author: RYMER, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Michael SPALLIERO, Jr., Defendant.
    No. CR 83-909-PAR.
    United States District Court, C.D. California.
    Jan. 20, 1984.

      Alexander H. Williams, III, U.S. Atty., James L. Waltz, Sp. Atty., U.S. Dept, of Justice, Los Angeles, Cal., for plaintiff.
    W. Michael Mayock, Los Angeles, Cal., for defendant.
   MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

An indictment filed November 3, 1983, charges defendant Michael Spalliero, Jr. with five counts of perjury before a grand jury under 18 U.S.C. § 1623 and one count of obstructing justice under 18 U.S.C. § 1503.

In November, 1981 the defendant was subpoenaed and appeared before a special grand jury in the Central District of California. At that proceeding, defendant was questioned concerning his relationship with Vito Spillone. Spillone is alleged to be linked to organized crime and to be involved in loansharking. Spillone allegedly made a number of usurious loans from his business, Angie’s Wholesale Groceries in South El Monte.

In the fall of 1981, prior to defendant’s grand jury testimony, the FBI sought and obtained judicial orders permitting wiretaps on Spillone’s phones at Angie’s Wholesale Groceries. The FBI intercepted conversations between defendant and Spillone regarding transactions involving the allegedly usurious loans.

The matter is now before the Court on defendant’s motions to dismiss the indictment and to suppress evidence obtained from and as a result of the wiretaps on Spillone’s phones at Angie’s Wholesale Groceries.

I. The Motion to Dismiss the Indictment.

Defendant makes three attacks on the indictment. First, he urges that the questions in Count I about the term “juice loan” are vague and ambiguous and susceptible to several constructions. Second, defendant argues that his allegedly false statements as set forth in Counts II through V are in fact literally true and consistent with the “truth paragraphs” in each count because of a grammatical (and logical) rule that a negative answer to a question containing a negative adverb is equivalent to an affirmative response to the same question rephrased without the negative adverb. Finally, defendant contends that 18 U.S.C. § 1503, the statute making it unlawful to obstruct justice, does not encompass the acts alleged in Count VI of the indictment: giving intentionally evasive, false and misleading testimony to the grand jury.

Decisions of the United States Supreme Court and the Ninth Circuit provide some guidance in assessing defendant’s claims about the insufficiency of the indictment’s perjury counts. Because defendant’s motion to dismiss raises difficult issues, a brief discussion of these cases is warranted.

In Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), the United States Supreme Court held that a non-responsive but truthful answer to an examiner’s question cannot support a perjury conviction even if the unambiguous answer conveys false implications or misleads the examiner. The Court reaffirmed the basic principle that a perjury conviction cannot be based on a literally true answer. The Court placed the burden squarely on the questioner to use the tools of effective cross-examination to pin an evasive witness down to the specific object of the questioner’s inquiry. Although the questioning in Bronston took place at a debtor’s examination in a bankruptcy proceeding, the Court’s reasoning applies with equal, if not greater, force to an examination before a grand jury where the witness is not represented by counsel at the examination and may not even be apprised of the nature or target of the grand jury’s investigation. Although the Bronston Court recognized that a non-responsive answer may be calculated to evade the questioner’s inquiry, the Court concluded that “any special problems arising from the literally true but unresponsive answer are to be remedied through the ‘questioner’s acuity’ and not by a federal perjury prosecution.” 409 U.S. at 362, 93 S.Ct. at 602.

In United States v. Cook, 489 F.2d 286 (9th Cir.1973), the Ninth Circuit had occasion to reconsider its own decision in light of the Supreme Court’s opinion in Bronston. Initially, the Ninth Circuit affirmed defendant Cook’s perjury conviction over a vigorous dissent that prefigured the reasoning in the Bronston decision. See, United States v. Cook, 497 F.2d 753 (9th Cir.1972) (original opinion in Cook published after the subsequent decision to reverse Cook’s conviction because of the persuasive and instructive value of Judge Ely’s dissent). In Cook, the examiner asked an ambiguous question. The clear grammatical construction of the government’s question called for the witness’ knowledge of current, not past, events. However, the government urged that the question inquired into the witness’ present knowledge of past events. The defendant’s clear and unequivocal answer to the question properly understood in its natural and grammatically correct sense was truthful. In reversing the conviction, the Ninth Circuit adopted Judge Ely’s analysis that the only proper interpretation was the grammatically correct one and that there was no evidence that the defendant understood the question in a manner inconsistent with proper English usage.

The Cook decision was followed by United States v. Cash, 522 F.2d 1025 (9th Cir.1975) where the Ninth Circuit confronted a slightly different question than the one presented in Cook. In Cash, the defendant contended that the government’s question was ambiguous and that, under his construction of the question, his response was literally true. The court reviewed the entire record and concluded that there was no reasonable doubt that the defendant understood the government’s question as the examiner intended it to be understood. In United States v. Matthews, 589 F.2d 442 (9th Cir.1978), cert. denied 440 U.S. 972, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979), the court followed Cash and held that where an examiner’s question was plausibly susceptible of two constructions, the jury should decide what was the defendant’s understanding of the meaning of the question asked by the government. The Matthews court concluded that the government bears the burden of establishing beyond a reasonable doubt that the defendant understood the question asked of him as the government intended the question to be understood. In Matthews, the court indicated that the meaning of the government’s question could be directly ascertained from the context of the several questions asked the defendant.

Recently in United States v. Cowley, 720 F.2d 1037 (9th Cir.1983), the court reaffirmed the Cook, Cash and Matthews decisions. In Cowley (as in Cash and Matthews) the question was ambiguous and could be understood in more than one way. However, as in Cook, the record in Cowley showed that the jury could not find beyond a reasonable doubt that the defendant understood the question in the way the government intended. Because the government’s “ill phrased” question elicited a literally truthful response, the court found that there was “no stark contrast between the allegedly perjurious statement and the truth allegations” in the indictment and overturned a perjury conviction.

A. Count I.

Count I of the indictment charges defendant with committing peijury by giving the following answers to the examiner’s questions:

Question: Do you know what “juice” is?
Answer: A who?
Question: Juice. Have you ever heard the expression “juice”?
Answer: I don’t know what you mean by “juice” now. What kind of juice are you talking about?
Question: Have you ever heard the term “juice” in reference to a loan? Do you know what a juice loan is?
Answer: No. [Page 3, ¶ 4 of the indictment.]

The truth paragraph alleges that defendant knew “the meaning of a ‘juice’ loan, that is a loan with a usurious interest rate with the term ‘juice’ referring to interest, and has heard and used said term in reference to a loan.” [Page 3, 1f 4.]

Defendant argues that the term “juice loan” and “juice” are ambiguous and could mean a variety of things, including a loan for orange juice or a loan taken out by the major depositor of a bank who has lots of juice, meaning power, with the bank. Defendant, in his grand jury testimony, apparently did not offer a meaning of the term “juice loan”; instead, he stated that he did not know the meaning of the term. To the extent that the examiner’s questions about “juice” are ambiguous or susceptible to two constructions, plaintiff is entitled to raise the issue of ambiguity at trial. United States v. Cash, 522 F.2d 1025 (9th Cir.1975); United States v. Matthews, 589 F.2d 442 (9th Cir.1978). Certainly, on the basis of the indictment alone, I cannot conclude that the trier of fact could not find beyond a reasonable doubt that defendant understood the question as intended by the government examiner to refer to loans with usurious rates of interest. Cf. United States v. Cowley, 720 F.2d 1037, 1043 (9th Cir.1983) (phrased question has sufficient ambiguity to require overturning conviction).

Defendant argues that Count I is improper because it is impossible to tell whether the defendant’s ultimate answer “No” is to the question “Have you ever heard the term ‘juice’ in reference to a loan?” At the same time, defendant argues that the examiner abandoned his first question, and therefore his answer “No” is a response to the second only. As in the case of the ambiguous question, the problem of two questions turns on what the defendant understood the question to be. The issue of which question the plaintiff answered is one for the trier of fact with the government bearing the burden of proof to show which of the two questions (if not both) elicited the allegedly false response.

Defendant’s motion to dismiss is denied as to Count I of the indictment.

