author: ARCENEAUX, District Judge.

text:
    George B. JORDAN v. GENERAL MOTORS CORPORATION.
    Civ. A. No. 82-1682.
    United States District Court, E.D. Louisiana.
    July 18, 1985.

      Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, La., for plaintiffs.
    Stephen K. Conroy, Bernard, Cassisa, Babst & Saporito, Metairie, La., for defendants.
   ORDER

ARCENEAUX, District Judge.

This matter is before the Court on General Motors Corporation’s (GMC) objections to the Magistrate’s Report and Recommendation. GMC objects only to the Magistrate’s recommendation that plaintiff be allowed to present his claim under both a products liability theory and a redhibition theory, claiming this will result in prejudice to GMC and inconsistent responses to jury interrogatories. The Court does not agree this will result and the plaintiff is clearly entitled to proceed under both theories.

Accordingly,

IT IS ORDERED that the Magistrate’s Report and Recommendation is hereby adopted as the opinion of this Court.

REPORT AND RECOMMENDATION

July 16, 1985

MICHAELLE PITARD WYNNE, United States Magistrate.

Statement of the Case

The captioned matter involves a claim for personal injuries filed by George B. Jordan against General Motors Corporation.

On or about March 20, 1982, Jordan, while driving his 1981 4-door Oldsmobile Omega, was travelling on Williams Blvd., Kenner, La. when another vehicle crossed his lane of traffic. Jordan, swerving to avoid hitting this vehicle, hit the bumper of a car slowing down for a red light. According to Jordan, his seat moved, on impact or prior to impact, causing his body to move forward and his head to impact with the sun visor. Jordan asserts that, because of defective design and/or manufacture, the retaining pin used to attach the front seat to the floor runner failed to properly keep the seat stationary.

Jurisdiction is founded on diversity of citizenship and Plaintiff’s action is based on Louisiana law.

Status of the Case

A pretrial conference was held before Judge Arceneaux on December 13, 1984, after which the trial was continued to be reset. As a result of discussions at the conference relative to certain evidentiary motions and issues, Judge Arceneaux stayed discovery and directed the undersigned Magistrate to issue a report and recommendation addressing the evidentiary issues in contest. A conference was held before the Magistrate on January 16, 1985. Because it appeared that an evidentiary hearing was necessary, the Magistrate set a hearing for March 13, 1985. At the request of the parties, the hearing was continued until April 12, 1985 at which time evidence was offered by way of affidavit only. Additional time to file supplemental briefs was granted at the request of the parties and the matter was submitted.

Statement of the Issues

As reflected by Judge Arceneaux’s referral order, seven separate evidentiary issues were referred to the Magistrate; i.e.

(1) the admissibility and legal effect of plaintiffs alleged failure to use seatbelts;

(2) the admissibility of evidence as to the design “state of the art”;

(3) the admissibility of evidence on the relative severity of plaintiff’s injury;

(4) the plaintiff’s right to submit to the jury three theories of recovery i.e. products liability, redhibition and negligence, and how this right may be affected by defendant’s proposed stipulation that if the plaintiff recovers under a products liability theory he will be deemed to also recover under redhibition;

(5) the admissibility of a campaign bulletin recalling certain vehicles;

(6) the admissibility of a computer print out of the National Highway Traffic and Safety Administration, and depositions of nonparties both relating to allegedly similar defects;

(7) the admissibility of films of “crash tests” conducted by defendant.

Issues Amicably Resolved

Prior to the hearing, the parties reached an agreement, outlined below, as to certain of the issues; the remaining issues are in contest and form the basis of this report and recommendation.

a) Issue No. 2 — State of the Art Evidence

The Defendant, General Motors, contends that a vehicle design should be judged as to reasonable safe design based on the knowledge available at the time of the vehicle design and manufacture. The parties agree that the parties, in particular the Defendant, may introduce evidence as to the state of the art in the industry at the time of vehicle design and/or manufacture. Included in such evidence is evidence of the custom of the industry at the time. The parties agree that evidence of subsequent design changes based on experience, development, and advanced technology is not admissible.

b) Issue No. 3 — Admissibility of Evidence on the Relative Severity of Plaintiff’s Injury

The parties agree that no evidence should be allowed which relates to the severity of the injury sustained by Mr. Jordan as compared with injuries received by other persons involved in other accidents where the vehicle was travelling at a rate of comparable speed.

c) Issue No. 6(a) — Admissibility of Evidence of NHTSA Computer Printouts

The parties agree that the computer printout of the National Highway Traffic & ■Safety Administration is inadmissible.

Contested Issues

a) Issue No. 1 — Seat Belt Defense

It is uncontested, as a matter of fact, that seat belts were installed in the vehicle being driven by the Plaintiff; however, the seat belts were not in use at the time of the incident in question.

The Plaintiff contends that the 1981 Oldsmobile was defective in its design because there was:

“... the absence of a slot for the locking bar at the rear of the seat track on the driver’s side which allowed the locking bar to remain in an unlocked position when the seat was in its backward most position and insufficient width in the locking slots to permit full penetration of the locking bar. The manufacturing defects consisted in the utilization of equipment or technique which allowed for a variance in the size and width of the locking slots, or manufacturing the slots out of tolerance specified in design drawings, which prevented a full penetration of the locking bar. The lack of crash-worthiness arose out of the aforesaid design and manufacturing defects which compromised the integrity of the locking bar and permitted the nipple thereof to distort in a low speed collision (15 m.p.h.) which establishes the inadequacy of the seat adjuster assembly under Title 49 Sec. 541.207, Code of Federal Regulations.”

Because of these defects the Plaintiff asserts that the seat moved forward causing Plaintiff to be propelled and hit his head resulting in his severe injuries.

General Motors denies that any defect in design or manufacture existed. General Motors further asserts that the movement of the seat, if it did in fact occur, did not have any effect on Mr. Jordan’s movement off the seat. General Motors asserts that seat belts are an integral part of its overall vehicle safety design and urges that if Mr. Jordan had been wearing the seat belt his injury would have either been substantially reduced or eliminated. General Motors wishes to introduce evidence that (1) the vehicle was equiped with seat belts, (2) Mr. Jordan was not using the seat belts, and (3) the failure to use the seat belts caused or contributed to Jordan’s injuries. General Motors wishes to argue the seat belt defense and have same presented to the jury.

Introduction of Evidence and Jury Instructions relative to Jordan’s failure to use seat belts for the purpose of asserting the defense of contributory negligence and/or comparative fault

It is clear that the doctrine of contributory negligence does not apply; however, the law is unclear as to whether the Defendant may reduce recovery by asserting the comparative fault of Jordan, Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985); Benson v. Seagraves, 445 So.2d 187 (La. 3rd Cir., 1984). Because of the state of development of the law, the Defendant, General Motors Corporation, has acknowledged that it will not attempt to introduce evidence or request jury instructions relative to Jordan’s failure to use seat belts as constituting either contributory negligence or comparative fault.

Introduction of Evidence of Jordan’s failure to use seat belts in order to prove (1) the overall safety design of the vehicle, (2) Jordan’s assumption of risk, and (3) mitigation of damages.

(1) Overall safety design of the vehicle

Because the Plaintiff is attacking the design of the Oldsmobile in question, the Defendant may introduce evidence as to the availability of seat belts in determining whether the Oldsmobile, as designed, was unreasonably unsafe, Hermann v. General Motors Corporation, 720 F.2d 414 (1983); McElroy v. Allstate Insurance Company, 420 F.2d 214 (La. 4th Cir.1982).

(2) Assumption of Risk

Pursuant to Louisiana law, assumption of the risk, as a defense to strict liability assertions in a product case, is applicable when the tort victim voluntarily and unreasonably used a product with full knowledge of its defect and the danger involved, Verrett v. Cameron Telephone Co., 417 So .2d 1319 (La. 3rd Cir.1982). “[Assumption of risk involves ‘first, knowledge and appreciation of a danger, and second, a voluntary encountering of it.’ ” Bell v. Jet Wheel Blast, 709 F.2d 6, 7 (5th Cir.1983); Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5th Cir.1980).

After review of the memorandum of the parties and argument, the undersigned Magistrate cannot conceive of any logical connection between Jordan’s failure to use seat belts and the assumption of risk defense. The Defendant contends that Jordan’s movement off the seat was not caused by the alleged upward movement of the seat. It appears that the Defendant is contending that had Jordan used seat belts then he would not have lifted off the seat; however, this contention goes to the heart of contributory negligence or comparative fault, which the Defendant contends he is not asserting, and does not have any relevance to an assumption of the risk defense.

(3) Mitigation of Damages

The Defendant proposes the theory that it should be allowed to introduce evidence of the failure of Jordan to utilize seat belts to mitigate damages. In support of this theory, General Motors cites Caiazzo v. Volkswagenwerk, A.G., 468 F.Supp. 593 (E.D.N.Y.1979), affirmed 647 F.2d 241 (2nd Cir.1981).

General Motors submits that the instant case is a crashworthiness case in which the alleged product defect is alleged either to cause or enhance the Plaintiffs injuries, but did not cause the actual accident. Under the doctrine of crashworthiness, “a manufacturer is liable only for 'enhancement' damages comprised of 'that portion of the damage or injury caused by the defective design over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design,’ ” Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985).

