author: NEAHER, District Judge.

text:
    CONSUMERS SUBSCRIPTION CENTER, INC., Plaintiff, v. WEB LETTER COMPANY, Tri-State Envelope Corporation, ICS Corporation, and Ballantine Litho-Sales, Inc., Defendants.
    No. 82 CV 390.
    United States District Court, E.D. New York.
    May 22, 1985.

      Norman A. Kaplan, Great Neck, N.Y., for plaintiff.
    Meinhardt & Kightlinger, by John D. Kightlinger, Arlington Heights, Ill., for Web Letter Co.
    Byron Golden, New York, N.Y., for TriState Envelope Corp.
    Anthony J. McNulty, Media, Pa., for ICS Corp.
    Ruden & Cramer, P.C., by Martin R. Cramer, New York, N.Y., for Ballantine Litho-Sales, Inc.
   MEMORANDUM OP DECISION AND ORDER

NEAHER, District Judge.

Plaintiff commenced this diversity action to redress defendants’ alleged breaches of contract. The case is before the Court upon each defendant’s motion for summary judgment. Consequently, in this context the facts are related as they appear in plaintiff’s opposing papers.

Stripped of its hyperbole and numerous immaterial conclusions of law, the affidavit of Bernard Gelb, plaintiff’s director of operations, recites plaintiff’s version of the events which led to this litigation. Gelb is also president of plaintiff’s parent company, Consumers Subscription Service, Inc., and functions as the printing buyer for these entities and the Sears Subscription Service, which plaintiff also operates. These businesses merchandise discount magazine subscriptions through the mails from an office located in Queens. A magazine sweepstakes promotion scheduled to be mailed in mid-1981 furnishes the backdrop for the instant dispute.

In April 1981 Tom Cote Jr., an employee of Ballantine Litho-Sales, Inc. (Ballantine), obtained the artwork and graphics necessary for the job. As Gelb understood the arrangement, Tri-State Envelope Corp. (TriState) would print the outer envelope, which would contain a letter printed by Web Letter Co. (Web), a brochure printed by Slate Printing Co. (Slate) and a reply card printed by ICS Corp. (ICS). After the suit’s inception, Slate was removed from the litigation by way of the bankruptcy court.

On May 11, 1981 Cote sent a letter to Gelb which states:

“Attached are the five contracts regarding your next printing jobs.
“Please sign where indicated.”

Although unsigned, the letter appears on Ballantine’s stationery and was accompanied by six pages of typewritten documents, also on Ballantine’s stationery. Only three of these pages are signed by Cote, and all six appear to be signed almost illegibly by Gelb. The first page, addressed to Gelb and dated May 11, 1981, states:

I am pleased to quote the following based on our understanding of your specifications as outlined below:

A handwritten ellipse has been drawn velope. Again, “Size, Stock, Colors,” etc. around “$34.25/M.” The third page bears are noted and the quantity and prices are: a number 2 and refers to a mailing en-

A handwritten ellipse has also been drawn May 12, 1981 and refers to a “Return En-around $19.00/M. The fifth page resem- velope.” The quantity and prices are: bles the first page except that it is dated

"Quantity: 1MM - 2MM"
"Prices: 1MM......$7.10/M 2 MM.....$6.90/M"

The sixth page, which refers to a “Letter,” resembles the first with quantity and price noted as follows:

"Quantity: 2MM - 3MM
"Prices: 2MM 3MM"
$6.12/M $5.89/M

Notably, too, none of the pages refers to any of the defendants except Ballantine.

According to Gelb, as had been their practice in the past, Cote kept a set of these documents, referred to by Gelb as contracts, which set “had the specific number required to be printed, underlined and initialed on each and every contract.” Gelb affidavit j[ 12 at p. 6. Gelb’s confidence that “business as usual” was proceeding was bolstered by William Able, Ballantine’s production manager. On May 15, 1981 Able reported that he was ordering paper for the project, confirmed the quantity, the paper stock, and the ink colors, and identified the printers, Slate, Web, Tri-State, ICS, of each piece of the mailing.

Abruptly, however, on May 22,1981 Cote and his father visited plaintiffs office on behalf of the other defendants and represented that they wanted cash in advance for the job. This dispute was seemingly resolved, and Gelb contacted Cote later that day to review the progress of changes Ballantine was to make on the artwork and film supplied by plaintiff. Cote stated the project would go ahead and that the printers had ordered paper. On May 28, 1981, however, Cote telephoned Gelb to tell him that Ballantine would not complete the balance of the work on the film and art and the printers would not commence the job. Additionally, the return of plaintiffs film and art would require payment in advance for the work already done. By June 3, 1981 plaintiff had retrieved the art and film and the next day, by mailgram, Gelb notified each of the printers that its agent, Ballantine, had made a contract for the respective item.

“Ballantine has broken the contract and states that you did not deliver. If you do not deliver the merchandise in accordance with the contract we will bring a lawsuit against you for breach of contract.”

Gelb affidavit j[ 15 at p. 9. Before Gelb carried out his threat, he received a telephone call on June 7, 1981 from Richard Pendergast, vice-president of ICS, who acknowledged receipt of the mailgram and the agency relationship with Ballantine.

“Mr. Pendergast stated that his company wanted to perform the printing in accordance with the contract, but he (ICS) was instructed by Ballantine not to do the printing because all the other printing companies would then be required to perform and do the printing also. Mr. Pendergast indicated that he understood he was legally responsible, but Ballantine was giving him (ICS) a lot of business and Ballantine was more important to him than Consumers.
“Mr. Pendergast even mentioned that any amount he would lose in a law suit would not be as great as the loss of Ballantine to his company. Mr. Pendergast acknowledged that he had done printing for Consumers in the past and that there were no outstanding balances. I told him he would be hearing from my attorney.”

Gelb affidavit j| 18 at p. 11.

Before evaluating the various defenses and arguments made in support of each defendant’s motion for summary judgment, the Court will respond to matters raised in the papers but not germane to this stage of the litigation. Despite the record of Gelb’s behavior concerning this or unrelated litigation in this Court, his credibility is not at issue in this motion. In the same vein, Gelb’s affidavit is replete with an assortment of opinions and legal conclusions which are not admissible testimony under Fed.R.Civ.P. 56(e), and which, therefore, must be treated as surplusage.

Turning to the merits, plaintiff bases its right to recovery on the theory that Ballantine acted as an agent to bind the other defendants to contracts for various printed matter. In response, the defendants have raised issues of agency and contract law.

New York U.C.C. § 2-201(1) provides:
“Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”
“It is clear that, in order to satisfy [this] Statute of Frauds provision, the writing need not contain all the material terms of the agreement. Indeed, there are only three ‘invariable requirements’ that a writing must meet. ‘First, it must evidence a contract for the sale of goods; second, it must be “signed”, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity’ (Uniform Commercial Code, § 2-201, Official Comment No. 1).”

Horn Waterproofing Corp. v. Horn Construction Co., Inc., 104 A.D.2d 851, 480 N.Y.S.2d 367, 369 (2d Dept.1984) (memorandum).

The face of plaintiff’s written memoranda are at best ambiguous about specifying the quantity of goods in the alleged contract. The ambiguity is not clarified by the complaint, which alleges no quantity at all for the contracts with Slate, Tri-State, and Ballantine and a quantity of 2,000,000 for the contracts with ICS and Web. Gelb’s testimony is the only evidence

offered to clarify which of the various quantities listed on the written memoranda is the quantity that the parties allegedly agreed upon. The Court need not rest its ruling on that point, however, because plaintiff premises its claim upon an agency relationship which it must prove. See Sponge Rubber Products Co. v. Purofied Down Products Corp., 281 A.D. 380, 119 N.Y.S.2d 783, 785 (1st Dept. 1953), affd 306 N.Y. 776, 118 N.E.2d 479 (1954). Assertedly, this relationship arises from the apparent authority of Ballantine to enter into contracts for printing on behalf of the other defendants. The lack of Ballantine’s actual authority to so act is undisputed.

“Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority. ‘Rather, the existence of “apparent authority” depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent.’ Moreover, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable.”

Hallock v. State, 64 N.Y.2d 224, 485 N.Y. S.2d 510, 513, 474 N.E.2d 1178, 1181 (1984) (citations omitted).

“One who deals with an agent does so at his peril, and must make the necessary effort to discover the actual scope of authority.”

Ford v. Unity Hospital, 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 299 N.E.2d 659 (1973) (citation omitted). This maxim is particularly applicable to Web, with whom Gelb has had no prior business dealings on behalf of any of the magazine subscription entities with which he is associated. Gelb was not entitled to rely upon Cote’s representation of the agency relationship as giving rise to Ballantine’s authority to bind Web to contracts for printed materials. See Chelsea National Bank v. Lincoln Plaza Towers, 93 A.D.2d 216, 461 N.Y.S.2d 328, 331 (1st Dept.1983). That Cote had stated that for this job, Web would act as a substitute printer for Slate, with whom Web had some business relationship, is equally insufficient. Similarly Gelb’s conversation with Ballantine’s employee, Bill Able, does not constitute conduct or representations by Web. See id.