B. Count II.

Paragraph 2 of Count II contains the following allegedly false statements:

Question: Did you ever borrow any money from Mr. Spillone for use in gambling?
Answer: No.
Question: Did you ever ask Mr. Spillone for money that you could use for gambling?
Answer: I don’t think he will ever give me money to gamble with, that’s for sure. You got to be crazy.
Question: Have you never asked him for money to use for gambling?
Answer: No. [Page 4, 112.]

Paragraph 3, the truth paragraph, alleges that “the defendant ... well knew and did remember in truth and in fact that he had borrowed money from Mr. Spalliero for use in gambling and had asked Mr. Spillone for money that he could use for gambling.” [Page 4, 113.] [Emphasis added.]

Defendant argues that his answer to the final question asked in paragraph 2 is literally true because responding “no” to a question containing the negative adverb “never” results — logically and grammatically — in affirming the truth of the proposition contained in the question rephrased without the negative adverb. Thus, defendant’s answer, read literally, means that he did ask Spillone for money for use for gambling. Defendant argues that he may not be convicted for an answer which is literally true.

Neither the United States Supreme Court’s decision in Bronston v. United States nor the Ninth Circuit decisions in Cook, Cash, Matthews and Cowley discuss the “double negative” situation presented here. Unlike Cash and Matthews, the question in this case is unambiguous and not open to more than one interpretation. Unlike Bronston where the answer was non-responsive, defendant Spalliero’s answer is responsive but its meaning is equivocal. Moreover, the answer in Bronston was “a statement of fact, the truth of which could be ascertained without reference to the question that elicited it.” United States v. Matthews, 589 F.2d 442 (9th Cir.1979). In this case, the answer “No” must be read in conjunction with the question. Although a literal reading of question and answer renders the answer literally true and consistent with the truth paragraph, the government urges that the popular usage of the response “No” to a question containing a negative adverb does not result in the literally true meaning ascribed by defendant to his answer. Thus, in this case, unlike the cases cited above, the Court is faced with a responsive but ambiguous answer rather than a non-responsive answer {Bronston) or an ambiguous question (Cash, Matthews and Cowley).

I believe that the principles of Bronston and Cook should control this case. Although the question here was unambiguous, the answer was obviously ambiguous, just as the answer in Bronston was obviously non-responsive. An alert examiner could have asked additional questions to clarify the ambiguity. As with the non-responsive answer in Bronston, - the ambiguous answer here should signal the government’s examiner to pin down the witness so that the meaning of his testimony is clear. The Bronston court’s rationale for rejecting the argument that a defendant may be guilty of perjury for a truthful non-responsive answer that conveys a false — albeit unspoken — implication is equally applicable to this case. The Bronston court explained:

To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well' fear having that responsibility tested by a jury under the vague rubric of “intent to mislead” or “perjury by implication.”

409 U.S. at 359, 93 S.Ct. at 600.

The witness who gives a responsive but ambiguous answer may find himself the defendant in a penury case because the examiner failed to follow-up on his initial questions. The law requires the witness to tell the truth; it does not shoulder the witness with the burden of aiding a sloppy questioner. In the Cook case, “[a] precise grammatical reading of the challenged question and answer demonstrates that Cook’s answer was literally true.” 489 F.2d at 287. The Cook court did not undertake additional analysis. In this case, a precise grammatical reading of the final question and answer in Count II demonstrates that defendant Spalliero’s answer was literally true. As a result, I think that the Court must conclude that a jury could not find beyond a reasonable doubt that the defendant intended his answer to be otherwise.

C. Count III.

Count III suffers from the same defect as Count II. The questions and answers in this count are:

Question: Did you ever ask him for additional money besides the $2,700?
Answer: Just 50 bucks I got from him.
Question: You never asked him for any more money?
Answer: No. Just got $2,700. [Page 5, 112.]

Paragraph 3 of this count contains the truth paragraph which alleges “that the defendant knew well and did remember in truth and in fact that he had asked Vito Spillone for additional monies besides the $2,700 and $50.” [Page 5, it 3.]

The final question and answer in this count contain the double negative. Defendant’s answer to the first question is non-responsive. The phrase “Just got $2,700” in the final answer does nothing to clarify defendant’s answer which could be read “No, [I asked him but] just got $2,700 [from him].”

For the reasons stated in analyzing Count II, I find that the defendant’s answer is literally true and that a jury could not find beyond a reasonable doubt that the defendant meant his answer to be otherwise.

D. Count IV.

The questions and answers in this count are:

Question: Have you ever paid Mr. Spillone any money?
Answer: Have I ever paid him any money?
Question: That’s right.
Answer: I still owe him the $50 and the $500 and the $2,700. No, I never paid him any.
Question: You have never paid him any money?
Answer: No. [Page 6, ¶ 2.]

The truth paragraph in this count states that defendant had paid money to Spillone.

In sharp contrast with Counts II and III, Count IV contains an unambiguous answer “No, I never paid him any” to an unambiguous question, “Have you ever paid Mr. Spillone any money?” Although defendant argues that his answer “No” to the final question of Count IV creates an ambiguity, I do not believe that the ambiguity, if any, renders the count defective. Here the unequivocal answer to the penultimate question helps to explain the meaning of defendant’s answer to the final question in the count. Moreover, if the final question and answer were withdrawn, the count would still properly charge defendant with making a perjurious statement. Finally, at oral argument, defendant suggested that the answer to the final question represents a recantation under 18 U.S.C. § 1623(d). Whether a valid offer to recant has been made is an issue of law. United States v. D’Auria, 672 F.2d 1085, 1091 (2d Cir.1982) “An outright retraction and repudiation of his false testimony is essential to a ‘recantation’ within the meaning of the statute.” Id. at 1092. “Testimony which serves to cast doubt as to the truth of that which is perjurious is not a recantation.” United States v. Anfield, 539 F.2d 674, 679 (9th Cir.1976). At least on the record presented on this motion, the Court cannot find evidence that would support a finding that the defendant recanted.

Defendant’s motion to dismiss as to Count IV is denied.

E. Count V.

Count V consists of the following questions and answers:

Question: Did you ever pay Mr. Spillone any interest on money you borrowed from him?
Answer: No way, no way.
Question: Did you ever tell him you would pay him any interest on money you had borrowed from him?
Answer: No. All there was was that business transaction. That’s it.
Question: Did you ever ask him to let you pay him $250 a week on money that was borrowed from him? I’m asking you did you ever ask Mr. Spillone to let you pay him $250 a week interest on money you borrowed from him?
Answer: I got to be crazy to give him $250 a week.
Question: Is the answer no, sir?
Answer: No.
Question: Alright, sir. Have you never borrowed any money from Mr. Spillone where he required that you would pay him with interest; is that correct?
Answer: I don’t think he would ever charge me interest. I joke around with him a lot.
Question: Whether he would in the future, in the past you had borrowed money from Spillone where he required interest on that money; is that correct?
Answer: No, no. Nothing. [Pages 7-8, 112.] '

Count V contains the truth allegation that defendant paid Mr. Spillone interest on money he has borrowed from him; that defendant told Mr. Spillone that he would pay interest on money he had borrowed from him; that defendant asked Mr. Spillone to let him pay $250 a week on money that he borrowed from Spillone; and that defendant borrowed money from Mr. Spillone in which there was a requirement that interest be paid to Mr. Spillone.

Count V raises the clearest example of the problem of the double negative. The examiner’s fourth question, “Is the answer no, sir?” cannot be answered unambiguously with a simple “yes” or “no” response. Defendant’s answer to the third question is non-responsive and not helpful in elucidating his answer to the fourth question. The first, second, fifth and sixth questions in Count V ask questions logically distinct from the third and fourth questions.

Accordingly, this case is distinguishable from United States v. Andrews, 370 F.Supp. 365 (D.Conn.1974) where the court looked to the defendant’s clear and unambiguous answers to a line of questioning on the same subject in order to explain his answer of “No” to one of the questions in the same series. In this case the government has failed to make any showing that defendant’s answer could be explained in a similar way.

F. Strike or Dismiss.

Defendant’s motion is styled as a motion to dismiss in contrast to a motion to strike surplusage under Rulé 7(d), Federal Rules of Criminal Procedure. A count of perjury that is improperly drawn may be dismissed. See, United States v. Helstoski, 635 F.2d 200, 206 (3d Cir.1980). As indicated above, I find that the defendant’s statements set forth in Count III of the indictment are literally true because of the double negative created by defendant’s answer and will not support a perjury conviction. Because Count III contains a single instance of perjury the entire count will be dismissed.

