text:
    Jan BERNIE, Plaintiff, v. WATERFRONT LIMITED DIVIDEND HOUSING ASSOCIATION, et al., Defendants.
    No. C-3-81-574.
    United States District Court, S.D. Ohio, W.D.
    April 25, 1985.

      William Compton, Dayton, Ohio, for plaintiff.
    Roger Makley, Dayton, Ohio, for defendants.
   DECISION AND ENTRY OVERRULING IN ITS ENTIRETY DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO CHANGE VEN- . UE; CONFERENCE CALL SET

RICE, District Judge.

This case involves Plaintiff’s pursuit of rescission and restitution under the Ohio Securities Act, Ohio Rev.Code § 1707.01, et seq., with respect to his purchase of one-half of a limited partnership interest in Defendant Waterfront, a Michigan limited partnership formed to construct and operate a residential housing development in Michigan. Also named as Defendants are Kevin F. Buckley, Robert C. Kiefer, Hoffman Construction Co. and Robert Ballou, general partners in Waterfront, Continental Wingate Capital Corp. (Continental), and Shearson Loeb Rhodes, Inc. (Shearson). Defendants have filed a Motion to Dismiss or, in the Alternative, for Change of Venue (Doc. # 6). They argue that this Court lacks in personam jurisdiction and that, even should the Court decline to dismiss the case, the Court should transfer this matter to the United States District Court for the Southern District of New York.

I. Defendants’ Motion to Dismiss for Lack of In Personam Jurisdiction.

Plaintiff argues that in personam jurisdiction may be had over Defendants, based on the Ohio long arm statute. Ohio Rev.Code § 2307.382 provides, in pertinent part, that:

[A] court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s:
(1) Transacting any business in this state____

The Sixth Circuit has developed a three-part test to determine whether the application of the Ohio long arm statute provides sufficient contact between a non-resident defendant and the forum state so as to support personal jurisdiction. That test provides:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Welsh v. Gibbs, 631 F.2d 436, 440 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981); In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir.1972).

Upon a challenge by Defendants, the burden shifts to Plaintiff to demonstrate the propriety of in personam jurisdiction over said Defendants. If the issue is to be resolved by the Court solely on the basis of pleadings and materials attached thereto, the Plaintiff need only make a prima facie case of jurisdiction in order to avoid a motion to dismiss. Welsh, 631 F.2d at 438. If the party seeking dismissal on jurisdictional grounds submits affidavits, the non-moving party may not rest upon allegations or denials in his pleadings, but must respond, by affidavit or otherwise, by setting forth specific facts showing that the Court has jurisdiction. Weller v. Cromwell Oil Company, 504 F.2d 927, 929 (6th Cir.1974). The burden of the Plaintiff, however, remains relatively slight, and the Court is required to consider the pleadings and affidavits in the light most favorable to that party. Welsh, 631 F.2d at 439.

In his affidavit, Plaintiff, an Ohio resident, attests that he first learned of the Waterfront Limited Partnership during a trip to New York City in December, 1980. Richard True, a Greenwich, Connecticut securities broker with Defendant Shearson, gave Plaintiff a ride from LaGuardia Airport into Manhattan at the suggestion of Dr. Robert Downer, another Ohio resident and acquaintance of Plaintiffs who had coincidentally taken the same commercial air flight to New York City as Plaintiff. As the three men drove into Manhattan, True discussed generally his background as a financial advisor in the tax shelter area. True and Plaintiff spoke again by telephone before the latter left New York City, and Plaintiff learned from True about the limited partnership interests in Waterfront which True was marketing as a result of an agreement between Defendants Shearson and Continental, the latter being the equities syndication manager responsible for the private placement of Waterfront limited partnerships. True then arranged for a Continental representative to deliver certain materials concerning the Waterfront investment to Plaintiff before Plaintiff departed for Ohio.

Plaintiff discussed the Waterfront investment with his accountant, Mr. Graf, upon returning to Ohio in January, 1981. Plaintiff contacted Mr. True by telephone from Ohio on at least two occasions during January to discuss the offering. In mid-January, Continental mailed to Plaintiff, in Ohio, the legal documents necessary to consummate his purchase of an interest in Waterfront. Plaintiff executed these documents, including the subscription agreement and security agreement, in Ohio, thus committing himself to an ultimate investment of $43,200.00 for a 4.9% interest in Waterfront. Continental contacted Plaintiff by letter at his Dayton, Ohio address three more times, sending him additional information, requesting additional documents, and finally specifying that his first capital contribution be mailed to the partnership’s escrow agent in Michigan.

On these facts, the Court concludes that, at least for purposes of Defendants’ motion, Plaintiff has made out a prima facie case of jurisdiction. With respect to whether Defendants purposefully availed themselves of the privilege of acting in Ohio or causing a consequence there, the Court notes that the fact that much of the negotiation and solicitation of Plaintiffs investment occurred in New York is not as determinative of this issue as are the consequences of the contractual obligation in Ohio and the degree of interest which Ohio has in seeing that said obligations were faithfully executed. Southern Machine Company v. Mohasco Industries, Inc., 401 F.2d 374, 382 & n. 23 (6th Cir.1968). The Ohio Blue Sky laws are evidence of Ohio’s interest in protecting its citizens by making certain requirements of investment arrangements before they can be distributed in Ohio. Defendants, whether directly or through their agent, Continental, mailed a subscription agreement to Plaintiff in Ohio for his signature, thus freely and intentionally encouraging and allowing an Ohio resident to make a substantial investment in Waterfront. In-Flight Devices, 466 F.2d at 228; Cairns v. Amway Corporation, No. 1-84-0783 (S.D.Ohio 1984), slip op. at 10-11.

In Martin v. Steubner, 485 F.Supp. 88 (S.D.Ohio 1979), aff'd, 652 F.2d 652 (6th Cir.1981), in personam jurisdiction over nonresident defendants was found to exist in a factual setting quite akin to the matter herein. In Martin, the president of a Minnesota limited partnership sold an Ohio resident an interest in a Minnesota limited partnership formed to develop an ice rink in Minnesota. Plaintiff Martin was alerted to the investment through an advertisement taken by the partnership in the mid-west edition of the Wall Street Journal. Martin then traveled unannounced from Ohio to Minnesota for discussions and negotiations regarding the investment. The subscription contract for the investment was sent to Martin in Ohio, where he executed said contract. Two letters were then mailed to Martin in Ohio by the Minnesota partnership. Unlike Defendant Shearson herein, defendants in Martin had no places of business in Ohio. The district court focused its inquiry into minimum contacts upon the mailing of the subscription contract to Ohio for Plaintiff’s execution, and the two letters subsequently mailed to Ohio. It concluded that, given Ohio’s interest in protecting its citizens from the sale of securities which had not been evaluated by state regulators, these contacts were sufficient to support in personam jurisdiction as well as an extension of Ohio law to the investment transaction at issue. 485 F.Supp. at 100.

The district court’s ruling in Martin was affirmed on appeal. Martin, 652 F.2d at 652. Indeed, the Sixth Circuit observed that the Supreme Court’s interim pronouncement in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), with its example of contacts insufficient to support in personam jurisdiction for due process purposes, did not require a different outcome in Martin. Id. at 654. Given the manner in which Defendants in the instant case undertook to market the Waterfront partnership interests, the Court believes that said Defendants also should reasonably have anticipated being haled into court in Ohio. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. Unlike the local and regional automobile dealers in World-Wide Volkswagen, the Defendant general partners of Waterfront, a Michigan limited partnership formed to develop property in Michigan, secured a New York corporation, Defendant Continental, as their promoter and agent. Continental then entered into an agreement with Defendant Shearson to market and sell Waterfront limited partnership interests. There is no evidence that Defendant Shearson, with its national scope, was in any way restricted by the other Defendants in its efforts to distribute the Waterfront offering; indeed, the Waterfront limited partnership agreement shows that Plaintiffs’ fellow limited partners in Waterfront included residents of Maryland, California and Indiana. Thus, the foreseeability critical to due process in this case stems from Defendants’ own affirmative reach into Ohio rather than upon the likelihood that Waterfront partnership interests, by their very nature as financial investments, would find their way into Ohio.

