author: DAN M. RUSSELL, Jr., District Judge.

text:
    George JONES, Plaintiff, v. BENEFIT TRUST LIFE INSURANCE COMPANY, Defendant.
    Civ. A. No. S83-0606(R).
    United States District Court, S.D. Mississippi, S.D.
    Oct. 1, 1985.
    See also 605 F.Supp. 179.

      Wynn E. Clark, Pascagoula, Miss., for plaintiff.
    John M. Kindard, Pascagoula, Miss., for defendant.
   MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

After full trial on the merits of this cause, the jury returned a verdict for the plaintiff and assessed actual damages in the amount of $50,000.00 and punitive damages in the amount of $40,000.00. Both parties have filed post-trial motions with accompanying memorandum briefs. The defendant has filed three motions; motion for judgment notwithstanding the verdict for new trial; motion to alter or amend judgment; and motion for a remittitur. The plaintiff has responded to the defendant’s motions and has filed a motion to amend the prayer for relief in the complaint.

The Court, as always in post-trial motions of this type, is constrained to the Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc), standard of review. As a guide to both the district courts and Court of Appeals of this Circuit, the Fifth Circuit in Boeing set forth the standard to be employed in connection with motions for directed verdict and for judgment non obstante verdicto. In Maxey v. Freightliner Corp., 665 F.2d 1367 (5th Cir.1982), the court reiterated this long-standing rule and stated:

Under the standard established in Boeing, a motion for directed verdict or for judgment n.o.v. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. The court should consider all of the evidence — not just that evidence which supports the nonmovant’s case — but in the light and with all reasonable inferenees most favorable to the party opposed to the motion. If there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded persons in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. A motion for directed verdict or judgment n.o.v. should not be decided by which side has the better of the case, nor should the motion be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of fact, and not the court, to weigh conflicting evidence and inferences, and to determine the credibility of witnesses.

Id. at 1371, citing Boeing, 411 F.2d at 374-75. With this standard in mind the Court will begin its discussion with the defendant’s motions.

The defendant’s first request is that the Court reconsider the contractual determination made at the summary judgment stage of these proceedings. At that time the Court determined that the insurance contract provision in question provided for a reduction in the monthly benefits by amounts paid or payable to the insured only and not for an additional reduction by those amounts paid or payable to the insured’s family. The defendant contends that the testimony at trial of the plaintiff’s expert in social security matters indicated that the entire amount of benefits paid could have been paid solely to the insured. However, the insurance company’s contract clearly provides for benefits paid or payable to the insured, not for benefits which could have been paid or payable to the insured. The insurance company drafted the contract and stipulated to its unambiguity. See Defendant’s Memorandum Brief in Opposition to Plaintiff’s Motion for Summary Judgment, p. 3. (“Your Defendant ... asserts that the same policy language is unambiguous in showing that all social security benefits, whether paid to the insured or his dependents, should reduce benefits otherwise owing under the policy.”) In addition, the submitted affidavit of Dean Stitt, Second Vice-President of Benefit Trust Life Insurance Company states as follows: “I do not consider the terms of the policy in question, especially that portion entitled ‘Nonduplication of Benefits’, to be ambiguous or misleading.” Given its unambiguity, the Court’s hands were tied and eyes blindfolded to any parol or extrinsic evidence which would add to, subtract from, vary or contradict the four corners of the contract. See Foreman v. Continental Casualty Co., 770 F.2d 487 (5th Cir.1985); Smith v. First Federal Savings & Loan Ass’n, 460 So.2d 786, 790 (Miss.1984); Union Planters Nat. Leasing v. Woods, 687 F.2d 117, 120 (5th Cir.1982); Pfisterer v. Noble, 320 So.2d 383, 384 (Miss.1975); Freeman v. Continental Gin Co., 381 F.2d 459 (5th Cir.1967); Valley Mills Div. of Merchants Co. v. Southeastern Hatcheries of Miss., Inc., 245 Miss. 71, 145 So.2d 698 (1962). Therefore, the Court will stand by its literal matter of law interpretation of the insurance policy.

The defendant’s second point urges the Court to reconsider its position in letting the jury decide the “bad faith” issue instead of following the dictates of the Mississippi Supreme Court in Blue Cross & Blue Shield of Miss., Inc. v. Campbell, 466 So.2d 833 (Miss.1984). The Campbell decision expounded upon the guidelines set forth in Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1977) and Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss.1983) relating to the responsibility of the trial judge in determining whether there existed an arguably reasonable basis for denying a claim. The court specifically stated that:

When the presentation of all evidence has been completed by both sides, it is the function and responsibility of the trial court to determine whether the insurance carrier had a reasonably arguable basis, either in fact or in law, to deny the claim. If he finds there was a reasonably arguable basis- to deny the claim then the plaintiff is not entitled to have the jury consider any ‘bad faith’ award against the insurance company.

Campbell, 466 So.2d at 842.

This language seems to indicate that it is the function of the judge, and not the jury, to determine whether a reasonably arguable basis existed, either in fact or in law, to deny a claim. The question which is presented before this Court was whether the state court decision in Campbell should have been applied in this diversity case to divest the jury of its normal function to decide questions of fact. As a general rule, the distribution of functions between the judge and the jury is a matter determined by federal law. Plantation Key Developers v. Colonial Mortgage, 589 F.2d 164, 171 (5th Cir.1979). Whether the judge or jury decides an issue is one of federal law, with no Erie analysis problems. FMC Finance Corp. v. Murphree, 632 F.2d 413, 421 n. 5 (5th Cir.1980).

In Byrd v. Blue Ridge Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), the United States Supreme Court recognized a “strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts.” Byrd, 356 U.S. at 538, 78 S.Ct. at 901. In Byrd, the Supreme Court answered the question of whether, in a diversity action, the court or a jury should decide whether the defendant was a statutory employer under South Carolina law. The South Carolina Supreme Court had previously held that the status of statutory employer was for the judge and not the jury to decide. It was argued that the federal court in South Carolina was bound under Erie to follow the state court’s holding. Although a state may distribute the functions of its judicial machinery as it seems fit, the Supreme Court went on to state that “the federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. The essential characteristics of that system is the manner in which, in civil common law actions, it distributes trial functions between judge and jury and, under the influence — if not the command — of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.” Byrd, 356 U.S. at 537, 78 S.Ct. at 901. Therefore, despite the Erie doctrine and its command to follow state laws, it is the federal law which governs the allocation of issues raised between the judge and the jury. Nunez v. Superior Oil Co., 572 F.2d 1119 (5th Cir.1978); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2306 (1971).

The defendant’s third contention urges the Court to reconsider its decision to allow the jury to consider in their deliberations the emotional distress of the plaintiff. The defendant asserts that the evidence of emotional distress was not competent, uncorroborated and speculative. The relevant facts are as follows.

The plaintiff in 1975 suffered a sickness which caused him to lose his eyesight. As a result of his blindness the plaintiff was totally disabled within the meaning of the group long-term disability policy he had with his employer, Mississippi Chemical Corporation. The plaintiff gave notice to the defendant of his claim and made demand for payment under the terms of the insurance contract. The plaintiff testified that when he received his disability check from the defendant he thought it was “a little low”. The plaintiff stated that he checked with other employees of Mississippi Chemical who were receiving disability only to find out that he was receiving less than those other employees. He testified that he became angry, had nightmares and sought medical attention for high blood pressure at the Veterans Administration Hospital in Gulfport, Mississippi. He also testified that his wife had to take another job because of the defendant’s conduct and that he was a happy blind man before this problem with his disability payments. The plaintiff’s wife testified that the plaintiff had nightmares, could not sleep and was worried about his financial problems. She also testified that she took the plaintiff to the Veterans Administration Hospital and Hypertension Center to get the plaintiff’s blood pressure down. The plaintiff did not call his doctor or any physician to testify in support of a claim for emotional distress damages.

The defendant asserts that the plaintiff’s testimony concerning other problems unrelated to the defendant’s conduct in reduction of his benefits could have caused emotional distress. The defendant alludes to the plaintiff’s testimony concerning his sudden blindness, his inability to work and support his family, his loss of a son killed in the service, and loss of the roof of his house, all within the time period in controversy.