Counts II and V present other difficulties. I have found that the second and third questions and answers in Count II [page 4, 112, lines 13-19] cannot support a perjury conviction because the second answer is non-responsive and the third answer is literally true as a result of the double negative. If these questions and answers are deleted from the count, the first question and first answer of Count II [page 4, 112, lines 10-12] remain intact:

“Question: Did you ever borrow any money from Mr. Spillone for use in gambling?
Answer: No.”

This question and answer does not suffer from the same defects as did the others in Count II. Language from the truth paragraph (113 of Count II) must also be withdrawn. The language “and had asked Mr. SPILLONE for money that he could use for gambling” (¶ 3, page 4, lines 24-25) corresponds to the two defective questions of Count II. The remaining language of the truth paragraph corresponds directly to the first question which remains intact.

Although courts may not amend indictments as a matter of course, an amendment will be permitted where it withdraws a portion of the charge if the offense remains the same. See, United States v. Lyman, 592 F.2d 496 (9th Cir.1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2684, 61 L.Ed.2d 300 (1979) (withdrawing 20 of 24 alleged overt acts in conspiracy). In deleting the second and third questions and answers in Count II of the indictment and the corresponding language in the truth paragraph, the essential nature of the charge remains the same, although now more limited in scope. It is difficult to see how defendant is prejudiced by the withdrawal of the defective language. Accordingly, the second and third questions and answers of Count II (page 4, 112, lines 13-19) and the corresponding truth paragraph language, from the words “and had asked” to the end of the sentence (page 4, 11 3, lines 24-25) are ordered deleted from Count II.

The same analysis can be applied to Count V where I have found that the third and fourth questions and answers (page 7, II2, lines 17-24) will not support a perjury conviction because the third answer is non-responsive and the fourth answer is literally true. These questions and answers are ordered deleted along with the corresponding language in the truth paragraph “he did ask Mr. Spillone to let him pay $250 a week on money that he borrowed from Spillone” (page 8, ¶ 3, lines 13-14).

Defendant complains that the counts are duplicitous and therefore violate Rule 8(a), Federal Rules of Criminal Procedure, which governs the joinder of offenses. Defendant contends that the assignment of several allegedly false statements to a single count renders the count defective. After striking the improper questions and answers of Count II and Count V, only Count V of the first five counts contains more than one allegedly false answer. The remaining questions in Count V concern whether defendant ever paid Mr. Spillone interest, whether defendant told Mr. Spillone that he would pay interest, and whether Mr. Spillone ever required plaintiff to pay interest. It appears to be settled in the Ninth Circuit that a single count of an indictment may include several assignments or specifications of false statements. See Arena v. United States, 226 F.2d 227, 236 (9th Cir.1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956); Vitello v. United States, 425 F.2d 416, 418 (9th Cir.1970) (law “well settled” that several specifications of falsity may be included in a single count); see also: United States v. Isaacs, 493 F.2d 1124, 1155 (7th Cir.1974) (“In penury cases ... where one offense is committed, all the false declarations pertaining to that offense can be charged in one count without making that count duplicitous.”) None of the counts in the indictment is duplicitous.

G. Count VI.

Count VI of the indictment charges the defendant with obstruction of justice under 18 U.S.C. § 1503. Count VI sets forth a series of questions and answers from defendant’s grand jury testimony regarding a loan of $2,700 made to defendant by Mr. Spillone for the purpose of buying a tow truck for defendant. Paragraph 4 of the count charges that defendant’s testimony as set forth in Count VI was “intentionally evasive, false and misleading and designed to conceal defendant’s true knowledge of the facts from the Grand Jury.” In his testimony, defendant declared that he did not give Mr. Spillone a note or I.O.U. Defendant testified that he showed Spillone the vehicle ownership certificate or “pink slip” for the tow truck and left the pink slip on a table at the place where he met with Spillone. Defendant declared that he forgot to pick up the pink slip. Count VI of the indictment charges that defendant intentionally left the pink slip with Spillone to act as collateral for the loan or loans made by Spillone.

Defendant argues that the indictment’s charge in Count VI falls outside of the scope of 18 U.S.C. § 1503. Defendant relies primarily on the principle of ejusden generis in construing statutes. This principle of statutory construction had been applied by the Ninth Circuit apparently to limit violations of § 1503 to those acts which impede the “due administration of justice” by “threats or force, or by threatening letter or communication.” United States v. Metcalf, 435 F.2d 754 (9th Cir.1970). However, the Ninth Circuit has recently moved away from a limited interpretation of § 1503. In United States v. Rasheed, 663 F.2d 843 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982), the court concluded that language in earlier cases suggesting a limited interpretation of the statute was dicta. The Rasheed court explained that the earlier decisions failed to address all of the language of the statute. The Rasheed court focused on the so-called “omnibus” clause of § 1503. See, United States v. Brown, 688 F.2d 596, 597 (9th Cir.1982). In Rasheed, the court approved a jury instruction which stated that a defendant could be found guilty of violating § 1503 for corruptly influencing, obstructing or impeding the due administration of justice or endeavoring to do so. Rasheed held that a defendant who had concealed documents from a grand jury violated § 1503. In reaching its conclusion, the Rasheed court relied on cases that have held that committing perjury [United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979)] and giving evasive answers to a grand jury [United States v. Cohn, 452 F.2d 881 (2d Cir.1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249 (1972)] are within the scope of § 1503.

I hesitate to permit the government to go forward on Count VI for several reasons. First, to the extent that the count charges the defendant with making false statements, I do not understand why the government should not be made to proceed under the perjury statutes and established judicial interpretations of 18 U.S.C. § 1623. Second, to the extent that defendant’s testimony is not perjurious but rather evasive, or misleading, I think that interpreting § 1503 to obtain a result unobtainable under the perjury statute is ill-advised. The dangers and problems of prosecuting persons for evasive testimony were discussed by the United States Supreme Court in Bronston v. United States. That case did not simply overturn a perjury conviction on the ground that a false implication does not literally fall under the language of the perjury statute which confines an offense to the witness who “wilfully ... states ... any material matter which he does not believe to be true.” Instead, the Court looked to limitations dictated by the important policy that “the measures taken against the offense must not be so severe as to discourage witnesses from appearing or testifying.” Bronston v. United States, 409 U.S. at 359, 93 S.Ct. at 600. Although a conviction under § 1503 may require proof of intention to impede justice thereby excluding the misleading or non-responsive statement, innocently made, the fear of possible prosecution for evasive or misleading testimony under § 1503 will burden every witness before a grand jury — even those who are in no position to gauge the effect of their statements on a grand jury investigation about which they have little or no information.

In United States v. Cohn, 452 F.2d 881 (2d Cir.1971), a grand jury witness was charged with violation of § 1503 for testifying repeatedly that he could not recall certain facts. At trial his statements were proved to be false and evasive. By contrast, in this case the government is pursuing a witness who answered the question. If the witness’ answers are false then the government could charge perjury. If the answers are incomplete or give a misleading impression, then the government could have remedied the situation at the time of the investigation by asking additional questions to pin down the defendant about whether or not he intentionally left the pink slip on the table or intended the pink slip to be collateral for a loan. In the Cohn case, the government’s questions were met with “I don’t recall.” Additional questions by the examiner could not remedy the situation.

Having expressed these reservations, I am nevertheless constrained to acknowledge that the Ninth Circuit appears to embrace the reasoning in United States v. Griffin and United States v. Cohn. See, United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981). Accordingly, defendant’s motion to dismiss Count VI of the indictment is denied.

II. Motion to Suppress.

Defendant moves to suppress evidence obtained from and as a result of wiretaps placed on the phones of Angie’s Wholesale Groceries. The wiretaps were installed pursuant to three judicial orders issued on May 12, 1981 (Misc. No. 10517), August 6, 1981 (Misc. No. 10752) and September 14, 1981 (Misc. No. 10752). Each order authorized electronic interception of telephone calls made to and from phones at Angie's Wholesale Groceries for a period of thirty days.