The second portion of the Sixth Circuit’s tripártate approach to jurisdiction poses the question of whether the cause of action asserted by Plaintiff arises out of Defendants’ transaction of business in Ohio. Regardless of where the negotiations for Plaintiff’s investment decision ensued, Defendants voluntarily entered into a contract, executed by Plaintiff in Ohio, with an Ohio citizen for the sale of a limited partnership interest. As the sale of that interest in violation of Ohio’s Blue Sky laws is the focus of Plaintiff’s action herein, Defendants’ challenged conduct can be seen as having arisen out of their transaction of business in Ohio. In-Flight Devices, 466 F.2d at 229.

Finally, it must be determined whether the acts of Defendants or consequences caused by them have had a substantial enough connection with the forum state to make this Court’s exercise of jurisdiction over the Defendants reasonable. As was the case in Martin, 485 F.Supp. at 100, Defendants must have contemplated that the acts culminating in the purchase of a substantial interest in Defendant Waterfront by Plaintiff, an Ohio citizen, would result in a continuing relationship between them and Plaintiff in Ohio. See also Southern Machine, 401 F.2d at 385. The general interstate involvement of a Defendant such as Defendant Shearson, while not a substitute for the direct contacts outlined under the first prong of this analysis, is nonetheless suggestive' of its expectation that it may be involved in litigation far from its home base. In-Flight Devices, 466 F.2d at 234. Defendants point to the lack of physical contact and the passive conduct of at least some of the Defendants herein, two additional factors raised in InFlight Devices. The court in In-Flight Devices, however, went on to note that, in a given situation, a letter or phone call may be as indicative of substantial involvement with a forum state as physical contacts by defendants or their agents. 466 F.2d at 235. Given the letters and documents sent by Defendant Continental to Plaintiff in Ohio, Plaintiff’s execution of the subscription agreement in Ohio, and the fact that both Continental and Shearson were undertaking marketing and promotional efforts on behalf of the remaining Defendants upon a nationwide basis and without the exclusion of Ohio as a potential market, the Court finds reasonable its exercise of jurisdiction over all Defendants herein.

For the reasons aforesaid, the Court finds that it may constitutionally exercise in personam jurisdiction over Defendants under the Ohio long arm statute. Defendants’ motion, insofar as it seek dismissal of Plaintiff’s Complaint due to lack of in personam jurisdiction, is overruled.

II. Defendants’ Motion, in the Alternative, for Change of Venue.

Under 28 U.S.C. § 1404(a), a district court may transfer any civil action to any other district where it might have been brought. In a diversity action, venue is only proper in the judicial district “where all plaintiffs or all defendants reside, or where the claim arose.” 28 U.S.C. § 1391(a). As Defendants in this action do not all reside in the Southern District of New York, the only manner in which venue could be properly laid in that district would be if Plaintiff’s claim were found to have arisen in that district. In a ease founded upon diversity jurisdiction, this question is governed by state law. Wahl v. Foreman, 398 F.Supp. 526, 529 (S.D.N.Y.1975). In this case, the claims stem from the alleged failure to register, in Ohio, the limited partnership interest which an Ohio resident contracted to purchase in Ohio. Ohio has the greatest interest in protecting its citizens with respect to sales of unregistered securities. Plaintiff’s claim must be considered to have arisen in Ohio, and venue would thus not be proper in the Southern District of New York under 28 U.S.C. § 1391(a). The transfer sought by Defendants pursuant to 28 U.S.C. § 1404(a) is, then, also impermissible.

Even assuming venue to be proper in the Southern District of New York, the Court is not persuaded that the equities of this case would dictate a transfer under 28 U.S.C. § 1404(a). Plaintiff has averred that litigation in the Southern District of New York would represent a substantial professional hardship for him. Much of the evidence to be introduced is located within the State of Ohio, as are several of Plaintiffs witnesses. Defendant Shearson maintains several offices in Ohio, and Richard True, a key witness for Defendants, is employed by Defendant Shear-son, albeit in its Greenwich, Connecticut office. The Court concludes that, within the facts set forth in this case, Plaintiffs selection of a forum should prevail.

WHEREFORE, for the reasons set forth herein, Defendants’ Motion, in the Alternative, to Change Venue is also overruled. Defendants’ Motion to Dismiss or, in the Alternative, to Change Venue is thus overruled in its entirety.

Counsel listed below will take note that a telephone conference call will be had, between Court and counsel, at 1:15 p.m. on Wednesday, May 1, 1985, for the purpose of setting a trial date and other dates leading to the disposition of this case.

      . The Court notes that its decision in the instant case was written prior to its receipt of the April 12, 1985 letter of Plaintiff’s counsel, William G. Compton, with enclosed affidavit. Upon reading the same, it does no more than confirm the Court’s position herein.

      . True avers in his affidavit that Plaintiff indicated during their conversation over the telephone that he was interested in purchasing "one-half of a unit” in Waterfront. (Doc. #6, Exh. 1, ¶ 7). Plaintiff states in his affidavit that at no time during his stay in New York City did he agree, verbally or otherwise, to purchasing an interest in Waterfront. (Doc. # 10, Exh. A, ¶5).

      . Defendants argue in the memoranda in support of their motion that Plaintiff in fact received in New York City all documents necessary to his purchase of a Waterfront limited partnership interest. Their support for this factual proposition is apparently the averment of Shearson broker True that "various execution documents” were among the materials delivered to Plaintiff in New York City by a Continental representative. (Doc. # 6, Exh. 1, ¶ 8). Defendants have also appended to their motion an affidavit executed by David Faust, Continental’s lawyer, which represents that, to the best of the affiant’s knowledge and belief, none of the Defendants have had any contact with Plaintiff in Ohio. (Doc. # 6, Exh. 2, ¶ 11).
      The Court believes its evaluation of the sufficiency of the parties' affidavits in this matter to be governed by the standards of Fed.R.Civ.P. 56. Rule 56(e) requires that the facts alleged in an affidavit be made on personal knowledge. Richard True admits that he did not himself make the delivery of Waterfront-related documents to Plaintiff in New York City. As a result, his affidavit cannot be considered as conclusively establishing Plaintiffs whereabouts in his receipt of the documents necessary to consummate his investment in Waterfront. David Faust’s affidavit suffers from the same deficiency. Plaintiff's account of having received the necessary documents in Ohio, put forward in an affidavit based upon personal knowledge, must thus prevail for purposes of Defendants’ Motion to Dismiss.

      . Plaintiff avers that his accountant, Richard Graf, contacted by telephone the local Shearson office in Dayton, Ohio, in order to discuss the Waterfront offering. (Doc. # 10, Exh. A, ¶ 6). To the extent that this averment is offered for the truth of Graf's representation that local Shearson personnel were contacted, this portion of Plaintiff’s affidavit is hearsay inadmissible under Fed.R.Evid. 802. Williams v. AMF, Inc., 512 F.Supp. 1048, 1052 (S.D.Ohio 1981). With respect to this issue, Defendants have proffered the affidavit of Robert A. Leo, the vice-president of Defendant Shearson’s office in Dayton. (Doc. # 15). Leo’s position in his affidavit is that no Shearson personnel in Dayton have had any contact, by person or by telephone, with Plaintiff or Richard Graf in connection with the Waterfront offering.

      . Given this conclusion, the Court does not reach Plaintiffs argument that personal jurisdiction over Defendant Shearson is conferred by its status as a foreign corporation licensed to do business in Ohio and as a licensed dealer of securities in Ohio. (Doc. # 10).


source: Caselaw Access Project

author: REDDEN, District Judge:

license: Public Domain

text:
    OREGON ENVIRONMENTAL COUNCIL; Citizens For the Safe Control of the Gypsy Moth; Elaine Olsen and Glen Olsen, Plaintiffs, and Friends of the Earth; National Coalition Against the Misuse of Pesticides, Plaintiffs/Intervenors, v. Leonard KUNZMAN, Director, State of Oregon, Department of Agriculture, State of Oregon, Department of Agriculture; United States Department of Agriculture; John R. Block, Secretary, United States Department of Agriculture; et al., Defendants. and Oregonians For Food and Shelter, Inc., Defendants/Intervenors.
    Civ. No. 82-504-RE.
    United States District Court, D. Oregon.
    April 26, 1985.