Under the Boeing standard, the Court is not at liberty to weigh factual controversies or determine the credibility of the witness. The Court may, however, determine whether as a matter of law the plaintiff has presented sufficient evidence under the substantive law of Mississippi to support a claim for emotional distress damages. Nunez, supra, 572 F.2d 1119, 1125 (5th Cir.1978); Midland Insurance Co. v. Markel Service, Inc., 548 F.2d 603, 606-7 (5th Cir.1977); Dresco Mechanical Contractors, Inc. v. Todd-CEA, Inc., 531 F.2d 1292, 1296-97 (5th Cir.1976). Having reviewed the entire record and the applicable law, the Court is of the opinion that the defendant has a valid contention in this regard.

The tort of emotional distress is one which the law has been slow to accept. In fact, it is only in recent years that the courts have allowed the tort to serve as the basis of an action apart from any other tort. W. Prosser, Handbook of the Law of Torts, § 12 at 49 (4th ed. 1971). The reasons advanced for the slow evolution of the tort have been the difficulty of proof and measurement of damages. Id. at 50. The tort of emotional distress as it relates to the so-called “bad faith” insurance case has evolved even slower. However, before delving directly into whether emotional distress damages are allowable in this case a general discussion of emotional distress is necessary.

The Mississippi Supreme Court has in the course of its decisions distinguished the tort of emotional distress accompanied by physical injury from the tort of emotional distress unaccompanied by any physical injury. For example, in Sears, Roebuck & Co. v. Devers, 405 So.2d 898, 903 (Miss. 1981), Sears, Roebuck & Co. v. Young, 384 So.2d 69 (Miss.1980), and Aldridge v. Johnson, 318 So.2d 870 (Miss.1975), the court has held where no physical injury accompanies the negligent conduct, damages for emotional distress may only be recovered if there is a resulting physical injury or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession. Id. In both Sears cases and in Aldridge, the plaintiffs were denied any recovery because of their failure to put forth sufficient proof of emotional distress. In Sears, Roebuck & Co. v. Devers, supra, the testimony indicated that the plaintiff was extremely nervous, had crying spells for several days following the incident but never took any medication and never consulted a physician. In Sears, Roebuck & Co. v. Young, supra, the plaintiff offered no satisfactory proof of any genuine physical injury. The plaintiff had consulted a doctor but did not remember mentioning the incident to him. In any case, the doctor was not called upon to testify. In Aldridge v. Johnson, supra, the family doctor testified that there was no causal connection between the accident and the plaintiffs condition. The Court held there was no mental disturbance and found the testimony as to nervousness and anxiety to be vague, unsatisfactory and speculative.

Those cases exemplify the standard for recovery for emotional distress without physical injury. A second line of case law illustrates the standard for recovery for emotional distress where no bodily injury accompanies the tortious conduct. In this second line of cases it appears the Mississippi Supreme Court has lowered the standards with regard to the sufficiency of proof of bodily harm to counterbalance the outrageousness of the conduct. See Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86 (1938); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); Daniels v. Adkins Protective Service, Inc., 247 So.2d 710 (Miss.1971). In each of the above cases the defendant’s conduct was alleged to have exceeded the bounds of simple negligence. In Saenger Theatres Corp. v. Herndon, supra, the ticket taker at a movie theater verbally abused a 14-year old girl. The court stated:

The court was, therefore, not in error in admitting evidence of mental pain and suffering, although unaccompanied by a distinct physical injury. Ordinarily, it is true, damages for mental pain and suffering not accompanied by a distinct physical injury are not allowable; but this rule does not include cases of wanton or shamefully gross wrong, such as the case now before us.

180 Miss. at 798-99, 178 So. at 87.

In Lyons v. Zale Jewelry Co., supra, an employee of Zale Jewelry used vile and abusive language and threats in a telephone conversation with the plaintiff in an attempt to enforce the payment of a debt which the plaintiff’s son owed the defendant. The verbal abuse allegedly caused the plaintiff shock, nervousness and mental anguish. A demurrer to the plaintiff’s declaration was sustained in the circuit court. The Mississippi Supreme Court reversed and remanded the case for trial. In their opinion the court stated in pertinent part as follows:

In general, damages for mental anguish or suffering are recoverable when they are the natural or proximate result of an act committed maliciously, intentionally, or with such gross carelessness or recklessness as to show an utter indifference to the consequences when they must have been in the actor’s mind. In most jurisdictions in fact, damages are recoverable for mental anguish and suffering caused by a willful, wanton, malicious, or intentional wrong, even though no bodily injury is sustained or other pecuniary damage alleged or proved.

246 Miss. at 149-50, 150 So.2d at 158.

In Daniels v. Adkins Protective Service, Inc.,, supra, the plaintiff brought suit against the defendant seeking damages for intense worry, grief and mental anguish caused by the alleged willful and wanton negligence of the defendant in embalming the body of the plaintiff’s husband. At the close of the plaintiff’s case, the defendant moved for a directed verdict asserting that the plaintiff had failed to prove willful and wanton negligence which the defendant contended was necessary in the absence of actual trauma. The trial court granted the defendant’s motion and dismissed the plaintiff’s case. The Mississippi Supreme Court affirmed the trial court’s dismissal and stated:

The rule in this State is that there can be no recovery for mental pain and suffering from the mere negligent act of another unaccompanied by physical or bodily injury. However, damages are recoverable for mental pain and anguish by a willful, wanton, malicious or intentional wrong even though no bodily injury was sustained.

247 So.2d at 710. It should be noted that Saenger Theaters Corp. v. Herndon, supra, represents the only reported Mississippi case in which recovery for emotional distress without bodily injury was allowed.

Having discussed the rules in Mississippi for recovery from emotional distress without bodily injury, the Court is logically led to a discussion of emotional distress and its relationship to punitive damages. A cursory view of the standards for emotional distress without bodily injury and for punitive damages shows that the standards are quite similar if not the same. For example, as pointed about in Daniels v. Adkins Protective Service, Inc., supra, the court stated that “damages a,re recoverable for mental pain and anguish by a willful, wanton, malicious or intentional wrong even though no bodily injury was sustained.” Id. at 710. On the other hand, as to punitive damages the Mississippi Supreme Court in their most recent “bad faith” insurance decision stated that “[pjunitive damages may be recovered for a willful and intentional wrong, or for such gross negligence and reckless negligence as is equivalent to such a wrong.” Bankers Life and Casualty Co. v. Crenshaw, No. 54,123 slip op. at 27 (Miss.S.Ct. Sept. 11, 1985) (en banc).

In his treatise on Contracts, Professor Murray has discussed emotional distress damages in a similar context.

While it is often suggested that such damages, when granted, are compensatory rather than punitive, the impression is often created that they are granted more for the purpose of discouraging the contract breaker through the use of a deterrent rather than attempting to evaluate mental distress on a pecuniary basis. In addition, it is difficult, if not impossible, to draw an incisive line between compensatory and punitive damages.

Murray on Contracts, § 232 at 472 (1974). However, as gleened from the treatises and the Mississippi bad faith insurance cases, emotional distress damages and punitive damages are separable for several reasons. Furthermore, the treatises and cases indicate that emotional distress damages are not allowable in this case.

Firstly, punitive damages are awarded in addition to actual damages, are in the nature of punishment for the wrongdoing of the defendant, and serve to deter others from similar conduct. Crenshaw, supra, slip op. at 26-27; Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239, 247 (Miss.1977); Snowden v. Osborne, 269 So.2d 858 (Miss.1972). Emotional distress damages are purely compensatory in nature. If the Court were to allow emotional distress damages to stand where the proof of such damages is vague, speculative and uncorroborated by any medical testimony, there would in effect be a pyramiding of punitive damages.

The second point that needs to be raised involves the characterization of actual damages and rules for recovery of actual damages in the breach of contract action versus the tort action. In Standard Life Insurance Co. v. Veal, 354 So.2d 239 (Miss.1977), the court initiated the- concept that an insurance company’s refusal to pay a legitimate claim of its insured could constitute an independent tort. Veal thereby allowed recovery of punitive damages in a breach of contract action because the breach constituted a willful and independent wrong. Veal, supra, 354 So.2d at 247-48. By creating an independent tort action for failure to pay a legitimate claim under an insurance contract the Mississippi Supreme Court left open the question of whether foreseeable tort damages (versus contract damages), would be allowable should a bad faith refusal be established. Therefore, the Mississippi Supreme Court has not directly addressed the proof standards for recovery of emotional distress in a bad faith breach of contract case.

The Restatement (Second) of Contracts sets out the following rule with respect to recovery for mental or emotional disturbance in a breach of contract case:

Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.