At his deposition Gelb testified that either 2 weeks before or 2 weeks after the signing of the writings sent by Ballantine, he vaguely recalled that he may have discussed this project on the telephone with someone, “a production type person”, at Web. This testimony does not establish Ballantine’s authority to bind Web to a contract for anything. Additionally, Gelb’s receipt of paper samples from Allied Paper, Inc., Web’s supplier, also does not constitute evidence from which the trier of fact may conclude that Web had misled Gelb into believing that Ballantine had authority to bind Web to a contract. The caselaw requires proof that Web’s conduct induced Gelb to believe that Ballantine could make a contract on Web’s behalf. See Greene v. Hellman, 51 N.Y.2d 197, 204, 433 N.Y.S.2d 75, 412 N.E.2d 1301 (1980) (“Key to the creation of apparent authority is that the third person, accepting the appearance of authority as true, has relied upon it.”). In this case, according to Gelb, the contract or agreement arose on the signing of the May 11 and 12, 1981 memoranda, Gelb affidavit K 12 at p. 6, an event which was prior to the sending of the paper samples, possibly pri- or to any telephone conversation Gelb had with an unidentified individual at Web, and prior to Ballantine’s representations that Web had ordered paper. Given the series of events as Gelb claims they occurred, there is no dispute that he could not have relied upon, and did not rely upon, those events to conclude that Ballantine had authority to bind Web to a contract.

For the foregoing reasons, the Court finds that there is no genuine issue as to any material fact and that Web’s motion for summary judgment should be granted.

Unlike Web, defendants Tri-State and ICS have previously transacted business with Gelb, but not with plaintiff.

“[Wjhere an agency is sought to be established by a prior course of dealing, such conduct determines the extent of the agency as well as its existence.”

O.A. Skutt, Inc. v. J. & H. Goodwin Ltd., 251 A.D. 84, 295 N.Y.S. 772, 776 (4th Dept. 1937); accord Kentucky-Pennsylvania Oil & Gas Corp. v. Clark, 247 Ky. 438, 57 S.W.2d 65, 70 (1933) (“To constitute binding precedents, transactions must not only be of similar things done, but of things done in a similar way. Mechem on Agency, § 263.”).

The evidence submitted by plaintiff discloses that the instant series of events did not constitute “business as usual” and did not parallel Gelb’s prior transaction with Tri-State. Exh. 14 to Gelb’s affidavit is an acknowledgment form from Tri-State to Consumers Subscription Service Inc., at plaintiff’s address, attention: Bernie Gelb. It is dated July 11, 1980, and contains specific terms for quantity, style, price, paper, shipping, delivery, and printing specifications for 1,000,000 envelopes. Exh. 25 to Gelb’s affidavit consists of a set of papers, among them an invoice from Tri-State dated August 22, 1980, for 260,000 envelopes sold to Sears Subscription Service, the can-celled check Gelb remitted in response to this invoice, an invoice dated August 6, 1980, for the envelopes mentioned in Exh. 14, supra, and the shipping documents for those envelopes. In a reply affirmation, Joseph R. Harbeson, an attorney representing Tri-State, reiterates that the acknowledgment form evidences the manner in which Tri-State conducts business as detailed in the affidavit of John Swensen, a salesman for Tri-State. Brokers such as Ballantine are authorized to solicit business for Tri-State, a large envelope printer with plants located in four states. The broker furnishes price quotations, but the acceptance of the job comes directly from TriState, which, like other printers, cannot agree to fulfill an order until it knows the terms proposed by the customer. Specifically, as Swensen explains, a delivery date is crucial because only then can Tri-State determine that it has or will have the necessary materials and printing capacity to complete the job by the time requested. For this reason, brokers do not have authority to enter into contracts on behalf of Tri-State.

In the instant case Gelb has not produced any acknowledgment form from Tri-State for the alleged contract nor does he assert that one was received. This circumstance compels the inference that TriState adhered to its usual business practice. Additionally, the documents offered by Gelb as the written memoranda of the contract also support this conclusion. Among other missing terms, they lack the delivery term which Tri-State has demonstrated is integral to its decision to accept business. In light of Gelb’s evidence, his prior dealing with Tri-State confirmed that Ballantine was not an agent empowered to bind Tri-State to a contract. See Restatement Agency 2d § 50 comment b (“Authority to contract is not inferred from authority to solicit business for the principal nor from authority to perform acts of service for the principal.”); compare Franhan Distributors, Inc. v. New York World’s Fair 1939, Inc., 124 F.2d 82, 85 (2d Cir. 1941), cert, denied, 316 U.S. 687, 62 S.Ct. 1277, 86 L.Ed. 1759 (1942).

As previously mentioned, in his affidavit Gelb relates a telephone conversation he had with Richard Pendergast, vice president of ICS. ICS neither acknowledges nor responds to this testimony in any of the papers submitted on this motion. ICS’s answer, however, suggests that it is aware of Gelb’s version of the conversation, but that his version is not accurate.

“12. Specifically denies each and every allegation contained in paragraph 29 of the Complaint, that the Defendant failed to deliver said Order/Entry cards although Plaintiff has demanded said delivery; on the contrary, when Plaintiff telephoned Defendant long distance from New York to Philadelphia and followed-up same with a telegram, that the parties had not entered into a contract and that the Defendant did not intend to enter into a contract with the Plaintiff to deliver said cards.”

Testimony similar to Gelb’s, although that of an interested witness, has been found adequate to submit the case to the trier of fact on the theory that the principal ratified the unauthorized act of the agent. See e.g., Beck v. Freund, 117 N.Y.S. 193, 195 (N.Y.App.Term 1909); Carroll v. Farley, 113 N.Y.S. 478 (N.Y.App.Term 1908) (per curiam); Henry Hess & Co. v. Baar, 14 Misc. 286, 35 N.Y.S. 687 (N.Y.Common Pleas 1895).

To satisfy the statute of frauds, plaintiff’s written memoranda must also evidence a contract for the sale of goods. That contract must be the contract that plaintiff claims was made and not some other contract. See e.g., Schaefer v. Alvarez, 249 N.Y. 117, 118, 162 N.E. 603 (1928) (per curiam); Saff Textile Carp. v. Sutton, 280 A.D. 597, 116 N.Y.S.2d 137 (1st Dept. 1952) (per curiam). As ICS points out, nothing in the proffered memoranda refers to the order/entry cards which Gelb claims were to be printed by ICS. Complaint (f 27. He ascribes this discrepancy to a mistake on one of the memoranda. In the context of summary judgment, Gelb’s testimony regarding Pendergast’s purported admission overcomes a discrepancy that would otherwise be fatal. While it is not mandatory to afford plaintiff an opportunity to exact an admission from the defendant that a contract was made, see Boylan v. G.L. Morrow Co., Inc., 63 N.Y.2d 616, 618, 479 N.Y.S.2d 499, 468 N.E.2d 681 (1984) (memorandum), in this case plaintiff, who has not yet deposed Pendergast, claims that ICS made such an admission. In Radix Organization, Inc. v. Mack Trucks, Inc., 602 F.2d 45 (2d Cir.1979) the Court stated,

“Pursuing their argument under section 2-201(3)(b), appellants assert that they are entitled to proceed to trial in order that they may attempt to secure from a defense witness an admission that an oral contract was made. Appellants have had ample opportunity for full discovery, and there is no indication that such an admission has been made or is likely to be made. Indeed, appellees’ consistent position has been that there was no contract. Appellants’ unsubstantiated hope that, if permitted to go to trial, they can turn appellees’ denials into admissions is not sufficient to preclude summary judgment.”

Id. at 48 (citation omitted). In this case, however, there is an indication that “such an admission has been made.” The Court cannot surmise the degree to which- Pendergast may contradict or corroborate Gelb’s' testimony. As a result, plaintiff has raised a genuine issue of material fact regarding the existence of a contract between it and ICS. ICS’s motion for summary judgment must therefore be denied.

With the exception of the fifth cause of action, which charges Ballantine with failure to deliver printed material according to an agreement of May 11, 1981, each cause of action alleges that Ballantine acted as an agent for the other defendants. Complaint ¶¶ 8 (Slate), 14 (Web), 20 (TriState), 26 (ICS). In response, Ballantine relies on the rule that

“an agent for a disclosed principal ‘will not be personally bound unless there is clear and explicit evidence of the agent’s intent to substitute or superadd his personal liability for, or to, that of his principal.’ ”

Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 254 N.Y.S.2d 521, 203 N.E.2d 206 (1964) (citation omitted). Under this rule, the burden of proof lies with plaintiff to overcome the presumption that the agent intends to bind the principal and not himself. RKO-Stanley Warner Theatres, Inc. v. Plaza Pictures, 54 A.D.2d 623, 387 N.Y.S.2d 257, 258 (1st Dept.1976) (memorandum), mot. lv. to appeal denied, 41 N.Y.2d 801, 393 N.Y.S.2d 1025, 361 N.E.2d 1051 (1977); see Sweeney v. Herman Management, Inc., 85 A.D.2d 34, 447 N.Y.S.2d 164, 166 (1st Dept.1982). Plaintiff offers no evidence on this point, citing instead UCC § 3-403(2)(a) which concerns the obligation of an authorized representative who signs his own name to an instrument. Under UCC § 3-102(l)(e) an “instrument” means a negotiable instrument, which clearly was not the nature of the transaction alleged in the complaint.

Plaintiff concedes that it was aware of the identities of the principals and has relied upon past dealings and their alleged acts to establish Ballantine’s authority. This reliance is merely a vehicle offered to excuse plaintiff’s failure to inquire of the principals whether Ballantine actually had such authority. Indeed, plaintiff inferentially concedes as much by changing his theory of recovery to one not contained in the complaint. Plaintiff asserts that Ballantine may be held liable for breach of the implied warranty of authority, see Broughton v. Dona, 101 A.D.2d 897, 475 N.Y.S.2d 595, 596 (3d Dept.1984) (memorandum); however, the complaint alleges only the breach of a contract for the printed materials that were to be furnished by the other defendants.

