 2518(10) (b) (wiretap evidence). This right would be rendered meaningless if a request for suppression could be postponed until mid-trial, when the only alternative to abandonment of the prosecution would be completion of a fruitless and sometimes lengthy trial in the hope of an ultimately successful post-trial appeal from the granting of the suppression motion.

Despite these .persuasive reasons for continuation of the timeliness requirement, the 1972 amendments to the Federal Rules of Criminal Procedure appear to have omitted the requirement from the successor to former Rule 41(e). An examination of the history of these and subsequent changes demonstrates, however, that the apparent ellipsis is due to the piecemeal adoption of rule changes rather than to any conscious purpose on the part of Congress or the rulemakers.

Present Rule 41(f), adopted in 1972, provides:

A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12.

Present Rule 12(b) states, however, that (1) . . . Any defense or objec-

tion which is capable of determination without the trial of the general issue may be raised before trial by motion. [Emphasis supplied.]

The provision for a pre-trial motion to suppress would thus appear to be permissive rather than mandatory. That this should be the effect of the amendment to Rule 41 would be strange indeed, in the face of the advisory committee’s commentary that

The amendment to subdivision(e) [of Rule 41] and the addition of subdivision (f) are intended to require the motion to suppress evidence to be made in the trial court rather than in the district in which the evidence was seized as now allowed by the rule.

Advisory Committee Notes to Fed.R. Crim.P. 41, 18 U.S.C.A. at 60 (Supp. 1974). Because old Rule 41(e) allowed suppression motions to be brought in the district where evidence was seized as well as the district where the trial was to take place, it often resulted in needless duplication of effort. To remedy this problem, the 1972 changes prescribed distinct procedures for motions for return of property as distinguished from suppression motions. Motions for return could still be brought in the district of seizure, but motions to suppress were required to be made in the trial court. Not the slightest indication is given that the change was intended to relax in any degree the time schedule for the making of a motion either to return or to suppress property. Only the places where such motions were to be brought were dealt with.

The confusion has its roots in the fact that amended Rule 41 was intended to be accompanied by modifications to Rule 12, which would have made clear that the requirement of timeliness was to be continued. The preliminary draft provided :

12(b) Pre-trial Motions .... The following must be raised prior to trial:
(3) Motions to suppress evidence on the ground that it was illegally obtained ;
(f) . . . Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure for the United States District Courts 26-29 (1970). Although proposed Rule 12 was not transmitted to Congress in 1972 as a corollary to changes in Rule 41, the difficulty obviously lay elsewhere than in these sections, for the version ultimately transmitted on April 22, 1974 differs from the preliminary draft in only insignificant respects. See 42 U.S.L.W. 4553 (April 23, 1974). Congress recently postponed the effective date of the amendments transmitted in April of 1974 until August 1, 1975. Pub.L.No. 93-361 (July 30, 1974).

Mauro makes no claim in this case of misplaced reliance upon the conjunction of the presently effective Rules 41(f) and 12(b). In these circumstances, given the persuasive indications that the 1972 amendments were not intended to abolish the requirement that suppression motions should be made in advance of trial, we find quite proper the admission of evidence of the bills taken from the steering column of Mauro’s Mustang.

It is clear that Mauro knew early in 1972 that the column had been opened, since the car was returned to him shortly after his petition for reclamation on March 13 of that year, and he was charged $150 to have it repaired. In addition, the transcript of the July 12 conversation discloses that even before the indictment was filed both Mauro and Rosenbaum, his attorney at the time, had learned from the Customs Bureau files that Stoppiello had informed agent Viggiano of the cache. A transcript of that same conversation was given to Schacher on January 14, 1974, shortly after he was substituted for Rosenbaum as Mauro’s counsel, and more than a month in advance of trial. Schacher also listened to the tapes of the conversations on January 26. Under these circumstances we find little merit to the contention that the § 3500 material, supplied at the conclusion of Stoppiello’s testimony, was the first information concerning the seizure received by Mauro and his counsel. There was ample opportunity to move to suppress during the nineteen months between the return of the indictment and trial, and the failure to do so — especially in light of the other overwhelming evidence against Mauro — is fatal to Mauro’s objection belatedly raised in the course of the trial.

Affirmed.