Defendant challenges the validity of the government’s application for each of the judicial orders. The applications for the orders in this case were made pursuant to 18 U.S.C. § 2516(1) which provides:

The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation____

On January 19,1981 Attorney General Benjamin R. Civiletti issued Order No. 931-81 designating “Assistant Attorney General in charge of the Criminal Division” to authorize applications for interception of wire or oral communications pursuant to 18 U.S.C. § 2516. On January 20, 1981, with the change of administration, William French Smith became Attorney General. On February 27, 1981, Attorney General Smith issued Order No. 934-81 stating that Order No. 931-81 remains in effect. Order No. 934-81 also corrected a typographical mistake in Order No. 931-81 by deleting from the sixth line on the second page of the order the number “2510(7)” and substituting the number “2518(7)”.

In May, 1981 D. Lowell Jensen, Assistant Attorney General Criminal Division, authorized wiretap applications for wiretaps on the phones of Angie’s Wholesale Groceries in South El Monte. Applications were also authorized by Assistant Attorney General Jensen in June and September, 1981.

Defendant argues that D. Lowell Jensen, who was not Assistant Attorney General, when Attorney General Civiletti issued Order No. 931-81, was not properly authorized to make the applications on the basis of the earlier order. Thus, defendant argues that Attorney General Civiletti could not have “specifically designated” Assistant Attorney General Jensen as required by the statute.

Defendant’s argument has been rejected by the Ninth Circuit in an opinion issued after oral argument on defendant’s motion to dismiss. In United States v. Camp, 723 F.2d 741 (9th Cir.1984), the court faced exactly the same fact situation presented here involving Attorney General Orders No. 931-81 and 934-81. The Camp court upheld the district court’s denial of the defendant’s motion to suppress evidence and held that the authorizations approved by D. Lowell Jensen after the February 27, 1981 Order No. 934-81 were valid.

Defendant also argues that the recent United States Supreme Court case of INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) must limit the concept of “administrative continuity” which suggests that special designee orders of one administration may carry over into the second administration. See, United States v. Wyder, 674 F.2d 224 (4th Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982); cf. United States v. Robinson, 698 F.2d 448 (D.C.Cir.1983). Because Attorney General Smith issued his own order of February 27, 1981, the administrative continuity argument need not be addressed.

The Motion to Suppress is denied.

IT IS THEREFORE ORDERED that:

Defendant’s Motion to Dismiss is denied as to Counts I, IV and VI;

Defendant’s Motion is granted as to Count III. Count III is dismissed in its entirety;

Defendant’s Motion is granted in part as to Counts II and V. The following lines of the indictment are ordered deleted:

From Count II: page 4, para. 2, lines 13- 19 inclusive; and page 4, para. 3, lines 14- 25, beginning with the words “and had asked” to the end of the sentence;

From Count V: page 7, para. 2, lines 17-24 inclusive; and page 8, para. 3, lines 13-14, the words “he did ask Mr. Spillone to let him pay $250 a week on money that he borrowed from Spillone.”

The government shall prepare a new corrected indictment consistent with this Order.

Defendant’s Motion to Suppress is denied.

      . The parties have indicated that the case will be tried to the court on stipulation of agreed upon facts.

      . The underlined language "Mr. Spalliero” is a typographical error in the indictment which should read “Mr. Spillone.” Counsel have agreed that this error may be corrected simply by retyping the indictment.

      . Adding an additional element to the government’s case by requiring it to prove what the defendant meant by his responsive but ambiguous answer may create tremendous confusion and potential prejudice to the defendant. Cf. Bronston v. United States, 409 U.S. at 359, 93 S.Ct. at 600 ("A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether ‘he does not believe [his answer] to be true.’ ”). Because the meaning that the defendant ascribed to his ambiguous answer must be shown by circumstantial evidence, it is likely that the government would introduce the same evidence to show both that the defendant intended the “false” construction of his answer and that the answer was in fact false. For example, evidence of a defendant’s motive to lie in response to the question would be relevant to both issues of meaning and falsity. Although the meaning of a defendant's answer may be ascertainable from the context of other answers to a specific line of questioning [see United States v. Andrews, 370 F.Supp. 365 (D.Conn.1974)], just as the proper construction of an ambiguous question may be ascertained from the context [see United States v. Matthews, 589 F.2d 442, 445 (9th Cir.1979)], there is no showing that defendant’s answers in this case could be elucidated in such a way. Indeed, in Count II; defendant’s answer to the second question, “Did you ever ask Mr. Spillone for money that you could use for gambling?” is non-responsive. The initial question in Count II concerning his borrowing money from Mr. Spillone is logically distinct from the question about asking for money. The government did not offer additional excerpts from the grand jury transcript that would help to explain the meaning of defendant’s answer “No.”


source: Caselaw Access Project

author: DITTER, District Judge.

license: Public Domain

text:
    SHARED DIAGNOSTIC SERVICES, INC., Plaintiff-Counterclaim Defendant, v. Robert A. HENNINGSEN, Elizabeth Henningsen and RH Medical Systems, Inc., Defendant-Counterclaimants, v. John P. SGARLAT (2228 Spruce Street, Phila., Pa.); Richard W. Hevner (335 South Seventh Street, Phila., Pa.); Edwin M. Ducat (1012 Bryn Mawr Ave., Phila., Pa.); William Campbell (248 South 23rd Street, Phila., Pa.), and David Joseph, Additional Defendants on the Counterclaim.
    Civ. A. No. 83-2381.
    United States District Court, E.D. Pennsylvania.
    May 16, 1984.

      Henry H. Janssen, Philadelphia, Pa., for plaintiff-counterclaim defendant.
    John M. Elliott, J. Clayton Undercofler, III, Henry F. Siedzikowski, Philadelphia, Pa., for defendant-counterclaimants.
    Charles V. Stoelker, Jr., Philadelphia, Pa., for additional defendants on the counterclaim.
   MEMORANDUM AND ORDER

DITTER, District Judge.

Plaintiff commenced this action seeking, inter alia, damages for defendants’ alleged conversion of mobile CATSCAN units owned by plaintiff. Defendants filed five counterclaims, which plaintiff has moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction. For the reasons that follow, plaintiff’s motion must be granted.

The first counterclaim, was brought against plaintiff, Shared Diagnostic Services, Inc. (SDS), under the Racketeer Influenced and Corrupt Organizations Act (RICO). Counterclaimants allege SDS was a RICO “enterprise” and that its affairs were conducted through a pattern of racketeering activity. Counterclaim 1152. However, only “persons” who conduct the affairs of an “enterprise” are subject to civil liability under RICO. While an entity can be a “person” conducting the affairs of a RICO enterprise, and defendants allege SDS was such a person, SDS cannot be forced to wear two hats; it cannot be both the person conducting the affairs, and the jurisdictional granting “enterprise” whose affairs were conducted. United States v. Computer Sciences Corporation, 689 F.2d 1181, 1190 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); Bennett v. Berg, 685 F.2d 1053, 1061-62 (8th Cir.1982); Yancoski v. E.F. Hutton & Company, Inc., 581 F.Supp. 88 (E.D.Pa.1983); Guerrero v. Katzen, 571 F.Supp. 714, 722 n. 9 (D.D.C.1983); Van Schaick v. Church of Scientology of California, Inc., 535 F.Supp. 1125, 1135-36 (D.Mass.1982); Tarlow, RICO Revisited, 17 Ga.L.Rev. 291, 344-45 (1983).

While this view is not universally accepted, see e.g., United States v. Hartley, 678 F.2d 961 (11th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983) (corporation may be both a “person” and an “enterprise” in criminal RICO action where corporation itself profited from its officer’s fraudulent acts), it is most compelling in situations like that presented sub judice, where the corporation is the victim rather than the profiteer. See Parnes v. Heinold Commodities, Inc., 548 F.Supp. 20 (N.D.Ill.1982) (victimized corporation cannot be a defendant under RICO). Furthermore, one court in rejecting the view I have adopted candidly stated it “might be viable where a corporate defendant is involved____[because] the government remains able to prosecute the culpable individuals....” United States v. Benny, 559 F.Supp. 264, 268 (N.D.Cal.1983) (criminal RICO).