Inasmuch as plaintiff understood that Ballantine would not actually produce the finished products itself, plaintiff again shifts its attack to a charge that Ballantine induced a breach of contract. Plaintiff specifically points to the telephone conversation in which ICS’s vice president states that he will not perform at Ballantine’s behest. To reiterate, however, the complaint is limited to the claim that Ballantine breached a contract and nothing more.

“[I]n the absence of allegations that suggest the agent committed a separate tort in conjunction with the breach or that it personally profited as a result thereof, the pleadings are defective insofar as they seek to assert a cause of action against the agent [Ballantine] for inducing the breach of the contract between plaintiff and [Ballantine’s alleged principals].”

Marcraft Recreation Corp. v. Frances Devlin Co., Inc., 459 F.Supp. 195, 198 (S.D. N.Y.1978). For the foregoing reasons, Ballantine’s motion for summary judgment is granted.

In summary, with the exception of defendant ICS Corporation, the defendants’ respective motions for summary judgment are granted. As between plaintiff and ICS the Court orders as follows:

1. Discovery will end by Wednesday June 12, 1985.

2. Trial by jury will commence promptly at 2 p.m. on Monday, June 24, 1985.

3. The jury will be selected by a United States Magistrate on Monday June 17, 1985 at a time to be arranged by the magistrate.

4. On or before Wednesday June 19, 1985 the parties will contact the Court’s courtroom deputy clerk, Mrs. Rose Hounsell, to arrange for the premarking of exhibits.

5. By Friday June 14, 1985, each party will submit a pretrial order consisting of a list of the witnesses intended to be called at trial, a list of the exhibits intended to be offered at trial, and a statement of any material undisputed facts which may expedite the trial of the cause.

The above dates are not subject to adjournment.

SO ORDERED.

      . Although these cases were determined on the basis of N.Y. Personal Property Law § 85, which preceded § 2-201 of the UCC, it is apparent from the New York practice commentary that the UCC has not eliminated this requirement, viz.,
      “2. Both sections normally require, as specified in subsec. (1) of this section, 'some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker', although Personal Property Law § 85 used slightly different language of the same meaning ...”


source: Caselaw Access Project

author: BENSON, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Leonard PELTIER, Defendant.
    Cr. No. C77-3003.
    United States District Court, D. North Dakota, Southeastern Division.
    May 22, 1985.

      Lynn Crooks, Fargo, N.D., Richard Vosepka, Jr., Asst. U.S. Attys., Minneapolis, Minn., Evan Hultman, Sioux City, Iowa, Rodney Webb, U.S. Attys., Fargo, N.D., for plaintiff.
    William Kunstler, New York City, John J. Privitera, Buffone & Privitera, PC, Washington, D.C., Lewis Gurwitz, Flagstaff, Ariz., Bruce Ellison, Rapid City, S.D., Vine V. Deloria, Tucson, Ariz., for defendant.
   MEMORANDUM AND ORDER

BENSON, Chief Judge.

On April 18, 1977, a jury found Leonard Peltier guilty on two counts of first degree murder for his participation in the murder of two FBI agents on the Pine Ridge Indian Reservation in South Dakota, in violation of 18 U.S.C. §§ 2, 1111, and 1114. The court of appeals affirmed the judgment of conviction on direct appeal. United States v. Peltier, 585 F.2d 314 (8th Cir.1978), cert, denied, 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979).

On April 20, 1982, Peltier filed a motion to vacate the judgment and for a new trial pursuant to 28 U.S.C. § 2255. This court denied the motion on December 30, 1982, without holding an evidentiary hearing. United States v. Peltier, 553 F.Supp. 890 (D.N.D.1982). On appeal the court of appeals remanded for an evidentiary hearing limited to this court’s consideration of testimony or documentary evidence relevant to the meaning of an October 2, 1975, FBI teletype, and its relation to the ballistics evidence introduced at Peltier’s trial. United States v. Peltier, 731 F.2d 550, 555 (8th Cir.1984). The court of appeals directed this court to rule on whether the evidence adduced at the hearing supports Peltier’s contention that the government’s nondisclosure of the October 2, 1975, teletype violated Peltier’s due process rights under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requiring a new trial. 731 F.2d at 555.

The mandated evidentiary hearing commenced before this court on October 1, 1984. The matter became at issue on May 10, 1985. FBI Special Agent Evan Hodge, the author of the October 2, 1975, teletype and presently the chief of the FBI Laboratory’s Firearms and Tool Marks Division, was the only witness who testified at the hearing. Hodge’s testimony related to the procedures utilized by the FBI lab in processing the “reservation murders” (referred to as “RESMURS”) evidence and the examinations that resulted in the October 2, 1975, FBI teletype.

The October 2, 1975, teletype reads in pertinent part:

RECOVERED .223 CALIBER COLT RIFLE RECEIVED FROM SA _ BATF, CONTAINS DIFFERENT FIRING PIN THAN THAT IN RIFLE USED AT RESMURS SCENE.

At trial the government, through independent evidence, linked an AR-15 .223 caliber Colt rifle, found later in an exploded car on a Wichita turnpike, as one that was in the possession of. Peltier on the day of the murders. FBI Special Agent Evan Hodge testified at trial that a .223 bullet casing found in the trunk of Agent Coler’s, one of the dead agents, car was positively identified by the extractor marks on the casing as having been extracted from the Wichita AR-15. Peltier argued in his motion to vacate judgment and for a new trial and on appeal of this court’s denial of his motion, that the October 2 teletype meant the bullet casings found “at RESMURS scene,” which Peltier argued included the .223 casing found in the trunk of Agent Coler’s car, had been tested against the Wichita AR-15 with negative results. Such results would have discredited Agent Hodge’s testimony at trial that no conclusion could be reached from a firing pin analysis of the Wichita AR-15 in relation to the alleged fatal bullets, and would have seriously undermined the inference, which the government urged the jury to draw from the positive extractor mark testimony given by Agent Hodge, that the Wichita AR-15 in fact fired the fatal bullets.

In the December 30, 1982, memorandum and order of this court, the court rejected Peltier’s argument and held the October 2, 1975, teletype did not raise a question that was not presented to the jury at trial. 553 F.Supp. at 896. The basis for this holding was the conclusion that the October 2 teletype raised no more of an inconsistency with the February 10, 1976, lab report (Trial Ex. 192), which summarized the positive extractor evidence concerning the .223 casing found in Agent Coler’s trunk, than the October 31, 1975, lab report (Trial Ex. 135), of which the government contends the October 2, teletype was an advance version and which was before the jury. Id. The court of appeals agreed with this court’s ruling on Peltier’s argument that a firing pin test done on the .223 casing found in the trunk of Agent Coler’s car (Trial Ex. 34B) and the Wichita AR-15 (Trial Ex. 34A) was done before October 2, 1975, and proved negative. 731 F.2d at 554. The appellate court noted, however, that the interpretation of the trial court and Peltier was not the only one that could be drawn from the October 2 teletype. Id. The court stated, “Indeed, if this were the only interpretation which could be drawn, then that discrepancy had already been put before the jury and we find no need for further consideration of the issue.” Id.

The Eighth Circuit expressed its concerns about other possible interpretations of the October 2 teletype as follows:

The teletype does not simply say that the firing pin test came up negative, however — it says that the AR-15 “contains [a] different firing pin than that in [the] rifle used at [the] RESMURS scene.” [Emphasis added.] This language raises several possibilities not considered by the district court and not as readily explained away by the record as it presently exists. For example, the use of the word “different” could indicate that the FBI knew the firing pin in the damaged AR-15 had been changed after the June 26, 1975, murders. Such a discrepancy can be found nowhere else in the record, and could raise questions regarding the truth and accuracy of Hodge’s testimony regarding his inability to reach a “conclusion” on the firing pin analysis and his positive conclusion regarding the extractor markings.
We do not mean to imply that the October 2 teletype establishes that the motives or actions of any FBI agent or government prosecutor were improper. Further investigation into this matter may simply show that the use of the word “different” in the teletype was an inaccurate way of expressing exactly what the October 31 laboratory report said — that the AR-15 could not be positively matched with any of the casings which had been tested at that time based on firing pin comparisons. We think it inappropriate, however, to simply assume this resolution of the new discrepancy raised by the October 2 teletype without hard evidence one way or the other.

Id.

The government contends the October 2 teletype was an advance version of a laboratory report authored by Hodge dated October 31, 1975, and received in evidence at Peltier’s trial as Defendant’s Exhibit 135. The government contends none of the trial exhibit 34 series of shell casings, which included the .223 casing found in the trunk of Agent Coler’s car (Q # 2628, Trial Ex. 34B), had been examined at the time either the October 2,1975, teletype or the October 31, 1975, lab report was written. Only seven .223 casings identified in the FBI lab by Q numbers 100 through 105 and 130 had been examined by that time, and it was the results of these seven comparisons that formed the basis for Agent Hodge’s conclusion in the October 2 teletype. Due to a distinctive mark on the primer of those seven .223 casings, Hodge determined they had not been fired by the AR-15 recovered in Wichita, identified in the lab as K-40 (Trial Ex. 34A), thus accounting for the wording “contains different firing pin” in the teletype. At some time later during the course of his examinations, Agent Hodge compared the .223 casing from the trunk of Agent Coler’s car (Q # 2628, Trial Ex. 34B) and determined it had been loaded into and extracted from the Wichita AR-15.