It appears that General Motors is asserting that the Plaintiff’s injuries would have occurred regardless of whether or not the Plaintiff’s seat was defective. General Motors further wishes to establish that if the Plaintiff had been wearing seat belts the injury would not have occurred. Although the Magistrate could not locate any Louisiana cases directly on point, it appears that General Motors does have the right to introduce this evidence as it relates to causation of injury and the Plaintiff’s duty to mitigate his damages.

b) Issue No. 4 — Plaintiff’s right to submit to the jury three theories of recovery, i.e (1) products liability, redhibition and negligence in view of Defendants’ stipulation that if the Plaintiff recovers under a products liability theory he will be deemed to have also recovered under redhibition

From a review of the Plaintiff’s opposition to the motion in liminae, it appears that the Plaintiff does not intend to pursue a negligence claim but rather wishes to pursue a claim based on products liability and redhibition. However, in the event that the Plaintiff may wish to pursue a claim for negligence in addition to his claim for product liability, it is the Magistrate’s opinion that the Plaintiff should be limited to pursuing a cause of action based on product liability.

In order to recover under a strict products liability theory, the Plaintiff is required to show “(1) that the injury or damage resulted from the condition of the product; (2) that the condition made the product unreasonably dangerous to normal use; and (3) that the condition existed at the time the product left the control of the manufacturer.”, Bell v. Jet Wheel Blast, 462 So.2d 166, 168 (La.1985)

It is now well settled that in a products case “[I]f the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacturing or processing.”, Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (La.1971); Bell v. Jet Wheel Blast, Div. of Erwin Ind., 462 So.2d 166, 168 (La.1985).

Consequently, it is obvious that to succeed in a negligence case rather than a strict products case the Plaintiff has a more strenuous burden of proving that the manufacturer knew of the vices in his product or that a reasonable man would have known of the vices. The standard in a products case is clearly lesser than a negligence case and the allowable damages are the same. Because one theory of recovery encompasses the other theory of recovery and the type of allowable recovery is identical, there is no logical reason to present confusing evidence and confusing interrogatories to the jury, City of Jackson, Miss. v. Filtrol Corp., 624 F.2d 1384 (5th Cir. 1980). It is the recommendation of the Magistrate that the Court grant the Defendant’s motion to limit the Plaintiff from presenting a cause of action based on negligence.

The Plaintiff, however, has the right to pursue a claim against the manufacturer based both in tort as well as redhibition, Storey v. Lambert’s Limbs & Braces, Inc., 426 So.2d 676, 678 (La.1982); Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980).

The Defendant, alternatively, has suggested that if the Court allow the Plaintiff to proceed with a redhibition theory, that the redhibition cause of action be severed. While the elements of proof in these two causes of action differ, the facts in support of such proof can easily overlap. Further, although the Defendant generally asserts prejudice and confusion if the two causes of action are tried together, he has not sufficiently shown to the Court reasons to believe that such prejudice and confusion will actually occur. It is accordingly recommended that the motion of the Defendant to exclude the Plaintiff from proceeding with a cause of action based on redhibition be denied, and, further, that Defendant’s motion to sever be denied.

c) Issue No. 5 — Admissibility of Campaign Bulletin

In approximately March of 1979, General Motors Corporation engaged in recall campaign 80C02. The campaign pertained to inspection of certain vehicles assembled pri- or to February 5, 1979. Approximately 2600 vehicles were reinspected which resulted in the discovery of 53 vehicles which needed seat adjustment replacement. None of the vehicles requiring replacement were in the hands of customers. The problem necessitating the recall campaign dealt with the lock bar in the front seat adjuster assemblies failing to engage satisfactorily due to a clearance discrepancy. The clearance discrepancy involved the rectangular opening in the outer-upper track of the seat adjustment.

In the subject case, the design and/or manufacturing defect of the seat adjustment system, asserted by the Plaintiff, deals with the lower-inner track and the size or shape of the “nipple.” While the Plaintiff argues that the seat assembly system utilized in the 1980 Oldsmobile Omega model is the same as the system used in the 1981 Oldsmobile Omega model, the recall campaign was only directed to certain General Motors vehicles manufactured pri- or to February 5, 1979. The 1981 Oldsmobile Omega involved in this case was not built until May of 1981.

Although this matter is a diversity case, the Federal Rules of Evidence govern the admissibility of evidence, Ballou v. Henri Studios, Inc., 656 F.2d 1147 (5th Gir.1981). Rule 401 of the Federal Rules of Evidence defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Because the recall campaign dealt with a different model year and because the defect involved in the recall campaign is distinctly different from the defect alleged in this case and involved a different section of seat assembly, it appears that introduction of evidence dealing with the recall campaign is not relevant. Further, even if such evidence could be broadly construed as constituting relevant evidence the probative value of such evidence is substantially outweighed by the danger of unfair prejudice and the possibility of misleading the jury, Federal Rules of Evidence, Rule 403.

d) Issue No. 6(b) — Admissibility of depositions relating to allegedly similar defects

The Plaintiff wishes to use the deposition testimony of Messrs. Kolzow, Norseth, Ladra and Mr. & Mrs. Robert Amiss in order to prove similar defect, trajectory of Plaintiff’s body, cause of the trajectory, and to show that the trajectory would have been the same or similar whether or not the Plaintiff used the seat belt.

If evidence of similar accidents is relevant then the evidence may be admitted, Ramos v. Liberty Mutual Insurance, 615 F.2d 334 (5th Cir.1980). Evidence of prior similar accidents is generally admissible to prove the defendant’s knowledge of the dangerous situation, “magnitude of the danger involved, the defendant’s ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation,” Ramos, supra at 338-339. Because the evidence of similar accidents “draws its relevance from the principle that similar causes can be expected to produce similar effects, admissibility ... hinges upon demonstration that conditions had been substantially similar on all occasions,” Tug Ocean Prince, Inc. v. United States, 436 F.Supp. 907 (S.D.N.Y., 1977). The Court's initial inquiry should be directed as to whether the incidents involving the deposition testimonies of Messrs. Kolzaw, Norseth, Ladra, and Mr. & Mrs. Amiss were similar to the incident made the basis of this suit. The Magistrate has accordingly read these depositions and the deposition of the Plaintiff.

Mr. Kolzow owns a 1980 Oldsmobile Omega. According to Mr. Kolzow, he had a problem with the passenger side of the front seat which jiggled.

Mr. Norseth owned a 1980 Chevrolet Citation. In 1980, Mr. Norseth was involved in an accident when his car left the highway while he, traveling in the 50-60 m.p.h. range, landed on all four wheels in a bar pit and travelled on the bar pit for a couple of hundred feet and flew into a large ditch and landed with his front end lodged in the ditch. Mr. Norseth’s seats, front and back, dislocated.

Mr. Ladra owns a 1980 Buick Skylark. His complaint with the seat adjustment system is that he needed two people to move the front seat — one on the passenger side and one on the driver’s side, and that he needed to “jiggle” the seat to lock it.

Mrs. Amiss, while driving a 1980 Buick Skylark, was involved in an accident on October 29, 1980 when a second vehicle hit her stopped vehicle at an impact rate of approximately 50-60 m.p.h. The other vehicle was a small General Motors sports car which went under the Buick Skylark and tore the bottom of the Skylark apart. As a result, the Skylark was demolished and the front seat adjuster lever was deformed and bent, allowing the seat to move freely.

In the opinion of the Magistrate, these other incidents, resulting damage, and problems relating to the seat adjustment system are so dissimilar to the facts given relating to this case that the evidence should be excluded as irrelevant.

e) Issue No. 7 — Admissibility of “Crash Test” films

George Jordan asserts that the failure of the seat assembly caused him to leave his seat and strike his head on the sun visor. Genera] Motors takes the position that the seat did not move forward but, even if it did, the trajectory of Mr. Jordan during the accident was unaffected by the seat movement.

In support of its position, General Motors produced a video tape of four tests of crashes and the effects of these “accidents” on a dummy driver. General Motors, through the deposition of Kenneth Orlowski, a Senior Staff Analysis Engineer for General Motors, has produced evidence reflecting that the four tests were run at the same speed to simulate the 15 mile per hour impact of the Jordan accident using a male dummy to reproduce Jordan’s height and weight, and placed in a position similar to Jordan’s position at the time of the accident. The tests involved the following situations:

SEAT ADJUSTER OCCUPANT ASSEMBLY

1. Unrestrained Locked

2. Restrained with lap and shoulder safety belts Locked

3. Unrestrained Not engaged

4. Restrained Not engaged

According to General Motors, the tests show that even if the Jordan seat had been firmly locked the trajectory of the Plaintiff would have been the same as the trajectory Jordan underwent at the time of his impact with the sun visor.

The Plaintiff objects to the introduction of this film for the reason that the tests can not and do not accurately duplicate the Jordan impact.