        . We recently recognized that a witness’s refusal to testify is not equivalent to “unavailability” which, under the Plan, will have the effect of tolling the running of the six-month period within which the Government must be ready for trial. United States v. Flores, 501 F.2d 1356 (2d Cir. 1974). Dismissal of the complaint would, however, have that effect. Id. at 5149-50.

      . This indictment was consolidated for trial with another, charging Mauro with extortion, 18 U.S.C. § 894(a) (1970), in connection with the loans made to Stoppiello. Mauro was acquitted of the extortion charges.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl Albert HIGGANS, Defendant-Appellant.
    No. 73-2006.
    United States Court of Appeals, Seventh Circuit.
    Argued April 23, 1974.
    Decided Oct. 15, 1974.
    As Amended Dec. 16, 1974.

      James A. Walrath, James M. Shellow, Milwaukee, Wis., for defendant-appellant.
    William J. Mulligan, U. S. Atty., and David B. Bukey, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, FAIRCHILD, Circuit Judge, and SOLOMON, Senior District Judge.

       Senior District Judge Gus J. Solomon of the United States District Court of Oregon is sitting by designation.

   PER CURIAM.

Carl Albert Higgans (appellant) appeals his jury conviction and sentence of eight years imprisonment for bank robbery.

We affirm the conviction and the sentence.

On October 31, 1972, at about 11:00 A. M., three armed black men robbed the University National Bank (the bank) in Milwaukee, Wisconsin, of more than $15,000.

The tallest robber, between 6' and 6'5" tall, gave the orders. A second robber, about 5'9", collected money from the tellers’ drawers. The smallest robber, about 5'5", watched the front entrance. Each man wore a partial face mask, a cap or hat, and a jacket or topcoat. The tallest robber had a distinctive “heavy, high tone pitched voice.”

One of the robbers appeared to drop something as he left the bank. The F. B. I. later found a pair of gold-rimmed sunglasses on the sidewalk outside the bank.

A passing motorist saw a tall, masked, black man, carrying a briefcase and a shotgun, running along the sidewalk. The motorist watched the man enter a nearby ear in which there were two other black men. The motorist stopped when he saw a commotion at the bank. He gave the police the license number of the car and described the car as a 1964 white Chevrolet with a damaged front grille and fender. Later that day, the police found and stopped the car. It was occupied by Rudolph Willis, the car’s owner, Michael Higgans, the appellant’s brother, and a third man.

Immediately after the robbery, the F. B.I. showed black-and-white photographs of suspects to persons who witnessed the robbery. One witness thought the photograph of appellant resembled the tallest robber.

On December 21, 1972, the F.B.I., without a warrant, arrested appellant and Paul Bowie for the robbery. Both men were photographed after the arrest. An F.B.I. agent testified that he heard appellant speak after the arrest and that appellant had a deep voice.

At trial, two witnesses to the bank robbery testified that appellant resembled the tallest robber, but they did not positively identify him as the robber. During the direct examination by the prosecutor, one of these witnesses testified that immediately after the robbery she told an F.B.I. agent that a black- and-white photograph of appellant resembled the tallest robber. The other witness testified that shortly before trial he was shown a group of color photographs which .included the photograph of appellant taken after his arrest. The witness thought appellant’s photograph resembled the tallest robber.

Paul Bowie’s brother, Donald Bowie, testified about events in his apartment on the morning of the robbery. Paul Bowie, appellant and a third man had gone to Donald’s apartment in the early morning hours of October 31, 1972, and had stayed in the apartment all night.

During the direct examination, the prosecutor, outside the presence of the jury, told the court he was surprised by Donald’s testimony. The prosecutor said that, during an interview on the previous day, Donald gave him many specific details about events in his apartment on the morning of the robbery which Donald was now unable to remember. The court ruled that, because of Donald’s sudden memory lapse and his relationship to Paul Bowie, Donald could be treated as a hostile witness and the prosecutor could ask leading questions.

The prosecutor, in the presence of the jury, asked Donald if he had told the F.B.I. that Paul Bowie and the appellant left his apartment at 9:30 A.M. and returned at 10:30 A.M. on the day of the robbery. Donald said he did not remember making that statement.

Donald testified that all three men left his apartment at about 10:30 A.M. At about 11:15 A.M. he heard loud banging on his door; he let the three men back into his apartment. He testified that they stayed for about ten minutes.

