author: McMILLAN, District Judge.

text:
    Cecil C. RAM, M.D., Plaintiff, v. Margaret M. HECKLER, individually and in her official capacity as Secretary of the United States Department of Health and Human Services, Defendant.
    No. ST-C-85-148.
    United States District Court, W.D. North Carolina, Statesville Division.
    Aug. 30, 1985.

      Julia V. Jones, Moore, Van Allen, Allen & Thigpen, Charlotte, N.C., for plaintiff.
    Clifford Marshall, Asst. U.S. Atty., Charlotte, N.C., for defendant.
   TEMPORARY RESTRAINING ORDER

McMILLAN, District Judge.

This case came before the court on August 26, 1985, on a motion by the plaintiff, Dr. Cecil C. Ram, for preliminary and declaratory relief. Both parties were represented by counsel and evidence was submitted by affidavits.

The plaintiff is a urologist in Statesville, Iredell County, North Carolina. In 1982, he pleaded guilty to one misdemeanor count of violating 18 U.S.C.A. § 1003. The alleged violation apparently was a result of Dr. Ram’s submitting requests for payments from Medicare and Medicaid that improperly itemized procedures that should have been aggregated. The court’s present understanding is that federal regulations prohibited a separate charge for corrective surgery done within five days of diagnostic surgery. Dr. Ram was told he had violated § 1003 even though he had not withheld or misrepresented any information and in fact had followed billing procedures common among urologists in North Carolina and in North Dakota, where he practiced before coming to North Carolina.

In August, 1985, almost three years after the guilty plea, Dr. Ram was informed by the Department of Health and Human Services (HHS) that it was suspending for one year his right to participate in the Medicare program and instructing the state Medicaid agency to suspend him from that program also for one year. Letter of August 7, 1985 (exhibit A of plaintiffs complaint). The suspension was based on 42 U.S.C.A. § 1320a-7 (1983), which mandates suspension whenever a physician is convicted of a criminal offense related to the delivery of medical services under Medicare or Medicaid.

Dr. Ram was informed that he could request a hearing before an Administrative Law Judge (ALJ) to contest the length of the suspension but that the suspension was effective in fifteen days. The suspension has an enormous immediate impact on the doctor. It effectively prevents him from practicing medicine. This is so because over 60% of his patients receive Medicare or Medicaid, and because, due to hospital regulations, he will lose the privilege to admit any patients to the three hospitals available to him.

The impact of the suspension on patients in Iredell County is also extreme. Dr. Ram is one of only two urologists in the county. He is the only one who performs complex procedures such as radical cancer surgery and prosthetic surgery. In addition, he performs about half of all the surgery at Lowrance Hospital, and the majority of urological procedures at Iredell County Hospital. Finally, due to the short notice of the suspension (thirteen days), Dr.. Ram has been unable to arrange for appropriate alternative care for his present patients.

Consequently, Dr. Ram urges the court to enjoin the suspension pending his administrative appeal. Such an injunction is necessary, he argues, because it may be more than a year before his administrative appeal is heard. In that case, any remedy might well be too late.

I.

The first issue is whether the court has jurisdiction to grant a preliminary injunction. The attorney for HHS argues that the court does not because the relevant statute, 42 U.S.C.A. § 1320a-7(e) (Supp. 1985), does not provide for injunctive relief. The government argues that this reflects a Congressional intent that suspensions not be enjoinable and that they be effective upon preliminary determination. The argument is that Congress meant to prevent Medicare fraud from continuing during the period after the original determination by the Secretary that the physician had been convicted of Medicare fraud and before the final agency decision on the matter. Under the government’s argument, the court has no jurisdiction at all until a final agency determination has been reached.

The government’s argument is ill-founded. Section 1320a-7(e) provides that

any person who is the subject of an adverse determination ... under this section shall be entitled ... to judicial review of the Secretary’s final decision after [an agency] hearing as is provided in section 405(g) of this title.

42 U.S.C.A. § 1320a-7(e) (Supp.1985). Consequently, § 405(g) is the appropriate section to look to in deciding whether this court may enjoin the suspension here.

Section 405(g) does not expressly provide that a court may enjoin administrative action prior to a pending administrative hearing and a final decision. The exact relevant language of the section is:

Any individual, after a final decision by the Secretary made after a hearing in which he was a party, may obtain review of such decision by a civil action____ The court shall have the power to enter ... a judgment affirming, modifying, or reversing the decision of the Secretary____

42 U.S.C.A. § 405(g) (1983).

However, in Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), the Court held that injunctive relief was permissible under the statute. There, the plaintiff class challenged procedures instituted by the Secretary to recoup over-payments in old-age, survivors, and disability insurance programs. The statute itself allowed the Secretary to recoup over-payments by reducing the amount of future payments to which the overpaid person was entitled. Under the Secretary’s procedure, once an ex parte determination of overpayment was made, the recipient could file a written request for reconsideration. If the reconsideration was unfavorable to the recipient, recoupment began. Only if the recipient continued to object did he have the opportunity for an oral hearing, something deemed quite important because intent was a factor in overpayment decisions.

The district court found the Secretary’s procedure unconstitutional and enjoined the Secretary from beginning recoupment in any case prior to holding a hearing in the case. At the Supreme Court the agency argued that § 405(g) permitted only affirmance, modification, or reversal of the agency’s final decision on recoupment. The Secretary maintained that injunctive relief before a final decision was totally precluded.

According to the Supreme Court, however,

“absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.”

Id. at 705, 99 S.Ct. at 2559. The Court found that no language in the statute and nothing in the legislative history gave any indication that Congress intended to preclude injunctive relief in suits under § 405(g). Such relief was in fact essential to § 405(g) litigation:

Without the power to order a stay of recoupment pending decision, a court for all practical purposes would be unable to “reverse” a decision concerning prerecoupment rights.

Id.

Because § 1320a-7(e) simply refers us to § 405(g) on the issue of judicial review, the Court’s decision that injunctive relief is appropriate in actions under § 405(g) effectively settles the issue of injunctive relief under § 1320a-7(e). This court therefore has the authority under § 1320a-7(e) and § 405(g) to enjoin the Secretary from suspending the plaintiff from participating as a provider in the Medicare and Medicaid programs.

II.

The next question is whether in the circumstances of this case a preliminary injunction should issue. The standard in the Fourth Circuit for deciding whether to issue a preliminary injunction is the balance-of-hardship test. Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977). Under this test the district court’s decision must be based on a flexible interplay of four factors: (1) the likelihood of immediate irreparable harm to plaintiff without the injunction; (2) the likelihood of harm to defendant with the injunction; (3) plaintiff’s likelihood of success on the merits; and (4) the public interest. Telvest, Inc. v. Bradshaw, 618 F.2d 1029, 1032 (4th Cir.1980).

Balancing the Harm

The first step is to balance the likelihood of harm to the plaintiff without the injunction against the likelihood of harm to the defendant with the injunction, that is, to compare the first two factors above. Blackwelder, 550 F.2d at 195.

The suspension of the plaintiff’s privilege to participate as a medical service provider in Medicare and Medicaid became effective on August 22, 1985. The court understands that because the plaintiff doctor is a urologist, a high percentage (around 60%) of his patients are elderly and on Medicare or Medicaid. Dr. Ram is effectively foreclosed from treating thesé patients any longer. In addition, because the three hospitals available to him require staff doctors to be available to care for Medicare and Medicaid patients on an emergency basis, Dr. Ram will lose staff privileges and therefore be unable to treat any hospitalized patients. This will destroy most of his ability to earn a living, as shown by the fact that he does over half of all the surgery at Lowrance Hospital and the majority of the urological procedures at Iredell Hospital. In addition, it will require him to close his urological clinic.

There is no doubt that Dr. Ram faces immediate overwhelming harm if an injunction is not issued. Furthermore, this harm is clearly irrevocable: nothing HHS later does could possibly remedy the harm. Dr. Ram’s reputation and practice may be shattered. He will be deprived of much of his income for a year and his patients will suffer. The irrevocable nature of the damage is exacerbated by the fact that HHS may not even reach Dr. Ram’s administrative appeal until after the suspension ends a year from now!

On the defendant’s side, there will be no harm at all to HHS if the suspension is stayed pending administrative appeal. HHS has waited three years to suspend Dr. Ram; it can without prejudice wait another. Furthermore, even taking at face value the reason offered by the government to justify the assertion that Congress intended no injunctive relief to be available, there is absolutely no evidence that Dr. Ram will “continue” to defraud Medicare and Medicaid if in fact he ever defrauded them. In this respect, because three years have passed, the government should offer some evidence that Dr. Ram will again “defraud” the government. The evidence that Dr. Ram pleaded guilty to a misdemeanor count of violating § 1003 three years ago (when the facts as understood by this court at this time indicate that he was not guilty of violating that statute), does not suggest he will defraud the government during the pendency of the administrative appeal.