The Eighth Circuit in Ramseyer v. General Motors Corp., 417 F.2d 859, 864 (8th Cir.1969) succinctly set forth the applicable law as follows:

Admissibility of evidence depends upon a foundational showing of substantial similarity between the tests conducted and actual conditions. See, Skogen v. Dow Chemical Co., 375 F.2d 692, 704 (8th Cir.1967); Gillam v. J.C. Penney Co., 341 F.2d 457, 460 (7th Cir.1965); Larson v. Meyer, 161 N.W.2d 165 (N.D.1968); Crecelius v. Gamble-Skogmo, Inc., 144 Neb. 394, 397, 13 N.W.2d 627 (1944). Perfect identity between experimental and actual conditions is neither attainable nor required. Lobel v. American Airlines, 205 F.2d 927, 931 (2d Cir.1953). Dissimilarities effect the weight of the evidence, not admissibility. See, Lever Bros. Co. v. Atlas Assur. Co., 131 F.2d 770 (7th Cir.1942). Finally, the decision whether to admit or exclude evidence of experiments in a particular case rests largely in the discretion of the trial judge and his decision will not be overturned on appeal absent a clear showing of an abuse of discretion. See, e.g., Skogen v. Dow Chemical Co., supra; Ripp v. Riesland, 180 Neb. 205, 141 N.W.2d 840 (1966); Reizenstein v. State, 165 Neb. 865, 87 N.W.2d 560 (1958); Crecelius v. Gamble-Skogmo, Inc., supra. See also Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985).

The burden rests on General Motors at trial to lay a proper foundation demonstrating a similarity of circumstances and conditions, Barnes v. General Motors Corp., 547 F.2d 275 (5th Cir.1977). While it is not necessary for General Motors to precisely reproduce all factors existing at the time of the Jordan instance, it is necessary that General Motors reproduce the conditions “in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed,” Barnes, supra at 277.

While the admission of the “crash test” films is clearly within the Court’s discretion, Szeliga v. General Motors Corp., 728 F.2d 566 (5th Cir.1984), it is recommended that if General Motors lay the proper foundation at trial that the Court admit the “crash test” into evidence, Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir. 1985).


source: Caselaw Access Project

author: BROOKS, District Judge.

license: Public Domain

text:
    John B. BRECKINRIDGE, Plaintiff, v. BRISTOL-MYERS COMPANY and Mead Johnson & Company, Defendants.
    No. EV 83-34-C.
    United States District Court, S.D. Indiana, Evansville Division.
    July 19, 1985.

      Theodore Lockyear, Lockyear & Kornblum, Steve Barber, Evansville, Ind., for plaintiff.
    Francis Carling, Winthrop, Stimson, Putnam & Roberts, New York City, F. Wesley Bowers, Bowers, Harrison, Kent & Miller, Evansville, Ind., for defendants.
   MEMORANDUM ENTRY

BROOKS, District Judge.

Pending before the Court are cross motions to disqualify counsel. In addition to the motion to disqualify counsel, the defendants further seek to disqualify the plaintiff, an attorney, from proceeding as a party to this action. The result of such disqualification, quite obviously, would be the dismissal of this lawsuit. The Court enters its rulings on both motions in this entry.

I

DEFENDANTS’ MOTION TO DISMISS AND/OR DISQUALIFY COUNSEL

John B. Breckinridge was an attorney for one or both defendants from 1959 until 1982. The defendants characterize him as Mead Johnson & Company’s (“Mead Johnson”) chief legal officer. Breckinridge was retired in 1982 at age 65 holding titles of vice president and senior division counsel. He brought this lawsuit pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, in which he claims his forced retirement was unlawful. The defendants assert as a defense an exception to ADEA stated at 29 U.S.C. § 631(c)(1) which exempts employees from coverage who hold “bona fide executive” and/or “high policy-making” positions. A determination of Breckinridge’s status clearly is pivotal to his case and is a matter properly left to the trier of fact.

The defendants’ motion to disqualify counsel is based upon an allegation that the plaintiff breached his duty to keep confidential matters between himself and his clients, the defendants. In summary, these alleged instances of misconduct include:

(1) Plaintiff reported to his current counsel the substance of conversations between himself as defendants’ attorney and officers/employees of the defendant. The defendants contend these conversations may be relevant to this action and that the plaintiff’s revelation of those confidences breaches disciplinary rules imposed upon him and will result in his former clients’ detriment.
(2) Plaintiff removed photocopies of his chronological file, a compilation of the correspondence, memoranda, and written work product, and turned that file over to his current counsel. The defendants claim the chronological file contains matters within the attorney-client privilege and that confidences have been breached by the plaintiff’s actions.
(3) The plaintiff removed notes of an attorney-client conversation between subordinate attorney Deane Anne Johnson and Larry Simon, an employee of the defendants.
(4) The plaintiff removed a copy of a legal opinion rendered for the defendants by an outside law firm, Winthrop, Stimson, Putnam & Roberts. Defendants claim the contents of that opinion were privileged and may be used by the plaintiff wrongfully in support of his ease.

The defendants insist they have not waived the attorney-client privilege at any time during or before this litigation. They further contend the plaintiff has exploited the privileged and confidential information he possessed or removed during the course of discovery in this litigation. For these reasons, the defendants seek an order of this court barring the plaintiff from proceeding with his case.

A motion for disqualification of counsel is a drastic measure which courts should hesitate to impose except when of absolute necessity. Schiessle v. Stephens, 717 F.2d 417 (7th Cir.1983); Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th .Cir.1982). Such a motion is within the sound discretion of the court. English v. Local Union No. 46, 654 F.2d 473 (7th Cir.1981). The court’s power to consider a motion for disqualification is “broad,” Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir.1976), but must be exercised with caution: “A disqualification of counsel, while protecting the attorney-client relationship, also serves to destroy a relationship by depriving a party of representation of their own choosing.” Freeman, supra, 689 F.2d at 721.

The issue before the court in the instant case, however, is distinct from the line of cases following Scholetter and summarized recently in Analytica, Inc. v. NPD Research, 708 F.2d 1263 (7th Cir.1983). The Court need not make extensive inquiry into the past representation by the counsel sought to be disqualified or determine whether a “substantial relationship” existed between that prior representation and the subject matter of the instant case. That much is readily conceded here. Breckinridge represented these defendants in a variety of matters. He discussed the subject matter of the instant case while still in the defendants’ employ. The question before the Court is whether, as the plaintiff contends, his attempt to vindicate a personal right exonerates him from at least some of the duties imposed by Disciplinary Rule 4-101 and whether the information in the plaintiff’s possession, and which conceivably violates the confidences of his former client, has so tainted this litigation as to render dismissal the lone adequate remedy for such breaches.

Disciplinary Rule 4-101(B) states:

Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent a crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

This latter exception has been amplified in footnotes to the rules and in ABA opinions. ABA Opinion 250 (1943) is helpful in amplifying the exceptions:

So if it became necessary for the attorney to bring an action against the client, the client’s privilege could not prevent the attorney from disclosing what was essential as a means of obtaining or defending his own rights.
* * * * * *
It has frequently been held that the rule as to privileged communications does not apply when litigation arises between attorney and client to the extent that their communications are relevant to the issue. In such cases, if the disclosure of privileged communications becomes necessary to protect the attorney’s rights, he is released from those obligations of secrecy which the law places upon him. He should not, however, disclose more than is necessary for his own protection. It would be a manifest injustice to allow the client to take advantage of the rule of exclusion as to professional confidence to the prejudice of his attorney, or that it should be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights. In such cases the attorney is exempted from the obligations of secrecy.

The Code of Professional Responsibility, from which the Disciplinary Rules quoted above are taken, has been expressly adopted as the standard of conduct for attorneys practicing in this Court. Local Rule 1(f).

It is defendants’ contention that the district court decision in Cannon v. U.S. Acoustics Corp., 398 F.Supp. 209 (N.D.Ill. 1975), aff'd, 532 F.2d 1118 (7th Cir.1978), makes the remedy of dismissal and disqualification incumbent upon the Court in the instant case. At issue in that case was a motion to disqualify attorney Charles B. Cannon who was a plaintiff in a shareholders’ derivative action against Cannon's former corporate client. Cannon had represented the defendant in prior matters substantially related to issues in the derivative action. The defendants successfully contended that Cannon could not prosecute or be a party to the litigation consistent with the Code of Professional Responsibility. In so ruling, the district court (in an opinion adopted by the Seventh Circuit) was guided by Richardson v. Hamilton International Corp., 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973), which similarly had disqualified an attorney as a party to a derivative action against a former client. The Cannon court concluded after reviewing the entire factual setting (398 F.Supp. at 227-28) that Cannon’s prior representation of the defendant had been so “lengthy and pervasive” that disqualification was also compelled under Canon 9 of the Code of Professional Responsibility.

The plaintiff relies upon Doe v. A. Corp., 709 F.2d 1043 (5th Cir.1983), which concluded, “A lawyer ... does not forfeit his rights simply because to prove them he must utilize confidential information. Nor does the client gain the right to cheat the lawyer by imparting confidences to him.” Id. at 1050. The logical distinction the plaintiff would have the Court draw in this case is that where a personal right, rather than a derivative right, is sought to be vindicated, confidential information may be used by the plaintiff/attorney within careful limitations and the Court’s scrutiny.

This Court disdains the remedy of dismissal where such can be avoided by a logical application of the law and a common sense approach to remedy a dispute. The defendants repeatedly argue that Breckinridge was under a duty to “change hats” in full view of his clients at some point during the discussions preceding this lawsuit. Indeed, the Seventh Circuit places a substantial burden on attorneys to “disavow” their status as attorney and to keep clients apprised of potential conflicts. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1320-21 (7th Cir.1978), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). But the Court, as a practical matter, is unable to conclude that Breckinridge’s recollection of conversations with Mead Johnson officers and employees about his circumstances, and his later relating those conversations to his current counsel, are sufficient to violate the letter or spirit of D.R. 4-101.

