author: MacLAUGHLIN, District Judge.'

text:
    UNITED STATES of America, Plaintiff, v. William Walter BOYCE, Defendant.
    No. Crim. 4-84-89.
    United States District Court, D. Minnesota, Fourth Division.
    Feb. 4, 1985.

      James M. Rosenbaum, U.S. Atty., and Paul A. Murphy, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.
    Steven Meshbesher, Meshbesher, Singer & Spence, Minneapolis, Minn., for defendant.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.'

This matter is before the Court on defendant’s objections to the December 28, 1984 report and recommendation of the United States Magistrate. On November 8, 1984, defendant moved to suppress evidence seized pursuant to a search warrant executed on October 19, 1984. The Magistrate recommended denying this motion in a report and recommendation dated November 30, 1984. The Magistrate also concluded that defendant had not made a showing sufficient to warrant a Franks hearing. Defendant filed in camera objections to the November 30, 1984 report and recommendation. On December 13, 1984, the Court remanded the case to the Magistrate in light of the in camera documents defendant submitted with his objections. On remand, the Magistrate conducted a Franks hearing. The Magistrate next issued the December 28, 1984 report, recommending that defendant’s suppression motion be denied. The Court will not adopt that report and will grant defendant’s motion to suppress.

FACTS

On October 24, 1984, a grand jury indicted defendant for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982). The indictment was in large part based on the fruits of a search of defendant’s residence.

Sergeant Ronald Johnson of the Minneapolis Police Department’s Narcotics Squad, along with two other law enforcement officers, executed a search at defendant’s residence on October 19, 1984. The search produced approximately nine ounces of cocaine and $3,600 in cash. The-officers executed the search pursuant to a search warrant Johnson had obtained on October 19, 1984. The warrant was issued on the basis of Johnson’s affidavit (hereafter search warrant affidavit) which stated in part:

On this date, 10/18/84, your affiant talked to a confidential, reliable informant who has proven to be reliable by supplying information over the past month to your affiant concerning Cocaine traffickers which as [sic] been independently corroborated to be factual in all instances by investigation. This confidential, reliable informant advised your affiant that within the past 72 hours, the informant has been in the residence at 4936 Nokomis Avenue South and observed a large quantity of Cocaine in the possession of Bill Boyce who was offering the Cocaine for sale.

Even though Johnson’s affidavit stated that he spoke with the informant on October 18, 1984, no one disputes that the conversation actually took place on October 19, 1984.

The confidential informant Johnson was referring to in his affidavit was Christopher Hamilton. Johnson described his relationship with Hamilton in an affidavit sworn to on November 16, 1984. In that affidavit, Johnson described his dealings with Hamilton prior to October 19, 1984 as follows:

5. It is my understanding that on or about October 1, 1984, Christopher Hamilton called Assistant U.S. Attorney Don Lewis and told Mr. Lewis that he feared that Joseph Sazenski was out to get him. Mr. Lewis referred Hamilton to me, since Lewis knew that I had previously investigated Mr. Sazenski.
6. Shortly thereafter, I received a telephone call from Mr. Hamilton who stated that he wanted to cooperate against Mr. Sazenski and other cocaine dealers. I then set up an appointment to meet with him.
7. On the same evening, Special Agent Bauer and I met with Mr. Hamilton in Minnetonka, Minnesota. During the interview, Mr. Hamilton described his involvement with Sazenski and. others and stated that his girl friend, Shelly Wentz, was dealing directly with Joseph Sazenski. I had previously arrested Shelly Wentz on several occasions, one of which involved receiving cocaine in the mails from Colombia. Therefore, I was aware of Shelly Wentz’s prior drug involvement.
8. During the same interview, I asked Mr. Hamilton when was the last time he used cocaine. He stated that he had used 372 grams of cocaine the night before. Despite this, he was able to give me details concerning Shelly Wentz such as her address and her past activities, many of which were already known to me.
9. Inasmuch as it appeared that Mr. Hamilton had a serious cocaine habit, I suggested to him that he enter drug treatment. I told him that after he had dried up his cocaine habit, if he still wanted to cooperate, we still would work with him.

Johnson went on in the affidavit to tell of the information Hamilton revealed on October 19, 1984 concerning the defendant.

Although Johnson’s affidavit states that Hamilton contacted Assistant U.S. Attorney Donald Lewis on or about October 1, 1984, the Court concludes that Hamilton contacted Lewis on October 4, 1984. This conclusion is slightly different from the Magistrate’s proposed finding that Hamilton and Johnson first met “on or about October 1, 1984.” December 28, 1984 Report and Recommendation at 3 (hereafter 2d R & R). The Court bases its finding on Hamilton’s testimony that he had contacted Lewis on October 4, 1984. December 19, 1984 Transcript at 105-06 (hereafter 2d Tr.). Hamilton also testified that Hamilton had met Johnson no more than two weeks before Hamilton implicated the defendant on October 19, 1984. 2d Tr. at 112. Johnson himself testified that on October 19, 1984, he had known Hamilton for only two or three weeks. November 15, 1984 Transcript at 49 (hereafter 1st Tr.). The record also contains indications that Hamilton first contacted Johnson one week after Hamilton spoke with Lewis on October 4, 1984, which would mean that the Johnson-Hamilton meeting took place only one week prior to October 19, 1984. See 2d Tr. at 72-74, 107. One point is unquestioned, Johnson and Hamilton first met subsequent to Hamilton’s first contacting Lewis. Therefore, the Court concludes that the time between the initial Johnson-Hamilton meeting and Johnson's swearing to the search warrant affidavit was no longer than two weeks.