      Larry N. Sokol, Jolles, Sokol & Bernstein, P.C., Portland, Or., John E. Bonine, Michael D. Axline, Ralph Bradley, Bradley & Gordon, Eugene, Or., for plaintiffs and plaintiffs/intervenors.
    Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., Dorothy R. Burakreis, R.W. Rodrigues, Elizabeth Ann Peterson, Land and Natural Resources Div., General Litigation Section, U.S. Dept, of Justice, Washington, D.C., John DiLorenzo, Jr., Brendan Stocklin-Enright, DiLorenzo & Dietz, Portland, Or., for defendants and defendants/intervenors.
   OPINION

REDDEN, District Judge:

BACKGROUND

Plaintiffs commenced this suit in Spring of 1982 seeking to enjoin the spraying of carbaryl over 6,400 acres in Salem, Oregon. The spraying was the crux of a program designed to eradicate gypsy moths discovered in that urban area. Plaintiffs alleged that the spray program violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1976), the Administrative Procedure Act (APA), 5 U.S.C. §§ 702 and 706 (1976) and several other statutes or regulations.

After a trial on the merits I determined that the federal defendants had not violated NEPA. On appeal, the Ninth Circuit determined that the federal defendants had in fact violated NEPA by failing to prepare adequate site specific environmental statements. Oregon Environmental Council v. Kunzman, 714 F.2d 901, 905 (9th Cir.1983).

On January 26, 1984, I issued a permanent injunction prohibiting federal defendants from implementing any program for aerial broadcast spraying of carbaryl in populated areas in Oregon until they prepared a legally adequate Environmental Impact Statement (EIS). On March 16, 1984, federal defendants issued a new Programmatic Environmental Impact Statement (PEIS) for gypsy moth eradication and suppression programs in the United States. Plaintiffs challenged the PEIS by filing a motion for a temporary restraining order, preliminary injunction and an order to show cause to prevent federal defendants from aerial broadcast spraying anywhere in the United States pursuant to the March 16, 1984 PEIS. Plaintiffs alleged that the PEIS was legally deficient in a number of ways.

On May 3, 1984, Friends of the Earth, National Coalition Against the Misuse of Pesticides moved the court for an order allowing it to intervene in plaintiffs’ motion. I granted the motion on the same day. Following a number of postponement requests by both sides, a final hearing date was set for September 25, 1984. A pretrial conference was scheduled for August 31, 1984.

On August 20, 1984, the government withdrew the contested PEIS, issuing its intent to supplement it. At the pretrial conference the government informed the court that it would have a draft supplement for public review by November 1, 1984. The draft supplement was not made available to the public, however, until December 29, 1984. A 45 day comment period followed the issuance, after which the government began preparation of the final EIS as supplemented.

On March 1, 1985, Oregonians for Food and Shelter, Inc. moved the court for an order granting it permission to intervene on behalf of defendants. That motion was granted on March 29, 1985. Meanwhile, the final Environmental Impact Statement (FEIS) as Supplemented (FEIS), for the eradication and suppression of gypsy moths was filed on March 23, 1985.

Plaintiffs challenged the adequacy of the FEIS on numerous grounds and a trial on the merits was held April 16-18, 1985. For the reasons set forth below I enjoin the use of carbaryl, trichlorofon, acephate and diflubenzuron in Oregon effective this date, and enjoin the use of the same synthetic chemical sprays elsewhere in the United States effective January 1, 1986. The use of Bacillus thuringiensis (B.t.) is not enjoined in Oregon or elsewhere in any program based upon the current Final Environmental Impact Statement as Supplemented, 1985.

At trial plaintiffs alleged that they were precluded from commenting on the FEIS’s worst case analysis (WCA) because it was “tacked on” to the March 1984 PEIS at the last minute. Plaintiffs further challenged the WCA on the grounds that it did not mention that diflubenzuron might cause cancer, or that children and chemically sensitive persons would be adversely affected by the use of the synthetic pesticides discussed in the FEIS. Plaintiffs also contended that the WCA did not consider the expected synergistic or cumulative effects of the synthetic pesticides and other toxic agents in the environment. Additionally, plaintiffs alleged, the WCA underestimates the period the synthetic pesticides remain in the environment and their absorption rates.

Plaintiffs also criticized the use of acceptable daily intake (ADI) and no observable effect level (NOEL) figures in computing health risks to humans. Plaintiffs also argued that defendants failed to fill “data gaps” as statutorily required and that the alternatives to synthetic pesticides were buried in the body of the FEIS. Plaintiffs also challenged the FEIS on the ground that it does not give a total estimate of the number of people that might develop cancer as a result of spraying the synthetic pesticides discussed. Finally, plaintiffs contend that the FEIS fails to meet the regulatory requirements of brevity and clarity.

The PEIS was withdrawn in August 1984 and from then to the present, federal defendants have contended that the court lacks jurisdiction to review the EIS in any form because there is no final agency action.

A. NEPA’s Requirements and Purpose

Section 102(2)(c) of NEPA requires the preparation of an EIS whenever “major Federal actions significantly affecting the quality of the human environment” are undertaken. Clauses (i) through (v) specify the content of the EIS and establish the adequacy requirement. These requirements are expanded and defined by regulations promulgated by the Council on Environmental Quality (CEQ). The CEQ is an agency established by Title II of NEPA for the purpose of promulgating advisory rules and regulations and to review and evaluate federal programs.

Although the CEQ is advisory in nature, federal courts have accorded it great deference. Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir.1977); Silentman v. Federal Power Commission, 566 F.2d 237 (D.C.Cir.1977); State of Alaska v. Carter, 462 F.Supp. 1155 (D.Alaska 1978).

The CEQ regulations state that the purpose of an EIS is to serve as an action forcing device to insure that the policies and goals of the Act are infused into ongoing and proposed federal programs. An EIS is to provide a “full and fair discussion of significant environmental impacts” and inform the public, as well as decisionmakers, of available alternatives which would avoid or minimize adverse effects. An EIS is to inform the public and decisionmakers, in clear and succinct language, of proposed federal action, the harms and health risks associated with the proposed actions, and any reasonable alternatives.

B. Standard of Review

NEPA does not expressly provide for judicial review of agency actions but the APA does. Also, courts have uniformly held that judicial review of agency decisions is implied by NEPA. Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.Cir.1971); Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 470 F.2d 289 (8th Cir.1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). When a FEIS is filed it is subject to judicial review for compliance with NEPA.

The adequacy of an EIS depends upon whether it was prepared in observance of the procedures required by NEPA, 5 U.S.C. § 706(2)(D). See also, Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc). Under this standard of review, courts employ a “rule of reason” that inquires whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974). Although this is a flexible standard not readily susceptible to a precise definition, several courts have attempted to explain it.

In Silva v. Lynn II, 482 F.2d 1282 (1st Cir.1973), the court held that the impact statement must allow the court to determine whether the agency made a “good faith effort” to take environmental values into account. To meet this requirement the impact statement must fully explain its inquiry, analysis and reasoning.

The Court in Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 (9th Cir.1977), requires the reviewing court to make a pragmatic judgment as to whether the EIS’s form, content and preparation fostered both informed decisionmaking and informed public participation.

The Second Circuit explains these two approaches in Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029 (2nd Cir.1983). The Court said:

[t]he ... [impact statement] must set forth sufficient information for the general public to make an informed evaluation, ... and for the decisionmaker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action ... [the impact statement gives] assurance that the stubborn problems or serious criticisms have not been swept under the rug.

The courts usually refer to the duty to prepare an adequate impact statement as the agency’s “procedural” duty to comply with NEPA. The agency must comply with NEPA’s procedures to insure the EIS contains an adequate analysis for the public and decisionmakers.

I am limited to reviewing the agency’s procedural duty and may not substitute my judgment for that of the agency concerning the wisdom or prudence of the proposed programs. California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Once satisfied that the agency has taken a “hard look” at the environmental consequences of the programs, I end my review. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976).

C. Jurisdiction

Federal defendants assert that this court lacks jurisdiction to review the FEIS because there is no final agency action. Defendants argue that the FEIS was noticed in the Federal Register on March 15, 1985, and that there was no final agency action until 30 days after that pursuant to 40 C.F.R. § 1506.10. The trial on the adequacy of the FEIS commenced on April 16, 1985, more than 30 days after the FEIS was noticed in the Federal Register. Moreover, 40 C.F.R. § 1500.3 specifically states:

It is the Council’s intention that judicial review of agency compliance with these regulations not occur before an agency has filed the final environmental impact statement____

(Emphasis added).