The defendants’ argument strikes the Court as insincere. They contend in hindsight that Mead Johnson officers and employees were consulting the plaintiff for legal advice that related to his own retirement. The record reveals that the plaintiff’s potential forced retirement, and his resistance thereto, were well known to all parties. Suggesting that conversations between Breckinridge and Mead Johnson officers — which initially were aimed at amicable resolution of this dispute — were conducted within the attorney/client protections strains credulity. More than anything else, these were conversations between an employer and an employee who happened to be an attorney. The hindsight-guided argument that the plaintiffs conversations with his employer, and any knowledge or insight acquired therein, should compel dismissal simply falls short. Common sense and caution might have dictated that Breckinridge attempt to avoid this trap. But if defendants really believed they were consulting legal counsel for advice on his own forced retirement, their naivete should not be rewarded by dismissal of this lawsuit.

The remaining instances of alleged breaches of attorney/client privilege are more troubling to the Court. These allegations involve removal of items from the defendants’ files which the plaintiff believes will aid his cause of action.

The chronological file, for instance, probably contains discoverable materials which are relevant to the ultimate classification of Breckinridge’s duties — whether the defendants’ defense will hold up is dependent on a description and verification of precisely what Breckinridge did while in their employ. The Court presumes the contents of that file are potentially helpful to both sides. There is further the evident confusion over whether one of the defendants’ officers permitted Breckinridge to remove the chronological file. That dispute is not easily solved on this record. While the Court is inclined to side with the defendants in finding the file falls within the attorney/client privilege, the conclusion is inescapable that contents of that file are discoverable. The parties will be ordered to review the file for contents which would have been discoverable, but the plaintiff is not entitled to retain any photocopies not deemed to be discoverable.

The Court finds that the Deane Anne Johnson memorandum of her conversation with Larry Simon, regardless of her “voluntary” submission to the plaintiff, her superior, also is within the defendants’ attorney/client privilege and that no waiver of that privilege has occurred in this ease. The Court further finds that the legal opinion prepared by the Winthrop, Stimson law firm also is a document protected by the attorney/client privilege. No matter how one chooses to classify these documents, the contents remain a matter of confidence between the defendants and their counsel. Access to those documents by an aggrieved employee/attorney does not grant him license to collect and disseminate their con- . tents because he believes it helpful to his cause of action.

Breckinridge’s conversations with his bosses are one matter; the removal of arguably relevant documents presents quite another. “A client does not gain a right to cheat a lawyer by imparting confidences to him,” Doe, 709 F.2d at 1050, but there is an important distinction to draw between allegedly confidential matters learned in conversations about one’s status or reflected in one’s own files and the memoranda prepared by others and simply taken without regard to the client’s confidences. The plaintiff was seeking every angle to make his case while still employed; that did not give him license to review his client/employer’s files and documents and without permission, to then remove them for his own benefit.

The Court nevertheless is faced with the vexatious problem of remedying this situation, preferably without dismissing the lawsuit. In this sense, the Court concludes the reasoning in Doe, supra, is more in line with this fact situation than is Cannon. Although the Seventh Circuit has not yet decided a case where the attorney attempts to vindicate a personal right as his major cause of action, this Court does not read Cannon to bar attorneys in Breckinridge’s shoes from pursuing the case presented here. In addition, the Court does not agree that the breaches of confidence herein have so tainted the case as to render a fair trial impossible. The Johnson memo and the Winthrop, Stimson opinion may well be viewed by the parties as significant for different reasons, but the Court perceives this case could continue without the plaintiff’s reference to those documents and without prejudice to the defendants. Moreover, the Court also believes the contents of the chronological files would have been discoverable in some form, perhaps expurgated or stipulated, but nevertheless part of the record. What Breckinridge did as the defendants’ employee is assuredly relevant and pivotal in this case.

By deciding that Breckinridge was at least partially in the wrong but that dismissal is an unwarranted remedy, the Court imposes on itself the onerous duty of vigilance as this litigation continues. In so doing, the Court endeavors to be fair to both sides until the case is resolved, preferably avoiding disclosure of information within the defendants’ attorney/client privilege, but permitting the plaintiff to present his case within the rules of the court and his profession.

According, the Court enters the following orders:

1. The plaintiff is ORDERED to return to the defendants any original or photocopied memoranda prepared by Deane Ann Johnson or the Winthrop, Stimson, Putnam & Roberts law firm at issue in the motion herein considered.
2. The parties are ORDERED to undertake a review of the chronological file, pursuant to Local Rule 13, and reach accord on those filings which would have been discoverable through ordinary procedures had Breckenridge not removed the file. Magistrate John Paul Godich will thereafter convene a pre-trial conference during which any disputes regarding that discovery may be resolved. The magistrate shall have the discretion to resolve disputes as to relevance and discoverability, and any remaining portions of the plaintiff’s photocopies not deemed relevant or discoverable will be returned to the defendants forthwith.
3. The parties are ORDERED to avoid framing future, discovery motions or requests by reference to documents protected by this order.
The defendants’ motion to dismiss is DENIED.

The Court sees no value in disqualifying plaintiff’s counsel in this case. Because the Court already has found the case is insufficiently tainted to warrant dismissal, there would be little sense in requiring the plaintiff to lose counsel of his choosing and re-commence the discovery and necessary preparation of the litigation. The motion to disqualify counsel is DENIED.

II

PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL

The plaintiff seeks to disqualify principal counsel for the defendants, Francis Carling, and the law firm of Winthrop, Stimson, Putnam & Roberts, based upon Carling’s involvement in this case prior to the litigation. In summary, the plaintiff alleges that Carling prepared, at the instance of Bristol-Myers, a statement summarizing the plaintiff’s duties at Mead Johnson for submission to the Equal Employment Opportunity Commission. Apparently, the defendants were seeking guidance, before commencement of this litigation and before its decision to retire Breckenridge involuntarily, as to whether the plaintiff’s duties placed him within the exemption of § 631(c)(1). Carling’s contacts with the EEOC occurred without the plaintiff’s knowledge, and the plaintiff is critical of the submissions and their accuracy. It is alleged that Carling sought an EEOC opinion which would ratify the advice his firm already had given to Bristol-Myers, i.e., that Breckinridge’s duties were within the § 631 exemption. The EEOC refused to do so, and Carling re-submitted a set of facts, the accuracy of which the plaintiff more vigorously protests, to the legal staff of the EEOC. An informal decision favorable to the defendants was issued. Efforts to secure a formal opinion were unsuccessful.

The plaintiff asserts this scenario is relevant to the good faith defense raised by the defendants in their answer. Moreover, the plaintiff insists that Carling, claimed to be a “dominant” figure in that pre-litigation activity, must be called as a witness either by the defendant to establish the defense or by the plaintiff to undermine the defense.

The plaintiff’s motion to disqualify directs the court to consider application of Disciplinary Rule 5-102 which states:

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

In order to succeed on the motion presented, the plaintiff must establish a factual foundation for its assertion that Carling ought to testify or that the testimony elicited by the plaintiff when calling Carling to the witness stand will be prejudicial to the defendants.

That counsel should avoid appearing both as advocate and witness except under special circumstances is beyond question. United States v. Morris, 714 F.2d 669, 671 (7th Cir.1983); United States v. Johnston, 690 F.2d 638 (7th Cir.1982) (en banc). However, there must be some rational basis in the record to support a court’s disqualification of counsel based upon D.R. 5-102.

The Court finds the plaintiff has failed to establish that the defendants ought to call Carling to testify. The issue at trial is the defendants’ good faith, not Carling’s good faith. If the facts given to Carling were misleading or erroneous, representatives of the defendants who relayed that information to counsel may be questioned. Suggestions that Carling orchestrated misinformation is without support in this record. Carling was a courier of his client’s knowledge and compilation of the facts; that does not convert him into a defendant or a witness who ought to testify in these proceedings.

In addition, there is no support for the assertion that any testimony Carling might give would be prejudicial to his clients. If an attorney feels his testimony will be prejudicial to his client then it is incumbent upon him to withdraw. US. v. Reeder, 614 F.2d 1179, 1186 (8th Cir.1980). The intensity of Carling’s contrary protestations and the absence of a factual foundation to support plaintiff’s contention that Carling’s testimony would be prejudicial to his client lead this Court to a conclusion that the motion is not well taken.

Because the plaintiff has failed to establish the necessary foundation for disqualification of counsel for a violation or potential violation of Disciplinary Rule 5-102, the motion is hereby DENIED.


author: MILES W. LORD, Senior District Judge.

text:
    Barbara Anne GORRIE, Karen Comnick, Linda Schneider, Robert Schneider, on behalf of themselves and their minor children, and other persons similarly situated, Plaintiffs, JoAnne Heille, Rosa Williams, Jean Sonnenberg, and Linda Garza, on behalf of themselves and their minor children, and other persons similarly situated, Intevenor-Plaintiffs, v. Margaret M. HECKLER, Secretary, United States Department of Health and Human Services, and Leonard W. Levine, Commissioner, Minnesota Department of Human Services, Defendants.
    Civ. No. 4-84-1203.
    United States District Court, D. Minnesota, Fourth Division.
    July 22, 1985.
    Permanent Injunction Order Sept. 10, 1985.