Thus on the plaintiff’s side, we have an overwhelming, immediate, and irrevocable harm if no injunction is issued. On the defendant’s side, we have absolutely no harm if an injunction is issued. There may indeed be cases under § 1320a-7 in which an injunction would harm the government because the doctor would continue to defraud the government; this is not one.

Likelihood, of Success on the Merits

The first two factors from Telvest aside, the court now considers the third factor in the equation for preliminary relief — the likelihood that the plaintiff will succeed on the merits when his appeal is heard.

The irreparable harm to plaintiff if no injunction is granted vastly outweighs the harm to the government if an injunction is granted. In such a case, plaintiff’s job is to raise “questions going to the merits that are so serious, substantial, difficult and doubtful as to make them fair ground for litigation and thus for more deliberate investigation.” Blackwelder, 550 F.2d at 195 (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). In other words, where “serious issues” are before the court and the status quo ante litem can be maintained without excessive burden on the defendant, this should be done because “otherwise effective relief may become impossible.” Blackwelder, 550 F.2d at 194-95.

In this case, the plaintiff has clearly shown that “serious issues” exist as to the merits. Moreover, the plaintiff even satisfies the higher standard of being likely to succeed on the merits. There are several parts to this proposition.

First, the plaintiff pleaded guilty to a violation of § 1003 for acts that under the present understanding of the court do not qualify as violations of that section. The statute states that

Whoever knowingly and fraudulently demands ... to have any ... debt due from the United States ... paid by virtue of any false, forged, or counterfeit ... instrument, shall be fined ... or imprisoned ..., or both____

18 U.S.C.A. § 1003 (1976) (emphasis added). Apparently the regulations stated that a doctor could not be paid separately for diagnostic surgery and corrective surgery done within five days of each other. If the two were done within five days, the doctor was to be paid only for one procedure. At the hearing the court asked counsel what Dr. Ram had done to violate the law. His lawyer stated, without contradiction by the United States attorney, that he had sent, and received payment for, a number of bills which on their face showed separate charges for a diagnostic procedure and a corrective procedure performed within five days of each other. Such a bill may well be an overcharge, but it is a far cry short of being “fraudulent,” “false,” “forged” or “counterfeit.” Indeed, Dr. Ram’s affidavit states that his requests for reimbursement were based on the same method of computation of charges used by other urologists in North Carolina and in North Dakota, the state in which Dr. Ram previously practiced.

Consequently, there is a distinct possibility that Dr. Ram’s actions did not even violate § 1003. This is still more likely when one considers the fact that § 1003 is a criminal statute and must therefore be strictly construed. The court has examined two cases where appellate courts have upheld § 1003 convictions. In United States v. Rangel, 585 F.2d 344 (8th Cir.1978), the defendant, an employee of the Environmental Protection Agency (EPA), submitted vouchers to the EPA requesting reimbursement for travel expenses. To each voucher was attached a photocopy of a customer’s copy of the Master Charge sales receipt. However, the photocopies in each instance showed greater expenses than did the copies retained by the merchants. The court found that a deliberate act was necessary to alter the customer’s copies and photocopy them so that the alterations would not be discernible. Thus, the evidence was obviously sufficient to show fraud. Id. at 346-47.

In Tucker v. United States, 624 F.2d 1029 (Ct. of Claims 1980), the plaintiff was an employee of the Federal Aviation Administration (FAA) who was fired for violating § 1003 by submitting false travel expense vouchers. The plaintiff there expressly claimed expenses for his wife and children when they did not in fact accompany him. The amounts involved were quite large and were questioned by the FAA. He resubmitted them apparently unchanged. In each case, he had signed them certifying their correctness. The court found that substantial evidence showed plaintiff had “intentionally and with the purpose to defraud the government falsified these two vouchers.” Id. at 1033.

Those cases involved actions several orders of magnitude more reprehensible than the actions, as presently understood, of Dr. Ram. Dr. Ram, on the showing before the court, did not “knowingly” or “fraudulently” use any “false or forged” instrument. What he submitted, we are told, was factually correct. HHS simply paid the bills, without objection, in violation of its own regulations.

The second reason why Dr. Ram will probably prevail on the merits is that a suspension should terminate once the Secretary finds that “the basis for such determination [that the doctor has defrauded Medicare or Medicaid] has been removed” and that “there is reasonable assurance that it will not recur.” 42 U.S.C.A. § 1320a-7(d) (Supp.1985). Here, where three years have elapsed since the actions which gave rise to the § 1003 conviction occurred, the fact that no similar acts have occurred in the interim strongly suggests that “the basis for such determination has been removed.” Furthermore, the fact that they have not recurred in three years suggests that they will not recur. Where three years have elapsed, these inferences can reasonably be made.

The third reason why Dr. Ram will probably prevail either at the hearing or at judicial review is that § 1320a-7(a)(l) itself suggests that any suspension should have taken place soon after the plea of guilty. The statute says:

When the Secretary determines that a physician has been convicted ... the Secretary ... shall bar [the physician],

42 U.S.C. § 1320a-7(a)(l) (emphasis added). The language implies that the bar shall be raised more or less concurrently with the Secretary’s determination that the physician has been convicted of Medicare-Medicaid fraud. Here the government has not shown — and it cannot show — that the Department’s knowledge of Dr. Ram’s conviction is of recent origin. Thus, HHS has violated the intent of the statute by delaying so long.

This interpretation is buttressed by the fact that subsection 1320a-7(a)(2) twice directs the .Secretary, on determining that the physician . has been convicted, to “promptly ” do certain acts. Promptly of' course means “soon” if not immediately. The absence of that word in the prior subsection suggests to this court that the doctor should have been barred immediately if at all. This conclusion is based in part on the argument by the government at the hearing that Congress did not provide for a stay of a suspension pending an administrative hearing because it desired to prevent Medicare fraud in the interim. If that was Congress’s desire, Congress must surely have meant that the physician be barred as soon as the Secretary found that he has been convicted of Medicare fraud.

The final reason why Dr. Ram will probably succeed on the merits is based on a close reading of the Secretary’s regulation regarding the length of the suspension. According to 42 C.F.R. § 420.125 (1983) the following factors are to be considered:

(1) The number and nature of the program violations and related offenses;
(2) The nature and extent of any adverse impact the violations have had on beneficiaries;
(3) The amount of damage incurred by Medicare, Medicaid, etc.;
(4) Whether there are any mitigating circumstances;
(5) The length of sentence imposed by the court;
(6) Any other factors bearing on the nature and seriousness of program violations; and
(7) The previous conviction record of the party under Medicare and Medicaid.

With respect to these factors, the Secretary found:

(1) One misdemeanor violation of 18 U.S.C. § 1003;
(2) Minimal financial impact on Medicare beneficiaries;
(3) All damages had been repaid;
(4) The violation was of a “lesser degree of seriousness”;
(5) The sentence was six months suspended with one year probation and restitution plus a fine of $500;
(6) Restitution ($1,957.00 for 24 claims) was made long ago. In addition, the North Carolina Medicare carrier recouped $4,594.94 for related services that should not have been itemized.
(7) Dr. Ram had not been previously sanctioned under Medicare or Medicaid.

In addition to those factors, the Secretary considered the time elapsed since the “conviction.” Letter, supra.

It is immediately apparent in Dr. Ram’s case that the Secretary overlooked a great many things. She did not consider as mitigating circumstance the nature of Dr. Ram’s conviction. She did not consider whether or not Dr. Ram was in fact guilty of a § 1003 violation. She did not consider that while Dr. Ram pleaded guilty to a § 1003 violation, Dr. Ram was never informed by his attorney, the United States attorney, or the judge that suspension from the Medicare and Medicaid programs would necessarily result. If Dr. Ram had been advised of that, he might not have pleaded guilty. Further, the Secretary did not consider that the North Carolina Board of Medical Examiners had found no wrongdoing on the part of Dr. Ram.

In addition, the Secretary did not consider as a mitigating circumstance that Dr. Ram was calculating his bills in the same way as other North Carolina urologists. The Secretary did not consider as mitigating circumstances or other facts the impact of the suspension on the citizens of Iredell County. That is, she did not consider that Dr. Ram was one of only two urologists in Iredell County and the only one who performs complex procedures. If he is suspended, all his patients will have to travel to Charlotte, Winston-Salem, or other cities for treatment. Lastly, the Secretary did not consider impact of the suspension on Dr. Ram himself. Dr. Ram, as a urologist with largely elderly patients, is hit hard by a suspension. The Secretary did not mention this.