During this examination by the prosecutor, Donald denied that he had previously told the F.B.I. that he had disposed of some clothes left by his three visitors. He said that he had told the F.B.I. that the clothes he disposed of were his own clothes and not those of his visitors. Donald also denied telling the' F.B.I. that the visitors had brought a .44 Colt Magnum pistol into his apartment. He said that he had told the F. B.I. he remembered seeing a toy gun in the apartment.

Donald denied that he told the F.B.I. that the gold-rimmed sunglasses belonged to appellant. He remembered only saying to the F.B.I. that he had seen appellant wearing sunglasses at some point. Donald also insisted that he did not tell his roommate that Paul had robbed the bank.

Donald also recalled that on the morning of the robbery he asked Paul what he was going to do that day. Paul answered that he was going to “hit a filling station”. Donald then heard appellant laugh in the next room, but Donald did know know if the laughter was in response to Paul’s answer.

Rudolph Willis, who owned the getaway car, testified that in a bar the night before the robbery a man named “Skip” asked to borrow Willis’ car the next day. Willis recalled that “Skip” resembled the appellant, but he testified that this man did not appear to be the appellant.

Willis testified that about 10 o’clock the following morning a man knocked at his door and asked to borrow his car. Willis said he did not open the door to see who was there, but he assumed it was the man with whom he had talked the previous night. Willis then testified that he told the man he could not have the car because it would not run.

The prosecutor, outside the presence of the jury, told the trial court that he was surprised by Willis’ testimony. The prosecutor said that in a pretrial interview Willis told the F.B.I. that “Skip” Higgans was the man in the bar. The court ruled that Willis was a hostile witness.

After the jury returned, Willis denied he had told the F.B.I. that “Skip” Hig-gans was the man in the bar who asked to borrow his car.

A cab driver testified that at about 9:25 A.M. on October 31, 1972, he picked up two black men at Donald’s address and took them to the vicinity of Willis’ home. He was unable to identify the men at the trial.

A sanitation worker testified that at about 11:00 A.M. on October 31, 1972 (shortly after the robbery), he saw three black men get out of a white Chevrolet, with a damaged front, in the vicinity of Donald Bowie’s apartment. He saw the men run up some stairs and then he heard pounding and rapping.

Lohman Brooks, Jr., of Los Angeles testified that in early November, 1972, he met appellant, Paul Bowie, and one other man near Los Angeles. He said that he went with three men to a used car dealer where they bought a $6,700 Cadillac. Appellant paid the $1,500 down payment in cash, but the title to the car was put in Brooks’ name.

Appellant did not testify.

On this appeal the appellant asserts five errors.

1. Identification evidence was improperly admitted.

Two witnesses to the robbery testified that appellant resembled the tallest robber. Over appellant’s objections, the court allowed the witnesses to testify that before the trial they told the F.B.I. that photographs of appellant resembled the tallest robber.

Appellant contends that these references to earlier “identifications” were improper. He argues that evidence of prior consistent statements by a witness is irrelevant, unless it is being used to rehabilitate an impeached witness.

The pretrial identifications were not irrelevant. The use of pretrial photographic identification to buttress in-court identification is a proper prosecutorial tactic. United States v. Hines, 470 F.2d 225, 228 (3rd Cir. 1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973). “ . . . ‘[T]he earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind.’ ” Gilbert v. California, 388 U.S. 263, 272-273 n. 3, 87 S.Ct. 1951, 1956-1957, 18 L.Ed.2d 1178 (1967), quoting from People v. Gould, 54 Cal.2d 621, 626, 7 Cal.Rptr. 273, 354 P.2d 865, 867 (1960). Evidence of pretrial identification is even more important when the trial takes place long after the crime was committed. United States v. Hines, supra, 470 F.2d at 228.

Here ten months elapsed between the robbery and the trial. Testimony on the pretrial photographic identifications was proper.

Appellant also argues that his identification through a photograph and a voice description obtained after his arrest should have been suppressed as the fruit of an unlawful arrest. On December 21, 1972, appellant and Paul Bowie were arrested without a warrant by F. B.I. agents. Appellant says that the evidence which was obtained following that warrantless arrest was not admissible without a showing that the arresting officers had probable cause to arrest. Appellant contends that there was no such showing here.