      Southern Minnesota Regional Legal Service by Martha A. Eaves, Thomas G. Squire, and Michael Hagedorn, St. Paul, Minn., for plaintiffs.
    Law Office of the Legal Aid Society of Minneapolis, Inc. by Richard A. Pavel, Minneapolis, Minn., for intervenor-plaintiffs.
    Carol B. Swanson, Asst. U.S. Atty., Minneapolis, Minn., for defendant Margaret M. Heckler, Secretary of the U.S. Dept, of Health and Human Services.
    Hubert H. Humphrey III, Minn. State Atty. Gen. by Vicki Sleeper, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendant Leonard Levine, Com’r of the Minnesota Dept, of Human Services.
   ORDER FOR PRELIMINARY INJUNCTION

MILES W. LORD, Senior District Judge.

This matter came before the Court on July 16, 1985 on the motion of intervenorplaintiffs for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a). Intervenor-plaintiffs were represented by Richard A. Pavel; plaintiffs were represented by Martha A. Eaves; defendant Commissioner was represented by Vicki Sleeper and defendant Secretary was represented by Anne L. Weismann. Based upon the entire record before the Court and after consideration of argument by counsel, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. The original plaintiff class consists of families who are receiving or applying for Aid to Families with Dependent Children (hereinafter “AFDC”) who have residing with them both dependent children and other children (either blood-related or adoptive) who receive independent child support payments from non-custodial parents.

2. The intervenor-plaintiff class consists of persons who are receiving or applying for AFDC who have residing with them both dependent children and other children (either blood-related or adoptive) who receive Social Security Child’s Insurance Benefits pursuant to 42 U.S.C. § 402(d).

3. At issue in this case is the validity of the Secretary of Health and Human Services’ (hereinafter “Secretary”) interim final rule, 45 C.F.R. § 206.10(a)(l)(vii) (hereinafter “New Rule”), interpreting .section 2640(a) of the Deficit Reduction Act of 1984, (hereinafter “DEFRA”) Pub.L. No. 98-369, 98 Stat. 494, 1145 (effective October 1, 1984) (codified at 42 U.S.C. § 602(a)(38) and hereinafter referred to as “Paragraph 38”). Paragraph (38) provides that:

[I]n making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include—
(A) any parent of such child, and
(B) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of section 606(a) of this title [42 U.S.C. § 606(a) ], if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 405(j) of this title [42 U.S.C. § 405(j) ], in the ease of benefits provided under sub-chapter II of this chapter); 42 U.S.C. § 602(a)(38).

In its conditional language Paragraph 38 incorporates unchanged 42 U.S.C. § 606(a)(1) and (2) which defines the term “dependent child” as “a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home ... or physical or mental incapacity of a parent” and who is under a specified age (either 18 or 19). 42 U.S.C. § 606(a).

4. The Secretary’s New Rule provides that:

For AFDC only, in order for the family to be eligible, an application with respect to a dependent child must also include, if living in the same household and otherwise eligible for assistance:
(A) Any natural or adoptive parent, or stepparent (in the case of States with laws of general applicability); and
(B) Any blood-related or adoptive brother or sister.

49 FecLReg. 35599 (Sept. 10, 1984), to be codified at 45 C.F.R. § 206.10(a)(l)(vii).

5. On September 24, 1984, Defendant Commissioner issued an Instructional Bulletin No. 84-76, Attachment 9 which instructed all county welfare agencies in Minnesota that:

Parent, minor siblings and minor half-siblings must all be included as part of the AFDC assistance unit when they reside in the same home. An application must be submitted for all members of the assistance unit. If application is not made for currently excluded parents, minor siblings or minor half-siblings by November 1, 1984, the AFDC case shall be terminated.

6. On April 1, 1985 this Court issued a Preliminary Injunction upon the motion of the original plaintiff class herein; that Order concluded that the Secretary’s New Rule facially violated the purpose of the AFDC program, the intent of Paragraph 38, and the due process rights of the original plaintiff class. Said injunction established a pre-deprivation hearing requirement to ensure compliance with due process safeguards.

7. Defendant Commissioner issued an Instructional Bulletin No. 84-76d on April 15, 1985, which was intended to implement the Court’s April 1st injunction and which stated in part: “NOTE: children receiving ESDI [Social Security Child’s Insurance Benefits] or other forms of income are not affected by this preliminary injunction. ”

8. The defendants have made no factual determination as to whether the intervenor children who receive Social Security meet the condition of Paragraph 38 that these children must in fact be “dependent children” who are “needy” before they come within the scope of Paragraph 38. Instead, the defendant Secretary has focused solely upon whether these children have one parent who is absent, deceased or incapacitated and the New Rule creates an irrebuttable presumption that the status of that parent is conclusive evidence that the Social Security recipient child is a “needy” dependent child who must actually file an application for AFDC benefits without regard to whether such children either need or desire welfare assistance.

9. The Secretary’s New Rule conclusively presumes that the Social Security benefits of plaintiff children are fully available to the AFDC recipient/applicant half-brothers and/or half-sisters without any regard to whether that income is in fact legally available or actually available to those AFDC recipient/applicant children.

10. The Social Security Child’s Insurance benefits of the class members vary in amount because they are based upon the earnings history of their deceased, incapacitated or retired wage-earner parents. 42 U.S.C. § 402(d). Even in cases where a plaintiff child receives more than $500 per month in Social Security benefits, the Secretary’s new rule still conclusively presumes that such a child is “needy” and “dependent” and therefore that child is required to apply for AFDC benefits or their half-siblings will be terminated from AFDC. {See, Affidavits of class members West and Brown).

11. The representative payees who receive the Social Security benefit checks for intervenor-plaintiff children are prohibited by law from using those funds for any purpose whatsoever except “for the use and benefit of” the intended child beneficiary; violation of this prohibition would subject a representative payee to federal criminal sanctions. 42 U.S.C. § 408(e). The Secretary’s own regulations also require that these Social Security benefits be used only for the intended child beneficiary. 20 C.F.R. §§ 404.2040, 404.2045.

12. The transfer or assignment of Social Security benefits, including Child’s Insurance benefits, is strictly prohibited by statute.

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this sub-chapter shall be subject to execution levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law. 42 U.S.C. § 407(a).

13. In 1983 Congress added a provision to 42 U.S.C. § 407 which strictly prohibits any modification of 42 U.S.C. § 407 by any method whatsoever except when adopted “by express reference to this section.” 42 U.S.C. § 407(b). Paragraph 38 contains no express reference to 42 U.S.C. § 407.

14. The intervenor-plaintiff class members are at the economic margin of existence and would suffer severe economic hardship if an injunction is not issued. All of the AFDC recipients in the intervenor class face either substantial reductions or total termination of their AFDC grants if the Secretary’s New Rule is enforced as to this class of plaintiffs.

Mary West’s AFDC grant of $431 was terminated on July 1, 1985 because of the Secretary’s New Rule. The West family now must rely entirely upon the Social Security benefits of one child for their support. In July, 1985 they spent 88% of their total income just to pay for rent.

The application of the New Rule in the case of Virginia Brown creates a loss of $447 per month in AFDC benefits. The one child in the household who receives Social Security benefits has special medical and behavioral problems. However, that child has almost $3000 in past-due medical bills which cannot be paid because under the Secretary’s New Rule he is forced to use his Social Security income to support his half-siblings.

Jean Sonnenberg and her family would lose $175 per month in AFDC benefits under the New Rule. Their total income for four persons would be $605 per month. Their cost of rent and utilities in June, 1985, exceeded $500. If the New Rule is applied to their household they will not have sufficient funds left over after paying their rent and utilities to afford other necessities.

Florida McHenry is caretaker for eight minor children and has lost $520 per month in AFDC benefits as a result of the Secretary’s New Rule. The household’s rent alone is $470 per month which leaves only $495 per month to provide all other necessities other than rent for 9 persons.

Rosa Williams’ family would lose $219 per month in AFDC benefits under the New Rule. Under the New Rule the Williams’ household would spend 64% of their total income on rent alone.

15. The defendant Commissioner is not opposed to the injunctive relief being requested except for requesting five additional days to implement the relief. The Court concludes that the administrative costs of implementing the requested relief would not be an undue hardship upon the state defendant.

The only harm claimed by defendant Secretary is administrative harm, however, any potential overpayments of AFDC benefits are recoverable later.

CONCLUSIONS OF LAW

1. The Secretary’s New Rule facially violates the terms of 42 U.S.C. § 602(a)(38) because it ignores the conditional language of the statute which incorporates by reference the existing language of 42 U.S.C. § 606(a)(1) and (2). By focusing solely on the status of one parent of the Social Security beneficiary child, the New Rule conclusively presumes that all such children are “dependent” children who are “needy” and “deprived of parental support or care.” 42 U.S.C. § 606(a).

2. The Secretary’s New Rule is also inconsistent with the Secretary’s own regulation requiring that both actual need and deprivation of parental support or care be present to qualify for AFDC benefits. See, 45 C.F.R. § 233.90(c)(l)(i).