The Public Interest

The final factor in the decision to issue a preliminary injunction is how an injunction affects the public. Here, if Dr. Ram cannot participate as a Medicare/Medicaid service provider, Iredell County and his patients will be significantly harmed. He is, as before mentioned, one of only two urologists in the county and the only one who performs complicated procedures. He does the majority of the urological procedures in one of the two hospitals in Iredell, and 50% of all the surgery in the other hospital. In addition, because three years have passed since his questionable conviction, he has acquired a substantial number of patients. Because Dr. Ram has not had enough time to arrange for a replacement, these patients will be left without a doctor if Dr. Ram is suspended.

On the other side of the public interest equation is the interest in preventing Medicare fraud from continuing. In this case, there is substantial evidence that such fraud, if it ever existed, has not continued. There is no evidence over three years that it has continued.

Finally, there is a public interest in preventing mindless infliction of punishment which does not comport with the directions of Congress and is simply unnecessarily punitive.

III.

IT IS THEREFORE ORDERED that, pending further orders of the court, the suspension of the plaintiff is null and void, and that pending the exhaustion of his administrative appeals, plaintiff is free and shall be allowed to participate fully as a provider of medical services in the Medicare and Medicaid programs. As part of this order, the defendant shall instruct the state Medicaid agency to reinstate the plaintiff to full participation pending his administrative appeal.

Plaintiff’s reinstatement will remain in effect until further order of this court.

The clerk will set the case for hearing, by September 10, 1985, on the question whether this temporary restraining order shall continue pending final decision on the merits.


source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    Cary COHEN, v. VIRGINIA ELECTRIC & POWER CO.
    Civ. A. No. 84-0577-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Aug. 30, 1985.

      Robert P. Geary, Geary & Davenport, Richmond, Va., for plaintiff.
    Jack McClard, Ray V. Hartwell, III, Hun-ton & Williams, Richmond, Va., for defense.
   OPINION

WARRINER, District Judge.

Presently before the Court is defendant’s motion for costs and attorney’s fees brought pursuant to Section 505 of the Copyright Act, 17 U.S.C. § 505 (1982).

On 10 May 1985 this Court granted plaintiff leave to withdraw his complaint thus defendant is the prevailing party. Defendant then filed its motion for costs and attorney’s fees pursuant to Fed.R.Civ.P. 11 and also pursuant to Section 505 of the Copyright Act. Plaintiff filed his memorandum in opposition to that motion and this Court conducted a hearing on the petition for attorney's fees on 6 August 1985. At that hearing I declined to impose sanctions on the basis of Rule 11. I took under advisement the issue of whether defendant is entitled to costs and attorney’s fees under Section 505. At the conclusion of the hearing, counsel for both parties agreed to confer to determine whether the parties could reach a settlement on the issue. I have been advised that they have been unable to do so. Hence I must decide defendants’ entitlement to counsel fees as the prevailing party. The issue presented is whether a prevailing defendant is to be treated less favorably than a prevailing plaintiff in awarding counsel fees and costs under § 505.

Section 505 of the Copyright Act provides that:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

Neither the Fourth Circuit nor the Supreme Court has interpreted Section 505 in this context. The legislative history of the Section available to me is comprised of the following sentence: “Under Section 505 the awarding of costs and attorney’s fees are left to the court’s discretion, and the section also makes clear that neither costs nor attorney’s fee can be awarded to or against ‘the United States or an officer thereof.’ ” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 163, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5779.

Plaintiff contends that a prevailing defendant is entitled to counsel fees only if it can show that the plaintiff’s suit was frivolous, vexatious, brought in bad faith or was intended merely for harassment. In his memorandum in opposition to defendant’s motion, plaintiff observes that Section 505 of the Copyright Act is similar in many respects to the attorney’s fees provision of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5(k) (1982) and to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 (1982). The Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), held that in order for a defendant to recover attorney’s fees under Title VII, defendant must show that plaintiff’s action was frivolous, meritless, or vexatious. Id. at 421, 98 S.Ct. at 700. Similarly, under 42 U.S.C. § 1988 a prevailing defendant is entitled to attorney’s fees “only where it is shown that [plaintiff’s] suit was clearly frivolous, vexatious, or brought for harassment purposes.” Senate Report No. 1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad. News 5908, 5912. This interpretation of the meanings of the two statutes prevails despite the wholly even-handed nature of the language of both statutes. Thus it is clear that the words Congress uses in such statutes does not necessarily convey the intent of Congress as discerned by the courts.

Plaintiff’s argument that the Court should interpret Section 505 of the Copyright Act in a similar fashion and to allow prevailing defendants to recover attorney’s fees only where a plaintiff’s claim is merit-less, frivolous, or vexatious is not persuasive, however. Unlike that of Section 505, the legislative history of 42 U.S.C. § 1988 reflects a congressional intent (albeit belied by the statutory language) to enable plaintiffs to recover attorneys’ fees readily but to allow defendants reimbursement for fees only where a plaintiff’s suit was frivolous or otherwise without merit. As previously noted, the Senate Report recommending the enactment of the Civil Rights Attorney’s Fees Award Act of 1976 explicitly makes such distinction between those circumstances under which a defendant, as opposed to a plaintiff, may recover. The Report also cites with approval cases in which the federal courts previously had made such a distinction. See Senate Report No. 94, supra, at 5, reprinted in 1976 U.S.Code Cong. & Ad.News at 5912.

Although nothing in the legislative history of Title VII explicitly states that a defendant may recover attorney’s fees only where the plaintiff’s suit was frivolous, vexatious, or otherwise brought in bad faith, the Supreme Court nevertheless discerned from the legislative history that Congress did not intend plaintiffs and defendants to be on an equal footing with respect to recovery of attorney’s fees. The legislative history, according to the Court indicates that:

the fee provision was included to “make it easier for a plaintiff of limited means to bring a meritorious suit.” During the Senate floor discussions of the almost identical attorney’s fee provisions of Title II, however, several senators explained that its allowance of awards to defendants would serve “to deter the bringing of lawsuits without foundation,” “to discourage frivolous suits,” and “to diminish the likelihood of unjustified suits being brought.”

Christiansburg Garment Co., 434 U.S. at 420, 98 S.Ct. at 700 (footnotes omitted). From this legislative history the Court ruled that “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421, 98 S.Ct. at 700.

No analogous legislative history exists with regard to Section 505 of the Copyright Act or its predecessor provisions. In fact, absolutely nothing in the legislative history of Section 505 indicates that Congress intended a different standard to apply where a prevailing defendant, as opposed to a prevailing plaintiff, seeks to recover costs and attorney’s fees. Absent an explicit statement from Congress varying the plain language of the statute, I will not take the unwarranted liberty of applying to defendant a standard different from that I would apply to a prevailing plaintiff. The language of the statute surely gives me no ground for treating the parties differently.

The lack of legislative history justifying differing standards constrains me not to follow Diamond v. Am-Law Publishing Corp., 745 F.2d 142 (2d Cir.1984). In Diamond the Second Circuit held with respect to § 505 that “a distinction exists between the award of fees to a prevailing plaintiff and an award to a prevailing defendant.” Id. at 148. The court ruled that a prevailing defendant may recover attorney’s fees under Section 505 only where “the plaintiffs claims are objectively without arguable merit.” Id.

My research into the line of precedent relied upon by the Diamond court reveals that Diamond is the culmination of a long line of bootstrapping from nothing to something. The starting point of Second Circuit decisions interpreting the award of attorney’s fees under the Copyright Act is Edward B. Marks Music Corp. v. Continental Record Co., 222 F.2d 488 (2d Cir.1955). In that case the court, in an exercise of its discretion, declined to award attorney’s fees to defendants on appeal because the suit brought by plaintiff was “not vexatious” and because the Court could find “no basis for questioning the good faith of the plaintiff.” Id. at 493.

The Second Circuit had not held in Edward B. Marks Corp. that a distinction exists between the basis for an award of fees to a prevailing defendant and an award to a prevailing plaintiff. Neither did the Edward B. Marks Corp. court hold that in all cases a defendant must prove that the suit was “vexatious” or brought in bad faith before it might be entitled to counsel fees. The court in Edward B. Marks Corp. only listed some factors it considered in determining whether in its discretion the award of attorney’s fees was warranted in that case. Edward B. Marks Corp. nevertheless was mis-cited thirteen years later by a district court for the proposition that an award of attorney’s fees to a defendant could be made only where the plaintiff brought “a baseless, frivolous, or unreasonable suit, or one instituted in bad faith.” Breffort v. I Had A Ball Company, 271 F.Supp. 623, 627 (S.D.N.Y.1967).