The comment to the section explains the application of it:

Damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure. There are, however, two exceptional situations where such damages are recoverable. In the first, the disturbance accompanies a bodily injury. In such cases the action may nearly always be regarded as one in tort, although most jurisdictions do not require the plaintiff to specify the nature of the wrong on which his action is based and award damages without classifying the wrong. See Restatement, Second, Torts §§ 436, 905. In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance. (emphasis added).

Restatement (Second) of Contracts, § 353, pp. 149-50 (1981). While the Restatement view does not preclude recovery for emotional distress, it does limit the situations in which recovery may be had to those where the severe emotional disturbance was a particularly likely result. The proof in this case is insufficient on either ground. There was no proof to show that the insurance company’s conduct was particularly likely to result in a severe emotional disturbance in the plaintiff and the plaintiff failed to show a severe emotional disturbance. See Restatement (Second) of Contracts, § 353 illustration 1.

However, Veal explains that the failure to pay a legitimate claim could constitute an independent tort. Normally, breach of contract damages would include only those damages within the contemplation of the parties at the time the contract was made while tort damages include recovery for any reasonably foreseeable injury. Compare Consolidated American Life Ins. Co. v. Covington, 297 So.2d 894 (Miss.1974) with McCulloch v. Glasgow, 620 F.2d 47, 51 (5th Cir.1980). See also Dobbs on Remedies, § 12.3 at 798 (1973).

The Restatement (Second) of Torts presents a standard which requires proof of extreme and outrageous conduct; conduct which would not normally be present in the typical bad faith insurance case. The Restatement (Second) of Torts in § 46(1) states that “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Comments (j) and (k) to § 46(1) are relevant to the discussion of the plaintiffs claim for emotional distress:

j. Severe emotional distress. The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe. Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the ■ extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed, (emphasis added)
>¡í i*! }¡< }}s
k. Bodily harm. Normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe. The rule stated is not, however, limited to eases where there has been bodily harm; and if the conduct is sufficiently extreme and outrageous there may be liability for the emotional distress alone, without such harm. In such cases the courts may perhaps tend to look for more in the way of outrage as a guarantee that the claim is genuine; but if the enormity of the outrage carries conviction that there has in fact been severe emotional distress, bodily harm is not required, (emphasis added)

The plaintiff has failed to prove severe distress. In addition, in spite of a showing that punitive damages may have been warranted, the plaintiff failed to show extreme and outrageous conduct on the part of the defendant. Therefore, the Court finds that the plaintiff has failed to establish his emotional distress damages whether the Court accepts the Restatement (Second) of Contracts view or the Restatement (Second) of Torts view.

The third aspect which must be pointed out concerns the propriety of allowing punitive damages to stand while disallowing emotional distress damages. The case at bar is comparable in this regard to the Mississippi Supreme Court’s decision in Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829 (Miss.1979). In Wetherbee, a bad faith insurance case, the court held there was insufficient evidence to support an award of actual damages in excess of the policy limits. The court found the compensatory damage jury instruction “permitted the jury to grant damages for fears, anxiety and emotional distress, not supported by competent evidence, ...” Wetherbee, supra, 368 So.2d at 836. The court reduced the compensatory damage award of $50,000.00 to the policy limits, $28,-500.00, and upheld the punitive damage award of $50,000.00. As in Wetherbee, this Court is of the opinion that the damages for emotional distress are not supported by competent evidence. The Court, therefore, holds that the jury’s award of $50,000.00 in actual damages be set aside. Since the Court’s previous ruling on the contract subjected the defendant to contract damages of $7,300.00, with $4,705.00 as pre-judgment interest, the Court is satisfied that the plaintiff has established his actual damage predicate to a punitive damage award. The Court denies the defendant’s alternative motion for new trial. Fed.R.Civ.P. 50(c)(1). See also, Kendrick v. Illinois Central Gulf Railroad Co., 669 F.2d 341, 343 n. 3 (5th Cir.1982); Tackett v. Kidder, 616 F.2d 1050, 1053-54 (8th Cir.1980); Mays v. Pioneer Lumber Corp., 502 F.2d 106, 110 (4th Cir.1974); 5A J. Moore & J. Lucas, Moores Federal Practice 1150.14 (1981); 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2533, p. 586 (1971).

Returning to the main body of the defendant’s motion, it is the defendant’s fourth concern that the jury verdict demonstrates that the jury was confused as to their duty. As stated earlier herein, the jury awarded actual damages in the amount of $50,000.00 and punitive damages in the amount of $40,000.00. The defendant’s assertion in effect asks that the Court speculate on an issue that is not for the Court to decide. “A fundamental principle of American jurisprudence is that the fact-finder determines the quantum of damages in civil cases.” Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976); Thezan v. Maritime Overseas Corp., 708 F.2d 175 (5th Cir.1983). This Court’s inquiry is limited to whether reasonable jurors could agree with the verdict. The record, with the only exception being the emotional distress damages, passes the test. See Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969).

The defendant has also made several contentions concerning the Court’s evidentiary rulings. The Court has reviewed each disputed ruling. The Court is of the opinion that there is substantial evidence in the record to support those rulings and further believes that those rulings are correct.

The defendant has also filed a motion to alter or amend judgment. The plaintiff’s complaint sought compensatory damages in the amount of $50,000.00 with prejudgment interest thereon at the legal rate. Prior to trial, the defendant paid the plaintiff the sum of $7,300.00 as prejudgment interest on the $7,300.00, or a total of $12,005.00. The defendant thus contends that the jury verdict of actual damages in the sum of $50,000.00 exceeds the amount prayed for by the sum of $12,005.00. Since the Court has already set aside the jury verdict for actual damages, this motion to alter or amend judgment has been mooted.

The defendant’s third motion is a motion for remittitur. The first part of the motion raises essentially the same issue as that raised in the defendant’s motion for judgment n.o.v., i.e. that damages for emotional distress are not supported by the record and are not awardable in the case at bar. The Court has sufficiently discussed this issue. The second part of the motion urges the Court to grant a substantial remittitur as to punitive damages. The defendant asserts that the jury’s verdict of $40,000.00 in punitive damages is “excessive, unreasonable and shows by its amount bias and prejudice ...” against the defendant. In this day and age of million dollar verdicts, the Court fails to see any excessiveness, unreasonableness, bias or prejudice. In fact, the Court is of the opinion that the jury reached a well-thought reasonable punitive damage verdict. The Court will not disturb the jury’s punitive damage verdict.

Finally, the Court finds that the plaintiff’s motion to amend the prayer of the complaint as to actual damages to conform to the verdict of the jury has also been mooted by the Court’s finding that emotional distress damages do not lie in this case.

An Order in accordance with this Opinion shall be provided as set forth in the Local Rules.

      . The pertinent contract provision of the master policy is the "Nonduplication of Benefits” provision which reads as follows:
      The monthly benefits otherwise provided under this contract for any calendar month shall be reduced by any amount paid or payable to the Insured upon making proper claim therefor during the same calendar month from the following sources: (1) Full Social Security benefits provided under the Federal Social Security Act together with amendments thereto. * * * (emphasis added)

      . The Court in this diversity case must look to the law of Mississippi for the appropriate substantive state law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . See also, Freeland, III and Freeland, IV, Bad Faith Litigation: A Practical Analysis, 53 Miss. L.J. 237, 256-262 (1983).

      . The Mississippi Supreme Court has "pretermitted” the question of compensatory damages in a bad faith insurance case on at least three occasions. Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829 (Miss.1979); Blue Cross & Blue Shield v. Campbell, 466 So.2d 833 (Miss. 1984); State Farm Fire & Casualty Co. v. Simpson, — So.2d -, No. 54,606, slip op. (Miss. St. Ct. August 14, 1985).


source: Caselaw Access Project

author: DEVINE, Chief Judge.

license: Public Domain

text:
    David S. SANDS v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison.
    Civ. No. 85-216-D.
    United States District Court, D. New Hampshire.
    Oct. 1, 1985.

      Thomas R. Watson, Portsmouth, N.H., for plaintiff.
    John A. Malmberg, Asst. Atty. Gen., Concord, N.H., for defendant.
   OPINION

DEVINE, Chief Judge.

Petitioner brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his December 13, 1978, conviction for two counts of perjury (N.H. RSA 641:1), the sentence imposed following the conviction, the sentence review by the state’s Sentence Review Division, and the state appellate process were constitutionally infirm. Petitioner has raised seventeen grounds for relief.