Before the arrest, a witness told the F.B.I. that appellant’s photograph resembled the tallest bank robber. Another witness told the F.B.I. after the robbery that Paul Bowie, appellant’s companion, resembled one of the robbers. Willis, the owner of the getaway car, told the F.B.I. that a man named “Skip”, who resembled appellant, asked to borrow his car on the morning of the robbery. Other circumstantial evidence pointed to appellant as a probable participant in the robbery. The motion to suppress was properly denied.

The appellant next argues that the trial court should have stricken testimony about photographs that were either not admitted or were stricken. If there was error in not striking the references, it was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

2. The government committed reversible error by the techniques used to impeach hostile witnesses.

During the direct examinations of Donald Bowie and Rudolph Willis, the prosecutor inferred that the witnesses had made pretrial statements contrary to their sworn testimony at trial. Appellant contends that this impeachment technique pitted the prosecutor’s credibility and the prestige of his office against the witnesses’ credibility. Appellant also asserts that the prosecutor referred to facts within his knowledge which were never introduced into evidence. These contentions have no merit.

Donald Bowie and Willis both testified under government subpoena and both were declared hostile witnesses. Both testified that they did not remem-b.er material links in the government’s chain of circumstantial evidence. The government therefore sought to impeach the witnesses with their prior inconsistent statements made in interviews with F.B.I. agents and with the prosecutor.

After Donald Bowie and Willis testified, appellant’s counsel stipulated with the prosecutor that these two witnesses had been impeached on the subject matter of the prosecutor’s question which contained the “facts” about which appellant complains.

The stipulation made it unnecessary for the prosecutor to introduce impeachment evidence against Donald Bowie and Willis. Appellant entered into that stipulation to avoid the introduction of the damaging impeachment evidence and to limit his admissions to impeachment only.

At appellant’s request, the trial court instructed the jury that impeachment of these two witnesses on certain matters did not necessarily mean that the opposite of the impeached testimony was true.

Prosecutors have a duty to avoid placing their own credibility in issue. United States v. Handman, 447 F.2d 853, 856 (7th Cir. 1971). Here, the stipulation that the witnesses had been impeached erased the issue of the prosecutor’s credibility.

3. The government connected appellant to the robbery through the use of inadmissible circumstantial evidence.

Appellant contends the trial court erred in allowing evidence that after the bank robbery appellant made a trip to Los Angeles and there purchased a Cadillac. He argues that that evidence should not have been admitted without a showing that appellant was impecunious before the robbery.

Although relevant to the weight and value of the evidence, proof of prior impecunity is not necessary to admit evidence of unusual expenditures. Admission of this type of evidence is “entrusted primarily to the sound discretion of the trial court”. United States v. Crisp, 435 F.2d 354, 360 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971); United States v. Brewer, 427 F.2d 409, 411-412 (10th Cir. 1970).

This view was not limited by United States v. Gornick, 448 F.2d 566, 571-572 (7th Cir. 1971), cert. denied, 404 U.S. 861, 92 S.Ct. 161, 30 L.Ed.2d 103 (1971). In that case evidence that the defendant had $357 in cash many hours after the bank robbery was deemed competent, even though the only evidence of his previous financial condition was testimony that he “ . . . found it necessary to cash his paycheck on the day of the bank robbery in the sum of $191 . . . Id., 448 F.2d at 572.

We find that the trial judge here did not abuse his discretion by allowing the jury to decide what weight should be given the $1,500 cash payment by appellant for a Cadillac which was purchased in a city far away from appellant’s home in the name of another person.

Appellant charges that other inadmissible evidence was admitted.

Donald Bowie testified that on the morning of the robbery he asked his brother Paul what he was doing that day and Paul replied he was going to “hit a filling station”. Donald said that after Paul’s statement, appellant, who was in the next room, laughed. Appellant contends that this was inadmissible hearsay evidence.

The government asserts that the testimony was not admitted to prove that appellant intended to rob a filling station, but as evidence of appellant’s state of mind on the morning of the bank robbery. The trial court properly allowed the jury to decide what significance to give to this ambiguous evidence of appellant’s laughter in response to Paul’s statement. See Frank v. United States, 220 F.2d 559 (10th Cir. 1955).