The Diamond court also cited Mailer v. R.K.O. Teleradio Pictures, Inc., 332 F.2d 747 (2d Cir.1964), to support its holding that the prevailing defendant can recover only when “the plaintiff’s claims are objectively without arguable merit.” Diamond, 745 F.2d at 148. The court in Mailer in fact did not hold that a different standard applies to prevailing defendants in the award of attorney’s fees under the Copyright Act. As had the court in Edward B. Marks, the Mailer panel simply stated that the district court had not abused its discretion in awarding minimal attorney’s fees to defendants and in justifying such award on the fact that the plaintiff’s claim was neither “synthetic” nor “capricious.” Id. .at 749.

Even if the Second Circuit’s somewhat free reading of its own precedent were not problematic in itself, the Second Circuit’s statement of the law in Diamond is improper. . As noted previously, absolutely nothing in the statute or in the legislative history gives to courts any authority to distinguish between an award of attorney’s fees to a prevailing defendant and an award to a prevailing plaintiff.

Nor am I persuaded that a distinction should bp made in an award because there is some need to encourage plaintiffs to file suit which differs in public benefit from a need to encourage defendants to defend suits. Copyright laws are not intended for the benefit of prospective plaintiffs. Who may be a plaintiff and who may be a defendant doesn’t define the difference between good guys and bad guys. Nor can we assume that plaintiffs are inherently impecunious while defendants have deep pockets. Entities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants. Nor can it be argued on any principled ground that society is better off when a plaintiff files and wins a copyright infringement suit than when a defendant defends and wins a copyright infringement suit. Indeed, if there is any difference between the two we must remember that it wasn’t the defendant who chose to litigate.

In any event this Court is not bound by the Second Circuit’s interpretation of the statute. Since Congress has made no indication to the contrary, explicitly or implicitly, I am bound by the plain language of the statute. The statute surely says nothing more or less than that a judge is to use an even-handed approach in awarding attorney’s fees to a prevailing party. See H.R.Rep. No. 1476, supra, at p. 163, reprinted in U.S.Code Cong. & Ad.News at 5779. Looking at the case in this light I perceive that although plaintiff had a basis for believing that discovery might disclose liability, he did not pursue discovery with zeal. Indeed, it was defendant who pursued discovery and it was defendant who discovered that facts which plaintiff reasonably thought might exist, did not exist. Though there was no objective bad faith in instituting the action, and I suspect there was no subjective bad faith, nevertheless plaintiff caused defendant considerable expense and trouble in plaintiff’s losing cause. In other words, plaintiff lost and deserved to lose and there is no reason why the discretion of the Court should not be exercised to award fees in accordance with the provisions of the statute. Accordingly, counsel fees will be awarded.

Having reviewed the parties’ respective memoranda as to the amount to be awarded, I find room for maneuver on the part of both. Some of the objections as to duplicative effort, charging in one-quarter hour increments, excessive time for drafting, and the like, appear to have merit. Counsel, being good lawyers, can resolve these areas of dispute without agreeing on the Court’s substantive ruling. If they are unable to resolve all their disagreements, they can narrow their differences. Counsel shall confer together to this end and shall obtain a date for a status conference ten days to two weeks hence to report their success.

And it is so ORDERED.

      . The Court in Edward B. Marks Corp. relied upon Official Aviation Guide Company v. American Aviation Associates, 162 F.2d 541 (7th Cir. 1947) and Overman v. Loesser, 205 F.2d 521 (9th Cir.1953).
      In Official Aviation Guide Company, the Seventh Circuit held that the district court had not abused its discretion in refusing to award attorney’s fees to prevailing defendants. The Court noted that the case was "hard-fought and prosecuted in good faith,” and stated that it would reverse a district court only where there had been an abuse of discretion. 162 F.2d at 543. In Overman, the Ninth Circuit refused to award attorney’s fees for the appeal because the case was “hard-fought” and there was "no indication that the appeal was pursued in bad faith.” 205 F.2d at 521. Neither in these cases nor in Edward B. Marks Corp. did a court indicate that different standards applied in the award of attorney’s fees to a prevailing defendant as opposed to a prevailing plaintiff.


author: MYRON H. THOMPSON, District Judge.

text:
    William E. BROCK, etc., Plaintiff, v. Janet T. HUTTO, et al., Defendants.
    Civ. A. No. 84-T-996-N.
    United States District Court, M.D. Alabama, N.D.
    Aug. 30, 1985.

      Leighton Beers, Office of the Sol., U.S. Dept, of Labor, Birmingham, Ala., for defendants.
    Bruce J. Downey, III, Henry C. Barnett, Jr., Capell, Howard, Knabe & Cobbs, Montgomery, Ala., for DeHaven and AAA Employment, Inc.
    Clyde C. Owens, Jr., Ball, Ball, Duke & Matthews, Montgomery, Ala., for Janet Hutto.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

The Secretary of Labor has brought this lawsuit claiming that two employment agencies located in Montgomery, Alabama and those responsible for the operation of the agencies are subject to and have violated the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C.A. §§ 201-219. Based upon the evidence presented at a nonjury trial, the court concludes that the Secretary’s claim has merit and warrants appropriate relief.

I.

AAA Employment, Inc. (AAA) is a corporation located in St. Petersburg, Florida. It is managed generally on a day-to-day basis by John DeHaven, its founder and chairman of the board. AAA operates a number of local employment agencies throughout Alabama, Georgia, Mississippi, and Florida. Each local agency is operated according to a so-called “partnership agreement.” Under this agreement, there are two types of partners, each sharing 50% of the profit of the local agency: a “worker” partner, who is generally a local person responsible for the day-to-day operation of the local agency; and an “investor” partner, who puts up the initial capital and is either AAA or its chairman of the board, John DeHaven. The money DeHaven receives as an investor partner is his salary for his services to the entire operation. All of the local agencies, irrespective of whether the investor partner is AAA or DeHaven, are under the direct supervision and control of AAA; and, since DeHaven is the principal manager of AAA, all local agencies are also under his direct supervision and control.

Between 1981 and 1983, AAA was an investor partner for two local agencies in Montgomery, Alabama. The manager and worker partner of these two agencies was Janet T. Hutto.

In this lawsuit, the Secretary of Labor has sued AAA, DeHaven and Hutto. He charges that they failed to comply with the minimum wage, overtime compensation and record keeping provisions of the FLSA in the operation of the two agencies between 1981 and 1983.

II.

The first issue for the court is whether the two Montgomery agencies were subject to the FSLA between 1981 and 1983. The court finds that they were.

The Secretary is proceeding primarily on an “enterprise” theory of coverage. The FSLA is applicable to an “enterprise engaged in commerce.” 29 U.S.C.A. §§ 206, 207. An enterprise is deemed to have done such if the following two elements are met: (1) it “has employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person,” 29 U.S.C.A. § 203(s); and (2) the enterprise’s annual gross volume of business done is not less than $250,000, 29 U.S.C.A. § 203(s)(l). The evidence satisfying the first element is clearly present. As to the second element, the evidence is undisputed that each of the local Montgomery agencies did not have sufficient dollar volume of business to come within the Act’s definition of enterprise; however, the evidence is also undisputed that AAA and all its local agencies, considered together, met the Act’s dollar volume requirement. The issue of coverage, therefore, turns on whether AAA and its local agencies, including the two Montgomery agencies, constituted a single enterprise and thus fell within the Act’s coverage.

The FSLA defines an enterprise as

related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments by one or more corporate or other organizational units____

29 U.S.C.A. § 203(r). To meet this statutory definition, the following three elements must be present: (1) related activities; (2) unified operation or common control; and (3) a common business purpose. Donovan v. Easton Land & Development, Inc., 723 F.2d 1549, 1551 (11th Cir.1984). All three elements were present in the operation of AAA and its local agencies between 1981 and 1983.

A. Related Activities

Activities are related when they are “the same or similar” or when they are “auxiliary and service activities.” “Auxiliary and service activities” are those involving “operational interdependence in fact.” Id., quoting Brennan v. Veterans Cleaning Service, Inc., 482 F.2d 1362, 1367 (5th Cir.1973).

Viewed both horizontally (the relationship among the local agencies) and vertically (the relationship between AAA and its local agencies), the activities of AAA and its local agencies were the same as well as operationally interdependent. AAA and the local agencies were all dedicated to performing the same activity: locating jobs for clients seeking employment in areas servéd by AAA and its local agencies. Toward this end, the local agencies worked together in varying ways. The agencies not only placed clients in their own respective localities, they worked together in placing clients in each other’s localities. They trained employees together, and employees regularly transferred from one local agency to another. An agency in crisis often received help from another agency. AAA was, however, the central source of supervision and assistance for all the local agencies. As described in more detail in Part II B below, AAA developed and closely supervised a uniform plan of operation for all local agencies.