Procedural History

Petitioner was indicted in 1977 for perjury arising out of his involvement in a civil proceeding concerning real estate in Carroll County. Plaintiff perjured himself by falsely identifying an individual responsible for signing a petition for ex parte attachment in this underlying civil matter. A detailed factual background of this case is contained in the New Hampshire Supreme Court opinion affirming petitioner’s conviction, State v. Sands, 123 N.H. 570, 582-88, 467 A.2d 202 (1983), and will not be repeated here.

Convicted in 1978, petitioner timely appealed to the New Hampshire Supreme Court, raising Grounds One through Five and Eight through Fourteen now contained in the petition for habeas relief. The New Hampshire Supreme Court affirmed the conviction. State v. Sands, supra. Petitioner also appealed his sentence to the Superior Court Sentence Review Division, which affirmed the sentence. Petitioner then filed a petition for writ of certiorari with the New Hampshire Supreme Court seeking review of the Sentence Review Division’s decision and raising Grounds Six and Seven now contained in the petition for habeas relief. The New Hampshire Supreme Court summarily affirmed the decision of the Sentence Review decision by denying the petition without opinion in October 1984. Petitioner also made several post-conviction motions raising Grounds Fifteen, Sixteen, and Seventeen now contained in the petition for habeas relief. These motions were denied by the trial court, and petitioner appealed to the New Hampshire Supreme Court, which summarily affirmed that decision in January 1985. Petitioner filed his petition for writ of habeas corpus with this Court on April 1, 1985, and respondent, pursuant to the Court’s Order of May 8, 1985, has filed a response to show cause why the writ should not be granted. For the following reasons, the Court finds and rules that the petition for writ of habeas corpus must be denied.

Analysis

Ground One: Petitioner herein claims that his Sixth and Seventh Amendment rights were violated when the trial court withdrew “materiality”, an essential element of perjury under RSA 641, from jury consideration. The Court does not agree.

While it is established that the State must prove every element of an offense beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it is also established that courts, rather than juries, should decide questions of law. See State v. Sands, supra, 123 N.H. at 592, 467 A.2d 202. In the instant case, the New Hampshire Legislature in drafting RSA 641 specifically reserved determination of “materiality” for the trial court. See RSA 641:1. This reservation is consistent with the rulings of the United States Supreme Court and the First Circuit Court of Appeals. See Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929) (“materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court”); United States v. Scivola, 766 F.2d 37, 44 (1st Cir.1985) (“materiality is a legal question to be decided by the trial court”) citing, United States v. Kehoe, 562 F.2d 65, 68 (1st Cir.1977), and United States v. Romanow, 509 F.2d 26, 28 (1st Cir.1975). The Court, accordingly, bound by established precedent, finds and rules that the state trial court’s determination of “materiality” under RSA 641 did not violate petitioner’s Sixth and Seventh Amendment rights since determination thereof was a legal question properly reserved to the trial court.

Ground Two: Petitioner herein expands his claim under Ground One to claim that this Fifth, Eighth, and Fourteenth Amendment rights were violated when the trial court declined to instruct the jury on a lesser included offense, false swearing. For the following reasons, the Court does not agree.

A defendant is entitled to a lesser included offense instruction in certain circumstances. According to the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), a lesser included offense instruction is required by due process when warranted by the evidence. The Supreme Court further outlined federal constitutional standards for lesser included offense instructions in Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982): “The federal rule is that a lesser included offense instruction should be given ‘if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.’ Keeble v. United States, 412 U.S. 205, 208 [93 S.Ct. 1993, 1995, 36 L.Ed.2d 844] (1973).” Accordingly, where the evidence presented to the jury would not permit a finding of guilty on the lesser offense, the failure to instruct thereon is not a constitutional infirmity.

In the instant case, the only difference under RSA 641 between felonious perjury and the misdemeanor of false swearing is the element of materiality required for perjury. The trial court made the determination that petitioner/defendant’s statements were material. The fact that the jury did not make this determination, as discussed above, does not raise a constitutional issue. The Court accordingly concludes that since materiality had already been determined, the evidence presented to the jury would not permit a finding of guilty on the lesser included offense of false swearing; hence a failure to instruct thereon did not violate petitioner’s rights under the Fifth, Eighth, and Fourteenth Amendments.

Ground Three: Petitioner herein claims that his Fifth and Fourteenth Amendment rights were violated when the trial court allowed evidence on the element of materiality to be admitted in the presence of the jury. According to petitioner, this evidence was irrelevant, immaterial, confusing, and prejudicial, and its admission denied him a fair trial. For the following reasons, the Court does not agree.

In reviewing a state court conviction on petition for habeas corpus, the Court is limited to searching for constitutional error. 28 U.S.C. § 2254(a); Grieco v. Meachum, 533 F.2d 713, 716 (1st Cir.1976), cert. denied sub nom., Cassesso v. Meachum, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976).

In the instant case, the Court cannot find constitutional error in the admission of evidence pertaining to the materiality of petitioner’s statements. The elements of materiality, falsity, and mental state under RSA 641 were intertwined in this case, and the evidence pertaining to materiality was also relevant to whether petitioner believed that his statement was false. The trial court therefore properly admitted the challenged evidence, and the Court finds no constitutional error. See United States v. Demopoulos, 506 F.2d 1171, 1177 (7th Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975).

Ground Four: Petitioner herein claims that his Fifth and Fourteenth Amendment rights were violated when the prosecutor in closing argument charged for the first time that petitioner was involved in tax fraud. According to petitioner, these remarks were improper and prejudicial, denying him the right to a fair trial and due process. The Court does not agree.

In the instant case, petitioner was convicted of perjury for falsely identifying an individual, “William Smith”, as the person responsible for signing a petition for ex parte attachment. William Smith was the trustee of the Forest Preservation Trust, a trust that was involved in certain real estate transactions in Carroll County in the mid 1970’s. In its closing argument, the State remarked that this trust was a tax fraud which petitioner attempted to conceal by his perjury. According to petitioner: the tax fraud remarks accused him of a crime for which he was not indicted and for which there was no supporting evidence; the remarks contravened prior exclusionary rulings of the trial court; and the remarks constituted prosecutorial misconduct because the State knew or should have known that the remarks were untrue. After review of the record, the Court concludes that the State’s remarks did not constitute an error of constitutional magnitude.

First, evidence introduced at trial could support an inference that petitioner had created the Forest Preservation Trust for the purpose of committing tax fraud. Specifically, Linda Clough, petitioner’s secretary, testified that petitioner himself had signed the ex parte attachment as “William Smith”, although petitioner insisted codefendant Thomas Tsoumas signed the subject document; the State’s handwriting experts testified that Tsoumas’s handwriting did not match that of the fictitious William Smith; and income from the Forest Trust for the years 1974-1976 was not reported to the IRS until April 1977, when Tsoumas filed fiduciary returns. Moreover, the Court concludes that the prosecution’s remarks concerning tax fraud were not meant to charge petitioner with a separate crime, but rather were meant to establish a reason or motive for petitioner’s perjury.

Second, the trial court issued an order prior to closing argument limiting the scope of the State’s summation. The trial court barred any reference by the State to a “conspiracy” or “prior crimes”. Petitioner’s counsel contemporaneously objected to the State’s tax fraud remarks based on the trial court’s prior order. The trial court, however, overruled the objection, ruling that the argument did not violate its order. Even assuming that the trial court erred in permitting the State’s tax fraud argument, “[ejrrors in state court evidentiary rulings generally do not provide grounds for relief in a federal habeas corpus proceeding”. 16 Fed.Pro., L.Ed. § 41:200 (1983). The only exception to this rule is if the error is “of such magnitude as to deny the fundamental fairness which is the essence of due process”. Id. Permitting the State to argue tax fraud did not deny petitioner a fundamentally fair trial in light of the supporting evidence introduced at trial; hence the trial court’s ruling is an insufficient ground for habeas relief.

Similarly, the Court cannot find prosecutorial misconduct in the instant case. Fifty years ago, the United States Supreme Court admonished prosecutors “to refrain from improper methods calculated to produce a wrongful conviction____” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The Court did, however, recognize that a prosecutor could pursue a conviction “with earnestness and vigor”. Id. The delicate balance inherent in the role of a prosecutor was aptly described by the Court: “while he may strike hard blows, he is not at liberty to strike foul ones.” Id.