Evidence that gold-rimmed sunglasses were found on the sidewalk near the bank was properly admitted. Donald Bowie testified he had seen appellant wearing sunglasses, and there was other evidence that one of the robbers appeared to drop something and that sunglasses were found at the spot. The trial court properly allowed the jury to decide what weight should be given to this evidence.

4. The government failed to prove that the bank was insured by the Federal Deposit Insurance Corporation at the time of the robbery.

Proof that the robbed bank was insured by the Federal Deposit Insurance Corporation (F.D.I.C.) is an essential fact. Scruggs v. United States, 450 F.2d 359, 360-361 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972). Some competent evidence of insurance must be adduced at trial to sustain a conviction. See King v. United States, 426 F.2d 278 (9th Cir. 1970).

The F.D.I.C. certificate of insurance was introduced through a bank vice president. That certificate proved the insured status of the bank on the date of the certificate, June 17, 1971. Appellant contends that the government failed to adduce evidence to prove that the bank’s insurance was still in effect on the date of the robbery, about 16 months later. See United States v. Reed, 376 F.2d 226, 229 (7th Cir. 1967).

The bank vice president testified that all national banks have F.D.I. C. insurance, that the bank operated as a national bank, and that the bank regularly paid the F.D.I.C. premiums. He also testified that examiners assured him the bank was insured. We find ample evidence for the jury to find that the. bank was insured on the date of the robbery.

5. The trial judge erred when he told the jury, outside the presence of either appellant or his counsel, that it could not have a transcript of the testimony.

After deliberating for several hours, the foreman of the jury sent the judge a message asking for a transcript of all the testimony. The judge denied the request without informing appellant or his counsel that the request had been made.

We recognize that Rule 43 of the Federal Rules of Criminal Procedure requires the presence of the defendant “at every stage of the trial”. Here the ruling was obviously within the discretion of the trial judge, and the appellant has shown no prejudice. “ . [A]n error does not require reversal when the record shows with reasonable certainty that it did not prejudice the defendant’s substantial rights.” Walker v. United States, 116 U.S.App.D.C. 22, 322 F.2d 434, 435 (1963); see United States v. Compagna, 146 F.2d 524, 528 (2d Cir. 1944), cert. denied, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422, rehearing denied, 325 U.S. 892, 65 S.Ct. 1084, 89 L.Ed. 2004 (1945); and United States v. Freed, 460 F.2d 75, 78 (10th Cir. 1972).

This specification of error has no merit.

We have examined all the assignments of error, and we reject all of them. Appellant’s conviction is affirmed.

      . The appellant’s nickname is “Skip”.


author: WALLACE, Circuit Judge:

text:
    Captain Roger G. SANGER, Petitioner-Appellant, v. Honorable Robert C. SEAMANS, Jr., Secretary of the Air Force, et al., Respondents-Appellees.
    No. 73-2333.
    United States Court of Appeals, Ninth Circuit.
    Nov. 29, 1974.

      Richard P. Fox (argued) of Los Angeles, Cal., for petitioner-appellant.
    Huston T. Carlyle, Asst. U. S. Atty. (argued), Los Angeles, Cal., for respondents-appellees.
   OPINION

Before WALLACE and SNEED, Circuit Judges, and EAST, District Judge.

WALLACE, Circuit Judge:

Captain Sanger applied for a discharge from the United States Air Force Reserve based upon his newly-found conscientious objection to war. The officers who interviewed Sanger concluded that he was sincere. All reviewing officers, none of whom interviewed Sanger, drew a contrary conclusion and the Secretary of the Air Force denied his application for discharge. Captain Sanger then petitioned for habeas corpus in the district court. He appeals from the denial of his petition.

The Secretary stated that his decision was based upon the recommendation of the Air Force Personnel Board. This recommendation, however, was not in Sanger’s file and was available neither to him nor to the district court in which he filed his petition for habeas corpus. The absence of this crucial document requires that we reverse and remand.

As the day approached when Sanger was to report for active duty, he applied for discharge as a conscientious objector. Pursuant to the appropriate Air Force regulations for processing such claims, Sanger was interviewed by three Air Force officers: a chaplain, a psychiatrist and an investigating officer. 32 C.F.R. §§ 888e.20, 888e.22 (1974). The psychiatrist found him to be free from psychiatric disease, and the chaplain and the investigating officer recommended that his application be granted.