The FEIS was filed on March 23, 1985. Thus, this court has jurisdiction over this case as the agency’s action was final as of the date of the commencement of the trial.

D. Plaintiffs’ Substantive Challenges

1. No Comment Period for WCA

Plaintiffs contend that the federal defendants “tacked on” the WCA at the last minute, precluding any public comment on it. This argument is without merit. The PEIS, including its WCA, was filed on March 23, 1984 and was subject to a 45 day public comment period which expired on May 7, 1984. 49 Federal Register 10,953.

Plaintiffs fail to state why they were precluded from commenting on the WCA during this 45 day period. Further, the draft supplement to the PEIS, released on December 29, 1984 subject to a 45 day comment period, also contained a WCA. I find that plaintiffs were given opportunity to comment. The plaintiffs do not prevail on this issue.

2. Carcinogenicity of Diflubenzuron

Plaintiffs contend that the federal defendants ignored the fact that the EPA has determined that 4-ehloroaniline, a metabolite of diflubenzuron, is carcinogenic. Plaintiffs say that the omission of this discussion is misleading and renders the FEIS legally inadequate. Plaintiffs’ contention is unfounded for two reasons.

First, the FEIS contains a discussion of the cancer risks associated with the ingestion of products which have been derived from animals exposed to diflubenzuron and thus contain various amounts of 4-chloroa-niline. 64, F-12, F-21, F-83, F-84, G-21 at comment response kk. Diflubenzuron itself is noncarcinogenic.

Secondly, as was discussed by expert witnesses at trial, there is debate in the scientific community over whether 4-chloroani-line is in fact carcinogenic. The FEIS discusses 4-chloronailine in terms of its carcinogenicity. The plaintiffs’ complaint that the FEIS does not alert the reader to the known carcinogenic risks associated with the use of diflubenzuron (through the ingestion of its metabolite 4-chloroaniline) stretches the disclosure requirements of NEPA too far.

3. Children and Chemically Sensitive Individuals

Plaintiffs argue that the FEIS fails to adequately discuss the risks of exposure to the synthetic pesticides to children and chemically sensitive individuals. Plaintiffs acknowledge that the FEIS includes a safety factor of ten to account for chemically sensitive persons, but argue that this factor is too low because such persons can be hundreds or thousands of times more sensitive than the general population.

A discussion of adverse health effects on chemically sensitive persons is included in Appendix F (WCA) of the FEIS at pages F-98-F-100.. The safety factors utilized in that discussion look into many biological factors such as age (young children and the elderly), sex, genetic composition and preexisting illness. Page F-99 states

In order to account for possible impacts to sensitive individuals, the NOELS were reduced by an arbitrary safety factor of 100. ADIs already include a safety factor (100 in most cases) which was incorporated in part, to account for differential responses within the population. Although 100 is arbitrary it is based on a review of selected literature on variable human responses to foreign chemicals (xenobioties) or diseases. (Citation omitted). Depending on the specific substance or disease, there was a 3.7-100 fold variation in response. However, 80-95% of the variation fell within a 10 fold factor.

At trial testimony was that the 5-20% of the sensitive population not falling within the ten fold factor fell on both sides of that factor. Thus, not all persons outside of the ten fold factor had greater sensitivity; some had less. Also, there was no testimony or evidence that sensitive individuals exceed a 100 fold factor. Accordingly, the FEIS adequately discussed the potential risks to chemically sensitive persons, and plaintiffs fail in this contention.

4. Synergistic and Cumulative Effects

Plaintiffs claim the FEIS should not have attempted to discuss the synergistic effects of the four proposed synthetic pesticides in general terms because the actual effects are not yet known. Plaintiffs suggest that the FEIS should have concluded that “we do not know what health effects could occur as a result of synergism of these pesticides with other chemicals but will assume that such effects will occur in the worst case.” Plaintiffs’ trial memorandum, page 15.

The FEIS, as acknowledged by plaintiffs, contains a discussion of synergism at pages F-101 — F-104. The FEIS discloses the fact that the actual synergistic effects of the synthetic pesticides with other chemicals are unknown and declines to suppose an effect. This is all that is required. Moreover, neither the statute nor its legislative history allows a court to substitute its judgment for that of the preparing agency as to the environmental consequences of the proposed actions. Kleppe v. Sierra Club, 427 U.S. at 421, 96 S.Ct. at 2735.

Plaintiffs further argue that the FEIS seriously underestimates the cumulative effects of repeated exposures to the proposed pesticides. At page F-103 of the FEIS there is a discussion of the cumulative effects of eating foods receiving multiple sprayings of the synthetic pesticides within a single season. Plaintiffs say this is inadequate because it does not take multiple direct exposures into consideration. At trial Dr. Schneeberger testified that the discussion of cumulative effects took into consideration not only the effects of eating foods which had been sprayed more than once, but also multiple direct exposures to the individual as well. Thus direct exposure was taken into consideration and the document is adequate in discussing the cumulative exposure effects. Plaintiffs do not prevail on these issues.

5. Absorption and Persistence Rates

Plaintiffs argue that the calculations in the FEIS of the persistence and absorption of acephate on vegetables are overly optimistic. Page F-43 contains these calculations. Plaintiffs point to the estimate that only five percent of acephate residues will wash off vegetables after one day, due to absorption of the chemical. Plaintiffs agree with this estimate and state that the calculation at F-43 amounts to a 77% wash off of residues. In reaching this conclusion plaintiffs assumed that vegetables would have a residue of 50 parts per million, while the FEIS stated that only 4.0 to 11.4 parts per million remained after washing. At trial it was determined that vegetables will retain 4-15 parts per million of acephate and that the numbers in the FEIS were correct. (The 50 parts per million figure related to carbaryl residues, not acephate residues). This argument also fails, and I find the FEIS adequate on that issue.

Plaintiffs also argue that certain studies indicate that diflubenzuron and acephate may take considerably longer than the 14 days to degrade, the figure used by the FEIS. At trial defense witnesses explained why they did not rely on those studies in preparing the FEIS. They stated that the studies had been severely criticized because they had considered excessive use of the pesticides, and killed soil microorganisms necessary for the degradation process, or because the study conditions had been in controlled environments not representative of the actual environment.

I find that the agency’s choice of studies on which to rely is within its discretion. I am precluded from reviewing such decisions unless I find them arbitrary or capricious. 5 U.S.C. § 706(2)(A). I find this decision to be reasonable, and plaintiffs fail on this issue.

6. Use of ADIs and NOELs

Plaintiffs contend that the FEIS stresses that NOEL and ADI figures indicate levels of safety and represent no risk situations for the environment and human health. At trial there was lengthy discussion about the use of these figures in assessing human health risks. These numbers are derived from animal studies and are therefore not truly correlative to human risks.

The FEIS defines a NOEL as the level of exposure of an experimental organism to a chemical, at which no adverse effects are observed. This figure does not mean that no adverse effects actually occur at that level, only that none are observed.

ADIs are defined in the FEIS as the maximum dose of a substance that is to be anticipated to be without lifetime risk to human health when taken daily. ADIs are established by dividing NOELs by a factor of ten to account for increased sensitivity of humans over the test animals used to establish the NOELs. These figures are then reduced another ten times to account for more sensitive humans. Thus, ADIs are typically 100 times lower than NOELs. At trial Drs. Richard Niesess and Richard Thomas testified that these values are routinely used in assessing human risks to chemical exposure and other environmental contaminants. No values are available for humans, because no medical or scientific research of this type has been done using humans as experimental models. Moreover, there was testimony that the use of these figures tend to overestimate associated risks to humans. Thus, the use of the figures to estimate human health risks is reasonable and does not render the document inadequate. Plaintiffs cannot prevail on this issue.

7. Data Gaps

Plaintiffs argue that defendants failed to conduct independent research to fill informational gaps as to negative effects of the proposed chemical sprays. 40 C.F.R. § 1502.22 provides that in evaluating adverse effects on the human environment where there are gaps in relevant information or scientific data, the agency must make it clear that such information is lacking, or that uncertainty exists. If the information relevant to adverse impacts is essential but not known, the agency must fill that gap by independent research. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1249 (9th Cir.1984). An agency need not do independent research if the costs of doing the research are exhorbitant or the research means are beyond the state of the art. 40 C.F.R. § 1502.22.