Peltier contends the October 2, 1975, teletype was referring to all the .223 casings recovered during the RESMURS investigation instead of merely the seven .223 casings urged by the government. As such, Peltier contends Agent Hodge perjured himself or intentionally misled the jury when he testified at Peltier’s trial he was not able to reach a conclusion based upon the comparison of the firing pin impressions on the test specimens fired with the firing pin of the Wichita AR-15 and the .223 casing found in the trunk of Agent Coler’s car. According to Peltier, the October 2 teletype brings into question the truth of Agent Hodge’s testimony linking the .223 casing found in the trunk of Agent Coler’s car to the Wichita AR-15.

Findings Of Fact

From the testimony of Agent Hodge and the documents received in evidence at. the evidentiary hearing and documents filed with the court, the court finds the following facts.

At the time of the RESMURS investigation in 1975 and 1976, Evan Hodge was an FBI laboratory firearms and tool marks examiner. As a firearms and tool marks examiner he received evidence sent to him by field agents, examined it to determine whether ammunition components had been fired from a particular firearm to the exclusion of all others, and reported his findings. At the hearing Agent Hodge described the FBI laboratory’s handling of the .223 casing found in the trunk of Agent Coler’s car (Trial Ex. 34B, Q # 2628) from the time it entered his hands in July 1975 until the final firearms comparisons were made in February 1976.

The Wichita AR-15 rifle and the .223 casing found in the trunk of Agent Coler’s car were both part of the government’s exhibit 34 series at trial. The items that compose the exhibit 34 series were received by the FBI laboratory and Agent Hodge in three different submissions. The first submission, containing several hundred shell casings, was received by Hodge on July 5, 1975, from FBI Agents Cunningham and Fluharty. This submission included trial exhibits 34C, bullet casings from the 1976 Ford Galaxy (Q numbers 353, 356-377, and 399-410); 34D, the bullet casing from the 1966 Chevrolet Suburban (Q # 547); 34G, bullet fragments from Williams car (Q numbers 10, 15A, 15C, and 18); and 34H, the bullet fragment from the ground beneath the bodies of Williams and Coler (Q # 84). When received by Hodge, the items were in random order in paper or plastic bags and were accompanied by Agent Dean Howard Hughes’s “green sheet” (Evid. Hrg.Ex. 9). The “green sheet” contained a description of each piece of evidence found by Hughes and indicated the items were found in the vicinity of the green house, Jumping Bull Hall area. The items in the first submission were cataloged by Hodge and Joseph Twardowski, his assistant, assigned Q and K numbers, and listed on Hodge’s worksheet for a secretary to type the following day. The assigned Q numbers also were written on the “green sheet” that accompanied the evidence. The information contained on the worksheet included a list of the items received, the case number, when they were received, and the name of the person from whom they were received. The worksheet was used for inventory control purposes and was the first sheet of an examiner’s laboratory notes. The information on the work sheet also was contained in the examiner’s final lab report.

Q numbers from 1 through 1102 were assigned to the items in the first submission. Hodge was provided with no information regarding the items found by Hughes other than that contained in the “green sheet.” The items were grouped and Q numbers assigned on the basis of where they were recovered, in what Hodge considered to be a logical order. Those recovered from Agents Williams and Col-er’s bodies were listed first, followed by the specimens found in their vehicles, the Dean Howard Hughes items, items from Tent City, and then items from other vehicles. The items received in the first submission were stored in Hodge’s evidence cabinet until they were examined.

To avoid confusion, it is Hodge’s ordinary practice to examine evidence in numerical order by Q number. He will deviate from this procedure and make exceptions when priority requests are brought to his attention by field agents. When an item of evidence is given priority treatment, it is because he has received a priority request by telephone, teletype, or airtel addressed to the laboratory and/or the general investigative division. Field agents often ask to have their lab work done first and Hodge is constantly asked for expedited reports. These routine urgings will cause Hodge to change the order of his examinations only when there is some urgency for the results. Examples of what Hodge considers urgent are evidence involved in cases going to trial soon and examinations needed to obtain a warrant or to keep an individual in custody.

Hodge’s examination of the items received in the first submission commenced on July 6 or 7, 1975. Beginning with Q numbers 1 through 219, he compared the ammunition components with the firearms he had received. Hodge’s findings with regard to these initial examinations were reported in a lab report dated August 5, 1975 (Trial Ex. 134; Evid.Hrg.Ex. 10). The last item examined in preparation for the August 5 report was Q # 219. Examination of the remainder of the items in the first submission was not completed until January 1976. Although the .223 casing from the trunk of Agent Coler’s trunk (Q # 2628) had been received by the date of the August 5,1975, report, it was not listed in the August 5 report.

The second submission, containing approximately 800 items, was received by Hodge from Rapid City on July 24, 1975. This submission included trial exhibits 34B, the bullet casing from the trunk of Coler’s car (Q # 2628); 34E, the bullet casing from the loghouse near the crime scene (Q # 2536), and 34F, the bullet casing from the hood and top of the 1967 Ford at Tent City (Q # 2539). Hodge followed the same pre-examination procedure with the items in the second submission as he had with those in the first submission. The items were inventoried and listed, Q numbers were assigned, the worksheets were typed up, and the items were stored in the evidence cabinet until examined.

When the bullet casing found in the trunk of Agent Coler’s car was received with the other items in the second submission, no special attention was drawn to it by the field agents, and Hodge was not asked to give it priority treatment. Therefore, Hodge listed it during the ordinary course of listing the second submission items and assigned it Q # 2628. In examining the items in the second submission, Hodge generally followed his procedure of numerical examination by Q number, resulting in examination of Q # 2628 in December 1975 or January 1976. The .223 casing from the trunk of Agent Coler’s car (Q # 2628) was not listed in a lab report until February 10, 1976.

The third submission, containing several firearms, was received by Hodge from Special Agent Mike Gammage, Bureau of Alcohol, Tobacco, and Firearms, on September 12, 1975. The weapons had been recovered by agents of the Bureau of Alcohol, Tobacco, and Firearms from a vehicle that had exploded near Wichita, Kansas. This submission included trial exhibit 34A, the .223 Remington Colt AR-15 rifle (identified in the FBI lab as K-40).

As of September 12, 1975, Hodge had received all the items of evidence contained in the exhibit 34 series. Due to numerous interruptions during the course of the RESMURS investigation, however, as of September 12, 1975, he had only examined the items in the first submission Q numbered 1 through 219. Interruptions included one day that Hodge was required to testify during the course of his examination of the items Q numbered 1 through 219, 12 testimony trips requiring a total of 23 days between August 1975 and February 1976, a five and one-half day trip to teach a class at the FBI training center in August 1975, and trips to Florida, New York, Texas, and Nebraska in September 1975, which required a total of 16 days. Additionally, Hodge received seven non-RESMURS submissions, containing approximately 6000 items, between July 5,1975, the date of the first RESMURS submission, and July 24, 1975, the date of the second RESMURS submission. Hodge issued 17 formal nonRESMURS reports based upon his examination of these items between August 1975 and February 1976.

Because he had only examined items Q numbered 1 through 219 as of September 12, 1975, Hodge initially examined the Wichita AR-15 exemplars with only the seven .223 caliber (5.56mm) bullet casings among these items, Q numbers 100 through 105 and 130. Hodge testified the examination of cartridge cases is time consuming. It takes approximately two hours to do an initial, simple, one-shell, one-gun examination. In conducting his examinations, Hodge first examined the bullet casings to determine the caliber and manufacturer. He then examined the firearm to determine if there were residues and if it was in good working order and could be test fired. Then there are several comparisons to be made of the firing pin impressions, the breech face markings, the extractor markings, and in some cases, the ejector markings. All of these comparisons are done in one examination, and it would be very unusual to do them at different times.

The sequence of the mark comparisons varies from examiner to examiner. Hodge looks at the firing pin impression, primer, and breach face marks first. If these marks are not sufficient for identification, he looks at the ejector and extractor marks.

The Wichita AR-15, identified in the lab as K-40 (Trial Ex. 34A), had been badly burned in the fire and was not in firing condition when received by Hodge. It was charred, the plastic stock and handguard had melted away, and some of the aluminum parts had melted. Hodge, therefore, did not attempt to test fire the gun itself. Instead, he took the bolt out of the receiver and placed it in an FBI collection AR-15 firearm (M-22) that had no connection with the RESMURS investigation. He did not dissemble the bolt, or in any way manipulate the firing pin. Although it had been through a fire, there was nothing about the Wichita AR-15 bolt that would lead Hodge to suspect the firing pin had been changed. Hodge test fired the M-22 rifle containing the Wichita AR-15 bolt twice and recovered the test specimen bullet casings, or exemplars.

Based upon a comparison of the microscopic marks on the exemplars and investigation specimens made by the firing pin, breach face, ejector, and extractor, Hodge could reach one of three possible conclusions: the specimen was loaded into, fired, ejected, or extracted from the weapon (a positive identification); the specimen was not loaded into, fired, ejected, or extracted from the weapon (a negative identification); or it is impossible to determine whether the specimen was loaded into, fired, ejected, or extracted from the weapon (a non-conclusion).

Hodge’s examination of the firing pin and extractor marks on the Wichita AR-15 exemplars and the Q numbered 100 through 105 and 130 bullet casings resulted in a negative identification, as noted in the FBI lab worksheet dated September 12, 1975 (Evid.Hrg.Ex. 7). Hodge testified at the hearing that the firing pin in the Wichita AR-15 bolt was smooth, whereas the firing pin impression on the seven .223 casings he had tested had a cross imperfection and was very distinctive. It was on this basis Hodge could tell the firing pin in the gun that had fired these seven casings was different than the firing pin of the Wichita AR-15 (K-40).