These officers, however, do not make the final decision. The investigating officer forwards the record to his commander who, in turn, forwards the record with his recommendation. Thus it continues at each level of the chain of command, 32 C.F.R. §§ 888e.24, 888e.26 (1974), until the Secretary of the Air Force makes the final decision, 32 C.F.R. § 888e.28 (1974). In this case, each reviewing officer concluded that Sanger was not sincere. The reviewing officers were: the Vice-Commander and Staff Judge Advocate of the Air Reserve Personnel Center, the Deputy Director of Personnel Actions of the Air Reserve Personnel Center, the Command Chaplain of the Air Force Military Personnel Center, the Office of the Surgeon General and the Directorate of Personnel Programs Actions. In a legal review, the Chief, Administrative Law Division, Office of the Judge Advocate General, also recommended disapproval. Thereafter, the Secretary of the Air Force, upon the recommendation of the Air Force Personnel Board, declined to classify Sanger as a conscientious objector or to accept his tender of resignation.

The standards for measuring the claims of in-service conscientious objectors are the same as the statutory tests applicable to pre-induction conscientious objectors. Gillette v. United States, 401 U.S. 437, 442, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); Christensen v. Franklin, 456 F.2d 1277, 1278 (9th Cir. 1972). To qualify as a conscientious objector the applicant must establish: first, that he is conscientiously opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); second, that his opposition is based upon “religious training and belief” as this concept has been developed in United States v. See-ger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed. 2d 733 (1965), and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); and third, that his objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). See Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). The applicant asserts a prima facie claim for such status if he makes nonfrivolous allegations “that, if true, would be sufficient under regulation or statute to warrant granting the requested reclassification . . . .” Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970). If the applicant meets this burden of proof, the burden shifts to the government to demonstrate a basis in fact for denial of the application. Ward v. Volpe, 484 F.2d 1230, 1235 (9th Cir. 1973); Silverthorne v. Laird, 460 F.2d 1175, 1179 (5th Cir. 1972) (dictum). After carefully reviewing the record, we conclude that Sanger did state a prima facie claim.

The Secretary denied Sanger’s application for failure to satisfy the third requirement of conscientious objector status, implying that expediency rather than sincerity prompted the application. Judicial review of this decision is very narrow. Indeed it has been described as the narrowest review known to law. Bishop v. United States, 412 F.2d 1064, 1067 (9th Cir. 1969), quoting Blalock v. United States, 247 F.2d 615, 619 (4th Cir. 1957).

As we review the Secretary’s decision, we must bear in mind that when a person enters into a contractual commitment with the government to serve his country, it is anticipated that he will fulfill his promise. The government has properly recognized, however, that a sincere conversion to principles dictating a conscientious objection to war may occur after a commitment to military service has been made. The Air Force, like other branches of the service, has set up appropriate procedures to hear such claims. The government not only has an interest in granting discharges to sincere conscientious objectors but also has an equal interest in preventing misuse of these procedures as a backdoor out of military service. Discharge of conscientious objectors from military service is required neither, by the Constitution nor by statute. DeWalt v. Commanding Officer, 476 F.2d 440, 442 (5th Cir. 1973).

The procedures established by the Air Force require that the Secretary of the Air Force make the final decision on Sanger’s application. The Secretary was not forced to grant Sanger’s application because the officers who interviewed Sanger believed him to be sincere. Although we stated in Rastin v. Laird, 445 F.2d 645, 649 (9th Cir. 1971), that investigatory hearings and interviews should be given greater weight than written statements, we did not imply that the Secretary must follow the recommendation of the interviewing officers. Their recommendation is only one of several factors that the Secretary may consider before he makes the final decision. When the sincerity of the applicant is at issue, the Secretary should give serious consideration to the recommendations of the officers who actually interviewed the applicant, but he need not follow those recommendations in every case (as, for example, when there are substantial indications that the officers may have overlooked salient facts).

Nor does Tressan v. Laird, 454 F.2d 761 (9th Cir. 1972), compel the Secretary to grant Sanger’s application. There we held that late crystallization of conscientious objector beliefs alone is an insufficient ground for denying a discharge, but we did not rule out an adverse decision when there is “some other factor casting doubt on the good faith of the applicant . . . .” Id. at 763 n. 1.