The two cases relied upon by defendant, United States v. Hartley, supra, and D'Iorio v. Adonizio, 554 F.Supp. 222 (M.D.Pa.1982), are not persuasive. While it is true that both held a corporation can simultaneously be an “enterprise” and a “person”, both involved situations where the corporation benefited from the predicate acts. Indeed, the D’Iorio court itself recognized this difference in distinguishing Parnes v. Heinold Commodities, Inc., supra. D'Iorio v. Adonizio, supra, at 233.

If enterprise liability is not necessary to either disgorge illegal profits retained by a corporation, cf. D’Iorio v. Adonizio, supra, or to assess liability personally upon the individual actors, United States v. Benny, supra, I hold a corporation cannot, at the same time, be both a “person” and an “enterprise” under RICO. For this reason the RICO counterclaim against SDS must be dismissed.

The first counterclaim must also be dismissed as to the other counterclaim defendants. A counterclaim cannot add additional parties unless it also states a claim against an existing party to the action. 3 Moore’s Federal Practice 1113.39 at 13-234. SDS is the only existing party to the action named in the first counterclaim. Therefore, because this counterclaim is dismissed as to SDS it must also be dismissed as to the other counterclaim defendants.

Like the first counterclaim, the second counterclaim fails to state a claim on which relief can be granted. In essence, the second counterclaim alleges the defendant, Henningsen, converted two SDS scanners to protect his investment in SDS. Even assuming that SDS improperly jeopardized Henningsen’s investment, Henningsen would not have the right to convert the scanners for his own use. It is an elementary principle of law that an aggrieved party may not vindicate the wrong done him by breaking the law himself.

The third counterclaim seeks recovery for an alleged loan from Henningsen to SDS. Because SDS’s complaint was brought to recover for the alleged misappropriation of two CATSCAN units, Henningsen’s claim for the alleged loan obviously does not arise out of the same transaction or occurrence as that asserted by plaintiff. Therefore, the third counterclaim is a permissive counterclaim over which an independent jurisdictional basis must exist. Wright & Miller, Federal Practice and Procedure: Civil § 1422 at 119 (citations omitted). Henningsen has not stated a federal claim and the complaint shows that SDS and Henningsen are both citizens of Ohio (notwithstanding Henningsen’s allegation in the counterclaim that he is a resident of Pennsylvania). For these reasons this claim must be dismissed for lack of subject matter jurisdiction.

As a result of my decision on the first counterclaim, the fourth counterclaim must be dismissed because it is directed against a non-party. 3 Moore’s Federal Practice 1113.39 at 13-234.

The fifth counterclaim like the third, is a permissive counterclaim lacking an independent jurisdictional basis. Therefore, it must also be dismissed.

      . This follows from a simple reading of the statute. It states “[i]t shall be unlawful for any person ... to conduct ... [an] enterprise’s affairs through a pattern of racketeering activity____” 18 U.S.C. § 1962(c). This wording clearly envisions "persons" and "enterprises". If Congress intended otherwise it could have simply made it illegal for an enterprise to conduct its own affairs through a pattern of racketeering. I am unwilling to give to the words used by Congress the strained interpretation required to conclude an entity can be both a person and an enterprise simultaneously.

      . This appears to he the situation alleged in the complaint against RH Medical Systems, Inc.


author: McGLYNN, District Judge.

text:
    William LUCASH v. STRICK CORPORATION Amended and Restated Strick Corporation Hourly Rated Pension Plan, First Pennsylvania Bank, Pension Benefit Guaranty Corporation, and International Union of United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local No. 1354.
    Civ. A. No. 83-4568.
    United States District Court, E.D. Pennsylvania.
    June 1, 1984.

      Michael R. Needle, Philadelphia, Pa., for plaintiff.
    Frank C. Sabatino, Philadelphia, Pa., for defendants.
   MEMORANDUM OF DECISION

McGLYNN, District Judge.

Plaintiff, William Lucash, an hourly eml ployee at defendant Strick Corporation, (Strick), from August 1958 through May 16, 1975 brought this action against Strick, Amended and Restated Strick Corporation Hourly Rated Pension Plan, (the Pension Plan), the Pension Benefit Guaranty Corporation, (PBGC), First Pennsylvania Bank, N.A., and UAW Local No. 1354 (Local 1354), to recover benefits allegedly due him under the Pension Plan. The Complaint seeks relief under three theories.

Count One of the three count Complaint alleges that the defendants violated plaintiff’s right under the Employee Retirement Income Security Act, (ERISA), 29 U.S.C. § 1001, et seq., by (1) depriving him of disability benefits he fully deserved and (2) by failing to inform him of the reasons for the, denial and the steps he could have taken to perfect his application. Count Two alleges a violation of § 301 of the Labor Management Relations Act, (LMRA), 29 U.S.C. § 185. Specifically, it is contended that the defendants’ actions in depriving plaintiff of his disability benefits violated a succession of collective bargaining agreements. Count Three alleges a state law claim of knowing, intentional or reckless breach of the duty of care, fiduciary duty and/or contractual obligation owed by the defendants to the plaintiff.

Presently pending before the court is Strick’s and the Pension Plan’s motion for summary judgment, Fed.R.Civ.P. 56, on Counts One and Two of the Complaint and their motion to dismiss Count Three of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6).

As to Counts One and Two of the Complaint, Fed.R.Civ.P. 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The court, for purposes of determining a summary judgment motion, must view the record in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). With this principle in mind, the following facts may be gleaned from the pleadings and exhibits submitted to the court.

Pursuant to a series of collective bargaining agreements, Strick and Local 1354, plaintiff's representative in the bargaining unit, created an employee benefit plan which conferred various benefits on Strick employees, including certain pension benefits in the event of permanent and total disability. Strick closed its Fairless Hills plant in May of 1975 and in connection with the plant closing terminated the employee benefit plan. As a result of Strick’s termination of the employee benefit plan a class action, captioned Mullin v. PBGC, Civil Action No. 76-950 (E.D.Pa.), was filed charging Strick with violating the collective bargaining agreement when it unilaterally rescinded the employee pension plan. Plaintiff was a member of the Mullin class. A consent decree was entered resolving the Mullin action in September of 1978, wherein Strick agreed to reinstate and continue the pension plan in exchange for the release of any claims the class members may have had or may have against Strick under the collective bargaining agreement with respect to the pension plan.

During the course of his employment with Strick, plaintiff began to suffer from diseases of the back, heart and digestive system and when plaintiff’s employment with Strick was terminated when it closed its Fairless Hills Plant on May 16, 1975, he worked temporarily for two different employers. He was refused permanent employment because of his health. In December of 1976 plaintiff applied to the Social Security Administration, (SSA) for disability benefits. The SSA made a determination that plaintiff was disabled in October of 1975 and, accordingly, awarded him disability benefits retroactive to that date.

In January of 1979 plaintiff applied to Strick for pension benefits under the reinstated pension plan. In support of his application plaintiff submitted the SSA determination that he was disabled as of October 17, 1975. According to § 3.4 of the pension plan, in order to recover, plaintiff must have been suffering from a total and permanent disability which began prior to May 31, 1975. In March of 1979, Strick denied plaintiff’s disability benefits application on the grounds that plaintiff failed to submit sufficient medical documentation which demonstrated that he was suffering from a total and permanent disability which began prior to May 31, 1975.

In April of 1979 Local 1354 intervened on plaintiff’s behalf and requested a further review of plaintiff’s application for disability benefits. Pursuant to that review, plaintiff’s doctor, Milton Swartz, M.D., forwarded plaintiff’s medical file to Arnold L. Gold-stein, M.D. who examined the plaintiff on behalf of Strick in May of 1979 and determined that as of that date plaintiff was unable to be employed. In August of 1979, Strick again denied plaintiff’s application for disability benefits because he failed to establish that he was totally and permanently disabled prior to May 31, 1975.

After this second denial, at Local 1354’s request, Strick held a hearing on September 4, 1979 where the plaintiff testified that his illnesses had rendered him totally and permanently disabled prior to May 31, 1975. At the hearing Strick requested the plaintiff to have his doctor forward an explanation of plaintiff’s physical condition prior to May 31, 1975 to the company. In his response to this request, Strick received a one-line letter from plaintiff’s doctor, Milton Swartz, M.D., which stated: “This is to certify that William Lucash has been totally disabled since May 16, 1975”. See Strick’s Summary Judgment Exhibit E at 12.