B. Common Supervision and Control

In determining whether there was common supervision and control over several business activities, a court must look beyond formalistic structure to the actual and pragmatic operation. Dunlop v. Ashy, 555 F.2d 1228, 1232 (5th Cir.1977). See also Donovan v. Grim Hotel Co., 747 F.2d 966, 970 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2654, 86 L.Ed.2d 272 (1985). Taking this approach, the court must conclude that the common supervision and control exercised over the local agencies by AAA and, in turn, by DeHaven was broad and substantial.

Although AAA and DeHaven claimed that their relationship with the local agencies was that of an equal partnership, with AAA or DeHaven as the investor partner and a local person as the working partner, the relationship was in fact more feudal. All local agencies were initially funded by AAA or DeHaven as investor partners. All significant decisions regarding the operation of the agencies were made by AAA and DeHaven, with the working partners and local management responsible for only the day-to-day operation of the agencies. AAA developed a uniform plan covering every aspect of the operation of the local agencies, including employee hiring and training, bookkeeping, advertising, and placement of clients. In fact, the employees and management of AAA and the local agencies referred to AAA as the “home office.” The local agencies were required to report to AAA at least twice a week on the success of their operations, and AAA conducted frequent audits of the local agencies to determine whether they were complying with the AAA program. The failure of a local agency’s worker partner to comply with the AAA program would have resulted in AAA or DeHaven’s certain termination of the agency, with all significant assets, including the tradename, good will, and business records, going to AAA or DeHaven.

Indeed, only AAA and DeHaven “could approve ... adherence to federal minimum wage and overtime requirements,” Grim Hotel Co., 747 F.2d at 970; such evidence “is a most significant control indicator in a wage and hours action.” Id.

C. Common Business Purpose

The related activities, the centralization of control, and the interdependence present here are also all indicators of common business purpose. Grim Hotel Co., 747 F.2d at 971. They reflect “[m]ore than a common goal to make a profit.” Brennan, 482 F.2d at 1367. They reflect, as already noted, the common purpose of locating jobs for clients seeking employment in all areas served by AAA’s network of local agencies.

III.

The Secretary seeks a remedial injunction requiring that AAA, DeHaven, and Hutto pay unpaid wages and overtime compensation, and he seeks a prospective injunction against future violations of the FLSA by AAA and DeHaven. He also seeks liquidated damages from AAA and DeHaven.

A.

The FSLA is binding only against an “employer,” 29 U.S.C.A. §§ 206-07, which is defined under the Act as “any person acting directly or indirectly in the interests of an employer in relation to an employee,” 29 U.S.C.A. § 203(d). The issue, therefore, for the court is whether AAA, DeHaven, and Hutto were employers. The evidence reflects that they were.

The definition of employer is “expansive,” Grim Hotel Co., 747 F.2d at 971, quoting Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 431, 38 L.Ed.2d 406 (1973); an employer is one who has “ ‘managerial responsibilities’ and ‘substantial control of the terms and conditions of the [employer’s] work.’ ” Id. Furthermore, “[t]he overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Grim Hotel Co., 747 F.2d at 972, quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983).

The evidence here, as stated, is that AAA, DeHaven, and Hutto, separately and together had broad and substantial managerial control over the operation of the two Montgomery agencies. Hutto was responsible for the day-to-day operation of the two agencies, while AAA and DeHaven held the purse strings and were responsible for the over-all direction of the two agencies. Under these circumstances, AAA, DeHaven and Hutto were employers within the meaning of the FSLA, and were subject to the Act during the time period in question.

B.

The Secretary seeks a remedial injunction requiring that AAA and DeHaven pay unpaid minimum wages and overtime compensation for a period of three years and that Hutto pay such for a period of two years. The court is of the opinion that such relief is appropriate here.

The Portal-To-Portal Pay Act, 29 U.S. C.A. §§ 251-262, provides a two-year limitations period on recovery of unpaid minimum wages and overtime compensation under the FLSA, 29 U.S.C.A. § 255(a). However, where the violation of the act is “willful,” a three-year limitations period is provided. Id. The Secretary contends that AAA and DeHaven willfully violated the act.

The test for willfulness is whether “the employer knew or suspected that his actions might violate the FLSA,” Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972); the employer need only “know the FLSA was in the picture,” id. As explained by the former Fifth Circuit,

The entire legislative history of the 1966 amendments of the FLSA indicates a liberalizing intention on the part of Congress. Requiring employers to have more than awareness of the possible applicability of the FLSA would be inconsistent with that intent.

Id. See also Castillo v. Givens, 704 F.2d 181, 193 (5th Cir.), cert. denied, — U.S. -, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983)

AAA and DeHaven were fully aware of the possible application of the Act to them. On numerous occasions before and during the period in question, FLSA officials visited AAA’s central office and local agencies and informed the officers, managers and other personnel that their operations were covered by the FLSA. But more importantly, the evidence here reflects that AAA and DeHaven intentionally had time records falsified so as to prevent discovery of their violations of the FLSA. AAA and DeHaven required that the managers and other employees of the local agencies fraudulently indicate on time sheets submitted to AAA that they had worked 37V2 to 40 hours a week even though they had worked substantially more hours. AAA and DeHaven also told FLSA officials that they were in compliance with the Act, irrespective of the Act’s coverage, when AAA and DeHaven knew that they were not in compliance and never intended to be so.

AAA and DeHaven should therefore be liable for unpaid minimum wages and overtime compensation for a period of three years. The parties have stipulated that the liability for this period is $4,250.

Hutto may be held liable for a period of two years only. The parties have stipulated that the liability for this period is $1,400.

C.

The Secretary seeks a prospective injunction requiring that AAA and DeHaven comply in the future with the minimum wage, overtime compensation, and record keeping provisions of the FLSA.

The evidence is clear that for the last ten years or more AAA and DeHaven carefully concocted and engaged in a scheme designed to impede the Secretary’s enforcement of the Act. As already noted, they repeatedly assured the FLSA officials that, irrespective of the Act’s applicability to them, they were in full compliance with the Act, when in fact they knew that they were not in compliance and had no intention of ever complying with the Act. And further, they intentionally falsified time records to prevent the Secretary from ever discovering their noncompliance.

With this evidence, this court would be remiss not to place AAA and DeHaven under a prospective injunction, the knowing violation of which will result in immediate and substantial punishment by this court.

D.

The Secretary’s request for liquidated damages from AAA and DeHaven should also be granted. The Portal-To-Portal Pay Act provides that the court, in its discretion, may award liquidated damages under the FLSA, 29 U.S.C.A. § 216(b), unless “the employer shows to the satisfaction of the court that the act or omission ... was in good faith and that he had reasonable grounds for believing that his act or omission was not in violation of the [FLSA],” 29 U.S.C.A. § 260. As with “willfulness,” lack of good faith is demonstrated when an employer “knew or suspected that [its] actions might violate the [Act],” Reeves v. International Telephone and Telegraph Corporation, 616 F.2d 1342, 1353 (5th Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 857, 66 L.Ed.2d 800 (1981), quoting Coleman, 458 F.2d at 1142. For the reasons already given in part III B of this memorandum opinion, the Secretary is entitled to liquidated damages in the amount of $4,250 against AAA and DeHaven. AAA and DeHaven have not acted in good faith, and they did not have reasonable grounds for believing that their conduct did not violate the FLSA. See Reeves, supra.

IV.

Finally, DeHaven contends that judgment may not be entered against him in his personal capacity because the court lacks personal jurisdiction over him.

Courts and scholars differ as to whether state or federal jurisdictional principles apply when, as in this case, a lawsuit arises under federal law but service of process is effected pursuant to a state long-arm statute. E.g., Grim Hotel Co., 747 F.2d at 972 n. 9; DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264-69 (5th Cir.1983); 2 Moore’s Federal Practice ¶ 4.25[7] at 4-291 (1985); 4 Wright & Miller, Federal Practice & Procedure § 1075 at 312-13 (1969). However, this court need not resolve this issue since Alabama’s long-arm statute, Ala.R.Civ.P. 4.2(a)(2), authorizes the assertion of personal jurisdiction to the limits of federal law, that is, due process. Alabama Power Company v. VSL Corp., 448 So.2d 327, 328 (Ala.1984).

In Calder v. Jones, 465 U.S. 783, -, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984), the Supreme Court reaffirmed that “[t]he Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].’ International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).” In assessing whether this requirement has been met, the critical issue for the court is whether “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

DeHaven asserts that because he is not a resident or citizen of Alabama and was not an investor partner in any of the local agencies located in Alabama, the due process requirement has not been met. However, DeHaven created AAA and has for most part directed its activities throughout the southeast. The evidence reflects that he has also personally visited and placed telephone calls to the two Montgomery agencies on may occasions. Furthermore, this court is firmly convinced that he specifically directed the falsification of time records in the two Montgomery agencies as well as in other local agencies. Under these circumstances, DeHaven has had sufficient minimum contact with Alabama to have reasonably anticipated being haled into court here.