Because of procedural irregularity, however, we are unable to affirm the district court in its finding of basis in fact. Although the Air Force is not required to discharge in-service conscientious objectors, once such mechanisms are established they must meet at least the minimal standards of “procedural regularity and basic fair play.” Gonzales v. United States, 348 U.S. 407, 412, 75 S.Ct. 409, 412, 99 L.Ed. 467 (1955). When the Air Force establishes regulations, it should follow them. United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969).

Air Force regulations require that “[t]he reasons for an adverse decision will be made a part of the record and will be provided to the individual.” 32 C.F.R. § 888e.28 (1974). This requirement is dictated by basic considerations of fairness: The in-service applicant should know the reasons for the denial of his application so that he may be able effectively to seek judicial relief. Cf. Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955). Moreover, the reviewing court must know the reasons for the adverse decision in order adequately to review the Secretary’s decision within the narrow scope permitted. United States ex rel. Checkman v. Laird, 469 F.2d 773, 781, 783 (2d Cir. 1972) (dictum).

The reasons stated by the Secretary are as follows:

Upon recommendation of the Air Force Personnel Board, the Secretary of the Air Force, on December 14, 1972, declined to classify First Lieutenant Roger G. Sanger, [ XXX-XX-XXXX ] FV, as a Conscientious Objector within the meaning of AFR 35-24. The record does not demonstrate that expediency is not the basis of his claim. In addition, he has not satisfied the requirement to demonstrate that his beliefs are sincerely and deeply held.

The Secretary’s statement, standing alone, is of little assistance to a reviewing court. We realize that this Air Force procedure utilizes military officers who cannot be expected to elaborate their decisions with the deftness of a regulatory agency. Therefore, we do not require elaborate findings of fact to accompany the decision. United States v. Willson, 452 F.2d 529, 532 (9th Cir. 1971). But unless the record clearly illuminates the factual basis, we do require from the Secretary’s statement at least some direction towards the factual basis. “Judicial review has meaning only when the court has before it a statement of the facts found and the conclusions reached.” United States v. Stickler, 452 F.2d 907, 911 (9th Cir. 1971) (dictum). In Thompson v. United States, 474 F.2d 323 (9th Cir. 1973), we endorsed the following practice:

[T]he board, if it is denying the status claimed because of its belief in the lack of sincerity in the applicant, should state that fact and at least briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion.

Id. at 326 n. 14 (dictum), quoting United States ex rel. Hemes v. McNulty, 432 F.2d 1182, 1187 (7th Cir. 1970).

Of course, as the court noted in United States v. Stickler, 452 F.2d 907, 911 (9th Cir. 1971), the use of a “ ‘boilerplate’ statement of reasons,” as in the present case, does not necessarily invalidate the Secretary’s decision. In Stickler, the factual reasons for the denial were unambiguously demonstrated in the record. The test is whether the reasons “can be determined from the agency record with reasonable certainity.” United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662 (1971). See United States v. Guaraldi, 468 F.2d 774, 777 (9th Cir. 1972); United States v. Marcovich, 454 F.2d 138, 141-142 (9th Cir.), cert. denied, 409 U.S. 933, 93 S.Ct. 242, 34 L.Ed.2d 188 (1972). In United States ex rel. Checkman v. Laird, 469 F.2d 773, 781 (2d Cir. 1972), the Second Circuit likewise required that the decision be supported by reference to some factual basis but noted that “[w]e will respect the agency’s determination as long as we can discern its path.”

Here we need not sift through the record to see if we might, to a reasonable certainty, discern the path. The Secretary stated that his decision was based upon the recommendation of the Air Force Personnel Board. That is the path he chose. Certainly it would satisfy all the requirements for judicial review if the Secretary incorporated by reference the reasons stated in this recommendation. If these reasons have a basis in fact in the record, the Secretary’s decision will be sustained.

We are unable to make such a determination, however, because the Personnel Board’s recommendation has not been produced by the government. This missing recommendation might well contain adequate reasons but it just as easily might not. We will neither speculate as to these reasons nor search the record for some other unstated reasons. United States v. Bautista, 497 F.2d 1196, 1198-1199 (9th Cir. 1974); see United States v. Haughton, 413 F.2d 736, 742-743 (9th Cir. 1969).