Subsequent to Christopher Hamilton’s contacting Lewis, but prior to Christopher Hamilton implicating defendant on October 19, 1984, Christopher Hamilton’s brother Gregory Hamilton spoke with Johnson regarding Christopher. Gregory wanted to know if he should take seriously certain statements that Christopher made about Christopher’s life being in danger. Gregory testified that Johnson stated that Christopher “was the typical cocaine addict, he was all strung out, he wasn’t making any sense, and he didn’t have any information that he [Johnson] could use.” 2d Tr. at 74-75. Gregory also testified that Johnson said Christopher “didn’t have enough information that could do anybody any damage.” 2d Tr. at 75.

On October 19, 1984, Christopher Hamilton was arrested. During interrogation on that day, Hamilton told Johnson that the defendant was Hamilton’s supplier. Hamilton also told Johnson that he had recently (within the last three days) made a cocaine purchase from defendant at defendant’s residence. At the time Hamilton made these statements, he had been using cocaine for three consecutive days. 2d Tr. at 105. In addition, Hamilton had not slept for the past four days. 2d Tr. at 113. The Magistrate concluded that when Hamilton provided Johnson with information on October 19, 1984, Hamilton was “under the influence” or at least “suffering from the effects of cocaine” use. 2d R & R at 3. The affidavit of Special Agent Michele Leonhart, who was also present during one of the Hamilton interrogation sessions, supports the Magistrate’s conclusions. The Court agrees with the Magistrate that Hamilton was under the influence of cocaine on October 19, 1984. It is also clear that Hamilton was very emotionally upset on that day. Again, Leonhart’s affidavit supports this conclusion, as does the affidavit and testimony of Probation Officer Pamela McNulty. McNulty interviewed Hamilton on October 19, 1984, and she testified that Hamilton was hyperactive, nervous, anxious, and that he cried at inappropriate times. 2d Tr. at 131-32.

Although Hamilton was under the influence of cocaine on October 19, 1984, the Magistrate concluded that Hamilton nevertheless gave appropriate answers in response to questions of McNulty and law enforcement officials. The affidavit of Leonhart, and the affidavit and testimony of McNulty support this conclusion. 2d Tr. at 134. Therefore, the Court finds that Hamilton was able to give appropriate answers to questions on October 19, 1984, even though Hamilton was obviously quite upset and under the influence of cocaine. Aware of Hamilton’s condition, the law enforcement officers sent Hamilton to a detoxification center on October 19, 1984. 1st Tr. at 34. Thus, instead of making a first appearance before a magistrate on October 19, 1984, Hamilton did not make a first appearance until October 22, 1984.

Sometime after Hamilton implicated defendant, defendant began to suspect that Hamilton was the confidential informant referred to in Johnson’s search warrant affidavit. After the Magistrate issued his first report and recommendation, defendant submitted in camera objections to the Magistrate’s report. Included in the submission was a two-page handwritten statement signed by Hamilton. (A witness attested to the statement, but the document was not notarized.) Defense counsel’s investigator, accompanied by a close friend of Hamilton, obtained this statement on November 13, 1984 while Hamilton was staying at a drug treatment center in St. Mary’s Hospital. In this statement, Hamilton said that he had never mentioned defendant’s name to Johnson on October 19, 1984. Defendant submitted this statement to the Court after the Magistrate issued his first report and recommendation, thus the Magistrate did not have an opportunity to. see it. Based on this statement, the Court ordered a remand to the Magistrate.

On remand, the Magistrate proceeded to conduct a Franks hearing. The Magistrate observed in his first report and recommendation that informants often “deny their role when interviewed by a defendant’s representatives.” (Citation omitted.) November 28, 1984 Report and Recommendation at 11 (hereafter 1st R & R). This observation proved to be precisely accurate concerning defendant’s allegation that Hamilton had not given Johnson defendant’s name on October 19, 1984. At the December 19, 1984 Franks hearing, Hamilton testified that he had in fact implicated defendant by name during Johnson’s interrogation on October 19, 1984. 2d Tr. at 113, 118. Hamilton further testified that he signed the November 13, 1984 statement because he “didn’t want to make myself look bad in front of my best friend.” 2d Tr. at 110. Consequently, the Court finds that Hamilton did in fact implicate defendant by name on October 19, 1984.

DISCUSSION

Defendant initially claimed that Hamilton never gave defendant’s name to Johnson on October 19,1984. The government is absolutely correct in stating that this charge is utterly false. Nevertheless, Johnson’s vindication on this accusation does not immunize him from further scrutiny by the Court. The Court’s examination of Johnson’s own words, more specifically a comparison of his statements in the search warrant affidavit and the November 16, 1984 affidavit, has proven to be central in the Court’s analysis.