Nor may DeHaven hide behind the assertion that he acted only as a corporate functionary of AAA. Most states recognize “the general rule ... that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting within their corporate authority.” Candy H. v. Redemption Ranch, Inc., 563 F.Supp. 505, 513 (M.D.Ala.1983) (citations omitted). Here, DeHaven’s wrongdoing was specifically aimed at harming and defrauding Alabama employees of AAA’s local agencies and is closely akin to tortious conduct. Under these circumstances, DeHaven should be personally liable for his conduct. See, e.g., Grim Hotel Co., 747 F.2d at 974. Recently, in Colder v. Jones, the Supreme Court upheld personal jurisdiction over a non-resident in a libel action, stating that

Petitioners are correct that their contacts with California are not to be judged according to their employer’s activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant’s contacts with the forum State must be assessed individually____ In this case, petitioners are primary participants in alleged wrongdoing intentionally directed at a California resident, and juris-, diction over them is proper on that basis.

465 U.S. at-, 104 S.Ct. at 1487 (citation omitted).

Moreover, the FLSA is intended to hold “employers,” as defined by the Act, personally liable for their wrongful conduct. DeHaven was aware of the Act’s probable application to him and the two Montgomery agencies. It therefore follows that he should have reasonably anticipated being personally haled into court in this state for, as evidenced here, the wrongful conduct he personally and intentionally engaged in and caused in this state.

An appropriate judgment will be entered.

      . It appears from the Secretary’s post-trial brief that he is seeking payment from Hutto for two years only.

      . The Secretary does not seek a prospective injunction against Hutto because she is no longer with the AAA operation.

      . It appears from the Secretary's post-trial brief that he is no longer seeking liquidated damages from Hutto.


author: SPELLMAN, District Judge.

text:
    In the Matter of PETITIONS FOR DISCLOSURE OF DOCUMENTS SUBPOENAED BY the GRAND JURY FROM Gary SACK.
    Grand Jury No. 82-8.
    United States District Court, S.D. Florida, Miami Division.
    Aug. 30, 1985.

      Lori F. Fischler, Civ. Div., Dept, of Justice, Washington, D.C., for the Government.
    Robert M. Entin, Miami Beach, Fla., pro se.
    Gary B. Sack, Miami, Fla., pro se.
    Charles F. Mills, Miami, Fla., for Richard Gilliam.
    Clifford A. Kornfield, New York City, for Israel Discount Bank.
    Byron Peterson, Miami, Fla., for Alex Halberstein & Kan Rap.
   MEMORANDUM OPINION AND ORDER ON THE PETITION OF THE UNITED STATES OF AMERICA FOR DISCLOSURE OF DOCUMENTS SUBPOENAED BY THE GRAND JURY

SPELLMAN, District Judge.

THIS CAUSE is before the Court on the United States of America’s Petition for Disclosure of Documents Subpoenaed by the Grand Jury, filed pursuant to Fed.R. Crim.P. 6(e)(3)(C) and (D). The Court having reviewed the memorandum of law submitted by the Government, and in light of the absence of any objection of Gary Sack, it is hereby

ORDERED AND ADJUDGED that the Petition is GRANTED. The Government, through attorneys for the Civil Division, seeks disclosure of those documents which it requested from Gary Sack in its First Set of Document Requests and related interrogatories, to which Mr. Sack did not respond. Upon information provided by Mr. Sack and an affidavit submitted by Special Agent William Van Loon of the Federal Bureau of Investigation, it is apparent that these documents are not in the custody or control of Mr. Sack; rather, they remain in the custody of the FBI. These documents, in addition to others, were part of the evidence considered by Grand Jury No. 82-8, whose investigation ultimately led to guilty pleas of the defendants in the following cases: United States of America v. Gary Sack, Case No. 83-122-Cr-WMH and United States of America v. Robert Entin, Case No. 82-42-Cr-WMH. Disclosure of these documents is requested in connection with United States of America v. Robert Entin, et al., Case No. 84-2422-Civ-Spell-man (S.D.Fla.), which the Civil Division attorneys have filed to recover the monies allegedly obtained through fraudulent scheme in which these defendants, Sack and Entin, were involved.

The civil action against the defendants was filed on October 12, 1984, under the False Claims Act, 31 U.S.C. §§ 3729-3731. On or about February 20, 1985, the United States served Mr. Sack with its first set of interrogatories and document requests. Mr. Sack failed to respond within thirty days in contravention of Rule 33, Fed.R. Civ.P. On April 2, 1985, Mr. Sack was notified, in compliance with Rule 10(I)(7) of the Local Rules for the Southern District of Florida, that unless he responded by April 12, 1985, a motion to compel would be filed by the Government. On April 15, 1985, Mr. Sack contacted the Government, and stated that he did not have some of the documents because they were turned over to the grand jury, and he needed them to provide responses. Although the Government told Mr. Sack to respond as best he could anyway, Mr. Sack failed to respond. The Government moved for sanctions against Mr. Sack for discovery abuses on June 21, 1985. This Court treated said motion as a motion to compel, which it granted on July 29, 1985. To date, there has still been no response by Mr. Sack.

The Government has moved for a Court Order, pursuant to Fed.R.Crim.P. 6(e)(3)(C) and (D), entitling it to disclosure of grand jury documents. Pursuant to this rule, the Civil Division Attorneys must show a “particularized need” before access to such information may be permitted. This requirement applies to private parties, too. United States v. Sells Engineering, Inc., 463 U.S. 418, 442, 103 S.Ct. 3133, 3147, 77 L.Ed.2d 743 (1983). In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979), the Supreme Court explained the standard used to define “particularized need”:

“Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to covered only material so needed____

The Government has satisfied the requirements set forth in Douglas. First, it is clear that without the requested documents, the Government will be hampered significantly in its civil action, as no other means to obtain the information contained in the documents seems to exist. Although disclosure of grand jury documents is not a substitute for diligent discovery methods, it appears to be necessary in this case. In fact, the defendant Sack has no objection to the disclosure.

Second, there is little need, at this point, for continued grand jury secrecy. In United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), the Supreme Court set out the policies underlying grand jury secrecy:

(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicated by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

Id. at 681-82 n. 6, 78 S.Ct. at 985-86 n. 6, quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954). The first three considerations do not apply to the facts of this case, as the investigation has been completed and the grand jury has been released. There is little danger of discouraging free disclosures by persons with information of criminal activity; the documents in question relate to specific parties and specific acts, which have already been investigated. See United States v. Moten, 582 F.2d 654, 663 (2d Cir.1978). There is no indication that the release of these documents will have any affect on the free flow of testimony by prospective witnesses in this case or any other. Under the circumstances such as the ones before the Court, documents subpoenaed by a grand jury “may be subject to less exacting scrutiny and more readily disclosed.” Index Fund, Inc. v. Hagopian, 512 F.Supp. 1122, 1128 (S.D.N.Y.1981). Thus, the mere fact that documents have been presented to a grand jury, does not in and of itself cloak them in a permanent state of secrecy. Based on the above and foregoing, it is the opinion of the Court that the government has fulfilled its burden and has shown that disclosure of documents is appropriate under the circumstances of this case.

It is further

ORDERED AND ADJUDGED that the Federal Bureau of Investigation shall release the documents to the United States, who shall thereupon provide all parties with copies, taxable as costs if desired.

      . The Government shall act as the custodian of the documents disclosed.

      . An affidavit was filed by Israel Discount Bank in support of its petition, setting forth the factual basis for its request. The legal reasoning set forth in this Order applies to Israel Discount Bank's petition as well as to that of the Government.


author: LARKINS, Senior District Judge:

text:
    Roger Lee McQUEEN, Petitioner, v. Samuel P. GARRISON, et al., Respondents.
    No. 82-675-HC.
    United States District Court, E.D. North Carolina, Raleigh Division.
    Sept. 4, 1985.
    Douglas E. Canders, Fayetteville, N.C., for petitioner.
    Lacy H. Thornburg, Atty. Gen. by Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., for respondents.
   ORDER

LARKINS, Senior District Judge:

Petitioner, Roger Lee McQueen, a North Carolina state court inmate, seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. McQueen seeks collateral relief from two, 1977 first-degree murder convictions for which he was sentenced to life imprisonment.