Plaintiffs argue that defendants have ignored this mandate by providing no basis for measuring the costs of research, ignoring human health risks in considering what costs are exhorbitant, and claiming resolution of scientific uncertainty is beyond the state of the art.

The FEIS contains extensive bibliographies at pages 85-97 and F-105-F-113. Page F-7 lists numerous data bases which were searched by the agency in gathering information for the preparation of the FEIS. Several witnesses testified at trial that there are “data gaps” in the relevant information. The research needed to fill these gaps would take many years and require great expense to complete. Scientific studies, in order to be accurate and trustworthy, must be painstakingly performed, repeated and peer reviewed. This process takes many years to complete.

The data on the possible human health effects of these synthetic pesticides were not available to the agency, and could not have been obtained by it either through literature searches or independent research. Accordingly, it was reasonable for the agency to prepare a worst case analysis.

Plaintiffs suggest that the agency compute the total health care expenditures of all humans adversely effected by the programs instituted and compare that figure with the amount of money the government will expend to implement the programs, in order to determine if the costs of research are exhorbitant. This suggestion is illogical. Plaintiffs would require the agency to determine health care costs for health effects presently unknown. That is, the agency would have to have available to it all the scientific data that plaintiffs insist it must research. Plaintiffs do not prevail on this issue.

8. Alternatives Buried

Plaintiffs contend that alternatives to chemical spraying have been buried in the body of the FEIS and thus suggest to decisionmakers that none exist. This challenge to the adequacy of the FEIS is without merit. Alternatives to chemical spraying are discussed in the FEIS at pages ii, 9, 14, 15, 16, 20-24.

Other areas of controversy are also discussed throughout the document despite plaintiffs’ contention that the worst case issues of cancer, mutations and birth defects are buried. The summary clearly identifies major concerns and issues associated with the proposed spraying programs. The first issue mentioned in the summary is human health. Also mentioned are the need for public involvement and education, environmental effects of certain insecticides and the need for the development of alternative suppression methods not involving chemical spraying. Both the summary and the text of the FEIS identify each of the four proposed synthetic insecticides and the cancer risks based on an individual’s exposure to these compounds. Pages vi, vii, 58, 61, 64, 67, table 17, page F-133. See also tables 8-11, pages F-123-126. I do not agree that these alternatives are buried and that the FEIS is therefore invalid.

9. No Estimation of Total Cancer Victims

Plaintiffs assert that the FEIS must contain an estimate of the total number of persons expected to develop cancer as a result of the proposed spraying programs. Plaintiffs state that the FEIS contains no such estimate and is therefore illegally inadequate. Plaintiffs cite no authority for this proposition, but argue that, in their opinion, such an estimated figure is necessary. I do not find the FEIS inadequate for this reason. On pages F-95 and F-96 the FEIS discusses the estimated incidences of cancer assuming that all people living in a treated area will receive the highest estimated exposure. These figures were obtained by using data collected during the previous four years of spraying for gypsy moth suppression and eradication. Pages F-76 through F-84 contain the formulas and equations necessary for calculating this risk. These equations take into account exposure through spraying, dietary sources (both from insecticide on food directly, and from insecticide ingested by animals which are later eaten by humans), watershed, soil concentration and worker exposure. The equations also consider double exposure risks, i.e., direct exposure from spraying or working and dietary exposure.

Plaintiffs’ argument that the FEIS must go beyond these calculations and set an overall specific estimated number of cancer victims is unreasonable for two reasons. First, the FEIS is intended to outline the risks associated with the particular chemicals. The FEIS is then to be supplemented by environmental assessments (EAs) from the individual state agencies that intend to use the chemicals for gypsy moth suppression. The EAs are to correlate the risks set out in the FEIS to the specific areas to be sprayed in the particular state. The FEIS cannot estimate the total number of human exposures without the EAs from the particular states. Any overall number otherwise reported would be conjectural.

Secondly, the FEIS clearly states that 14 states anticipate participation in the federal spraying program. It is unreasonable to require a figure of cancer incidences on a nationwide basis. “Common sense ... teaches us that the ‘detailed statement’ ... cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978).

10. Clarity of FEIS

40 C.F.R. §§ 1502.1 and 1502.2(b) state that the information in an EIS must be “concise, clear and to the point” and that statements should be “analytic rather than encyclopedic.” Section 1502.8 further states that the document should be written in “plain language so that decisionmakers and the public can readily understand them.” (Emphasis added). Plaintiffs assert that the PEIS is highly technical, esoteric and incomprehensible not only to the general public and majority of decisionmakers, but also to readers with advanced scientific backgrounds. I agree with plaintiffs that the WCA does not meet the regulatory mandate of clarity.

A thorough search of the case law and relevant literature has failed to produce any precedent or discussion regarding the “readability” of an EIS. Mention has been made in a few cases of the requirement of understandability in § 1502.8. However, no court has ever invalidated an EIS on the grounds that the document was not “readily understandable]” by the public and decisionmakers.

I find that the text of the FEIS (pages i — 78), although technical does meet the requirements of § 1502.8. That portion of the document discusses six alternatives for the control of the gypsy moth: the four synthetic pesticides, B.t. and integrated pest management. The environmental consequences of each are discussed in clear language. Full disclosure of the consequences of each alternative is in the text. Also included is mention of the fact that more research is needed on the human health risks posed by the use of the four synthetic pesticides.

As stated, because relevant information on the health risks of these pesticides is lacking, the agency is required to include a “worst case analysis” in the FEIS pursuant to 40 C.F.R. § 1502.22(b). The FEIS con-. tains such an analysis in Appendix F. While the regulations do not specifically state that a worst case analysis is subject to the “understandability” standard of § 1502.8, I find that it is. A worst case analysis is an integral and important facet of an EIS. It is designed to alert the public and the decisionmakers of potential health hazards and the probability of their occurrence. Unless the public and the decisionmakers are able to understand a worst case analysis, it is impossible for them to be aware of the potential risks.

In the present case, the worst case analysis contained in Appendix F of the FEIS is hypertechnical, complex and replete with lengthy equations and calculations. When asked to interpret a portion of the worst case analysis, defense witness Dr. Richard Wilson, Chairman of the Department of Physics at Harvard University, stated that he was unable to decipher the precise meaning of the passage, but given 15 minutes of study he could probably untangle the message. This testimony illustrates the complexity of this portion of the document.

I find that the worst case analysis does not meet the requirements of § 1502.8. Although the worst case analysis contains all the necessary information, it fails to communicate that to the persons entitled to be so informed. “An environmental impact statement is more than a disclosure document.” 40 C.F.R. § 1502.1. An EIS must translate technical data into terms that render it an effective disclosure of the environmental impacts of a proposed project to all of its intended readership. Natural Resources Defense Council v. United States Nuclear Regulatory Commission, 685 F.2d 459, 487 n. 149 (D.C.Cir.1982), rev’d on other grounds sub nom. Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). See also, Warm Springs Dam Task Force v. Gribble, 378 F.Supp. 240, 252 (N.D.Cal.1974) (main text of EIS clear, concise and easily readable). Sierra Club v. Froehlke, 359 F.Supp. 1289, 1343 n. 215 (S.D.Tex.1973) rev’d on other grounds sub. nom. Sierra Club v. Callaway, 499 F.2d 982 (5th Cir.1982) (federal agencies must screen EIS for words not understandable to average person).

Therefore, the worst case analysis is legally inadequate and cannot be relied upon for the spraying of the four synthetic pesticides. The other two alternatives, B.t. and integrated pest management, are not covered in the worst case analysis, nor need they be. The use of these alternatives is fully covered in the main text of the FEIS, which I have determined legally adequate.

E. Remedies

The main text of the FEIS is legally sufficient, but the worst case analysis is legally insufficient. I now must determine the appropriate remedy. An adequate worst case analysis is required before any of the four synthetic pesticides can be used in the eradication or suppression of gypsy moths. I therefore enjoin the use of the synthetic pesticides carbaryl, trichlorofon, acephate and diflubenzuron. I do, however, delay the injunction for two reasons.

At close of trial I asked plaintiffs specifically what relief they sought, should I determine the FEIS inadequate. Plaintiffs requested an injunction in Oregon, commencing immediately, prohibiting the use of the four synthetic pesticides. They also asked for a nationwide injunction to commence January 1986. I grant their request.