According to petitioner, there was prosecutorial misconduct because the State knew or should have known that the tax fraud argument was untrue. In support of this argument, petitioner points to his testimony that the IRS conducted an audit in 1975 and accepted his tax return. However, petitioner did not present any documentary evidence at trial to support his claim, and the prosecutor testified that he did not learn of the audit until after the trial had been completed. Given these circumstances, the prosecutor’s remarks in closing argument were not so egregious as to render the trial fundamentally unfair, Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974), and the Court rejects this ground for habeas relief.

Ground Five: Petitioner herein claims that his Fifth and Fourteenth Amendment rights were violated because his conviction was obtained upon insufficient evidence to prove every element of perjury beyond a reasonable doubt. The Court does not agree.

Claims alleging the insufficiency of evidence to support convictions in habeas corpus proceedings are governed by the standard articulated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the Court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319, 99 S.Ct. at 2789. Reviewing the record, the Court concludes that this query must be answered affirmatively.

Petitioner’s secretary, Linda Clough, testified that she prepared the ex parte attachment and that petitioner signed it. Contrary to petitioner’s assertions that codefendant Tsoumas had signed the ex parte attachment, the State’s handwriting expert did not believe that codefendant Tsoumas was the signatory of the ex parte attachment. Moreover, petitioner had exhibited a reticence to divulge the identity of William Smith, and petitioner’s interest as the attorney who created the Forest Preservation Trust was closely aligned with the fictitious William Smith. A rational trier of fact could have considered this evidence and found the essential elements of perjury beyond a reasonable doubt. The Court accordingly rejects this ground for habeas relief.

Ground Six: Petitioner herein claims that his sentence was excessive and disproportionate in violation of his due process and equal protection rights under the Fourteenth Amendment, and his Eighth Amendment right to be free from cruel and unusual punishment. The Court does not agree.

Convicted on the two counts of perjury, RSA 641:1, petitioner was sentenced to a period of incarceration on Count One of not more than five nor less than two years, with fifteen months of that sentence suspended. Petitioner was also fined two thousand dollars and ordered to perform five hundred hours of public service. On Count Two, petitioner was sentenced to a period of incarceration of one year, which was suspended, and was fined two thousand dollars. Commission of perjury is a class B felony, and therefore is subject to a maximum period of incarceration of seven years on each count, RSA 651:2 11(b), and a fine of two thousand dollars on each count, RSA 651:2 IV(a).

Pursuant to 28 U.S.C. § 2254(a), the Court may entertain an application for a writ of habeas corpus only on the ground that petitioner is in custody in violation of his constitutional rights. Petitioner’s contention that his sentence was so severe and disproportionate as to deny him equal protection and due process as well as to constitute cruel and unusual punishment does not meet this standard. The sentence was within the range presented by statute and does not deprive petitioner of any constitutional rights. The severity of a sentence is not sufficient ground for habeas relief. Willeford v. Estelle, 538 F.2d 1194, 1196 (5th Cir.1976); United States Ex rel. Gardner v. Meyer, 519 F.Supp. 75, 81 (N.D.Ill. 1981); 16 Fed.Pro., L.Ed. § 41:207 (1983). See also Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980). The Court accordingly rejects this ground for habeas relief.

Ground Seven: Petitioner herein claims that the Superior Court Sentence Review Division failed to follow its own Rules 20 and 22 in reviewing his sentence, thus violating his Fifth and Fourteenth Amendment rights. These rules require that the Division evaluate certain factors in reviewing a sentence of incarceration to determine whether the sentence is excessive or disproportionate. Sentence Review Division Rule 20 states:

The decision of the Sentence Review Division will be final and the reasons for any change of sentence will be stated therein in a written opinion. In its decision, the Sentence Review Division will give consideration, but is not limited to, the following objectives of the New Hampshire Criminal Code sanctions:
(a) Isolation of the offender from society to prevent criminal conduct during the period of confinement;
(b) Rehabilitation of the convicted offender into a non-criminal member of society;
(c) Deterrence of other members of the community who might have tendencies toward criminal conduct similar to those of the offender;
(d) Deterrence of the defendant himself;
(e) Reaffirmation of social norms for the purpose of maintaining respect for the norms themselves;
(f) The individual characteristics of the defendant prior to the imposition of the sentence, except that information, which does not affirmatively appear on the record or in the judge’s statement of reasons for the sentence, shall be excluded;
(g) The facts and circumstances of the crime or crimes which affirmatively appear in the record of the proceedings; and
(h) Statistical information concerning the sentences imposed for the same crime committed by other individuals in the State of New Hampshire.

The relevant portion of Sentence Review Division Rule 22 states:

The scope of review of the Division shall be:
(a) The excessiveness or lightness of the sentence having regard to the nature of the offense, the protection of the public interest and safety, and the character of the offender.

According to petitioner, had the Division considered the evidence presented at the sentence review hearing, the Division could only have concluded that incarceration of petitioner was inappropriate in light of Rules 20 and 22. Because the Division approved the sentence of incarceration, petitioner argues he was not treated on an equal basis with persons of similar background who have been convicted of perjury in New Hampshire. The Court does not agree.

Under 28 U.S.C. § 2254, the Court will only entertain an application for writ of habeas corpus where a petitioner is in custody in violation of the Constitution or laws or treaties of the United States. Upon review of the record, the Court cannot discern any such violation. First, the Court in reviewing the decision of the Sentence Review Division will defer to that body’s decision absent constitutional error therein. The Court will not cavalierly substitute its appraisal of petitioner’s sentence for that of the Review Division. Second, and more importantly, there is nothing in the record to support petitioner’s contention that the Division ignored its own procedural rules. While petitioner presented statistical evidence indicating that similarly situated individuals convicted of perjury did not receive sentences of incarceration in New Hampshire, such evidence was not binding on the Division. Rule 20 provides at a minimum eight criteria by which the Division is to evaluate a sentence. Indeed, of the enumerated eight, the Division could well have considered deterrence, Rule 20(c), and reaffirmation of social norms, Rule 20(e), as grounds for approving petitioner’s sentence of incarceration. Moreover, the Division was not limited to the eight criteria in evaluating the sentence. Accordingly, the Court finds that the Sentence Review Division did not violate its procedural rules in derogation of petitioner’s constitutional rights, and the Court rejects this ground for habeas relief.

Ground Eight: Petitioner herein claims that his conviction was obtained by the unconstitutional failure of the prosecution to timely disclose exculpatory evidence. The Court turns first to the question of whether petitioner exhausted his state court remedies with respect to this claim and concludes that he has so exhausted.

In Anderson v. Harless, 459 U.S. 4, 108 S.Ct. 276, 74 L.Ed.2d 3 (1982), the Supreme Court ruled that a federal habeas petitioner must provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim. The Supreme Court noted that it was not sufficient merely to present all the facts to the state court, but instead required the petitioner to have “fairly presented” the “substance” of his federal habeas corpus claim to the state court in order to effect exhaustion of the state remedy. Id. at 6, 103 S.Ct. at 277. Respondent herein argues that this particular claim was not exhausted because it was not highlighted in petitioner’s original appellate brief to the New Hampshire Supreme Court. While it is true that the claim that the prosecution failed to disclose exculpatory evidence was not a highlighted issue in petitioner’s brief, this fact is not dispositive of the exhaustion issue. Petitioner in his brief presented the facts underlying this constitutional claim, see Sands Brief, pp. 33-34, and referenced the leading case on the unconstitutionality of the prosecution’s suppression of exculpatory evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Court finds, accordingly, that the substance of petitioner’s claim was fairly presented to the New Hampshire Supreme Court and petitioner thus exhausted his state remedies with respect to this claim. The fact that the New Hampshire Supreme Court did not address this issue in its opinion does not alter the Court’s finding, since exhaustion does not require that an issue be addressed in a decision where the substance of the claim has been fairly presented to the state court. Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978); Williams v. Holbrook, 691 F.2d 3 (1st Cir.1982).

Turning to the merits of this claim, petitioner argues that the prosecution failed to disclose an instruction sheet prepared by petitioner for his secretary, Linda Clough, to be used in preparing a Writ of Summons. The Writ of Summons was to be filed with the subject petition for ex parte attachment. Petitioner testified that he typed the petition for ex parte attachment which was subsequently signed “William Smith” by codefendant Tsoumas while Linda Clough testified that she typed the petition for ex parte attachment and petitioner herein signed it “William Smith”. According to petitioner, the instruction sheet is exculpatory because it contained monetary figures to be used in the Writ of Summons which differed from those contained in the petition for ex parte attachment. This discrepancy, petitioner argues, supports his contention that he typed the petition for ex parte attachment, while his secretary typed only the writ of summons.