The petitioner alleged numerous grounds for relief; however, this court, by order filed 1 September 1983, dismissed all of the claims except two: first, that his rights were violated when hypnotic memory enhancement was used to obtain eyewitness testimony against him, and second, that he was denied effective assistance of counsel as a result of his attorneys’ limited response to the state’s use of the hypnotically refreshed testimony. Judge Larkins referred these claims to a magistrate for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

After conducting a three-day evidentiary hearing, the magistrate concluded that it was highly undesirable for the trial judge to allow the state’s only eyewitness to testify to facts which were subject to recall only by the use of hypnosis. Despite making this finding, the magistrate, analyzing the issue under the Fourteenth Amendment due process clause, determined that the petitioner had not been denied a fundamentally fair trial and recommended that this claim be dismissed. The magistrate further recommended that the petitioner’s ineffective assistance of counsel claim be dismissed.

By order filed 12 April 1985, this court adopted the magistrate’s memorandum and recommendation in toto. The habeas petition was not dismissed, however, for the court determined that further proceedings were necessary to consider whether the use of the hypnotically-induced testimony deprived the petitioner of his sixth amendment right to confrontation of witnesses, applicable to state criminal proceedings through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

BACKGROUND

Petitioner’s sixth amendment claim stems from the testimony of Barbara Kiser, describing the events which occured on 23 June 1972. It is undisputed that on that day two women were shot to death in a house in which Kiser worked as a prostitute. The victims included the landlady, who operated the house of ill fame, and another prostitute.

At trial, evidence tended to show that Kiser either witnessed the murders or participated in the criminal acts. After the murders, Kiser and the petitioner immediately fled North Carolina by automobile and traveled around the country, driving through numerous states including Illinois, Indiana, Texas, Utah, and Nevada.

Kiser separated from the petitioner near the end of July and, upon arriving in Logansport, Indiana, learned that she and McQueen were wanted by the Federal Bureau of. Investigation for fleeing North Carolina where there had been outstanding warrants charging the suspects with first degree murder. Kiser returned home in Indiana and surrendered to the custody of the FBI. After federal charges were dropped, Kiser voluntarily returned to North Carolina pursuant to a grant of immunity.

On 29 August 1972, Kiser made a statement to the Cumberland County Police. She stated that “I was outside coming back into the house when I heard the four shots.” (Tr. 521). Kiser explained that the petitioner was inside the house with the two other women at the time and that she was outside of the house putting luggage in the car pursuant to his demand.

Five years elapsed before the petitioner was brought to trial on the first degree murder charges. In an attempt to recall, more accurately, the events which she observed on 23 June 1972, several days before the trial commenced, Kiser requested that she be placed under hypnosis. Kiser explained that before hypnosis, she was uncertain as to what she had seen: “Sometimes I knew I saw him kill them and sometimes I really knew that I didn’t____ I couldn’t remember.” (Tr. 519). From Kiser’s perspective, the hypnotic treatment was successful, for afterwards, the subject was able to relive the whole morning of June 23, just as if it were occurring on the day of treatment. (Tr. 521). At trial, Kiser gave an eyewitness account of the shootings, stating that she saw McQueen shoot and kill the two women.

SIXTH AMENDMENT CLAIM

Petitioner argues that his defense attorneys were unable to cross-examine Kiser’s testimony, effectively, because it was the product of hypnosis. The Supreme Court has recognized that the primary interest secured by the confrontation clause of the Sixth Amendment is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). This right, which is fundamental, Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), is made obligatory on states by due process guarantees of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In addition to requiring the witness to stand face to face with the jury, cross-examination insures that the accused has an opportunity to test the recollection and sift the conscience of the witness. Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895), cited in Douglas v. Alabama, 380 U.S. at 419, 85 S.Ct. at 1077. These means of testing the accuracy of testimony are so important that the absence of proper confrontation at trial calls into question the ultimate integrity of the fact finding process. Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). The petitioner contends that, because of the brainwashing affect of hypnosis, he was unable to challenge whether the declarant accurately perceived and remembered the matter related — one of the “principal purpose[s] of cross-examination.” Id. at 71, 100 S.Ct. at 2541.

In Clay v. Vose, 599 F.Supp. 1505 (D.Mass.1984), the United States District Court for Massachusets considered whether or not the sixth amendment right to confrontation of witnesses imposes federal constitutional constraints on the admissibility of testimony by a previously hypnotized witness. The court answered in the affirmative but refused to bar, entirely, the use of such testimony. In dictum, the court noted that federal constitutional constraints will likely preclude the use of such testimony, at trial, from a hypnotized witness concerning matter not remembered before hypnosis. Id. at 1519-20. The Fifth Circuit, in an earlier decision, held that an uncorroborated personal identification, made only after hypnosis, of a person clearly singled out for suspician, is inadmissible despite any procedural safeguard used in an attempt to sanitize the hypnotic session. United States v. Valdez, 722 F.2d 1196 (5th Cir.1984). The Valdez and Vose Courts recognized, in their analysis, principles which have been generally accepted within the scientific community studying hypnosis:

(1) The hypnotic subject is extremely vulnerable to accepting as true suggestions from the hypnotist, and the hypnotist may be unaware of his tainting the session with suggestions;

(2) The subject develops a distorting desire to please the hypnotist;

(3) The subject is likely to engage in confabulation, the invention of details in order to make the witness’ account complete, logical, and acceptable to the hypnotist;

(4) No one, including the subject, hypnotist, and lay jury, will be able to separate true memory from hypnotic pseudomemory;

(5) The subject’s confidence in his posthypnotic memory, even if fabricated, will be significantly strengthened; and

(6) Procedural safeguards are available to increase the likelihood of elicitating reliable evidence; however, no safeguards could insure accuracy.

Clay v. Vose, 599 F.Supp. at 1518-19; United States v. Valdez, 722 F.2d at 1201-02 (containing extensive citations indicating the sources from which these principles were derived).

Recognizing these prejudicial effects of hypnotic testimony, some state courts have viewed the process of hypnosis as merely affecting credibility; however, a greater number of courts have concluded that hyp-notizing a witness affects the admissibility of that witness’ testimony. 599 F.Supp. at 1519. These latter courts have adopted three rules of admissibility; first, only events remembered before hypnosis may be the subject of testimony at trial; second, hypnotically enhanced testimony may be allowed if proper procedural safeguards are followed; and third, all testimony relating to the subject of a hypnotic session is inadmissible. Id.

Before State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984), North Carolina was among those states which held that a witness’ being hypnotized was a consideration relating only to the credibility rather than the admissibility of the evidence. State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). Recognizing several problems inherent in the hypnotic process, which parallel those discussed above, Peoples overruled McQueen and held that “hypnotically refreshed testimony is simply too unreliable to be used as evidence in a judicial setting.” 311 N.C. at 532, 319 S.E.2d at 187. One of the court’s specific concerns was the possibility that hypnosis may preclude effective cross-examination of the subject because of his enhanced confidence in the truthfulness and accuracy of his post-hypnotic recall. Accordingly, Peoples adopted the rule that a hypnotized witness may not testify to any fact not related by him before .he hypnotic session. Id. at 533, 319 S.E.2d at 187.

To determine whether or not the admission of Kiser’s hypnotically induced testimony deprived the petitioner of his sixth amendment right to confrontation, the court must determine if effective cross-examination was precluded. Kiser’s first statement regarding the shooting was short and vague. She merely heard the sound of gunfire while returning to the house. Hypnosis provided a vehicle by which the witness was able to recant this prehypnotic testimony without suffering any significant attack on credibility. At trial, Kiser described the murders with startling detail:

Roger followed down the hall behind her. The next thing I heard was a gunshot. I went running into Wilma’s room and she was lying back on her bed like this (indicating). She had been shot in the chest____ A pistol [was in Roger’s hand]____ He told [Linda], ‘get the rope’ and that he would just tie them up and we would go____ Then he stood over them and he killed them. He laid them out in the bed, hands put around their backs like this (indicating) and he just stood there and shot them in the head____ He was standing at the foot of the bed, and he just stood there like that (indicating) and he went bang and they were dead. I was crying. I asked him, “Did you hurt them?” He said, “They’re dead you dumb bitch, now shut up. We’re going.”

(Tr. 450, 470). On cross-examination, Kiser explained that hypnosis cleared her mind, enabling her to relive the events.

Before Kiser testified, the defense attorneys argued that they would not be able to cross-examine the witness, effectively, if she testified as a result of hypnotic suggestion. (Tr. 430). Defense counsel explained that they were unfamiliar with the term hypnotic suggestion and stated that they were unsure of its affects on a witness, including whether it can cause one to recall something that didn’t happen and whether it can enable one to program the witness’ performance on the stand. (Tr. 562).

According to post-trial affidavits of the petitioner’s defense attorneys, their reasons for concern materialized. From their personal observations, both attorneys agreed that hypnosis transformed Kiser into an extremely credible witness. James R. Parrish observed that Kiser presented a very positive command of the facts and appeared to be very sure of herself. She was confident and totally unshakable in either memory or certainty. He postulated that the hypnotic procedure had altered her state of consciousness and artificially reinforced her belief in her testimony.