On September 25, 1979 Strick informed plaintiff that the information it had received was insufficient and requested plaintiff to have his doctor forward a detailed explanation of plaintiff's physical condition prior to May 31, 1975. No such explanation was forthcoming and Strick denied plaintiff’s application on December 11,1979 for failure to substantiate his claim of total and permanent disability prior to May 31, 1975.

On February 13, 1980, Strick received a letter from plaintiff’s attorney, Jeffrey Reed, informing Strick that he had proof of plaintiff’s total disability and would forward such data upon request. In a response dated February 15, 1980 Strick requested Mr. Reed to forward the information for its consideration. Strick never received this information.

I. ERISA CLAIM

The standard of review which the court must apply to Strick’s and the Pension Plan’s decision to deny plaintiff disability benefits is whether the defendants acted in an arbitrary or capricious manner. The court is not free to substitute its own judgment for that of the defendants in determining eligibility for plan benefits. Rosen v. Hotel and Restaurant Employees & Bartenders Union, 637 F.2d 592, 596 n. 5 (3d Cir.1981), cert. denied, 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981); Bickel v. Long Term Disability Plan of Western Electric, 541 F.Supp. 685 (E.D.Pa.1982). Under this standard the “scope of review is a narrow one. A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). “Review under this standard requires the challenged decision to remain intact unless it is not rational”, Federal Communications Commission v. National Citizens Committee for Broadcasting, 436 U.S. 775, 803, 98 S.Ct. 2096, 2116, 56 L.Ed.2d 697 (1978), or “unwarranted in law or without justification in fact.” Goodman v. United States, 518 F.2d 505, 511 (5th Cir.1975).

Application of this standard requires affirmance of defendants’ decision to deny plaintiff disability benefits. Defendants’ denial was based on plaintiff’s repeated failure to offer evidence that he was totally and permanently disabled prior to May 31, 1975.

Section 3.4 of the pension plan requires an applicant to have been suffering from a total and permanent disability prior to May 31, 1975. Total and permanent disability is defined in § 3.5 of the pension plan as follows:

A participant shall be considered totally and permanently disabled hereunder if he is suffering from a physical or mental condition which ... will prevent the employee from performing all of the work pertaining to his former occupation with the company or any other occupation for which he is or may be suited by education, training or experience...

A review of the record leads me to conclude that Strick’s and the Pension Plan’s decision to deny plaintiff benefits was not arbitrary or capricious. Nothing in the medical reports submitted to the defendants demonstrate that the plaintiff was suffering from a total and permanent disability, as that term is defined in § 3.5 of the pension plan, prior to May 31, 1975. Defendants repeatedly requested the plaintiff or his counsel to provide the necessary medical documentation as to his condition prior to May 31, 1975, in order that they could properly assess plaintiff's eligibility for benefits. When no such explanation was forthcoming, the defendants denied plaintiff’s application for benefits. I cannot say that on the record before me such decision was arbitrary or capricious.

In opposition to defendants’ motion for summary judgment on the ERISA claim plaintiff also contends that the letter denying his application for benefits violated the procedural requirements of ERISA as set forth in 29 U.S.C. § 1133. I do not agree.

Section 1133 provides:

In accordance with regulations of the secretary, every employee benefit plan shall—
(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and
(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

29 U.S.C. § 1133.

The record here clearly establishes that the defendants did not violate the procedural requirements of ERISA. Plaintiff was specifically informed that his application was defective due to the lack of vital medical evidence. Moreover, plaintiff was informed that he could cure the defect by having his doctor submit a detailed explanation of the condition of his health prior to May 31, 1975, and by providing evidence that the determination of the Social Security Administration that plaintiff had been disabled since October 17, 1975 was retroactive to the previous May. See Strick Appendix to Summary Judgment Motion at E-13.

Accordingly, the defendants did not violate the procedural requirements of ERISA and Strick’s and the Pension Plan’s motion for summary judgment on Count One of the Complaint is granted.

II. § 301 LMRA CLAIM

In Count Two of his Complaint plaintiff maintains that the defendants’ failure to afford him disability benefits under the pension plan was a violation of a collective bargaining agreement and therefore actionable under § 301 of the LMRA. I do not agree.

Plaintiff’s claim is barred by the res judicata effect of the Consent Decree entered in Mullin v. PBGC, Civil Action No. 76-950 (E.D.Pa. filed September 1, 1978). Plaintiff was a member of the Mullin class. The terms of the consent decree specifically extinguished all claims that class members may have had or may have against Strick that it breached its collective bargaining agreement with respect to the pension plan. The consent decree, in turn, requires Strick to maintain the pension plan and comply with the requirements of ERISA, which it has.

When a consent decree is entered in a class action, the terms of that settlement are binding upon class members. See Fowler v. Birmingham News Co., 608 F.2d 1055 (5th Cir.1979).

Accordingly, Strick’s and the Pension Plan’s motion for summary judgment of Count Two of the Complaint is granted.

III. STATE LAW CLAIM

Plaintiff asserts that defendants’ actions in denying his disability benefits was a knowing, intentional and/or reckless breach of the duty of care, fiduciary duty and/or contractual obligations which they owed to him.

Strick and the Pension Plan have filed a motion to dismiss this claim pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that it is preempted by § 514 of ERISA, 19 U.S.C. § 1144. I agree and, accordingly, will grant their motion to dismiss.

A trial court will dismiss a complaint for failure to state a claim upon which relief can be granted when it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts which could be proven in support of his claim. Fed.R.Civ.P. 12(b)(6); Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Lavin v. Data Systems Analysts, Inc., 443 F.Supp. 104, 106 (E.D.Pa.1977).

Section 514 of ERISA, 29 U.S.C. § 1144, provides in pertinent part:

(a) Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.
S¡{ !jc })<
(c) For purposes of this section:
(1) The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State. A law of the United States applicable only to the District of Columbia shall be treated as a State law rather than a law of the United States.

In enacting this section Congress intended to completely occupy the field of employee benefit plans. In doing so, Congress preempted all state laws which relate to employee benefit plans, not only state laws which directly attempt to regulate an area expressly covered by ERISA. Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208 (8th Cir.1981), rehearing and rehearing en banc denied (1981). As the explicit statement of federal preemption in section 1144 reflects, Congress “meant to establish pension plan regulation as exclusively a federal concern.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981).

Turning to plaintiff’s state law claim, I note that Congress has specifically provided remedies for the type of wrong which this state law claim embraces. In 29 U.S.C. § 1132(a)(1)(B) ERISA states that:

(a) A civil action may be brought—
(1) by a participant or beneficiary—
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;

Under ERISA a fiduciary will be held liable for the breach of his duties pursuant to 29 U.S.C. § 1109 which provides that:

(a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this sub-chapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title.

Moreover, ERISA also specifically prohibits the interference with a plan participants’ or beneficiaries’ rights in § 1140:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act____

29 U.S.C. § 1140.

Since plaintiff’s state law claim addresses the same type of wrong prohibited by § 1132, 1109 and 1140 of ERISA, it is clear that plaintiff’s claim is preempted.

Accordingly, Strick’s and the Pension Plan’s motion to dismiss is granted.

      . Upon stipulation of counsel, PBGC was dismissed without prejudice on May 24, 1984.

      . Upon stipulation of counsel, First Pennsylvania Bank, N.A. was dismissed without prejudice on December 5, 1983.

      . Strick had previously received the same one-line letter from Dr. Swartz indicating plaintiff was disabled as of May 16, 1979.


author: TAURO, District Judge.

text:
    Genoveva POYSER, Administratrix of the estate of Leitza Poyser, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    CA 81-1613-T.
    United States District Court, D. Massachusetts.
    July 6, 1984.

      James P. McCarthy, John F. Sheehan, Boston, Mass., for plaintiffs.
    Gregory Flynn, Asst. U.S. Atty., Boston, Mass., for defendant.
   MEMORANDUM

TAURO, District Judge.

This is a medical malpractice action against the United States of America under the Federal Tort Claims Act (F.T.C.A.), 28 U.S.C. § 2674 (1965). Plaintiff Genoveva Poyser, administratrix of the estate of Leitza Poyser, claims that an Army physician, Dr. James Hanley, was negligent in misdiagnosing the decedent’s condition and in failing to admit her to the hospital for evaluation.

I.