The Oregon spraying program has been approved and the federal government has agreed to contribute dollars for its implementation. That program does not envision the use of chemicals. Rather, it has long been decided that B.t. will be used. I have earlier ordered that the Oregon program can, therefore, proceed as planned.

I impose a delayed nationwide injunction because it is the plaintiffs’ requested remedy and because the imposition of an injunction on the eve of national spraying of gypsy moths would result in more damage to the environment than allowing the use of the chemical spraying. The Ninth Circuit has firmly stated that an injunction may be modified or denied altogether if the court determines more harm to the environment would result with the imposition of the injunction. American Motorcyclist Association v. Watt, 714 F.2d 962 (9th Cir.1983). See also, Alpine Lake Protection Society v. Schlapfer, 518 F.2d 1089 (9th Cir.1975). The FEIS makes it clear that many states are heavily infested with gypsy moths and the use of the synthetic pesticides is necessary to control these infestations. If not challenged, the moths would destroy the foliage on millions of acres of hardwood forests in the eastern United States. Although B.t. is the treatment of choice in Oregon, see FEIS pages 3, 10, we do not know that it is elsewhere, and we do not even know if B.t. is available elsewhere. Therefore, the nationwide injunction will go into effect following the spraying season, which, on balance, seems the soundest decision in aid of a healthy environment.

CONCLUSION

The main text of the FEIS is legally adequate, but the worst case analysis fails to meet the requirements of 40 C.F.R. § 1502.8 and is inadequate. For the reasons above stated, I enjoin the use of carbaryl, trichlorofon, acephate and diflubenzuron commencing immediately in Oregon, and after January 1, 1986 on a nationwide basis.

APPENDIX A

MR. SOKOL: I want to address what you have asked us about before lunch: What sort of remedy is appropriate for the Court to fashion. I will do so briefly, Your Honor.

Under 5 U.S.C. Section 702 it provides as follows:

“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

Now, our reading of that statute and our interpretation is this: When we first went through this case, Your Honor, starting in 1982 and ultimately the Ninth Circuit Court of Appeals concluded that the environmental impact statement was legally inadequate, we have had several conferences with Your Honor on the phone and discussions back and forth. At that time, we thought we were entitled and felt we wished a national injunction because the environmental impact statement had been adjudged legally inadequate.

So Your Honor does have, I think respectfully some discretion in deciding whether to entertain and to issue an injunction, a national injunction or a more limited statewide injunction and the Court injunction was to the state. Subsequently I think the only thing that has changed is the Court decision in Merrill v. Block. In Merrill v. Block, the Ninth Circuit Court of Appeals, we were seeking — and I can have my co-counsel talk about this since he was the appellate counsel in that case — we were seeking a ruling which we achieved in the Ninth Circuit that if the environmental impact statement is legally inadequate, the Court does not have discretion to do less than the plaintiffs are seeking because under the provisions of 5 U.S.C. Section 702, we read that to mean that we have some input in what remedy the Court is going to provide, what remedy we are seeking.

And the only thing that Merrill says according to our interpretation is that the Court is not empowered in its discretion because Congress had divided power among the courts and the Congress. The courts do not have power to enter less of an injunction if the document is inadequate and less than the parties are seeking.

In this case, we are seeking a statewide expansion of the injunction that Your Hon- or entered on January 24th, I believe it was, in 1984, to include the three synthetic pesticides because we believe, Your Honor, we have proven in court that the environmental impact statement is overwhelmingly and legally inadequate.

An alternate remedy I will present to the Court is the possibility of a national injunction to be entered to commence January 1986, giving the Government time to decide in this case whether or not to enter an appeal or whether to rewrite the environmental document or what remedy they wish to seek.

And the advantage of that which we talked about was that it would allow the states to go forward with whatever programs outside of Oregon which were available and at the same time make the provision known that it was a one-time occurrence and subsequently additional action would have to be taken.

      . A portion of the trial transcript of Thursday, April 18, 1985, in which plaintiffs’ counsel outlines their remedy request, is attached hereto as Appendix A.


author: LEVAL, District Judge.

text:
    UNITED STATES of America v. Nelson RONDON and Ernest Baez, Defendants.
    No. 85 Cr. 78(PNL).
    United States District Court, S.D. New York.
    May 10, 1985.

      Douglas F. Eaton, New York City, for-defendant Baez.
    Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City, for plaintiff; Herve Gouraige, Ass’t U.S. Atty., New York City, of counsel.
   OPINION AND ORDER

LEVAL, District Judge.

This is a motion by defendant Ernest Baez to suppress statements made by him to an Assistant United States Attorney after his arrest and before his arraignment. The motion is based on two grounds. The first seeks to suppress a portion of the interview on the contention that the Assistant continued questioning after the defendant expressed the wish to consult counsel. The second attacks the entire interview on the contention that such questioning by the prosecutor before arraignment violates the Constitution and Rule 5(a), Fed.R.Crim.P.

The motion is denied on the second ground, but granted on the first.

Baez was arrested by the New York City Police at 107 E. 110 Street on January 2, 1985 shortly after 2:30 p.m. after selling a packet of cocaine to an undercover New York City police officer. By arrangement between the federal and local authorities, defendants arrested that day by the New York City Police for drug sales in Manhattan were to be prosecuted by the United States Attorney in federal court. The defendant was taken by the arresting officers to the 26th Precinct for processing. (Ordinarily booking and processing would have been done at the 23rd Precinct. That day all such narcotics arrestees were taken to the 26th where an Assistant U.S. Attorney was posted.) After completion of processing at the precinct, the defendant was taken downtown by the arresting officers to the U.S. Courthouse, where he arrived at 5:50 p.m. He was taken directly to the office of an Assistant U.S. Attorney. The evidence showed that the U.S. Magistrates had issued a policy to the United States Attorney to the effect that magistrates would remain available each evening for the arraignment of defendants who arrived in the building before 5:00 p.m. but would put over to the next day those who arrived after 5:00 p.m. Accordingly, as of the defendant’s arrival, it was clear he would not be arraigned that evening.

The office policy of the United States Attorney since United, States v. Perez, 733 F.2d 1026 (2d Cir.1984), has been to interview arrested defendants before their arraignment if such interview would be within six hours of the arrest. The Assistant accordingly proceeded to interview the defendant. He first gave the Miranda advice, elicited Baez’ agreement to answer questions (telling him he could choose the questions he wished to answer and could “stop at any time”), and went ahead with questioning. Following the office form, the Assistant began with questions about the defendant’s occupation, address, family, schooling, prior employment, roots, criminal record, financial condition, etc., all being pertinent to the issue of the Government’s bail recommendation to be made to the magistrate.

The Assistant then asked whether Baez had any complaint as to how he was treated by the arresting officers. His answer, according to the notes and testimony of the Assistant, was that he would “talk to Legal Aid about that.” (Baez testified at the suppression hearing that his answer had been that he wanted a lawyer before he answered any more questions. I accept the Assistant’s and not the defendant’s version of this interchange.)

The Assistant then moved on to the part of the form that calls for questioning about the offense. The form calls for the question, “Would you like to tell me what happened?” The Assistant testified that he may have deviated from the prescribed form and simply asked, “Okay, what happened?” Baez made a number of incriminating statements. He admitted awareness of about 20 or 30 packets of cocaine, two capsules of cocaine, a bag of marijuana, and 29 hypodermic needles in his apartment. When asked whether he was going to sell the cocaine, he said, “I’m not going to answer that.” The interview continued and the defendant made further damaging admissions.

The arraignment would normally have occurred first thing the next day. Because of the large number of City police narcotics arrests diverted into federal court, the Magistrates court and its system for appointing counsel were overtaxed. Baez did not obtain counsel until afternoon and was not arraigned until late in the day.

Discussion

I

I find that the Assistant, who was new to the job at the time of the interview, made certain errors of judgment that require suppression of the incriminating statements.

When the defendant said, in response to the inquiry whether he had complaints about his treatment by the police, that he would “talk to Legal Aid about that,” this should have raised two warning flags. First, the answer tended to suggest mistreatment by the police. Claims of misconduct should, if possible, be evaluated to determine whether prompt investigation is called for. Also, if the complaint was a fabrication, the answer warned of a possible attack on whatever statement might be given to the Assistant based on a claim of coercion by the police.