Although he failed to specify by Q number the casings covered by the October 2, 1975, teletype, Hodge testified it was the results of the comparisons of Q numbers 100 through 105 and 130 and the Wichita AR-15 exemplars that he had preliminarily reported in the October 2, 1975, teletype (Evid.Hrg.Ex. 4). No .223 casings other than Q numbers 100 through 105 and 130 had been compared against the Wichita AR-15 exemplars as of October 2, 1975. The term “RESMURS scene” used in the October 2 teletype was a shorthand term by which Hodge meant to refer only to the Q numbers below Q # 219 listed in the August 5, 1975, lab report, which lab report was specifically referenced in the October 2 teletype. At the time of the October 2 teletype Hodge thought the shell casings listed in the August 5,1975, lab report with Q numbers below Q # 219 were the casings located closest to the actual murder scene. There were only seven .223 (5.56 mm) casings in that category of the August 5 lab report, those casings being Q numbers 100 through 105 and 130.

Due to the characteristic cross imperfection left by the firing pin in the weapon used to fire these seven casings, and the uncharacteristic smooth impression left on his exemplars by the firing pin in the Wichita AR-15, Hodge reported in the October 2, 1975, teletype that the Wichita AR-15 contained a “different firing pin” than that in the rifle used at the RESMURS scene. The term “different firing pin” in the teletype means the firing pin that made the impressions on Q numbers 100 through 105 and 130 was a different firing pin than the one that made the impressions on the Wichita AR-15 exemplars.

The October 2, 1975, teletype was followed by a formal lab report dated October 31, 1975, which was introduced at trial as Defendant’s Exhibit 135. There were no other examinations pertaining to the Wichita AR-15 between the October 2 teletype and the October 31 lab report. In the October 31 report the term “RESMURS scene” was meant to refer only to the seven .223 casings Q numbered 100 through 105 and 130.

After comparing the Q numbered 100 through 105 and 130 bullet casings with the Wichita AR-15 exemplars, Hodge returned the Wichita AR-15 (K-40) to the Bureau of Alcohol, Tobacco, and Firearms, but retained the exemplars he had made, placing them in the file for future use as needed.

Later examinations of the remaining .223 bullet casings submitted in connection with the RESMURS ease resulted in approximately 114 positive identifications with the Wichita AR-15. Thirty-nine of these were introduced into evidence at Peltier’s trial as part of the exhibit 34 series. One of these was the bullet casing found in the trunk of Agent Coler’s car (Q # 2628; Trial Ex. 34B). Hodge examined this bullet casing in December 1975 or January 1976. He was not able to reach either a positive or negative conclusion based upon a comparison of the firing pin impressions on Q # 2628 and the Wichita AR-15 exemplars, because he was not able to identify a sufficient number of characteristics in the firing pin impression left on the exemplars. The extractor marks on the exhibit 34 series and the Wichita AR-15 exemplars were very characteristic due to their depth and roughness, however, and Hodge was able to conclude the extractor marks on the exhibit 34 series had been made by the Wichita AR-15 to the exclusion of all other weapons. The examinations of the firing pin impressions on the 114 casings did not produce any evidence inconsistent with the theory that the casings, and particularly the exhibit 34 series, had been fired from the Wichita AR-15. Hodge reported his findings with regard to the exhibit 34 series bullet casings in his January 13, 1976, (Evid.Hrg.Ex. 2) and February 10, 1976, (Evid.Hrg.Ex. 3; Trial Ex. 192) laboratory reports.

Because all the items contained in the exhibit 34 series, including exhibit 34B, were in Hodge’s possession on October 2, 1975, Peltier’s counsel attempted to demonstrate on cross-examination that the October 2 teletype covered those items as well. Peltier argues, without evidence to support the argument, that even if all the ammunition components in the first and second submissions had not been examined prior to October 2, Hodge had examined the .223 caliber components out of order due to either specific requests he had received from the field or his knowledge of the RESMURS investigation.

The documents received in evidence at the evidentiary hearing corroborate Hodge’s testimony with regard to the meaning of the October 2 teletype. The October 2 teletype refers to Hodge’s August 5, 1975, lab report. A number of .223 caliber (5.56 mm) bullet casings are listed in the August 5 lab report, but only the .223 casings with Q numbers 100 through 105 and 130 are listed under the heading “at scene.” Documents filed with the court show Hodge and his assistant were consistent with the use of the term “RESMURS scene” to describe only Q numbers 84 through 219. Evid.Hrg.Ex. 22; 33 at pages 294, 307; 27 at pages 5, 6.

Hodge did not complete his examination of the RESMURS evidence until approximately nine months after the incident occurred due to the volume of RESMURS evidence received by him and his work on other cases, some of which were RESMURS related. Priority requests received in connection with items of RESMURS evidence interrupted Hodge’s ordinary procedure of examining evidence in numerical sequence by Q number. Hodge received special requests to compare all .223 casings with the AR-15 found at A1 Running’s on September 11, 1975, (Evid.Hrg.Ex. 6), to examine a .32 caliber Harrington and Richardson 5 shot revolver (Evid.Hrg.Ex. 17), to compare the Portland AR-15 and 35 Remington semi-automatic Woods Master with the expended cartridge cases discovered during the RESMURS investigation (Evid. Hrg.Ex. 23), and to compare all .308 cartridge cases found at RESMURS scene with a .308 Winchester caliber Remington Model 760 carbine found in the vehicle that exploded on the Kansas Turnpike (Evid. Hrg.Ex. 32). Additionally, Hodge received a number of more general requests. See Evid.Hrg.Ex. 14, 19, 28, 29, and 35. Hodge specifically responded to some of these requests. For example, the October 2 teletype (Evid.Hrg.Ex. 4) was primarily concerned with the results of his examination of a .308 caliber rifle recovered from the Wichita explosion, and a November 24, 1975, teletype (Evid.Hrg.Ex. 22) reported the results of his comparison of an AR-15 from Portland, Oregon, with shell casings Q numbered 100 through 105 and 130, because, at that time, that was as far as his examinations had progressed. Hodge responded to many of the requests, however, by way of his laboratory reports.

Hodge never received a specific priority request to examine the .223 casing found in the trunk of Agent Coler’s car (Q # 2628). Therefore, it was examined in the ordinary course of his work. He did, however, receive a specific request to compare the AR-15 from Wichita with Q numbers 356 through 377 (Evid.Hrg.Ex. 32). This request was not formally answered until Hodge issued his January 13, 1976, lab report. His response to this request was not contained, as defense counsel suggested, in the October 2, 1975, teletype.

Peltier argues Hodge had much information regarding the RESMURS investigation available to him, the knowledge of which caused him to examine all the .223 caliber ammunition components, including Q # 2628, and the AR-15 rifles he had received prior to October 2, 1975. The information available to Hodge included the following: a teletype dated June 27, 1975, indicating the pathologist’s opinion that the agents were shot at point blank range with a high velocity shoulder weapon (Evid. Hrg.Ex. 13); a summary teletype dated September 20, 1975, indicating that suspect A1 Running advised the FBI that the Wichita AR-15 was probably used by Leonard Peltier to kill the agents (Evid.Hrg.Ex. 14); a teletype dated July 10, 1975, indicating that one of the at least five different weapons used on Agent William’s car was a .22 center fire caliber (Evid.Hrg.Ex. 16); and a teletype and memorandum, both dated September 24, 1975, indicating suspect Norman Brown saw Leonard Peltier, armed with an AR-15 or M-16, approach the agents with two other Indian men and then heard three shots (Evid.Hrg.Ex. 30 and 31).

Although Hodge was aware of the information regarding the investigation from Rapid City, the autopsy findings, and the fact that three AR-15’s were possibly involved, this knowledge did not cause him to deviate from his general procedure of examining evidence numerically by Q number. Hodge was a firearms and tool marks examiner in the laboratory, not a field investigator. It was his job to analyze the evidence submitted to him in a careful, logical manner. The locations of the items submitted to him when found was irrelevant in his work, except as a means of grouping and identifying them in assigning Q numbers and writing his laboratory reports. Determinations regarding the evidentiary value of specific items were left to the field agents and government attorneys. Hodge knew all the evidence would eventually be examined, and because no specific priority request was received from the field with regard to Q # 2628, he examined it during the ordinary course of his lab work. The items submitted to the lab were, in a sense, all priority items, but it was not possible for him to examine them all immediately. Therefore, he examined the items the field agents designated as priority items first, and the remainder of the items as soon as he was able to get to them.

During the course of his examinations, Hodge was assisted by three laboratory personnel, Special Agents Twardowski, Albrecht, and Reidman. Hodge testified on cross-examination that the handwriting on his lab notes (Evid.Hrg.Ex. 33) concerning Q # 2628 was either his or that of his assistant Special Agent Twardowski. After the evidentiary hearing was initially closed, Agent Twardowski stated to Hodge that some of the writing was not his, and the evidentiary hearing was reopened. Hodge then recanted his earlier testimony, but he was unable to provide the court with the name of the person who had actually made the notes. Hodge did reaffirm at the reopened hearing that regardless of whose handwriting was contained in his notes, the conclusion stated in the report was based on his personal examination of Q# 2628 and the Wichita AR-15 exemplars. This rebuts any inference that the laboratory results with regard to the exhibit 34 series had been fabricated to wrongly convict Leonard Peltier.