Fred J. Williams, now a Superior Court Judge, was appointed to represent petitioner in 1977. In his affidavit, Judge Williams projects Kiser as a witness who “presented a very secure and positive command of the facts ... and was insulated ... from any attack with regard to inconsistencies in her statement.” He too attributed Kiser’s performance to the hypnotic session.

These opinions are consistent with recent court decisions and legal research examining whether hypnosis unjustifiably bolsters a witness’ conviction in his version of the facts.

Bolstering a witness’ conviction in his version of the facts is one product of hypnosis which has concerned numerous courts and commentators. Dr. Martin Orne, a leading expert in the field of hypnosis and expert witness in this case, has concluded that hypnosis makes a witness’ credibility impervious to cross-examination. Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical & Experimental Hypnosis 311, 332 (1979), cited with approval in State v. Peoples, 311 N.C. 515, 319 S.E.2d 177, 182 (1984). The court in State v. Mack has observed that because a person hypnotized is subjectively convinced of the veracity of his memory, he is not susceptible to cross-examination. 292 N.W.2d 764, 769 (Minn.1980). The Fifth Circuit, in Valdez, observed that “once a witness makes a recitation under hypnosis, his confidence in that supposed memory— whether genuine or invented — is greatly strengthened.” United States v. Valdez, 722 F.2d at 1202. Consequently, an “unshakeable subjective conviction,” might be produced which gives the witness’ testimony the “imprimatur of absolute confidence.” Id.

Dr. Orne examined Kiser’s statement made before hypnosis and the transcript made of the hypnotic session, but was unable to determine precisely how the witness was affected by hypnosis. He noted that no procedural safeguards were followed which possibly would have allowed an expert to determine how the hypnotic session affected Kiser. For example, the state failed to record the discussion that preceded hypnosis. See State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (provides the procedural safeguards which some courts have required the state to follow in order to allow such testimony in court).

By applying known general principles of hypnosis, Dr. Orne was able to make inferences about what could have occurred. Dr. Orne concluded that hypnosis did not “aid in recall but rather [turned] a suspected accomplice into a believable victim. Hypnosis served to make the story more consistent and the witness more convincing— to the police, the prosecution, the court, the jury and even to herself.” Thus, Dr. Orne attributed the state’s success in prosecuting the petitioner to Kiser’s becoming a convincing witness as a result of hypnosis. Dr. Orne, noted further, that as in most cases, hypnosis did not provide any new accurate information subject to verification.

If hypnosis were a procedure which was generally accepted within the scientific community as being reliable for its ability to restore the memory of a witness, a possibility exists that the Sixth Amendment would allow such hypnotically refreshed statements to be placed before the jury though there is no effective confrontation. This result is based on an analysis which parallels that which the Supreme Court has applied to hearsay. An out of court statement may be placed before a jury, without confrontation, when there are “indicia of reliability,” Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), which “afford the trier of fact a satisfactory bases for evaluating the truth of the prior statement.” California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970).

The scientific community has been unable to guarantee the accuracy of information obtained through hypnosis. See Spec-tor & Foster, Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?, 38 Ohio St.L.J. 567, 578-79 (1977). The American Medical Association has recently published its position regarding the use of hypnosis to enhance memory. It found that there is no evidence to support a view that hypnosis increases accurate recall. Scientific Status of Refreshing Recollection by the Use of Hypnosis; Counsel on Scientific Affairs, 253 J.A.M.A. 1918-23 (1985).

Rather than possessing “indicia of reliability,” hypnotically induced testimony can easily mislead the court, Dilloff, The Admissibility of Hypnotically Influenced Testimony, 4 Ohio N.U.L.Rev. 1 (1977), and fool a jury, State v. Mack, 292 N.W.2d 764, 769 (Minn.1980), when the witness is convinced of the accuracy of his story.

Before a court adopts a procedure which purportedly restores the memory of a witness while immunizing him from effective cross-examination, an analysis which resembles the Frye test should be applied to determine if the results are scientifically reliable and accurate. See Mack, 292 N.W.2d at 769. Applying the Frye test to hypnosis serves as a device to prevent the misuse of a procedure which has the potential to influence, unduly, the jury. People v. Shirley, 31 Cal.3d 18, 63, 641 P.2d 775, 779, 181 Cal.Rptr. 243, 263, cert. denied, 458 U.S. 1125, 103 S.Ct. 13, 73 L.Ed.2d 1400 (1982).

Since experts studying hypnosis have been unable to determine whether someone’s memory restored by hypnosis is truth, falsehood, or confabulation, Frye would impose limitations on its use in the courtroom and may bar it. Comment, The Admissibility of Hypnotically Refreshed Testimony, 20 Wake Forest L.Rev. 223 (1984).

CONCLUSION

For the foregoing reasons, the court hereby finds that the petitioner’s sixth amendment right to confrontation was violated by the use of Kiser’s hypnotically induced testimony admitted at trial. Hypnosis produced an eyewitness whose testimony was crucial to the state’s case. It allowed the state to present direct evidence implicating the petitioner. Before hypnosis, Kiser was unable to state, with certainty, who committed the killings. After hypnosis, Kiser was able to provide the court with a chilling account of the events which took place on 23 June 1972, including the petitioner’s carrying out the slayings.

The trial transcript disclosed the defense attorneys’ frustration with cross-examining Kiser regarding her hypnotically refreshed testimony. The novelty of using hypnosis as a means of elicitating evidence impeded effective cross-examination. The attorneys were admittedly unfamiliar with some of the by-products of hypnosis, including the possibility that hypnotic suggestion precludes effective cross-examination.

Since the trial, the scientific community has recognized several principles regarding hypnosis which challenge its effectiveness as a tool for producing evidence sufficiantly probative to be used in a criminal trial. Its use as an investigatory tool is not subject to attack.

Unless evidence produced by hypnosis and introduced at trial is corroborated, there is no effective means of cross-examining its source. In some instances the declarant himself will be the only one able to discern truth from fabrication. Generally, however, the subject will be unable to distinguish between their prehypnotic recollections and those induced by hypnosis. This cause for concern is enhanced when the subject has a personal interest in the substantive content of his testimony, such as in the case at bar. Kiser had a great personal interest in having the jury believe her testimony. If the jury convicted McQueen on the basis of her testimony, Kiser would appear to have been exonerated, for she was once a suspect. None of Kiser’s posthypnotic testimony was subjected to independent verification.

The court and jury are both incapable of determining when the witness is failing to separate true memory from hypnotic pseudomemory. This deficiency is significant considering the subject’s propensity to engage in confabulation, the subject’s vulnerability to suggestions communicated during the hypnotic process, whether or not intentional, and the subject’s great level of confidence exuded on the stand, regarding the substance of the posthypnotic testimony.

In this case, there are no factors which mitigate against these concerns. To the contrary, no procedural safeguards were followed which might have increased the overall reliability of Kiser’s posthypnotic testimony. The lack of procedural safeguards contributed to the petitioner’s inability to cross-examine Kiser effectively. Consequently, it is likely that the jury was left with the impression that hypnosis is a technique which allows the hypnotist to stimulate accurate recall. This perception would give credence, unjustifiably, to Kiser’s second version of the facts.

The facts and circumstances in this case demonstrate the need for the courts to define clearly when hypnosis impairs the defendant’s right to cross-examination to such a degree that it violates his constitutional right to confrontation. This court agrees with the federal district court in Clay v. Vose, finding that the “Sixth Amendment does not support a per se rule rejecting all testimony of a witness who has been subjected to hypnosis at some time before trial.” 599 F.Supp. at 1505. However, any standard adopted must be enforcible and practical. To satisfy this requirement, the court finds that the Sixth Amendment bars the use of any testimony covering matters not remembered before hypnosis. If a state effects, either directly or indirectly, the hypnosis of a potential witness, the burden is on them to show by convincing evidence that the substance of the witness’ testimony, relating to any matter probed at the hypnotic session, was remembered before hypnosis. In this case, it is clear that the state would not be able to satisfy this standard.

Finally, the court is not satisfied beyond a reasonable doubt that the testimony admitted at trial in violation of the Sixth Amendment did not contribute to McQueen’s conviction. Accordingly, the error can not be deemed harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Accordingly, the applicant’s petition for writ of habeas corpus is hereby ALLOWED. The state of North Carolina is hereby ORDERED to release the petitioner from its custody or to retry him within ninety (90) days of this Order.

      . See the reported decision of Magistrate McCotter for an extensive background analysis on hypnosis. 619 F.Supp. 116 (1985).