I do not offer suggestions as to what would have been the best course for the Assistant to follow under the circumstances. Nor do I dwell on that aspect of the problem as no claim of police misconduct later materialized. I suggest only that the Assistant’s disregard of this warning was not the best course.

The second, and now more pertinent, warning flag was the possible implicit suggestion that the defendant wanted then to talk to a lawyer. The Assistant interpreted the answer “I’ll talk to Legal Aid about that” as placing emphasis on the “about that” and indicating no unwillingness to answer without counsel on other subjects. Thus the Assistant made no effort to ask questions seeking to interpret the defendant’s comment or inquire whether defendant remained willing to answer other questions without counsel, but moved on directly to the substantive portion of the interview. Furthermore, as noted above, he rephrased the question dictated by his office form, substituting “Okay, what happened?” for “Would you like to tell me what happened?”

The procedure was mistaken in two respects. Assistants should not treat Miranda warnings as a mere textual formality to be recited on the way to eliciting a confession. The government will have the burden of proving an understanding waiver by the defendant of his right not to be questioned. When a questioned suspect makes a tentative, ambiguous or unclear reference to a desire for legal advice, Assistants should not brush these aside interpreting them in the manner most favorable to the government, but should probe the issue to ascertain whether the defendant continues to be willing to answer questions without counsel. See United States v. Chansriharaj, 446 F.Supp. 107 (S.D.N.Y.1978).

Furthermore, by changing the formulation of the next question, the Assistant reduced the emphasis of the questions on the defendant’s willingness to continue. He eliminated the aspect of the question that inquired of the defendant’s willingness and adopted a form that is more like an inquisitorial demand.

And, when once again during the interview the defendant said he didn’t want to answer a question, the Assistant simply proceeded to the next question, without effort to ascertain whether the defendant understood that he had the right to terminate the interview until represented.

The Government has not sustained its “heavy burden ... to demonstrate that the defendant knowingly and intelligently waived” his right to terminate the interview until such time as he would be provided with counsel. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); U.S. v. Duvall, 537 F.2d 15, 22-25 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Otherwise put, referring to the factors dictated by 18 U.S.C. § 3501, I find the Government’s proof insufficient of its meaningful satisfaction of § 3501(b)(4). The admissions following the reference to Legal Aid are accordingly ordered suppressed.

II

The defendant’s motion to suppress based on illegality of the U.S. Attorney’s pre-arraignment interview is largely mooted by the ruling made above, as the incriminating statements the government wishes to offer occurred after the defendant’s reference to Legal Aid. I nonetheless rule and comment on this issue which has been the subject of recent debate.

Two opinions of the Court of Appeals have questioned the lawfulness of U.S. Attorney’s pre-arraignment interviews on constitutional grounds, but have stopped short of ruling the practice illegal. United States v. Perez, 733 F.2d 1026 (2d Cir.1984); United States v. Foley, 735 F.2d 45 (2d Cir.1984).

In Perez, the interview had been conducted eight hours after the arrest. Judge Weinfeld had found the delay unreasonable and suppressed the defendant’s statements. The Court of Appeals affirmed, ruling that under § 3501 such a delay of more than six hours between arrest and questioning is sufficient basis to justify suppression. In Foley, the Legal Aid lawyer who was about to be appointed had telephoned to the Assistant and demanded that the defendant not be interviewed; the Assistant had disregarded this demand. The defendant’s statement was not suppressed, but the Court of Appeals criticized the practice of conducting pre-arraignment interviews.

I have no disagreement with the suppression in Perez based on the delay. Indeed, in my view, as Judge Lumbard noted in a separate opinion, the Foley court might properly have gone farther than it did and suppressed the statement based on the Assistant’s disregard of the lawyer’s demand: although the attorney had not yet been formally appointed, he had already started to act on the defendant’s behalf. The Assistant might thus be found to have violated the defendant’s right, upon his lawyer’s demand, to have the questioning terminate. See 735 F.2d at 49-50 & n. 1 (Lumbard, J., concurring).

I have no disagreement with the Court of Appeals’ criticism of those aspects of the conduct of the U.S. Attorney, but must respectfully disagree with the further comments in both opinions questioning whether the pre-arraignment interview is inherently an unconstitutional practice.

In my opinion the practice of pre-arraignment interview by the Assistant, assuming it is done with scrupulous respect for the defendant’s rights, is a lawful procedure offering valuable benefits to the enforcement of the criminal laws while offering certain potential advantages to defendants as well. Its lawfulness, furthermore, is emphatically endorsed by act of Congress.

1. Although it is sometimes argued that the pre-arraignment interview is incompatible with the command of Rule 5(a), F.R.Crim.P., that the arrested person be taken “without unnecessary delay before the nearest available federal magistrate,” this argument is overridden by 18 U.S.C. § 3501, passed in 1968 in response to the Supreme Court’s Miranda ruling, 384 U.S. 436, 86 S.Ct. 1602 (1966). The statute provides that an incriminating statement “shall be admissible in evidence if it is voluntarily given,” and “shall not be inadmissible solely because of delay in bringing [the defendant] before a magistrate”- if the delay between arrest and arraignment is less than 6 hours. A number of delays for law enforcement purposes, including fingerprinting, questioning by agents and other processing, are not “unnecessary delays” if done with reasonable dispatch. Such questioning by a prosecutor within 6 hours falls in the same category-

Two opinions by Judge Friendly in the 1970s, United States v. Marrero, 450 F.2d 373, 379 (2d Cir.1971) (concurring opinion) and United States v. Duvall, supra, 537 F.2d 15 (2d Cir.1976), commented on the long standing conflict between the U.S. Attorney’s practice and the obligation to provide a prompt arraignment, but recognized that the recent enactment of § 3501 ruled out a finding of illegality by reason of violation of Rule 5(a), so long as the 6 hour limit of the statute was observed. See Duvall, 537 F.2d at 23-24 & n. 9. Judge Friendly cautioned prosecutors to be “particularly scrupulous to observe the cautions of Miranda,” 537 F.2d at 24; I have no disagreement with his criticisms of delays and overreaching by the prosecutors on those facts. But I note that neither opinion in any way endorses or supports the constitutional arguments discussed in Perez and Foley.

2. A point emphasized by the Perez and Foley opinions is discriminatory impact against the poor. The reasoning starts with the observation that defendants known to be represented by private counsel are not questioned by the prosecutor. It is therefore concluded that “the practice is invoked only against a defendant who is poor and unrepresented.” 735 F.2d at 48. In consequence, it is argued that such questioning is constitutionally suspect in its “potentially discriminatory impact ... upon indigent defendants.” 735 F.2d at 49. I believe this argument is flawed in several respects.

The fact that defendants known to be represented are not questioned does not mean that the indigent are most often questioned, much less that the practice “is invoked only against ... [the] poor____” 735 F.2d at 48. Most persons in our society have sufficient resources to be ineligible for CJA funding but do not have lawyers on retainer. Such a person will be questioned by the United States Attorney. On the other hand, many offenders (particularly in the area of narcotics) are repeaters who have been previously arrested in either the federal or the state system. If indigent, they have appointed lawyers. It is not clear whether they would be questioned on stating that they have a lawyer. It is certainly not the case that only the poor are questioned and far from clear that the questioning falls more heavily on the indigent.

But even if this were the case, I would find it difficult to accept the further reasoning. It suggests a conclusion of unconstitutional discrimination based on the observation that indigent defendants who depend for appointment of counsel on the Criminal Justice Act do not obtain all the advantages available to wealthier defendants who hire their lawyers. I believe this is not, and cannot be, the appropriate test. The Constitution guarantees that the poor will have representation of counsel furnished to them at the critical stages of the prosecution. It does not guarantee, nor does our system provide, that this representation will be equivalent to what is available to the wealthy. Necessarily, there are numerous distinctions and disadvantages. The wealthy may hire whatever lawyer will agree to accept their retainer; the indigent have no choice but must accept whoever is assigned by the court. The wealthy may hire teams of lawyers; the indigent (in all but the most demanding cases) are served only by one. The wealthy client may offer his lawyers terms to induce them to devote their primary attention and energies to the defense of his case; the indigent can pay only the statutory fee available under the Criminal Justice Act. One could go on. The Supreme Court made clear in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) that the constitutional right to counsel does not imply entitlement to all the advantages of counsel that may be privately retained. What our standard requires is representation at the critical stages of prosecution, i.e., upon arraignment, and after indictment, see Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), not parity with those who retain counsel. Parity is an impossible goal. It cannot be achieved and should not be used as a standard of lawfulness. If it is employed as a standard, then our entire system flunks the test.