The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), opined that

the suppression by the prosecution of evidence favorable to an accused upon request 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.

See, e.g., Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972). Such prosecutorial misdeed will warrant reversal of conviction only where the failure to disclose impugns the fundamental fairness of the trial, United States v. Kepreos, 759 F.2d 961, 967 (1st Cir.1985), and results in undue prejudice. United States v. Drougas, 748 F.2d 8, 23 (1st Cir.1984).

In the instant action, the Court finds that nondisclosure of the instruction sheet prior to trial did not unduly prejudice petitioner or deny him a fundamentally fair trial. The instruction sheet pertained only to the Writ of Summons, not to the petition for ex parte attachment, and the discrepancy in figures between the two .documents does not prove that petitioner, rather than Linda Clough, typed the petition for ex parte attachment. The variation between the two documents does not prove that two people, rather than one, typed the documents; hence the instruction sheet cannot be considered exculpatory. In any event, even assuming that the instruction sheet was exculpatory, it was made available to petitioner at an early stage of the trial (the prosecution had just called its third witness), and petitioner therefore had use of the sheet for cross-examination of Linda Clough or for any other allowable purpose. Access to the document at the early stage of trial therefore negated any undue prejudice to petitioner. The Court accordingly cannot find a violation of the rule enunciated in Brady v. Maryland, supra, and therefore rejects this ground for habeas relief.

Ground Nine: Petitioner herein claims that his conviction was obtained after trial upon indictments which were unconstitutionally vague and uncertain. The Court does not agree.

The sufficiency of a state court indictment is generally not open to inquiry in a habeas corpus proceeding. Howard v. Flemming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121 (1903); Kohl v. Lehlback, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432 (1895). However, as recognized by this Court, where a state court indictment is so defective as to deprive the trial court of jurisdiction, habeas corpus relief is available. Dukette v. Perrin, 564 F.Supp. 1530, 1532 n. 2 (D.N.H.1983) (citations omitted). The sufficiency of the state court indictment depends upon whether “it gives the defendant enough information so that he can prepare for trial”. State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775 (1981), quoting State v. Meloon, 119 N.H. 76, 77, 397 A.2d 1041 (1979). The Court finds petitioner’s indictment sufficient under this standard.

Petitioner’s first indictment read as follows:

[Tjhat David S. Sands [on March 7, 1977] did, during a hearing on Pending Motions in the Superior Court held at Ossipee, knowingly make a false material statement under oath, in response to questions asked, to wit:
Question: And who signed William Smith’s name there?
Answer: Thomas Tsoumas.
Question: And did he sign this in your presence?
Answer: In one instance he did. In the other instance he handed it to me and said he had signed it. He acknowledged ...
when in fact defendant did not believe these statements to be true, and in fact said statements were false.

Petitioner’s second indictment read as follows:

[Tjhat David Sands [on April 27, 1977] did, during a hearing on motions in the Superior Court held at Ossipee, knowingly make a false material statement under oath, in a direct statement of witness, to wit: ‘Well, as it turned out, Tom came up that night. I had him sign the Petition for Ex Parte Attachment, but apparently I did not sign all of the copies,’ when in fact defendant did not believe this statement to be true, and in fact said statement Was false.

Under New Hampshire law a person is guilty of perjury, RSA 641:1 “if in any official proceeding, he makes a false material statement under oath or affirmation, or swears or affirms the truth of a material statement previously made, and he does not believe the statement to be true.”

In the instant action, petitioner’s indictments closely track the language of the statute in question, specify the time and official proceeding at which the alleged perjurious statements were made, and detail the content of the statements themselves. The indictments are not unconstitutionally vague and uncertain, as they provided enough information for petitioner to adequately prepare for trial. The Court accordingly rejects this ground for habeas relief.

Ground Ten: Petitioner herein claims that his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure in violation of his Fourth Amendment rights. Specifically, petitioner argues that certain documents such as a bank signature card and withdrawal slips obtained from his codefendant in the underlying civil litigation were subsequently unconstitutionally seized. Those documents were used at trial for the purpose of handwriting analysis. Petitioner, along with his codefendant, unsuccessfully moved to suppress these documents at the outset of the trial and unsuccessfully sought reversal of his conviction before the New Hampshire Supreme Court on the same ground. State v. Sands, supra, 123 N.H. at 607-08, 467 A.2d 202.

The mandate of Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976), bars federal habeas corpus relief where the grounds alleged urge that evidence obtained in an unconstitutional search or seizure was introduced at the petitioner’s trial in those instances “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim.” If both the state trial court and the state appellate court addressed the petitioner’s Fourth Amendment claim, the petitioner has indeed been afforded the full and fair review required under Stone v. Powell. Maxwell v. Mabry, 672 F.2d 683 (8th Cir.1982). It has been further held that Stone v. Powell does not focus upon the potential for error in state court proceedings, but emphasizes the integrity of such proceedings, assuming that state courts will be as diligent as federal courts in protecting Fourth Amendment rights. Palmigiano v. Houle, 618 F.2d 877, 882 (1st Cir.1980), cert. denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 132 (1980).

The Court finds that petitioner was afforded a full and fair review of his Fourth Amendment claim by the State. Not only did petitioner litigate this issue at the outset of trial, but he also argued it on appeal to the New Hampshire Supreme Court. The mandate of Stone v. Powell therefore precludes this ground for habeas relief.

Ground Eleven: Petitioner herein claims that his conviction was obtained by use of tainted evidence obtained in violation of his constitutional rights, including his right to privacy and to be free from deprivation of property without due process of law. Petitioner specifically complains about the documentary evidence (bank withdrawal slips and bank signature card) obtained from his codefendant Tsoumas during Tsoumas’s deposition taken in the underlying civil litigation. According to petitioner, this evidence was obtained as a result of deception and subterfuge between law enforcement officials acting in concert with private attorneys in that underlying civil litigation. Assuming, without deciding, that petitioner has standing to raise this issue, the Court, after review of the record, concludes that the evidence complained of was not obtained in violation of petitioner’s constitutional rights.

The record reveals that the documentary evidence was obtained from Tsoumas by the private attorneys in the underlying civil litigation in order to identify and locate “William Smith”, the defendant in the civil litigation. This action was consistent with the private attorneys’ obligation to pursue their clients’ best interests. Moreover, the record fails to reveal any collusion between the State and these private attorneys. There is no evidence that the State encouraged or promoted the discovery of the documentary evidence in question. In addition, the Court cannot discern any violation of petitioner’s right to privacy by the disclosure of these banking documents where they related to the critical issue of identification in the underlying civil litigation. The Court thus rejects this ground for habeas relief.

Ground Twelve: Petitioner herein claims that his conviction was obtained by the use of improper and irrelevant evidence and by the exclusion of certain relevant evidence sought to be admitted by petitioner. According to petitioner, these erroneous evidentiary rulings by the trial court violated his due process rights and his right to a fair trial. The Court does not agree.

The standard to be employed in a habeas proceeding by this Court in reviewing alleged errors in evidentiary rulings by the trial court was explained by the First Circuit Court of Appeals in Allen v. Snow, 635 F.2d 12, 15 (1st Cir.1980):

The writ of habeas corpus ordinarily will not lie solely to correct alleged errors in evidentiary rulings. Lisenba v. California, 1941, 314 U.S. 219, 228, 62 S.Ct. 280, 286, 86 L.Ed. 1222; Salemme v. Ristaino, 1 Cir., 1978, 587 F.2d 81, 85. To rise to constitutional magnitude, such an error must ‘so infuse the trial with inflammatory prejudice as to render a fair trial impossible.’ Salemme v. Ristaino, ante, 587 F.2d at 86.

See, e.g., United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

Petitioner complains about the admission of: banking documents taken at the Tsoumas deposition; evidence regarding the dates of execution of certain documents (a handwritten agreement between petitioner and Tsoumas, a promissory note from petitioner to Tsoumas, and a schedule of beneficial interests); and evidence regarding petitioner’s legal strategy in the underlying civil litigation. Petitioner also complains that the trial court improperly limited cross-examination of County Attorney Frederick Cox, a witness at trial, while permitting the State to cross-examine a defense witness, a friend of codefendant Tsoumas, without limitation.