FACTS

On October 24, 1979, decedent Leitza Poyser, a fifteen year-old girl, experienced severe chest pain throughout the day. At approximately six p.m., the decedent’s mother, Genoveva Poyser, decided to take her daughter to the hospital. Because the decedent’s step-father was a master sergeant in the United States Army, Mrs. Poyser took Leitza to Cutler Army Hospital at Fort Devens, Massachusetts.

On the way to the hospital, the decedent fainted. She regained consciousness in the hospital parking lot and was assisted to the emergency room by her mother. A nurse took the decedent’s medical history, which included a recent “virus,” a non-productive cough during the preceding week, radiating chest pain and fainting.

After determining that Leitza had a fever and that her pulse was 100 beats per minute, the nurse performed an electrocardiogram (EKG). Then, the decedent was sent to the radiology department for a chest x-ray. No blood work was done.

Shortly after Leitza Poyser returned from radiology, Dr. Hanley entered the examining room. Hanley, a Captain in the United States Army, was a licensed physician with a specialty in internal medicine. He was not trained as an emergency room doctor. His experience in treating children with cardiac involvement was rather limited.

Dr. Hanley reviewed the medical history and the test results. The chest x-ray showed normal bony structures, a normal cardiac silhouette and a clear lung field. Decedent’s EKG revealed an incomplete right bundle branch block.

Hanley also conducted a five minute examination of decedent. Leitza Poyser complained of shortness of breath and pain on deep inspiration. The examination coupled with the medical history indicated that the decedent was in respiratory distress.

After concluding the examination, Dr. Hanley diagnosed the decedent’s condition as pleurodynia, an inflammation of the lining around the lung. He prescribed aspirin to reduce the inflammation and released the decedent to her mother’s care. Dr. Hanley indicated that Leitza would be better in three to five days and, thus, made no definite arrangements for a return visit.

That night and the following day, the decedent’s fever and chest pain continued. Mrs. Poyser gave her daughter all the aspirin she could tolerate without vomiting. Late in the evening of October 25, 1979, Leitza Poyser became delirious. At approximately 11:30 p.m., Mrs. Poyser called Cutler Army Hospital to inform them that her daughter’s condition had worsened and to make arrangements to return to the hospital.

When the Poysers arrived at the hospital, staff members tried, unsuccessfully, to take decedent’s blood pressure and to draw a blood sample. Thereafter, the decedent was removed to a treatment room where she had a seizure. After attempted resuscitations failed, Leitza Poyser was pronounced dead. An autopsy indicated that the cause of death was diffuse myocarditis and associated conditions.

II.

THE LAW

Because Dr. Hanley’s allegedly negligent act or omission occurred in Massachusetts, this action is governed by Massachusetts law. See 28 U.S.C. § 1346(b) (1965); Zabala Clemente v. United States, 567 F.2d 1140, 1143 (1st Cir.1977). Under the law of the Commonwealth, plaintiff has the burden of showing that Dr. Hanley owed the deceased a duty of care, that he breached this duty, and that the breach caused the decedent’s conscious pain and suffering and subsequent death. See Berardi v. Menicks, 340 Mass. 396, 399, 164 N.E.2d 544, 546 (1960).

As a specialist in internal medicine, Dr. Hanley owed Leitza Poyser the duty to exercise “the care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession.” Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793, 798 (1968). Defendant’s assertion that Dr. Hanley’s duty was to use “the care and skill of an ordinary practitioner in the community where he practiced ...,” Carey v. Mercer, 239 Mass. 599, 601, 132 N.E. 353, 354 (1921), is incorrect. The Supreme Judicial Court abandoned the so-called “locality rule” in 1968. See Brune, 354 Mass. at 109, 235 N.E.2d at 798.

III.

LIABILITY

Dr. Hanley breached his duty of care by misdiagnosing the decedent’s condition as pleurodynia and by failing to hospitalize her for observation and monitoring. Dr. Kramer unequivocally testified that Leitza Poyser’s constellation of symptoms indicated the presence of a cardiac disorder. The symptoms noted by Dr. Kramer included fainting, fever, chest pain, elevated pulse, shortness of breath, a non-productive cough and an EKG that was abnormal. Under all the circumstances and given the probability of cardiac involvement, Dr. Kramer testified, and this court finds, that good medical practice required a period of hospitalization for monitoring.

Dr. Hanley’s own testimony provides additional support for this conclusion. He admitted in his deposition that fainting, shortness of breath, fever and an incomplete right bundle branch block were all indicative of cardiac involvement. The doctor, moreover, was unable to provide a consistent explanation for his decision not to admit the decedent to the hospital on October 24, 1979. In answers to interrogatories, defendant stated that “the basis for not admitting was the absence of respiratory distress.” (Tr. 3-83). Later, Dr. Hanley admitted that the decedent had the symptoms of respiratory distress.

There remains the question of causation. Under Massachusetts law:

The plaintiff [is] not required to show the exact cause of the injuries or to exclude all possibility that they resulted without fault on the part of the defendant. It [is] enough that the harm ... was more likely due to the negligence of the defendant than to some other cause for which he was not liable.

Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 787, 443 N.E.2d 1302, 1305 (1982) (citations omitted). Dr. Kramer’s testimony established that if decedent had been hospitalized, her prognosis would have been very good. Her chance of recovery would have been in excess of seventy-five percent. In addition, the treatment for plaintiff’s condition would have reduced her suffering.

In summary, Dr. Hanley breached his duty to the decedent and the breach, more likely than not, was the cause of the conscious suffering and death of Leitza Poyser.

IY.

DAMAGES

In a wrongful death action under the F.T.C.A., a plaintiff who succeeds in proving a claim of negligence is entitled to recover damages as provided in the Massachusetts Wrongful Death Act, Mass.Gen. Laws Ann. ch. 229 (1979), except that punitive damages may not be assessed. See 28 U.S.C. § 2674; cf. D’Ambra v. United States, 481 F.2d 14 (1st Cir.1973) (Rhode Island wrongful death statute not applied in F.T.C.A. action because it calls for punitive damages). The Massachusetts statute allows a decedent’s next of kin to recover:

(1) the fair monetary value of the decedent ... including but not limited to compensation for the loss of reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice to the person entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent____

Mass.Gen.Laws Ann. ch. 229 § 2. In addition, the decedent’s estate can recover for conscious pain and suffering. See id. at § 6.

Initially, there is a question as to which members of the Poyser family are entitled to damages as “next of kin” under chapter 229 § 1(4). Defendant argues that only the decedent’s mother is entitled to recover because “next of kin” is limited to the decedent’s closest blood relative as defined by the Commonwealth’s intestacy law. Although the Supreme Judicial Court has never addressed this question, this court accepts defendant’s contention.

Recently, the Massachusetts Appeals Court recognized that wrongful death statutes including the phrase “next of kin” usually refer to and incorporate the state’s intestacy law to establish a class of “presumptive takers” under the wrongful death statute. See Guy v. Johnson, 15 Mass. App. 757, 762, 448 N.E.2d 1142, 1145 (1983). Under Massachusetts law, if an intestate dies leaving a mother and two half brothers, only the mother will take from the estate. See Mass.Gen.Laws Ann. ch. 190 § 3 (1958). By using the phrase “next of kin” in the Wrongful Death Act, it appears that the state legislature intended to carry over this limitation on the persons entitled to recover. See Means v. City of Chicago, 535 F.Supp. 455, 465 (N.D.Ill.1982). Only Mrs. Poyser, therefore, is entitled to recover.

With respect to damages under chapter 229 § 2, the plaintiff’s evidence concentrated on the value of lost services and assistance and on the value of lost society, companionship and comfort. Plaintiff proved that Leitza Poyser spent considerable time caring for her younger siblings. Assuming that the decedent would have lived at home for approximately three more years, the courts finds these services to be worth $15,000. In addition, both Mr. and Mrs. Poyser testified to the unique and loving relationship between Mrs. Poyser and her only daughter. Based on this testimony and the age of the decedent, see D'Ambra v. United States, 481 F.2d at 21, this court finds the value of lost society, companionship and comfort to be $500,000.

Plaintiff also offered evidence concerning the decedent’s pain and suffering from the time of her first visit to the hospital on October 24, 1979, until her death. The decedent was in intense pain throughout the entire period. She suffered a fever, vomiting and spells of delirium. To compensate for this suffering the court awards $50,000.