The deposition of Special Agent William Albrecht was taken in Washington, D.C., on January 7, 1985. Agent Albrecht testified he made the lab notes concerning Q # 2628 on page 417 of Evidentiary Hearing Exhibit 33. Albrecht testified he did not make the notations on the photographic exemplar, which appears on page of 418 of Exhibit 33. Hodge had testified at the evidentiary hearing that he made the note on the photographic comparison himself. At the time Albrecht made these notes he was not a qualified firearms examiner, but rather an agent trainee. He had started with the FBI lab on October 29, 1975. As such, while Albrecht’s preliminary findings in the lab notes concerning Q # 2628 are consistent with the conclusions in the February 10, 1976, lab report, the conclusions in the lab report are not Albrecht’s, but rather, Hodge’s. In addition, since Albrecht did not start working in the lab until October 29, 1975, Albrecht’s notes concerning Q # 2628 could not have been written, and his examination of Q # 2628 was not done, before the time of the October 2, 1975, teletype at issue.

After having seen and heard Agent Hodge testify, it is the opinion of this court that Agent Hodge was a credible witness. The fact the hearing was reopened so that he could correct an error he had made in his earlier testimony adds to, rather than detracts from, his credibility.

From the testimony of Agent Hodge this court finds the meaning of the October 2, 1975, teletype to be as follows: The Wichita AR-15 (Trial Ex. 34A) contains an uncharacteristic smooth firing pin, whereas the weapon used to fire the Q numbered 100 through 105 and 130 bullet casings contains a different firing pin, with a characteristic cross imperfection. Therefore, the Wichita AR-15 could not be positively identified with any of the .223 bullet casings that had been tested as of October 2, 1975, those being the casings Q numbered 100 through 105 and 130, based on firing pin comparisons.

Conclusions Of Law

At the close of the evidentiary hearing, Peltier’s counsel took the position he could not be barred from relitigating issues previously raised and decided adverse to him on appeal. This argument is without merit. See Anderson v. United States, 619 F.2d 772, 773 (8th Cir.1980). In addition, Peltier’s other alleged Jencks Act violations and rule 16 violations have not been shown to be Brady violations, infringements of constitutional rights, or defects seriously affecting the fairness of the trial, and thus, cannot be raised in habeas corpus proceedings; they could be raised only on direct appeal. See United States v. Houser, 508 F.2d 509 (8th Cir.1974).

The evidentiary hearing in this case was held pursuant to the mandate of the Eighth Circuit Court of Appeals. The mandate remanded the case to this court for an evidentiary hearing specifically limited to consideration of testimony or documentary evidence relevant to the meaning of the October 2, 1975, teletype and its relation to the ballistics evidence introduced at Peltier’s trial. Therefore, the court will only consider the issues raised and evidence presented at the evidentiary hearing relevant to the meaning of the October 2 teletype.

After his appeal of this court’s December 30, 1982, order denying his motion to vacate judgment and for a new trial, Peltier’s remaining section 2255 claim is that the failure of the United States to provide him with a copy of the October 2, 1975, teletype prior to his criminal trial denied him due process protected by the fifth amendment to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Whether the government’s nondisclosure requires reversal depends upon the nature of the material and the specificity of defense requests for disclosure. If the undisclosed evidence demonstrates that the government’s case included perjured testimony and that the prosecution knew or should have known of the perjury, the conviction “must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). In the absence of perjured testimony, if a specific request for evidence was made by the defense, but the exculpatory evidence was not given, the conviction must be overturned if “the suppressed evidence might have affected the outcome of the trial.” Id. at 104, 96 S.Ct. at 2697-2698. If no request, or merely a general request for exculpatory evidence was made, nondisclosure will constitute constitutional error only if “the omitted evidence creates a reasonable doubt that did not otherwise exist.” Id. at 112, 96 S.Ct. at 2401-2402.

Agent Hodge testified at Peltier’s trial that he could not make a conclusive firing pin comparison between the Wichita AR-15 exemplars and the bullet casing found in the trunk of Agent Coler’s car. Trial Transcript at 3234-35. It became apparent at the evidentiary hearing the reason for this was the firing pin in the bolt of the Wichita AR-15 was smooth and did not produce a sufficient number of characteristic marks on the exemplars for Hodge to be able to say the Wichita AR-15 had or had not fired the bullet casing found in the trunk of Agent Coler’s car to the exclusion of all other weapons. In addition, the firing pin impression on the bullet casing found in the trunk of Agent Coler’s car did not contain any unusual marks so that Hodge could conclude it had not been fired from the Wichita AR-15. The .223 bullet casings considered by Hodge to have been found “at the scene” and tested prior to October 2, 1975, were those with Q numbers 100 through 105 and 130. The firing pin impressions on those seven bullet casings did contain an unusual mark not found on the Wichita AR-15 exemplars. Therefore, Hodge was able to determine the Wichita AR-15 had not fired the casings Q numbered 100 through 105 and 130, even though the firing pin impression left on the Wichita AR-15 exemplars did not contain a sufficient number of characteristic marks.

On the basis of the foregoing, it is clear the October 2,1975, teletype does not evince perjured testimony. The October 2, 1975, teletype only dealt with the results obtained by Hodge after comparing the firing pin impressions on the Wichita AR-15 exemplars with the firing pin impressions on bullet casings Q numbered 100 through 105 and 130. A comparison of the firing pin impressions on the Wichita AR-15 exemplars and the .223 casing found in the trunk of Agent Coler’s car (Q # 2628) at a later date merely produced an inconclusive result, not a negative one. The extractor marks left on both the Wichita AR-15 exemplars and Q # 2628 were very characteristic due to their depth and roughness, and therefore, it was possible for Hodge to conclude the extractor marks on Q # 2628 had been made by the Wichita AR-15 to the exclusion of all other weapons.

In cases not involving the use of perjured testimony, the issue of whether the undisclosed evidence is sufficiently material to require its disclosure is determined by initially considering whether the defense made a specific or general request for its disclosure prior to trial. Applying either the specific or general request standards of materiality to the October 2, 1975, teletype, it is the opinion of this court that Peltier is not entitled to a new trial. The evidence produced at the evidentiary hearing established that the use of the word “different” in the October 2, 1975, teletype was merely an inaccurate way of expressing what the October 31, 1975, laboratory report (Trial Ex. 135) also meant to express — that the Wichita AR-15 could not be associated with any of the bullet casings that had been tested at that time based on firing pin comparisons. Therefore, the October 2, 1975, teletype can be considered preliminary information, which the prosecution had no obligation to disclose to the defendant. Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (1967).

In addition, the October 2 teletype is merely cumulative in relation to the evidence produced at Peltier’s trial. The October 31, 1975, lab report, which had a meaning identical to the October 2, 1975, teletype in its statement that “none of the ammunition components recovered at the RESMURS scene could be associated” with the Wichita AR-15, was introduced in evidence at the trial, as Defendant’s Exhibit 185. A February 10, 1976, lab report stating that the .223 bullet casing found in the trunk of Agent Coler’s car had been associated with the Wichita AR-15 was also admitted at trial, as Defendant’s Exhibit 192. Agent Hodge testified at trial he did not examine the .223 bullet casing found in the trunk of Agent Coler’s car until December 1975 or January 1976, thus explaining the discrepancy between the two reports. Trial Transcript at 3388. Therefore, the evidence at trial included the apparently inconsistent lab reports and Agent Hodge’s testimony concerning the time he examined the .223 casing found in the trunk of Agent Coler’s car for the jury’s consideration.

Because the October 2, 1975, teletype, evaluated in the context of the entire record, would not have affected the outcome of the trial, and does not create a reasonable doubt that did not otherwise exist, Peltier has failed to establish constitutional error. The nondisclosure of the teletype did not violate the Brady doctrine. The record of the case as it presently exists conclusively shows Peltier is entitled to no relief.

      . Defendant became aware of the existence of the teletype through a Freedom of Information Act action following his conviction.

      . Defendant had an independent firearms expert present in the courtroom at the hearing, but he was not called to testify.


author: GENE CARTER, District Judge.

text:
    UNITED STATES of America v. John Ross OLSEN.
    Crim. No. 85-00004 P.
    United States District Court, D. Maine.
    May 22, 1985.

      Richard S. Cohen, U.S. Atty., F. Mark Terison, Asst. U.S. Atty., Portland, Me., for plaintiff.
    Paul R. Dumas, Rumford, Me., for defendant.
   MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO SUPPRESS

GENE CARTER, District Judge.

I.

Defendant John Ross Olsen has been charged in a one-count indictment with converting approximately twelve hundred dollars ($1,200.00) while he was employed as a postal clerk in Rumford, Maine. Defendant has moved to suppress all statements made by him to all Government agents, on the grounds that his waiver of his Miranda rights and his subsequent confession were given involuntarily.

On March 30, 1984, an apparent burglary was discovered at the United States Post Office in Rumford, Maine. A window had been broken, four locked drawers had been pried open and Olsen and another postal clerk each reported the loss of approximately one thousand dollars ($1,000.00) in twenty cent stamps.

Postal Inspectors Sidney Kerr and Martin Davis arrived at the post office on March 30 to investigate the matter. When Inspector Kerr audited Olsen’s postal drawer he found that nine hundred seven dollars ($907.00) was missing. Olsen said nothing by way of explanation of the shortage at that time. Kerr later determined, based upon the position and condition of the broken window, that it was unlikely that someone had actually gained access from the outside of the building. Kerr also knew that Olsen had previously been informed that he was scheduled to undergo an audit of his postal drawer on March 27, but that the audit was postponed because he had left work early on that day, complaining of illness.