The Court finds that these evidentiary rulings were not erroneous, and that even if they were, they did not “so infuse the trial with inflammatory prejudice as to render a fair trial impossible.” Allen v. Snow, supra. The Tsoumas banking documents including withdrawal slips and signature card were relevant for purposes of handwriting comparisons and the establishment of “William Smith’s” identity. Their probative value outweighed their prejudice. The evidence regarding the agreement between petitioner and Tsoumas dated January 11, 1975, the promissory note from Tsoumas to petitioner, dated February 15, 1974, and a schedule of beneficial interests dated February 15, 1974, was more probative than prejudicial. Specifically, an FBI expert testified that these documents had all been prepared at the same time, supporting the inference that petitioner was “William Smith” and that Tsoumas and petitioner had attempted to cover up this fact. Similarly, petitioner’s legal strategy in the underlying civil action included a prolonged refusal to disclose the identity of “William Smith” and an exception to testifying. This strategy supported the inference that petitioner was concealing the identity of “William Smith”, and its probative value outweighed any prejudicial effect.

The trial court’s rulings with respect to cross-examination were not so prejudicial as to render petitioner’s trial fundamentally unfair. Petitioner sought to cross-examine County Attorney Cox regarding his previous prosecutorial decisions in actions related to the underlying civil litigation. The trial court, however, limited petitioner’s inquiry of County Attorney Cox to matters concerning the underlying civil litigation at the time of petitioner’s alleged perjury. The scope of petitioner’s desired cross-examination was overly broad, touching on irrelevant, tangential, and misleading matters, and thus was properly limited. Similarly, the Court can find no error in the trial court’s decision to permit the State to cross-examine a friend of codefendant Tsoumas regarding his failure to inform law enforcement officials that he possessed exculpatory evidence. The State’s cross-examination of this witness attempted to discredit him by questioning his credibility and raising the inference that his testimony was fabricated. Such cross-examination was proper and cannot be considered prejudicial to the extent of denying petitioner a fair trial.

In reviewing the trial court’s evidentiary rulings, individually and as a whole, the Court cannot discern any errors of constitutional dimension sufficient to warrant relief under 28 U.S.C. § 2254. This ground for habeas relief is accordingly rejected.

Ground Thirteen: Petitioner herein claims that his conviction was obtained after the jury had been improperly instructed by the trial court. Petitioner specifically complains that his due process rights were violated where the trial court instructed the jury that the state did not have to prove that the defendants believed their statements to be false. According to petitioner, this instruction improperly removed the element of mens rea from the jury.

In general, improper jury instructions will not form the basis of federal habeas corpus relief. Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir.1982), citing Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). A federal court can only overturn a state conviction based on improper jury instructions where the instructions “so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400. The Supreme Court in Cupp v. Naughten outlined the role of a federal court in reviewing a state jury instruction:

[I]t must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Id. at 146, 94 S.Ct. at 400. Where the overall charge is fundamentally sound, a petitioner’s due process rights are not violated, even though certain portions of the charge to the jury may be flawed. Grace v. Butterworth, 635 F.2d 1, 6 (1st Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981); McInerney v. Berman, 621 F.2d 20, 25 (1st Cir.1980), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980).

In support of his contention that the trial court erred in instructing the jury that the State did not have to prove that defendants knew or believed that the alleged perjurious statements were false, petitioner references RSA 641:1, which provides that a person is guilty of perjury if he makes a false material statement in an official proceeding and “he does not believe the statement to be true.” Thus, according to petitioner, under RSA 641:1, proof that a person does not believe a statement to be true is equivalent to proof that a person believes a statement to be false. This construction fails to account for those occasions when a person does not know if a statement is true; i.e., he is confused or unsure of himself, while not really knowing if a statement is false. The perjury statute is only concerned with those instances where a person does not believe a statement to be true. The trial court instructed the jury in accordance with the statutory language that the State was required to prove beyond a reasonable doubt that the defendants did not believe the questioned statements to be true. The Court finds, therefore, that the overall charge was fundamentally sound and did not violate petitioner’s due process rights, and the Court accordingly rejects this ground for habeas relief.

Ground Fourteen: Petitioner herein claims that the trial court improperly failed to instruct the jury that the evidence presented must not only be consistent with the defendant’s guilt, but must exclude every reasonable hypothesis of his innocence. Petitioner also contends that the trial court failed to instruct the jury properly under the principles of conflicting statements and witnesses, and was in error for emphasizing a particular indictment against codefendant Tsoumas and then failing to inform the jury that the indictment had been withdrawn. Petitioner also contends that the trial court improperly instructed the jury that they could make their own comparison of handwriting specimens separate from the handwriting expert’s reports.

As discussed above, the Court will only grant habeas relief where a state jury instruction “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, supra, 414 U.S. at 146, 94 S.Ct. at 400. The challenged jury instructions herein or lack thereof do not meet this standard.

The trial court’s charge with respect to the inferences allowable from the presented evidence did not abridge petitioner’s rights to due process. The trial court instructed:

The defendant is entitled to every inference in his favor which can be reasonably drawn from the evidence; and that being the case, where two inferences may be drawn from the same fact, one consistent with guilty and one consistent with innocence, if you were to so conclude, that’s entirely within your role, judgment and decision, after weighing the evidence on any given issue, then and in such an event the defendant would be entitled to the inference which would be consistent with innocence.

This charge was fair, and the trial court thus was not obligated to instruct the jury that the evidence must exclude every reasonable hypothesis of innocence.

Similarly, the trial court’s charge with respect to the principles relating to conflicting statements of witnesses did not so infect petitioner’s trial as to abridge his due process rights. The trial court charged the jury that they were responsible for weighing the testimony of all the witnesses by considering their honesty, demeanor, intelligence, motives, bias, and interest. The jury was also instructed that they were free to accept or reject, in whole or in part, the testimony of any witness. The Court finds such charge consistent with the principles governing conflicts in witnesses’ statements.

The trial court’s decision not to inform the jury that a particular indictment against petitioner’s codefendant Tsoumas had been withdrawn did not violate petitioner’s right to due process. The indictment which had been read to the jury involved Tsoumas’s claim to have signed a promissory note dated February 15, 1974. Had the trial court informed the jury during deliberations that this indictment had been withdrawn, the possibility existed that the jury would infer that the State was removing its weakest case and permitting them to decide the strongest cases against Tsoumas and petitioner. The possible prejudice to petitioner in such a case is apparent, and the trial court’s decision not to inform the jury of the nolle prosequi was not an error of constitutional magnitude.

The trial court’s instruction that the jury was free to make its own comparisons of handwriting samples did not so infect petitioner’s trial as to deny him his due process rights, and in fact is in accord with established law regarding evaluation of handwriting samples. A jury is permitted to conduct its own handwriting comparison independently of the testimony and reports of handwriting experts. Strauss v. United States, 311 F.2d 926 (5th Cir.1963), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963); Goins v. United States, 99 F.2d 147, 151 (4th Cir.1938); University of Illinois v. Spalding, 71 N.H. 163, 172, 51 A. 731 (1901). According to the court in Strauss v. United States, supra, 311 F.2d at 932:

It is elementary, putting aside the expert testimony of genuineness ... that the jury was entitled to draw their own conclusion as to the genuineness of the signature by a comparison with the admitted signature of appellant____

See also Hickory v. United States, 151 U.S. 303, 306, 14 S.Ct. 334, 335, 38 L.Ed. 170 (1894) (“the comparison may be made by witnesses or without the intervention at all, by the jury themselves”). The Court accordingly rejects the challenges to the trial court’s instructions or lack thereof as a basis for habeas relief.

Ground Fifteen: Petitioner herein claims that his conviction was obtained by actions of grand and petit juries which were unconstitutionally impaneled and were not representative of a fair cross section of the community in violation of his Sixth Amendment rights. The Court finds this claim to be without merit.

Assuming without deciding that this claim is not barred by the contemporaneous objection rule, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (“when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice”), Breest v. Perrin, 655 F.2d 1 (1st Cir’.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 597 (1981), the Court finds that petitioner has failed to establish a prima facie violation of the Sixth Amendment jury requirement of a fair cross section of the community. Petitioner specifically complains about the underrepresentation of lower income people, recent residents, nonhomeowners, women, and young people aged eighteen to thirty-four years of age on his Belknap County grand and petit juries in 1978.