The total damage award, therefore, is $565,000.

An order will ISSUE.

      . The complaint originally contained claims by four members of the decedent’s family. After trial, plaintiffs waived counts three through twelve, leaving two counts brought by Mrs. Poyser, the decedent’s mother. Count one is for the conscious pain and suffering of decedent. Count two is for wrongful death.

      . This pulse rate is the lower cut off for an abnormal pulse or tachycardia.

      . Dr. Hanley ruled out a cardiac condition, pericarditis, after noting that the decedent’s chest pain did not change when she drank water or changed position. Plaintiffs expert, Dr. Kramer, stated that he was aware of no test for pericarditis that involved merely drinking water.

      . All references to the transcript will be designated “Tr.”

      . Both parties offered expert testimony on the questions of negligence and causation. In assessing the often conflicting testimony of these experts, the court has given careful consideration to the witnesses’ familiarity with the facts of this case and to their demeanor in court. In all areas of material conflict, this court finds the testimony of plaintiffs expert, Dr. Kramer, more persuasive than that of defendant’s expert, Dr. Ryan.
      On cross-examination it was revealed that Dr. Ryan is the cousin of defendant’s counsel, Mr. Flynn. The court is satisfied that Mr. Flynn’s failure to notify the court of his relationship to his expert witness was inadvertent. The circumstance of the relationship had no bearing on the court’s assessment of credibility.

      . It is not surprising that plaintiff failed to introduce evidence of lost earnings. The First Circuit has recognized that in cases involving children such evidence is rarely available. See D'Ambra v. United States, 481 F.2d at 19.

      . With regard to the other elements of damages outlined in chapter 229 § 2, plaintiff failed to offer evidence that would support an award of damages.


author: ROBSON, Senior District Judge.

text:
    John L. REESE, # A-25181, Plaintiff, v. CHICAGO POLICE DEPARTMENT; City of Chicago; Cook County State’s Attorney’s Office, County of Cook, Illinois; Richard Brzeczek; Milton Deas; Richard M. Daley; Bernard Carey; William Kunkle, Larry Hyman, Nicholas Ivarone and Melaine Volg, Assistant State’s Attorneys; Joseph Shillis, S. Brankins, John Merriweather, and John Doty, Defendants.
    Civ. A. No. 82 C 6692.
    United States District Court, N.D. Illinois, E.D.
    July 23, 1984.
    John L. Reese, plaintiff, pro se.
    Terry L. McDonald, Asst. State’s Atty., Chicago, III, for County and Prosecutor.

      Robert W. Fioretti, Asst. Corp. Counsel, Chicago, Ill., for City.
   MEMORANDUM AND ORDER

ROBSON, Senior District Judge.

Plaintiff John L. Reese, an inmate at the Pontiac Correctional Center, brings this pro se complaint seeking declaratory and injunctive relief and damages for the alleged violation of his federal constitutional rights in connection with his conviction for armed robbery, pursuant to 42 U.S.C. § 1983. The defendants named in this action are the Chicago Police Department, the City of Chicago, the former Superintendent of Police, the watch commander of Chicago Police Area 2, four Chicago Police officers (all of the above hereinafter City defendants); the County of Cook (hereinafter County defendant); and the Cook County State’s Attorney’s Office, the present and former State’s Attorney of Cook County, the Chief of the Criminal Division and the head of Felony Review of the State’s Attorney’s Office, and two Assistant State’s Attorneys (all of the above hereinafter Prosecutor defendants).

This cause is before the court on the City defendants, County defendant, and Prosecutor defendants’ motions to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the motions of the County and the Prosecutor defendants will be granted and the motion of the City defendants will be granted in part and denied in part.

In ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, it is well settled that the court must “take [the plaintiff’s] allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff.” Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). The motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 101-2, 2 L.Ed.2d 80 (1957). It is equally well settled that pro se complaints, such as those of indigent prisoners like Reese, are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

Reese’s complaint contains allegations that the Chicago Police Department has maintained a policy and engaged in the practice of keeping unofficial reports on criminal investigations, known as “street files,” which are not systematically made a part of the official files, preserved from destruction, nor made known and available to criminal defendants. The details of this practice first were revealed in the case of People v. Jones, Numbers 81-3632 and 81-4426, in the Circuit Court of Cook County. They also form the basis of a class action suit presently pending before Judge Milton I. Shadur in this court. See Palmer v. City of Chicago, No. 82 C 2349 (N.D.Ill.). This practice was preliminarily enjoined in a memorandum opinion and order issued by Judge Shadur on March 31 and April 27, 1983.

As part of his lawsuit, Reese seeks injunctive and declaratory relief to remedy the alleged constitutional abuses flowing from the practices regarding these “street files.” The same relief is sought in the Palmer case. Palmer was filed on behalf of two subclasses, one of which consists of those persons convicted of criminal offenses in the Circuit Court of Cook County and sentences to probation or imprisonment. Reese is thus a member of that class, and his plea for declaratory and injunctive relief will be decided in the Palmer case and cannot be adjudicated by this court. Since the ultimate judgment in Palmer will bind all members of the certified class pursuant to Rule 23(c)(3) of the Federal Rules of Civil Procedure, Reese is not able to maintain a separate equitable action. Goff v. Menke, 672 F.2d 702, 704 (8th Cir.1982). See also Brown v. Vermillion, 593 F.2d 321 (8th Cir.1979). His claims for declaratory and injunctive relief will therefore be dismissed without prejudice. See Bryan v. Werner, 516 F.2d 233, 239 (3d Cir.1975).

The question of damages for past street files abuses is not before the Palmer court. Therefore, if the practices alleged to have injured Reese state a claim for damages under 42 U.S.C. § 1983, that claim may be pursued in this court. Section 1983 provides for damages for the deprivation, under color of state law, of “any rights, privileges, or immunities secured by the Constitution and laws ...” Such a deprivation may be sustained by the suppression of evidence favorable to an accused by the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). When such evidence has been requested by a defendant, its suppression by the prosecution violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. Since Brady only covers evidence actually requested, the practice described by Reese in which criminal defendants could not have requested their street files because they could not have known of their existence does not state a literal Brady violation. It does raise at least the possibility of a Brady violation, however, in that such conduct on the part of the State clearly thwarts the purpose of Brady. The Seventh Circuit has stated that Brady stands for the broader proposition that “[a] defendant’s right to prepare the best defense he can and bring to the court’s attention any evidence helpful to this case is constitutionally protected.” McDonald v. State of Illinois, 557 F.2d 596, 603 (7th Cir.1977), cert. denied 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453.

As long as it is possible that Reese’s complaint states a violation of constitutionally protected rights, dismissal of the damages portion of the plaintiff’s complaint is not appropriate. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, should the defendants produce Reese’s street file, if one exists, and demonstrate that it contains no evidence which would have been favorable to his defense, this court will then entertain a motion for summary judgment on their behalf.

There remains the question of whether the complaint adequately states a claim against certain defendants. The Chicago Police Department and the Cook County State’s Attorney’s Office, which do not enjoy separate legal existence independent of the City of Chicago and the County of Cook, respectively, are not suable entities and should therefore be dismissed. Jordan v. City of Chicago, Department of Police, 505 F.Supp. 1, 4 (N.D.Ill.1980); Mayes v. Elrod, 470 F.Supp. 1188, 1192 (N.D.Ill.1979). Furthermore, all of the individual State’s Attorneys and Assistant State’s Attorneys named in this action enjoy absolute prosecutorial immunity from claims for money damages. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The plaintiff’s claims against these defendants will thus also be dismissed. See Joe Woods v. Bernard C. Carey, et al., 563 F.Supp. 212 (N.D.Ill.) (Memorandum Opinion and Order of Judge Aspen dated May 5,1983). Moreover, since the County of Cook has no statutory involvement, powers, or duties regarding criminal prosecutions conducted by the State of Illinois, no cause of action has been stated against this defendant and it too will be dismissed.

Conclusion

For the reasons stated above, the motions of the County and Prosecutor defendants to dismiss the complaint will be granted. The motion of the City defendants to dismiss will be granted only as to defendant Chicago Police Department, and denied as to the remaining defendants. However, plaintiff’s claims for declaratory and injunctive relief against the remaining City defendants are hereby ordered stricken.