Sanger urges a broader ground for reversal. The record of an application for a conscientious objector discharge is composed of “[t]he investigating officer’s report, along with the individual’s application, all interviews with chaplains or doctors, evidence received as a result of the investigating officer’s hearing, and any other items submitted by the applicant in support of his case.” 32 C.F.R. § 888e.24(f) (1974). The applicant receives a copy of this record and has a right to respond. Id. As the record is forwarded to the local staff judge advocate for a legal review and then up the chain of command, a recommendation is attached at each level. 32 C.F.R. § 888e.26 (1974). Before the final decision is made by the Secretary of the Air Force, the regulations require :

Any additional information other than the official service record of the applicant considered by the Secretary of the Air Force or HQ USAF which is adverse to the applicant, and which the applicant has not had an opportunity to comment upon or refute, will be made a part of the record and the applicant will be given a 15-day opportunity from date of receipt of the additional information to comment upon or refute the material .

32 C.F.R. § 888e.28 (1974) (emphasis added).

Sanger argues that the recommendations and analyses of the record attached to his file at each level of the chain of command are “additional information” which he has right to comment upon and refute. He argues that the lack of opportunity to respond to the recommendations not only violates Air Force regulations but also violates due process. In support of this argument, he relies upon McGarva v. United States, 406 U.S. 953, 92 S.Ct. 2067, 32 L.Ed.2d 341 (1972); Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); United States v. Droge, 464 F.2d 439 (9th Cir. 1972); Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1971). The government responds that none of the recommendations contain “new information” but that each was based only upon statements contained in Sanger’s file, to which he previously has had an opportunity to respond. See Cole v. Clements, 494 F.2d 141, 144 (10th Cir. 1974).

While it is apparent that the Secretary would be in a better position to make a final decision if he had before him Sanger’s rebuttal to all the recommendations, we need not decide whether this procedure is required either by the due process clause or by Air Force regulations. The recommendation of the Air Force Personnel Board was not included in Sanger’s file as required by 32 C.F.R. § 888e.26 (1974). Thus, we do not know whether it contained “adverse information” to which Sanger had a right to respond pursuant to 32 C.F.R. § 888e.24 (f) (1974). Further, we need not decide whether Sanger’s right to review and comment, if any, is satisfied by allowing him to comment during a habeas corpus proceeding.

We reverse and remand to the district court with directions to issue the writ at the expiration of 60 days unless the following conditions are met: first, Sanger is afforded the opportunity to review and comment appropriately upon the recommendation of the Air Force Personnel Board; and second, the Board’s recommendation is filed with the district court. Thereafter, the district court should proceed consistently with this opinion.

Reversed and remanded.

       Honorable William G. East, Senior United States District Judge, District of Oregon, sitting by designation.

      . Air Force Regulation 21-10, dated February 19, 1970, provides:
      3. Functions of the Air Force Personnel Board. This Board reviews individual cases as they involve the application of Air Force personnel policy. . . . Primarily, it:
      a. Reviews and recommends final action on the following:
      (1) A request from an officer to be released from active duty, to resign or to be separated .

      . For example, if the recommendation of the Air Force Personnel Board outlines reasons similar to those contained in the report of the Office of the Judge Advocate General, we would be better able to review the Secretary’s reasons for his decision. That report stated:
      (1) The attempt by Lieutenant Sanger to persuade the Air Force that his C.O. application is supported by his commitment to financially unrewarding research instead of the pursuit of financially lucrative private practice, without mention of the fact that he attempted private practice but was unsuccessful because of a physical disability, raises a substantial question as to the weight to be accorded this argument of Lieutenant Sanger.
      (2) The failure of Lieutenant Sanger, in his numerous conversations and pieces of correspondence with representatives of the Air Force during the period 1 September 1971-19 May 1972, to make any reference to O.O. beliefs, accompanied by his filing of a O.O. application less than three months after receipt of active duty orders, presents a serious question as to the sincerity of those views.
      (3) The fact that his C.O. application was filed less than four months after his request to be assigned to Travis AFB was denied, in conjunction with the additional fact that his application for a medical genetics fellowship was granted on 20 March 1972 (which application was made at a time Lieutenant Sanger knew he liad an upcoming military commitment to fulfill and which fellowship conflicted with his military commitment since the fellowship involved full time duties for two years beginning 1 September 1972), raises a significant question as to whether Lieutenant Sanger’s C.O. application is based on considerations of personal expediency.