The United States Supreme Court in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), outlined the requirements for establishing a prima facie violation of the fair cross section requirement. The defendant, petitioner herein, must show

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

With respect to the first prong of this test, petitioner fails to offer, nor can the Court find any support for, his contention that lower income people, recent residents, and nonhomeowners are sufficiently unique to constitute “distinctive” groups for Sixth Amendment purposes. In addition, while the First Circuit Court of Appeals had previously held that young people (aged 18-34) were sufficiently unique to constitute a “distinctive” group for Sixth Amendment purposes, LaRoche v. Perrin, 718 F.2d 500 (1st Cir.1983); United States v. Butera, 420 F.2d 564 (1st Cir.1970), this position was reconsidered and overturned by the Circuit in Barber v. Ponte, 772 F.2d 982 (1st Cir.1985). Thus, in petitioner’s claim, the Court finds only one challenged group, women, sufficiently distinct to satisfy the first prong in establishing a prima facie violation of the fair cross section requirement of the Sixth Amendment. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Indicted and tried by grand and petit juries in Belknap County in 1978, petitioner attempts to show that women were unfairly and systematically underrepresented in the jury selection process by reference to statistics pertaining to a 1973 Belknap County jury venire contained in State v. Fleury, 114 N.H. 325, 321 A.2d 108 (1974). Petitioner fails to present any evidence pertaining to the composition of the grand and petit juries which indicted and tried him, nor does he present any evidence pertaining to the 1978 master list of jurors for Belknap County from which his juries were drawn. Without even such minimal evidence, the Court finds that petitioner has failed to show that women were unfairly and systematically excluded from his juries in violation of the Sixth Amendment. Reliance on five-year-old statistics is simply inadequate. The Court accordingly rejects this ground for habeas relief.

Ground Sixteen: Petitioner herein claims that his rights to due process were violated when the trial court and the New Hampshire Supreme Court failed to consider the challenge to the composition of his grand and petit juries because of New Hampshire’s contemporaneous objection rule. According to petitioner, there was sufficient “cause and prejudice” to render the contemporaneous objection rule inapplicable. Wainwright v. Sykes, supra, 433 U.S. 72, 97 S.Ct. 2497. The question presented for resolution by the Court herein is whether the state courts committed an error of constitutional magnitude in applying the contemporaneous objection rule. The Court can find no such error.

Principles of comity and federalism prevent federal courts from granting habeas corpus relief to a state prisoner whose claim was denied review by the state courts because of a procedural default, absent a showing of both cause for the default and resulting prejudice. Reed v. Ross, — U.S. -, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, supra, 433 U.S. 72, 97 S.Ct. 2497. The state courts found that there was no cause for petitioner’s failure to raise the challenge to the composition of his grand and petit juries and rejected petitioner’s contention that New Hampshire’s contemporaneous objection rule was inapplicable. This Court concurs in the state court’s finding.

Petitioner contends that it would have been futile to challenge his grand and petit juries at trial because the law at that time required that a purposeful exclusion of a distinctive group be shown, State v. Thomson, 109 N.H. 205, 210, 247 A.2d 179 (1968); State v. Fleury, 114 N.H. 325, 333, 321 A.2d 108 (1974), and that it was not until after his trial that the United States Supreme Court in Duren v. Missouri, supra, 439 U.S. 357, 99 S.Ct. 664, held that only systematic exclusion of a distinctive group need be shown in making out a prima facie Sixth Amendment violation. Petitioner’s argument fails, however, to recognize that the Supreme Court prior to his trial ruled that systematic exclusion of a distinctive group was required in a Sixth Amendment jury challenge in Taylor v. Louisiana, supra, 419 U.S. at 531-33, 95 S.Ct. at 698-99. Petitioner does not show cause for his failure to contemporaneously object where there is only perceived futility in such objection. See Engle v. Isaac, supra, 456 U.S. at 130 n. 36, 102 S.Ct. at 1573 n. 36; Wainwright v. Sykes, supra. In addition, assuming arguendo that there is cause for the failure to contemporaneously object in the instant case, the Court cannot find any prejudice resulting from the procedural default. As noted in the discussion of Ground Fifteen, there is no merit to petitioner’s contention that his grand and petit juries were constitutionally infirm.

Finding application of the New Hampshire contemporaneous objection rule proper by the state courts, the Court accordingly rejects this ground for habeas relief.

Ground Seventeen: Petitioner herein claims that the twenty-nine-month delay between oral argument and the rendering of the New Hampshire Supreme Court’s decision on appeal violated his right to a speedy trial under the Sixth Amendment, to due process and fundamental fairness under the Fifth and Fourteenth Amendments, and to be free from cruel and unusual punishment under the Eighth Amendment. The Court does not agree.

Contrary to petitioner’s contention, the Court finds that the Sixth Amendment right to speedy trial is inapplicable to his state appellate proceeding. The purpose of the constitutional guarantee of speedy trial is (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit possibilities that long delay will impair the accused’s ability to defend himself. Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The Sixth Amendment was adopted to assure that one accused of a crime is promptly brought to trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The purposes of the Sixth Amendment, however, do not apply in the context of an appellate proceeding where the accused has already been convicted of an offense. See United States v. Alston, 412 A.2d 351, 356-57 (D.C.1980); State ex rel. Jones v. Court of Common Pleas, 55 Ohio St.2d 130, 9 O.O.3d 108, 378 N.E.2d 471, 472 (1978); State v. Cooper, 52 Ohio St.2d 163, 6 O.O.3d 377, 370 N.E.2d 725, 737 (1977), vacated in part, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1157 (1978). See also Harrison v. United States, 392 U.S. 219, 221 n. 4, 88 S.Ct. 2008, 2009 n. 4, 20 L.Ed.2d 1047 (1968) (petitioner’s contention that his right to speedy trial was violated found to be wholly without merit where “[virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the actions of petitioner or from the need to assure careful review of an unusually complex case”). Accordingly, in the instant case where petitioner had already been convicted of perjury, the delay in the state appellate process, for whatever reason, is not violative of any Sixth Amendment right.

Turning to petitioner’s claim that the state appellate delay violated his due process rights, the Court must consider whether such delay was so prejudicial as to violate all notions of fundamental fairness. See Marion v. United States, 404 U.S. 307, 325-26, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971) (preindictment delay implicating due process). The Court cannot discern such prejudice in the instant case. The delay by the New Hampshire Supreme Court in rendering its decision did not jeopardize the fairness of a possible retrial. In addition, petitioner’s personal woes and anxieties resulting from conviction and appeal are not sufficient to implicate the right of due process. See United States v. Alston, supra, 412 A.2d at 362. Moreover, the delay in the instant case, in large part, was attributable to the death of two justices assigned to the case as well as to the complexity of the legal issues presented for resolution. Considering these two factors, the Court cannot find a delay sufficiently prejudicial to violate petitioner’s constitutional right.

Petitioner’s claim that the state appellate delay constituted cruel and unusual punishment is also without merit. The delay did not violate the Fifth Amendment right to due process, nor did it violate the Sixth Amendment right to a speedy trial. The delay, in and of itself, is not so unusual, does not involve excessive physical suffering, and is not so repugnant to civilized people as to implicate the Eighth Amendment right to be free from cruel and unusual punishment. See Furman v. Georgia, 408 U.S. 238, 330-31, 92 S.Ct. 2726, 2772-73, 33 L.Ed.2d 346 (1972). The Court accordingly rejects this ground for habeas relief.

Conclusion

The Court concludes that there were no constitutional infirmities in obtaining petitioner’s conviction, the sentence imposed upon him, the sentence review by the Superior Court Sentence Review Division, and the state appellate process. The petition for habeas corpus is herewith denied.

SO ORDERED.

      . Respondent argues that habeas relief is unavailable under Ground Three because of petitioner’s failure to contemporaneously object to the admission of the evidence pertaining to materiality. See Breest v. Perrin, 655 F.2d 1 (1st Cir.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 597 (1981). The Court’s analysis of Ground Three assumes, without deciding, that the contemporaneous objection rule does not apply in the instant case.

      . In March 1977, one month prior to the filing of the income tax returns, petitioner disclosed that Tsoumas was allegedly the fictitious "William Smith”.

      . The Court also notes that to the extent petitioner raises a Fourth Amendment claim in Ground Eleven, the rule in Stone v. Powell,

        supra, 428 U.S. 465, 96 S.Ct. 3037, precludes habeas relief.

      . In order to constitute a "distinctive” group for Sixth Amendment purposes, the group (1) must be defined and limited by some clearly identifiable factor (e.g., sex or race), (2) must have a basic similarity in attitude, ideas, or experience, and (3) must have a community of interest among its members such that the group’s interest would not be represented if the group were excluded from the jury selection process. See Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir. 1983), cert. denied, — U.S.-, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984).