3. Perez and Foley further question whether the interview should be found unconstitutional because of a “unique chilling effect ... on a defendant’s right to testify,” — the capacity of the defendant’s statements to “commit [him] to a ‘story’ or position that would restrict his options at trial, including his option to testify in his own behalf.” 735 F.2d at 48, 49. I do not think such an argument can be supported.

As Judge Lumbard noted in Foley, the defendant’s right to elect to testify is not restricted. 735 F.2d at 50. The Constitution guarantees that right. It does not guarantee that the prosecution will not investigate so as to disprove a fabricated alibi. That is what the interview of the defendant accomplishes. If he has confessed the crime, he may indeed see little point in taking the stand to deny it. If he has given one alibi, he may see little value in taking the stand to give a new and better one. It could not seriously be argued that a defendant’s right to testify was impaired by a thorough police investigation that revealed the falsity of his intended alibi. I don’t see why the interview stands on a different footing. His right to testify is fully preserved, albeit the potential benefits of giving fabricated testimony on the stand have been reduced.

4. Foley also questions the practice because it “aid[s] the prosecutor and harm[s] the defendant” by the obtaining of “admissions from the defendant which would not be forthcoming once an attorney enters the picture....” 735 F.2d at 48.

I agree that counsel would routinely dissuade their clients from making admissions, and that defendants would often have a better chance of acquittal if they had not answered the prosecutor’s questions. I do not understand why this makes the practice either illegal or undesirable.

Foley does not suggest that the evidence produced by such admissions is unreliable. To the extent that it helps produce convictions and guilty pleas, there is no suggestion that it has any tendency to convict the innocent. To the contrary, the practice is a valuable and effective investigative tool for producing strong evidence against guilty defendants. It increases the likelihood of conviction of the guilty; it decreases their opportunity to fabricate perjurious explanations, and it increases the likelihood that the defendant will plead guilty.

In my view, the purpose of appointment of counsel is not, like a golf handicap, to give the weaker player a better chance of winning. It is to fulfill a condition found necessary to a fair proceeding: that the defendant have skilled assistance at the crucial stages of the prosecution. The Sixth Amendment has not been held to require that an arrested suspect have counsel when questioned. The Supreme Court has often spoken on the subject and ruled to the contrary. Miranda v. Arizona authorizes the questioning of unrepresented arrested suspects if they have received explanation of their rights and agree to proceed.' Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972), specified that the right to counsel does not attach until arraignment, indictment or other adversary judicial proceedings. ’

Arrested suspects are routinely questioned without counsel before arraignment by police officers and federal agents. Such questioning is lawful if lawfully conducted. I can see no reason why the case should be any different simply because the questioning is by the prosecutor. To the contrary, such questioning by the Assistant gives greater assurance that the defendant will be fully and meaningfully advised of his rights, that oppressive tactics will be avoided and that the defendant’s answer will be accurately preserved without distortion. We employ prosecutors to investigate crimes thoroughly and prosecute them both fairly and effectively. In questioning an arrested suspect prior to arraignment, the Assistant is using a civilized and lawful technique for obtaining evidence of the most reliable sort to help secure the conviction of guilty offenders. That, it seems to me, is just what a prosecutor should be ' doing.

Furthermore, such questioning precedes the decision to prosecute. It is not merely formalism to say, in accordance with Kirby v. Illinois, that the right to counsel has not attached, for at this time the prosecutor has nothing more than the judgment of the agent or police officer that probable cause warranted an arrest. 406 U.S. at 689-90, 92 S.Ct. at 1882. The prosecutor may disagree, or even if he agrees, may think the prosecution unwarranted as a matter of discretion. Although it is true the defendant is in custody (as the result of a police officer’s decision), no prosecutorial decision has been made at this point to seek an indictment. It is appropriate that there be no constitutional right to counsel at this stage and that questioning be permitted of the arrested suspect, as provided in § 3501, whether by the police or by the prosecutor, so long as the obligations of Miranda and of arraignment without unnecessary delay are scrupulously observed.

5. The Foley opinion (but not Perez) also discusses ethical problems under Disciplinary Rule 7-104(A)(l) of the ABA Code of Professional Responsibility. It must be that this observation referred to the Assistant’s disregard of the demand of the lawyer who was waiting to be appointed. The rule could not be infringed by questioning of a suspect who is known to be unrepresented, for the rule prohibits a lawyer from unauthorized communication “with a party he knows to be represented by a lawyer.” 735 F.2d at 48 (emphasis added). Those observations were pertinent to the Foley facts, but I believe they have no reference to the general practice of questioning unrepresented suspects prior to arraignment.

6. Both opinions seem to attach significance to the belief that the U.S. Attorney for the Southern District of New York is the only federal prosecutor who interviews unrepresented arrested suspects before arraignment. The Court of Appeals apparently relied for this proposition on a reference in a district court opinion, U.S. v. Restrepo-Cruz, 547 F.Supp. 1048 (S.D.N.Y.1982), to an internal memorandum written by a magistrate to his colleagues which stated without cited source that the Southern District office was “apparently the only federal prosecutor’s office in this country which still adheres to the practice of conducting prearraignment interviews.” 547 F.Supp. at 1064.

A few telephone calls made to U.S. Attorneys’ offices suggest that the Southern District office is by no means alone in conducting such pre-arraignment interviews (although it may do so in a larger percentage of cases than other offices). Several other offices responded that they conduct such interviews, particularly in important cases and cases in which it is hoped the suspect will cooperate.

My sampling revealed that a number of offices had dropped or reduced the practice in recent years — not because it was thought improper, but to avoid complications that result from the Assistant becoming a witness.

7. Although a major purpose of the interview is, no doubt, to gather strong evidence to support the prosecution of the offense, it has other values some of which benefit defendants. As Judge Lumbard noted, a pre-arraignment interview helps the Assistant make an early evaluation of the case which sometimes leads to a decision not to prosecute, either because of insufficiency of proof or for discretionary reasons. Foley, 735 F.2d at 50. Frequently the interview leads the Assistant to take a more accommodating position on bail when the defendant communicates his reliability as a bail risk, as well as on the possibility of deferred prosecution. It provides the defendant with an opportunity to agree to cooperate and to obtain the benefits of the Witness Protection Program for himself and his family — an opportunity that often disappears once the defendant is represented by counsel because of the defendant’s worry that his cooperation might become known. It permits the prosecution to learn promptly of misconduct by law enforcement officers and take proper steps to investigate.

Also, it is worth noting from the court’s point of view that such interviews greatly diminish frivolous litigation. Defendants who have acknowledged to the Assistant that they were properly treated by the arresting officers are less likely then to invent unfounded accusations to furnish the basis of frivolous but time consuming suppression motions. And, as noted above, defendants who have admitted guilt are less likely to demand trials to test the persuasiveness of the Government’s proof or of subsequently concocted alibis. These benefits to the courts and public, as well as to law enforcement, are considerable.

I would add as a caution that a decision invalidating pre-arraignment interviews by prosecutors on the constitutional grounds discussed in Perez and Foley would deal a serious blow to the prosecution of violent crimes by local law enforcement. It is a common practice in local law enforcement, especially as to serious crimes of violence such as murders, rapes and armed robberies, for assistant district attorneys to question arrested suspects prior to arraignment and appointment of counsel. This is, in my view, a desirable practice which helps appraise the quality of the evidence before a prosecutorial decision is made and obtains valuable evidence of the most serious offenses, while giving assurance that the rights of arrested suspects have been respected in the questioning. The expected intervention of the prosecutor at this stage, furthermore, is a significant inducement to the police to deal with the suspect in accordance with the law.

For all the reasons given above, I find no unlawfulness in the fact that defendant was questioned by the prosecutor before arraignment. That aspect of his motion is denied.

      . Not the same Assistant who appeared for the trial of the action.

      . Because the deficiencies discussed above are sufficient to warrant suppression, I need not consider the effect, if any, of the following day’s delay of arraignment. See 18 U.S.C. § 3501(b)(1).