3. The AFDC program’s fundamental purpose is to provide financial assistance to needy children who are not adequately protected by state-imposed child support laws. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). See also 42 U.S.C. § 601. The Secretary’s New Rule is thus in direct conflict with a long-standing goal of the AFDC program to foster self-sufficiency and independence from public aid. Instead the New Rule mandates that children who are not otherwise needy must apply for AFDC benefits thus resulting in an increase in the number of children dependent upon welfare benefits.

4. In the AFDC program the term “income” refers only to that income which is both actually and legally available. Owens v. Heckler, 753 F.2d 675, 679-80 (8th Cir. 1985); Snider v. Creasy, 728 F.2d 369 (6th Cir.1984); and Riddick v. D’Elia, 626 F.2d 1084 (2d Cir.1980).

5. The purpose of Paragraph 38 of the Deficit Reduction Act is to stop the previous practice whereby families who shared living expenses in fact could elect to avoid having that cumulative income counted for AFDC purposes. Such an interpretation of Paragraph 38 is consistent with both the AFDC program’s purpose of providing for needy children and the purpose of preventing non-AFDC children from actually providing income to their AFDC recipient half-siblings without those provided funds being treated as income to the AFDC child.

6. Paragraph 38’s requirement of “availability of income” necessarily involves a two-step process of determining first, whether the Social Security Child’s Insurance Benefits are actually available to the designated child, and second, whether, if available to that child, those funds are actually available to be shared with other family members who receive AFDC. The Secretary’s New Rule also facially violates 42 U.S.C. § 602(a)(7) and (38) because it irrebuttably presumes the availability of this Social Security income to AFDC children without regard to whether those funds are in fact “actually available” to them.

7. Neither the express language of Paragraph 38 nor its general purpose require that the half-siblings of AFDC recipients/ applicants must actually file an application for AFDC.

8. Social Security benefits are-neither transferable nor assignable at law or in equity and they shall not be subjected to any legal process. 42 U.S.C. § 407. This anti-alienation provision is “all-inclusive” and has been strictly construed to limit transfers of any Social Security benefits. Tidwell v. Schweiker, 677 F.2d 560, 567 (7th Cir.1982) cert. denied, 461 U.S. 905, 103 S.Ct. 1874, 76 L.Ed.2d 806 (1983). Section 407 “imposes a broad bar against the use of any legal process to reach all Social Security benefits. Philpott v. Essex County Welfare Board, 409 U.S. 413, 415, 93 S.Ct. 590, 591, 34 L.Ed.2d 608 (1973).

The coerced transfers of Social Security benefits that are necessarily contemplated by the Secretary’s New Rule facially violate the anti-alienation provision of 42 U.S.C. § 407(a). Congress could not have intended such an interpretation of Paragraph 38. Two statutes should be interpreted, if possible, to give effect to each. E.g., Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981); McKenzie v. Heckler, 602 F.Supp. 1150, 1158 (D.Minn.1985) appeal docketed, No. 85-5103-MN (8th Cir. April 3, 1985). The Secretary’s interpretation of Paragraph 38 with respect to Social Security would necessarily ignore the prohibitions of the anti-alienation statute.

9. The Secretary’s New Rule is also inconsistent with 42 U.S.C. § 408(e) and with the Secretary’s own existing regulations (20 C.F.R. §§ 404.2040, 404.2045) because its fundamental purpose is to make the representative payees use these Social Security funds to support half-siblings for whom the funds were never intended and to take those Social Security benefits away from the intended child beneficiary. The New Rule thus creates a policy which necessarily encourages and assumes that the representative payees for these Social Security beneficiaries will commit a federal criminal law violation of 42 U.S.C. § 408(e). This Court is convinced that Congress never intended Paragraph 38 to be interpretted in such a manner.

10. In addition to its general purpose, Paragraph 38 has a secondary and more narrow purpose which is to reverse the effect of the decisions in Cunningham v. Toan, 728 F.2d 1101 (8th Cir.1984) and related cases so as to allow states to deem Social Security income of a parent as income that is presumptively available to that parent’s own child who is seeking AFDC benefits.

11. The instant case is distinguishable from the case of Cunningham v. Toan, 762 F.2d 63 (8th Cir.1985), modifying 728 F.2d 1101 (8th Cir.1984) for two reasons. First, the minor parent Social Security beneficiaries in Cunningham had a clear legal obligation under state law to support their own children. There is no similar legal obligation on the part of a minor child to support his or her half-sisters and half-brothers. The undeniable effect of the Secretary’s New Rule is to create an obligation to support one’s half-siblings. Secondly, a Social Security beneficiary is subject to garnishment of his/her Social Security benefits for child support purposes. 42 U.S.C. § 659(a). Unlike the present case, the Congress did include an express reference to Section 407 as part of 42 U.S.C. § 659(a). Therefore, it was .clear that the “anti-alienation” clause of section 407 was not applicable under the facts of Cunningham. Unlike the instant case, the Cunningham result is consistent with both the AFDC statutes and the Social Security Act provisions regarding the use and transfer of Social Security benefits.

12. The Secretary’s New Rule also abridges the constitutionally recognizable property rights of these independently supported children without due process of law. The property interest at stake is the right to receive Social Security Child’s Insurance Benefits which are simply a statutorily created substitute for the state created contract right to receive child support. 42 U.S.C. § 402(d); See, Mathews v. Lucas, 427 U.S. 495, 507, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651 (1976); Jimenez v. Weinberger, 417 U.S. 628, 634, 94 S.Ct. 2496, 2500, 41 L.Ed.2d 363 (1974).

13. While the Secretary contends this loss of property can be avoided by not applying for AFDC benefits, that is only true in a very abstract sense. The minor children in this class of Social Security reeipients are faced with a choice of either moving out of their home; refusing to support their half-siblings; or surrendering large amounts of their individual Social Security benefits to the support of others. “[Pjrocedural due process rules are shaped by the risk of error inherent ... in the generality of cases, not the rare exceptions. Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). Since the predictable result is that in the generality of cases these Social Security beneficiary children will surrender much of their own benefits, this constitutes a sufficient taking of a recognizable property interest to be entitled to the protections of due process of law. The requisite procedural protection must then be tailored to the capacity and circumstances of those who are to be heard. Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct. 1011, 1020-21, 25 L.Ed.2d 287 (1970).

PRELIMINARY INJUNCTION STANDARD

14. The test for granting relief by preliminary injunction has been established in the case of Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir.1981).

15. Based upon the foregoing discussion, the Court concludes that the intervenor-plaintiffs are likely to succeed on the merits of their case.

16. The injury to the intervenor-plaintiffs would be irreparable if an injunction is not issued and that injury cannot be made up by later entry of a money judgment. See Chu Drua Cha v. Noot, 696 F.2d 594, 599 (8th Cir.1982).

17. The balance of harm tips decidedly in favor of intervenor-plaintiffs. The defendant Secretary will suffer no irreparable harm if an injunction is granted.

18. The public interest in preserving the family structure outweighs the public concern for a potential saving of an indeterminate amount of money, especially since the Secretary’s own rules provide for the recovery of any excess payments to AFDC recipients. 45 C.F.R. 233.20(a)(13).

19. Intervenor-plaintiffs’ motion for preliminary injunction is granted. Defendants Heckler and Levine, their successors in office, and their agents and representatives are:

a. Enjoined from requiring that any member of the intervenor-plaintiff class as defined by this Court’s Order must apply for AFDC benefits for himself; and
b. Directed to reinstate effective August 1, 1985, any intervenor-plaintiff class member’s AFDC benefits reduced or terminated because of defendant Heckler’s new regulation issued September 10,1984 to be codified at 45 C.F.R. § 206.10(a)(l)(vii)(B) and/or defendant Levine’s Instructional Bulletin No. 84-76, Attachment 9, issued September 24, 1984 and/or Instructional Bulletin 84-76d issued April 15, 1985; and
c. Directed to notify any intervenorplaintiff class member who is now receiving AFDC as a result of the defendants’ rule described in paragraph 19(b) above, of his/her right to be removed from the AFDC grant immediately and of the right of the children who actually desire to receive AFDC to request that their grants be recalculated to determine the amount of AFDC benefits that they would have received but for the application of the defendant’s new regulations; and
d. Directed to notify all AFDC claimants who are members of the intervenor-plaintiff class of their right to a pre-deprivation hearing at which the Secretary must show that the affected Social Security beneficiary children are (1) actually needy, (2) are deprived of parental support or care, and that their Social Security Child’s Insurance Benefits (3) are in fact available to them, and (4) if available to them are also available to other members of their family who receive AFDC benefits, all of which are prerequisite factual findings before any Social Security benefits of the non-AFDC class members may be counted as income available to the AFDC applicant/recipient members of their family; and
e. The Defendant Commissioner is directed to issue an Instructional Bulletin within_working days of the filing of this order informing the directors of each county welfare agency within the State of Minnesota of the Court’s Order herein and directing said agencies to comply with the terms of this Order; and
f. Any bond normally required for a preliminary injunction is waived.