At approximately 4:30 p.m., Inspectors Kerr and Davis asked Olsen to join them in the Postmaster’s office. Kerr told Olsen that as a result of his investigation he believed that a burglary had not in fact occurred, but that there had been an embezzlement. Kerr told Olsen that he believed Olsen had committed the crime. He told Olsen not to say anything. He removed a laminated card from his wallet containing Miranda warnings and read it to Olsen. The material read to him was an accurate statement of the Miranda warning. Olsen said he understood the rights as they had been read to him. Inspector Kerr then showed Olsen PS Form 1067, which contains a printed Miranda warning. See Government’s Exhibit 1, Appendix 1. Olsen read the warning and signed the top half of the form, indicating that he had read the statement and understood it. The time of his execution of the form was noted thereon as 4:40 p.m.

The parties disagree as to the content and significance of the discussion that followed. Neither party disputes, however, that at 5:20 p.m. Olsen signed the waiver portion of Form 1027, which provides:

I am willing to discuss subjects presented and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Government’s Exhibit 1, Appendix 1. At approximately, 6:36 p.m., Olsen completed a written statement in his own hand in which he admitted that he had taken money in amounts of twenty dollars ($20.00) or less from his drawer over a period of time and that he staged the burglary in order to provide authorities an explanation for the shortage. Government’s Exhibit 2. It is this written statement and all oral statements made by Olsen on March 30 that he wishes to suppress.

Inspector Kerr, Olsen, and Olsen’s wife testified at the evidentiary hearing on this motion. Olsen claims that, by express or implied promises made by Inspector Kerr, he was induced to sign the waiver of his Miranda rights and to give oral and written statements. Olsen asserts that Inspector Kerr led him to believe that if he did not retain a lawyer and if he fully cooperated, by resigning his position and making restitution for the amount taken, Inspector Kerr would recommend to the United States Attorney that he not be prosecuted. Tr. 44,48. He understood that if he fully cooperated, “that would be the end of the whole thing.” Tr. 48.

Two closely related issues, each implicating aspects of Defendant’s privilege against self-incrimination, are presented in this motion: first, whether Olsen voluntarily waived his Miranda rights and, second, whether Olsen’s statements were given voluntarily by constitutional standards.

II.

A.

The rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), attach only when interrogation is “custodial.” Beckwith v. United States, 425 U.S. 341, 346, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976). The warnings required by Miranda were intended to eliminate the coercion inherent in situations in which a defendant reasonably believes that he is not free to leave. See Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30; Beckwith, 425 U.S. at 346, 96 S.Ct. at 1616. Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. ” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612 (emphasis added).

In the First Circuit, the applicability of Miranda must be determined by an objective rather than a subjective test. Borodine v. Douzanis, 592 F.2d 1202, 1206 (1st Cir.1979). There must be some objective manifestation that the Defendant was deprived of his freedom of action in a significant way before Miranda principles become operative. Id. This Court’s review of the circumstances surrounding Olsen’s interrogation leads it to conclude that Olsen was subjected to “custodial interrogation” on March 30, 1984.

Postal Inspector Kerr asked Olsen to join him and Inspector Davis in the Postmaster’s office at 4:30 p.m. Tr. 5. At that point, Inspector Kerr believed that Olsen had faked the burglary to disguise his own embezzlement, and, after he, Davis and Olsen sat down in the office, Kerr told this to Olsen. Tr. 6. Inspector Kerr did not arrest Olsen, but he did not tell him that he was free to leave. It appears that there was probable cause to arrest Olsen, and Kerr might legally have done so had Olsen attempted to leave. He was placed in an office behind a closed door with two law enforcement officers and detained beyond his normally scheduled working period. Tr. 6. A person in his position could not have reasonably believed that he was free to leave.

In Beckwith, the Supreme Court made it clear that the fact that a suspect is the “focus” of an investigation does not trigger application of Miranda. Beckwith, 425 U.S. at 345-48, 96 S.Ct. at 1615-17. Here, however, there are circumstances absent from the Beckwith case that support a finding of custodial interrogation. The most important distinction is that Beckwith had been interviewed in his home, after he invited in two agents of the Internal Revenue Service. Olsen, on the other hand, was taken to a private office behind a closed door on federal premises; the questioning was conducted well after 4:00 p.m., which is the usual close of his work day. Additionally, in this case, the agents apparently were convinced that they had established a case for a charge of embezzlement against Olsen, and they told him as much. In Beckwith, the defendant may have been the focus of the investigation, but the interrogation was clearly exploratory in nature, and there were no objective indicia that the agents had either the intent or justification to hold the defendant in custody. Compare also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (Defendant voluntarily went to police station, where he was immediately told he was not under arrest); United States v. Pratt, 645 F.2d 89 (1st Cir.1981), cert, denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981) (questioning by customs agents was limited, routine and of brief duration); Borodine v. Douzanis, 592 F.2d 1202 (1st Cir.1979) (questioning in laundry room at scene of murder by police officer having no idea what happened was general, routine and necessary to preliminary investigation).

B.

Because Olsen was subjected to custodial interrogation within the meaning of Miranda, he was entitled to the rights described in Miranda. Before asking any questions, Inspector Kerr read Olsen legally sufficient Miranda warnings from a card. Tr. 6, 36. Then he showed Olsen PS Form 1067, which contains a printed list of Miranda warnings. Tr. 7. Olsen read these and signed a statement indicating that he had read and understood them. Id. Forty minutes later, Olsen signed a waiver of the rights at the bottom of Form 1067. See Appendix 1.

The Government has the burden of proving that this waiver was voluntary. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628; Fuentes v. Moran, 733 F.2d 176, 180-81 (1st Cir.1984). The question of waiver must be decided on “the particular facts and circumstances surrounding [this] case, including the background, experience and conduct of the accused.” North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979); Fuentes, 733 F.2d at 181.

Recollections differ as to what occurred during the forty-minute period between 4:40 p.m. and 5:20 p.m. Inspector Kerr testified that during that period he explained why he thought Olsen was the perpetrator, and that Olsen said nothing. Tr. 8-9. He estimated that this occupied a period of about forty-five minutes. Tr. 8. At the end of that period, Kerr testified, he asked Olsen if he would be willing to answer questions, and Olsen signed the Miranda waiver. Tr. 9.

Olsen testified that he claimed his right to have an attorney before he signed the printed waiver form. Tr. 40. He said he was then told that if he obtained an attorney, it would lengthen the investigation and that “it would probably go much worse for me if I had a lawyer.” Tr. 41. Olsen testified that Inspector Kerr spent some time during the forty-minute interval explaining the difficulties that Olsen’s retaining an attorney would cause. Inspector-Kerr denied on cross-examination that Olsen asked for an attorney and that he said anything to Olsen about an attorney slowing down an investigation.

The Court finds that although Olsen may have inquired about an attorney at some point, he did not request one before he signed the Miranda waiver. The weight of the evidence supports Inspector Kerr’s testimony that Olsen did not ask for an attorney prior to signing the waiver. Kerr gave Olsen Miranda warnings twice, once orally and once on a printed form, and Olsen indicated that he understood the warnings. Olsen’s assertion that he asked for an attorney and was persuaded not to retain one before he signed the printed waiver form does not square with Kerr’s scrupulous regard for the formalities dictated by Miranda. Kerr’s testimony, the signed waiver, and all circumstances surrounding the waiver are sufficient evidence to sustain the Government’s burden of proving that Olsen voluntarily signed the printed Miranda waiver.

C.

Even if Olsen voluntarily signed the printed waiver at 5:20 p.m., he retained the right under Miranda to cut off questioning at any time. 384 U.S. at 474, 86 S.Ct. at 1628. The Supreme Court there stated:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

Id. Thereafter,

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

Id. at 475, 86 S.Ct. at 1628. See also Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Certain evidence circumstantially supports the view that Olsen, at some point, discussed with Kerr his need for an attorney. Susan Olsen, Defendant’s wife and a credible witness, testified that she spoke with Olsen on March 30, 1984, immediately after he arrived at his parent’s house following the interrogation. Tr. 52. On questioning by Olsen’s attorney, she testified:

A At first, he just told me it was all over, and I told him what was over? He said he was all done working. And I asked him why, and he said a whole bunch of trouble up there, and I said did you need a lawyer? Is something really wrong? He said, “No, I didn’t need a lawyer. The Inspector there said everything would be all right as long as I signed, paid back the money and resigned my job.” And he was so upset and I got upset, and we just kept talking, and I kept insisting that he should get a lawyer, and he said, no, that he really trusted them.
Q That he trusted who?
A The Inspectors.

Tr. 52-53. This testimony corroborates Olsen’s testimony that he discussed obtaining a lawyer with Kerr. It sheds no light, however, on the issue of when that discussion occurred during the course of the interview.

In addition, Olsen testified that Kerr told him by telephone some time in September that he should hire a lawyer. Tr. 48. Mrs. Olsen corroborated this statement. Tr. 54. Kerr testified that he did not recall such a telephone conversation, but he conceded that one might have occurred. Tr. 19. The inference that may be drawn from Kerr’s having advised Olsen to retain an attorney is that Kerr told Olsen on March 30 that he did not need an attorney. This inference is consistent with Kerr’s reasonable belief that it was unlikely that Olsen would be prosecuted.