20. Defendant Heckler’s motion to dismiss is denied.

PERMANENT INJUNCTION ORDER

This order converts the preliminary injunction issued by the court on April 1, 1985, and issues in its stead a permanent injunction. This permanent injunction issues because the original class members and the intervenors have established a violation of their rights, continuing irreparable injury without the entry of a permanent injunction, and the lack of an adequate remedy at law. Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir.1982); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959). However, while' both the original plaintiffs and the intervenor plaintiffs satisfy these elements, they do so for slightly different reasons.

As to the original plaintiffs, the court bases its decision to grant a permanent injunction in their favor for those reasons set out in its order granting their motion for a preliminary injunction. See Gorrie v. Heckler, 606 F.Supp. 368 (D.Minn.1985). As to the intervenor plaintiffs, the court must first distinguish a factually similar and recent Eighth Circuit case, issued on remand from the Supreme Court, Cunningham v. Toan, 762 F.2d 63 (8th Cir. 1985).

Like the intervenors in the present case, Cunningham involved the question of whether Old Age, Survivors and Disability Insurance (hereinafter “OASDI”) benefits payable to one co-habitating member of a family are available, within the definition of 42 U.S.C. § 602(a)(38) (1984) as implemented by 45 C.F.R. § 206.10(a)(l)(vii), to other co-habitating members of the family for the purpose of AFDC eligibility. The Eighth Circuit in Cunningham held that “[i]f the OASDI beneficiary, the dependent child and the representative payee live within the same household, then the state must consider the OASDI benefits as income available in making AFDC eligibility and grant determinations.” Cunningham, 762 F.2d at 66. Notwithstanding the Eighth Circuit’s assumed availability of OASDI in Cunningham, the present case differs from Cunningham in one critical respect. Cunningham involved a minor parent recipient of OASDI funds and assumed those funds to be available to the minor parents’ child for AFDC eligibility determination. Unlike Cunningham, the intervenor plaintiffs in the present case are siblings of AFDC applicants who receive OASDI benefits as a result of a deceased, disabled, or retired parent. 42 U.S.C. § 414. This fact distinguishes Cunningham because whereas it is reasonable to assume that funds available to a representative payee for a minor parent are available in fact to its child, it is not reasonable to assume that funds available to a representative payee for a minor child are available in fact to that child’s co-habitating siblings. See, e.g., White Horse v. Heckler, 627 F.Supp. 848 (D.S.D. 1985). And See Minn. Stat. § 518.17 (codification of common law presumption that parents have the financial responsibility for supporting their minor children); Minn.Stat. § 609.375 (under Minnesota Law, all children have a right to parental support).

While White Horse noted the potential criminal sanctions for misapplying a named OASDI’s funds, see 42 U.S.C. § 408(e), as one basis for striking down the Secretary’s new rules’ assumption of availability of OASDI benefits to co-habitating siblings, this court is equally concerned with the moral deficiencies and the resulting irreparable harm of such an assumption of availability. Like the original plaintiffs in this case, the practical result of the Secretary’s new rule will be to force the intervenor plaintiffs to choose between:

(a) moving out of their family home, so that the rest of their family may remain eligible for AFDC benefits, (b) remaining in their family’s home refusing to apply for AFDC benefits, and thereby making their dependent siblings ineligible for benefits, or (c) staying in their family home, applying for AFDC benefits and thereupon being subject to § 602(a)(26)(A)’s required assignment of their child support to the state.

Gorrie v. Heckler, 606 F.Supp. at 372. Although the source of the original plaintiffs’ funds were child support payments established by state law and technically distinguishable from the intervenor plaintiffs’ OASDI benefits, the results of the choice foisted on the minor OASDI beneficiaries by the Secretary’s new rule are no less severe.

In closing, the court notes that this case raises possible constitutional conflicts with the United States Constitution Tenth Amendment and Commerce Clause. However, the court, as it stated in its order granting a preliminary injunction, felt it unnecessary to address these issues as a resolution of this case was possible without doing so. Furthermore, assuming arguendo that a Tenth Amendment Challenge would be successful, the result would have meant a more sweeping condemnation of the Secretary’s new rule. Instead, the court felt the more reasonable approach was to acknowledge the right of the federal government to attach conditions to its AFDC grants, see Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 1019, 83 L.Ed.2d 1016 (1985) (“Any substantive restraint on the exercise of Commerce Clause powers must find its justification on the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process rather than to dictate a ‘sacred province of state autonomy.’ ”) but to require the government to implement those conditions in a way that comports with established notions of due process. See Gorrie v. Heckler, 606 F.Supp. 368 (D.Minn.1985). Therefore, IT IS HEREBY ORDERED that:

1. The following plaintiff class is certified:

All persons in the State of Minnesota who are:
a) Children who have child support to meet their needs and who are not on AFDC but who live with half-sibling(s) who receive AFDC;
b) Children who receive AFDC, but live with half-siblings who do not receive assistance because they receive child support;
c) Parents who receive child support on behalf of one or more of their minor children not receiving AFDC, and who also have custody of other minor children who are half-siblings and who presently receive AFDC to meet their subsistence needs;
d) Parents who pay child support pursuant to state court orders, or other agreement with the custodial parent, on behalf of their minor child(ren) who live with half-siblings who receive AFDC and who are unrelated to the supporting parent;
e) Children who have OASDI benefits to meet their needs and who are not on AFDC but who live with half-sibling(s) who receive AFDC;
f) Children who receive AFDC, but live with half-siblings who do not receive AFDC because they receive OASDI benefits; or
g) Parents who receive OASDI benefits on' behalf of one or more of their minor children receiving AFDC, and who also have custody of other minor children who are half-siblings and who presently receive AFDC to meet their subsistence needs.

2. Plaintiffs’ and Commissioner Levine’s Motions for Summary Judgment are granted, and accordingly, Secretary Heckler’s “interim final rule” as codified at 45 C.F.R. § 206.10(a)(l)(vii)(B) and Commissioner Levine’s Instructional Bulletin 84-76, Attachment 9, are hereby declared inconsistent with 42 U.S.C. §§ 602(a)(7), (10) and (38), 606(a)(1) and (2), and 651 of the Social Security Act, and the U.S. Constitution.

3. Secretary Heckler and Commissioner Levine and their successors in office and their agents and representatives are:

a) Permanently enjoined from requiring that a class member as defined under paragraph 1 of this Order must apply for AFDC for himself; and accordingly,
b) Directed to continue the reinstatement of any class member’s AFDC benefits reduced or terminated because of Secretary Heckler’s regulations issued September 10, 1984 and codified at 45 C.F.R. 206.10(a)(l)(vii)(B) and/or Commissioner Levine’s Instructional Bulletin No. 84-767, Attachment 9, issued September 24, 1984; and
c) Permanently enjoined from terminating the AFDC benefits of any class member who lives in the same household as a half-sibling child who has not applied for AFDC benefits, on the basis that such half-sibling has not applied for AFDC benefits; and
d) Directed to notify all AFDC claimants, who as class members now or in the future will be affected by 42 U.S.C. § 602(a)(38) because they live with a half-sibling child deprived of parental support or care and otherwise eligible for AFDC benefits but for the fact that she/he is not actually needy, that before AFDC benefits may be reduced or terminated, such claimants are entitled to a pre-deprivation hearing at which the defendants must show 1) that child support payments are, in fact available to such half-siblings and 2) if available to them, are also actually available to share with other members of their family who are receiving AFDC.

4. Secretary Heckler and her successors in office and her agents and representatives are:

a) Enjoined form requiring Commissioner Levine to determine whether child support payments made on behalf of such half-siblings are available to other members of their family receiving AFDC until and unless she adopts regulations which implement 42 U.S.C. § 602(a)(38) in a manner consistent with this Order and which set forth the method by which such determinations are to be made; and
b) Directed to pay federal financial participation (FFP) to the State of Minnesota for AFDC grant payments made to class members in accordance with the Court’s April 1, 1985 Order and this Order.

5. Secretary Heckler’s motions to dismiss and for summary judgment are hereby denied.


author: McLAUGHLIN, District Judge.

text:
    UNITED STATES of America, v. Joseph Peter DORAN, Defendant.
    No. 85 CR 131.
    United States District Court, E.D. New York.
    July 30, 1985.

      Raymond J. Dearie, U.S. Atty. by John J. Gallagher, Brooklyn, N.Y., for the U.S.
    Caesar D. Cirigliano, The Legal Aid Society-Federal Defenders Services Unit by John L. Pacht, Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Defendant is charged with two counts of robbery of a Post Office in violation of 18 U.S.C. § 2114. He has moved to suppress (a) an out-of-court identification made in the course of a lineup and photographic display, and (b) his pre-arrest statements. For the reasons set forth below, the motion to suppress the identification is denied and the motion to suppress the statements is granted.

Facts

In the summer and fall of 1984 two Post Offices in Queens were robbed. On November 5, 1984, postal inspectors showed a photographic spread containing photographs of six white males, including defendant Doran, to two postal clerks who had been robbed (Tr. 4-6). One of the clerks, Mr. Mulligan, indicated that Doran “looked like” the man who had robbed him on October 2, 1984 (Tr. 8, 19). The second clerk, Mr. Grammatico, who had been robbed on August 81, 1984, was unable to identify any of the men in the photographic array (Tr. 13).

On November 20, 1984, defendant Doran, who by then was in state custody on unrelated charges, was brought into this District to be placed in a lineup (Tr. 40, 51). When he was placed in the postal inspector’s car, Doran was read his Miranda warnings by Postal Inspector Nater (Tr. 41).

Doran was then transported to the General Post Office in Manhattan (Tr. 43). Upon arrival at the Post Office, Doran was again advised of his rights, and was asked to sign a standard “waiver of rights” form (Tr. 46).

Doran expressed some concern about signing the waiver form and wondered aloud whether he should wait for an attorney (Tr. 46-47, 59). Inspector Nater testified that Doran “didn’t quite understand if he was required to sign [the form] because he felt that an attorney should be present.” (Tr. 46).

After a bit of soul-searching, Doran concluded: “I didn’t do anything and besides I am not intending to answer any questions anyway ..., don’t bother with the attorney right now.” Accordingly, he signed the waiver of rights form containing a provision indicating he was willing to speak (Tr. 65-68).

Thereafter, Inspector Nater asked Doran several questions about personal history, and he learned, among other things, that Doran was a drug addict (Tr. 68-69). After the personal history was completed, Nater and Doran informally discussed such subjects as the effect of Doran’s potential cooperation with the authorities, and the maximum penalty he faced (Tr. 71-72). During this conversation, Inspector Nater told Doran that the agents had a “reasonable belief” that he was involved in the postal robberies. Nater testified that Do-ran appeared very nervous during the interview and was “shaking quite a bit” (Tr. 62).

At the conclusion of this informal “discussion,” a lineup was conducted, consisting of seven white males, including Doran, all wearing blue sweatshirts with hoods (Tr. 92). Postal Clerk Mulligan, who had previously picked Doran out of the photographic array, again identified Doran at the lineup. Postal Clerk Grammatico, who had been unable to identify anyone in the photographic array, identified an individual other than Doran at the lineup (Tr. 95,110).

Following the lineup, Doran was informed that he had been identified (Tr. 78). Accordingly, Doran and Inspector Nater renewed their conversation regarding cooperation, during which Doran again stated that he “really should have an attorney present” (Tr. 49, 79). Inspector Nater testified that he summoned Inspector Washington because it was unclear whether Do-ran wanted an attorney (Tr. 49).

Inspector Washington, who had known for a couple of weeks that Doran was a drug addict, began to talk to Doran about cooperation (Tr. 50, 108). In the course of this discussion, Doran asked, “if I cooperate, would I need an attorney?” Inspector Washington then asked, “Do you want one?” Doran replied, “No.” (Tr. 108).

Thereafter, Doran confessed to both robberies (Tr. 83, 108). He was subsequently transported back to the United States Marshals, who returned him to state custody. On March 6, 1985, he was indicted for his participation in the two robberies.

Discussion

Suppression of Identifications

1. Right to Counsel

Defendant claims that his Sixth Amendment right to counsel was violated when a pre-indictment lineup was held without an attorney present. I disagree.

The Supreme Court has made clear that the right to counsel attaches only to identifications conducted “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charges, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Thus, in Kirby, the Court refused to extend the right to counsel to a stationhouse identification conducted shortly after arrest, but before formal judicial criminal proceedings were initiated. The Court concluded that a defendant is adequately protected in such situations by the Due Process Clause, which forbids pretrial identification procedures that are unnecessarily suggestive and conducive to irreparable mistaken identification. Id. at 691-92, 92 S.Ct. at 1883.

Doran claims, however, that his right to counsel had attached before the lineup because he was then in state custody on an unrelated charge for which he was represented by counsel. So expansive a view of the Sixth Amendment has already been rejected by the Second Circuit. Boyd v. Henderson, 555 F.2d 56, 61 (2d Cir.), cert. denied, 434 U.S. 927, 98 S.Ct. 410, 54 L.Ed.2d 286 (1977). In Boyd, the Second Circuit observed that “nothing in the language of [the Supreme Court’s] opinions leads us to conclude that the Court would have deemed it relevant that the suspect was represented by counsel in connection with some other crime.” 555 F.2d at 61. Cf. United States v. Tyler, 592 F.2d 261, 263 (5th Cir.1979); Jackson v. Jago, 556 F.2d 807, 808 (6th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 433, 54 L.Ed.2d 300 (1977).

Accordingly, defendant’s Sixth Amendment claim is denied.

2. Due Process

Defendant also attacks the lineup and photographic array as unnecessarily and impermissibly suggestive. This claim must be evaluated “in light of the totality of [the] surrounding circumstances.” Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968).

The photo array shown to Mulligan and Grammatico consisted of six photographs, one of which was Doran (Tr. 6). Clearly, an array of six photographs is not impermissibly small. United States v. Marrero, 705 F.2d 652, 655 n. 5 (2d Cir. 1983).

Moreover, the photographs used were strikingly similar. Each photograph depicted a white male with light-colored hair (Tr. 6). Any minor differences that exist “would hardly suggest to an identifying witness that [Doran] was more likely to be the culprit.” United States v. Archibald, 734 F.2d 938, 940 (2d Cir.1984).

Finally, the postal inspector who administered the photo array did nothing to render the procedure unduly suggestive. The inspector did not direct the clerks’ attention to any particular photograph; in fact, no suggestion was made that the suspect’s picture was among the six photographs (Tr. 7, 9,13). Nor was Postal Clerk Mulligan told whether he had identified the suspect (Tr. 8).

Similarly, the inspectors conducting the subsequent lineup did nothing to focus the witnesses’ attention on a particular individual, or pressure them into making an identification. Dickerson v. Fogg, 692 F.2d 238, 245 (2d Cir.1982); Sales v. Harris, 675 F.2d 532, 538 (2d Cir.1982).

Finally, the record indicates that the six other individuals in the lineup were similar in size and appearance to the defendant. Solomon v. Smith, 645 F.2d 1179, 1185 (2d Cir. 1981). The six white stand-ins recruited for the lineup all were in their late-20’s to mid-30’s, clean shaven, and approximately six feet tall. Each man wore a blue hooded sweatshirt (Tr. 92).

In short, upon examining all the circumstances, I conclude that the identification procedures used were not “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to violate due process. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Accordingly, the defendant’s motion to suppress the out-of-court identification is denied.

Suppression of Statements

Defendant does not contest that his Miranda warnings were properly administered. He moves to suppress his subsequent statements, however, contending that they were obtained in violation of both his Fifth and Sixth Amendment rights to counsel.

Clearly, as discussed above, defendant’s Sixth Amendment right to counsel had not attached at the time of the interrogation since defendant had not been indicted, nor had adversary proceedings otherwise begun. Edwards v. Arizona, 451 U.S. 477, 481 n. 7, 101 S.Ct. 1880, 1883 n. 7, 68 L.Ed.2d 378 (1981); United States v. Duvall, 537 F.2d 15, 23 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).

The Supreme Court has declared, however, that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. Edward, 451 U.S. at 482, 101 S.Ct. at 1883. If the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).

A defendant may, of course, waive his right to have an attorney present during custodial interrogation. The government, however, bears the “heavy burden” of proving that a defendant’s waiver was knowingly, voluntarily and intelligently made. Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628. This determination must be based upon an examination of the totality of the circumstances surrounding the interrogation. Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571, 61 L.Ed.2d 197 (1979). As the Supreme Court has noted:

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.

North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

Here, defendant’s act of signing the waiver of rights form was accompanied by his statements that he had no intention of speaking without an attorney present. Even after signing the waiver form, he repeatedly expressed his hesitancy to speak without a lawyer present. Indeed, Inspector Nater conceded that the idea of having an attorney present during questioning was brought up “so many times” (Tr. 88).

Finally, and significantly, both Inspector Nater and Inspector Washington were aware that defendant is a drug addict. Moreover, Inspector Nater testified that defendant appeared nervous and confused throughout the questioning.

Viewing the circumstances in their entirety, I conclude that the government has not sustained its heavy burden of proving that defendant knowingly and voluntarily waived his right to have counsel present during the interrogation. Accordingly, defendant’s motion to suppress his statements made at the General Post Office is granted.

SO ORDERED.

      . The Supreme Court has extended the right to counsel to a pre-indictment identification made at a probable cause hearing held after defendant's arrest upon a complaint. Moore v. Illinois, 434 U.S. 220, 231, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977). In Moore, however, the court stressed that "the government ha[d] committed itself to prosecute.” Id. at 228, 98 S.Ct. at 464. In this case, by contrast, the lineup was held prior to arrest. It cannot be said that the government had committed itself to prosecute Doran at the time of the lineup.


author: NORDBERG, District Judge.

text:
    Donald V. McCANN v. Frank B. HALL et al.
    No. 83 C 3070.
    United States District Court, N.D. Illinois, E.D.
    Aug. 9, 1985.

      Edward M. Burke, Klafter & Burke, Chicago, 111., for plaintiff.
    John L. Huff, Winston & Strawn, Chicago, 111., for defendant.
   ORDER

NORDBERG, District Judge.

The court has reviewed the defendant’s motion for reconsideration and the pleadings and briefs of the parties. Upon further reflection, the court finds that there is a genuine issue of material fact as to whether the plaintiff waived written notice of termination or is estopped by his subsequent actions to claim that oral notice of termination was not effective. Therefore, the court vacates its prior order dated April 30, 1985, 609 F.Supp. 627, and hereby denies plaintiff’s motion for partial summary adjudication on Count I of the Amended Complaint.