Inspector Kerr testified that he did not “recall” the subject of a lawyer “ever coming up” on March 30, 1984, or at any other time. Tr. 20. Defendant’s attorney pressed him further, asking, “Did he or did he not speak to you about a lawyer on March 30, 1984?” Kerr replied, “No.” The Court finds Kerr’s first response — that he did not recall discussing a lawyer on March 30, 1984 — to be credible. The Court gives no weight to his subsequent inconsistent response because it was prompted only by defense counsel’s insistence upon a “yes” or “no” answer.

Despite Inspector Kerr’s failure of recollection, the Court finds that Olsen and the inspectors did discuss the matter of Olsen’s need for an attorney. On this record, it is not clear, on the one hand, whether Olsen requested that he speak to an attorney before answering further questions or, on the other hand, whether he inquired if he should retain an attorney to represent him in future proceedings. The Court rejects any assertion, however, that Olsen unequivocally asserted his right to speak to an attorney before proceeding with questioning. Nevertheless, the Court finds that, at the very least, the subject of Olsen’s retaining an attorney was raised.

The Court of Appeals for the First Circuit dealt with an equivocal invocation by a defendant of his right to speak to an attorney during police questioning in the recent case of United States v. Porter, 764 F.2d 1, (1st Cir. 1985). The Defendant argued that he asserted his right to counsel by making a telephone call to his attorney in the presence of a government agent. Id., 7. The First Circuit treated Defendant’s call to his attorney as an invocation of his right to an attorney. The lack of analysis in the majority opinion respecting this issue severely undercuts its value as analogous authority for deciding this case.

Chief Judge Campbell, however, writing dubitante, urged closer analysis of the question and particularly favored adoption of the Fifth Circuit’s approach to equivocal requests for an attorney. Porter, supra, (Campbell, C.J., dubitante). Judge Campbell quoted from the Fifth Circuit’s holding in Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979):

whenever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified. When and if it is clarified as a present desire for the assistance of legal counsel, all interrogation must cease until that is provided, just as in the case of an initial, unambiguous request for an attorney. And no statement taken after that request is made and before it is clarified as an effective waiver of the present assistance of counsel can clear the Miranda bar. Thus, by [this rule,] we avoid attributing a talismanic quality to the word “attorney” falling from a suspect’s lips, while at the same time safeguarding his right to the assistance of counsel when he wants it and says so.

Id. at 771-72 (emphasis in original). Under the Fifth Circuit approach, a government agent may not simply ignore an equivocal request for an attorney, but must clarify that request before proceeding with substantive questioning. In this case, after the subject of an attorney was raised, the Court finds, the postal inspectors did not attempt to clarify the request. The Court, therefore, must treat Olsen’s inquiry regarding an attorney as an invocation of his right to an attorney.

Of course, a defendant may waive his right to counsel, expressly or implicitly, after having invoked it. See North Carolina v. Butler, 441 U.S. 369, 372-76, 99 S.Ct. 1755, 1756-59, 60 L.Ed.2d 286 (1979). Under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), after an accused has invoked his right to counsel, a valid waiver of that right cannot be established by a showing that he has responded to further police-initiated questioning. Id. at 484, 101 S.Ct. at 1884. No further interrogation is permitted unless the accused himself initiates further communication. Id. at 484-85, 101 S.Ct. at 1884. See also Porter, supra, 764 F.2d at 8.

The Government has the “heavy burden” of showing that there was a knowing and intelligent waiver. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. In this case, the allocation of the burden of proof is decisive. The Defendant has produced evidence supporting the inference that he asked to have an attorney. The Government has not effectively rebutted the inference, nor has the Government established that Olsen knowingly and intelligently waived his right to counsel after having orally invoked it.

It is critical to determine when the discussion concerning a lawyer took place. The Court has found that it did not occur before Olsen signed the printed waiver form. Nor did it take place after the written statement was completed. Tr. 16. It is unlikely that Olsen inquired about an attorney immediately after signing the printed waiver of his right to a lawyer. It is more likely that the discussion concerning Olsen’s need for an attorney took place when Olsen and Kerr discussed what was likely to happen to Olsen. The Court finds that this conversation took place after Olsen orally admitted his responsibility, but before he prepared the written, statement. Accordingly, the interrogation should have stopped at that point, and the written statement taken subsequent to that time must be suppressed because it was taken in violation of Miranda rules.

III.

Distinct from the issue of the voluntariness of a Miranda waiver is the question whether the confession itself was given voluntarily, or was induced by threats or promises. The Government must prove by a preponderance of the evidence that the confession was voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). The confession must not have been “ ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’ ” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897)).

Here, Olsen claims that his confession was extracted by direct or implied promises. After carefully reviewing the evidence, the Court has determined that Kerr did indeed make some implied promises to Olsen upon which Olsen reasonably relied. Kerr testified that he told Olsen that he had no control over the decision to prosecute and that he was to report the results of his investigation to the United States Attorney. He testified that he told Olsen that the United States Attorney had the option of prosecuting Olsen for a felony or a misdemeanor, or electing “pretrial diversion.” He also told Olsen that if he cooperated, by resigning and agreeing to full restitution, Kerr would inform the U.S. Attorney that he had done so. Tr. 26, 27.

Olsen’s testimony differs from Inspector Kerr’s, but the two versions are largely reconcilable. Olsen testified that he believed that if he cooperated, he would not be prosecuted. The Court finds this belief, on the basis of other statements made by Inspector Kerr, to be reasonable. Kerr testified at the suppression hearing that he believed that Olsen would receive the same treatment as persons had received, in his experience, in similar situations in Massachusetts, that is, pretrial diversion. Tr. 27. This belief was consistent with Kerr’s 17 years of experience with respect to prosecution of postal workers. See Tr. 22. Moreover, upon being asked whether Olsen thought his cooperation would result in assistance from Kerr, Kerr stated, “It’s possible, sure.” Tr. 29.

The timing of these discussions and their causal connection to the giving of any confession by Olsen is critical. Inspector Kerr testified that after Olsen signed the waiver, he asked Olsen whether Olsen had staged the burglary and embezzled money or stamps. Tr. 10. Olsen at first denied that he had. Id. Then Kerr told Olsen that he and his fellow clerk, William LaFleur, would each have to pay for the value of missing stamps because they had not adhered to postal service security regulations regarding the storage of the stamps. Tr. 11. At that point, prompted by his fear that LaFleur, his innocent co-employee, would have to pay $1,000, Olsen admitted to staging the burglary and embezzlement. Tr. 11.

Kerr testified that after Olsen made his admission, Olsen asked what would happen to him. Tr. 14. Olsen’s inquiry prompted Kerr’s statements concerning the United States Attorney’s options, the likelihood of prosecution and the value of Olsen’s cooperation. Tr. 14, 15.

Kerr’s testimony concerning the timing of his statements is consistent with a realistic sequence of events. Inspector Kerr’s testimony that he made his statements in response to Olsen’s inquiries was not directly contradicted by Olsen. The Court is not persuaded that Inspector Kerr volunteered, unprompted by Olsen’s inquiries, the information that caused Olsen to believe that he would not be prosecuted. The Court is satisfied that the discussions resulted from Olsen’s inquiries, and as has been noted, that these inquiries came after Olsen orally confessed. This view of the facts is supported by the final sentence of Olsen’s statement: “I could not keep silent knowing that Clerk LaFleur would have to pay back what I took.” Government’s Exhibit 2. Apparently, this statement was dictated by Kerr to Olsen, based upon Olsen’s previous oral statement. It is in Olsen’s own hand, however, and he did not deny such motivation for his acts. He admitted in testimony that protecting LaFleur was at least one reason why he confessed. Tr. 50-51.

The Court finds, therefore, that the discussions which led Olsen to believe that he would not be prosecuted took place after he gave his oral confession. However, these discussions took place before Olsen prepared the written statement. Tr. 23, 24. The Court has found that Kerr’s representations caused Olsen to reasonably believe that if he fully cooperated, he would not be prosecuted. The evidence, therefore, supports an inference that Kerr’s statements, although made in good faith, caused Olsen to prepare the written statement with the expectation that doing so, in combination with his cooperation in other respects, would accrue to his benefit. Olsen had such a belief and it was a reasonable one under all the circumstances. Once again, the allocation of the burden of proof is decisive; the Government has failed to rebut the inference that the written confession was given involuntarily and thus has not sustained its burden of proof. Therefore, the written statement must be suppressed on the additional ground that it was not given voluntarily. However, the oral statements made before Olsen raised the inquiry about what action the Government would take against him are not subject to suppression. They are untainted by the discussion of that subject matter.

Accordingly, it is ORDERED that the written statement of March 30, 1984, prepared by Defendant, be, and is hereby SUPPRESSED and it shall not be admitted as evidence against him in any trial in which he is a defendant and the Defendant’s Motion to Suppress is in all other respects DENIED.

So ORDERED.

      . Inspector Kerr possessed evidence that it was highly unlikely that the post office had actually been burglarized. He knew that several days earlier Olsen had left work complaining of illness after being told that his drawer was to be audited. He knew that Olsen's was one of only two drawers showing shortages following the apparent burglary. He reasonably could have believed that it was likely that a crime had been committed and that Olsen had committed it or had participated in its commission. See Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). Postal inspectors are authorized to make warrantless arrests for felonies under 18 U.S.C. § 3061(a)(3). The offense charged, 18 U.S.C. § 1711, is a felony. See 18 U.S.C. § 1.

      . The basis for Kerr’s expectation that Olsen would not be prosecuted is discussed in Part III of this Opinion.

      . See Part III of this Opinion.