In his search warrant affidavit, Johnson stated that his reliable informant proved reliablé “by supplying information over the past month ... concerning Cocaine traffickers which as [sic] been independently corroborated to be factual in all instances ____” Yet,' when Hamilton spoke to Johnson on October 19, 1984, Johnson had known Hamilton for at most two weeks (even according to Johnson’s own affidavit, he had known Hamilton for at most 18 days). Moreover, the clear import of the language “supplying information over the past month” is that Hamilton had continually been supplying information to Johnson over a one-month span. Johnson’s relationship with Hamilton was not, however, anything like the ongoing informant relationship Johnson portrayed in his search warrant affidavit.

Johnson’s own affidavit of November 16, 1984, indicates that before October 19, 1984, he had met Hamilton only once. This affidavit states that Hamilton did describe his involvement with drug dealers, and stated that his girl friend was dealing directly with a specific dealer. The affidavit further states that Hamilton gave “details concerning [his girl friend] such as her address and her past activities, many of which were already known to [Johnson].” Thus, according to Johnson’s own November 16, 1984 affidavit, Hamilton did not provide much in the way of useful or new information.

Johnson’s search warrant affidavit, however, states that the information supplied by the informant has “been independently corroborated to be factual in all instances by investigation.” This statement strongly implies that after having received the information, the police conducted investigations which substantiated the information. Yet, Johnson’s November 16, 1984 affidavit states that he already knew much of the information Hamilton supplied, and the affidavit has no indication that the police conducted any subsequent investigations which corroborated Hamilton’s information. The phrasing of the statement {i.e., “all instances”), moreover, again implies a series of tips over the past month, which was not the case.

Another deception contained in the search warrant affidavit is Johnson’s characterization of Hamilton as a reliable informant. In his November 16, 1984 affidavit, Johnson stated that he suggested to Hamilton that Hamilton “dr[y] up his cocaine habit,” and then the police would “work with him.” Johnson’s declining to work with Hamilton until he obtained control over his drug addiction indicates that Johnson thought Hamilton was less than reliable at the time. A further indication of Johnson’s doubts concerning Hamilton’s reliability is found in statements Johnson made to Hamilton’s brother Gregory Hamilton. Before October 19, 1984, Gregory Hamilton spoke with Johnson about Christopher Hamilton. According to Gregory Hamilton, Johnson stated that Christopher “was the typical cocaine addict, he was all strung out, he wasn’t making any sense, and he didn’t have any information that he [Johnson] could use.” 2d Tr. at 74-75. Johnson also stated that Christopher Hamilton “didn’t have enough information that could do anybody any damage.” 2d Tr. at 75.

Johnson also failed to include in his search warrant affidavit certain facts which were relevant to an assessment of Hamilton’s reliability. Johnson did not mention that Hamilton was obviously under the influence of cocaine and quite disconcerted during the October 19, 1984 interrogation. As previously noted, Hamilton was able to provide appropriate answers to questions on October 19,1984, but Hamilton’s state of intoxication and his being extremely upset would still bear on the reliability and credibility of Hamilton’s responses. In addition, the search warrant affidavit contained no indication that Hamilton was a drug addict who had just been arrested. Drug addicts in police custody have a tendency to tell the police whatever they want to hear. See United States v. Kinnard, 465 F.2d 566, 570-71 (D.C.Cir. 1972) (per curiam, Bazelon, C.J., concurring) (discussing trial testimony of ad-diet/informants); cf. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.), cert. denied, 454 U.S. 849, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981) (noting possible safeguards to ensure that jury gives proper weight to addiet/informants’ testimony). Thus, Hamilton’s status as an addict just arrested would have been a relevant factor for the warrant issuing judge to consider. Search warrant affidavits, moreover, should not omit information regarding an informant’s status which bears on the informant’s reliability. See United States v. Rule, 594 F.Supp. 1223, 1240 (D.Me.1984). Standing alone, these omissions from the search warrant affidavit might not be so troublesome, but the Court must consider these omissions in light of the misrepresentations in the search warrant affidavit.

Those misrepresentations and the omissions all bore on the reliability and track record of Hamilton as an informant. The reliability and track record of an informant are obviously important considerations for the probable cause determination involved in the issuing of a search warrant. E.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2327, 2329, 2332, 76 L.Ed.2d 527 (1983); United States v. Schmidt, 662 F.2d 498, 502-03 (8th Cir.1981). The concept that an informant’s reliability and track record is an important consideration, is not a technical rule of law, but rather a matter of common sense. Surely, a narcotics officer of 18 years experience, such as Johnson, would be aware of the importance of an informant’s reliability and track record in the determination of probable cause.

The determination of probable cause necessary for the issuance of a search warrant, is left to “the detached scrutiny of a neutral magistrate” and not to the judgment of “a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ ” United States v. Leon, — U.S.-, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984) (quotations omitted). The law enforcement officer must present sufficient information to the magistrate so that the magistrate can make an informed determination of probable cause. Gates, 103 S.Ct. at 2332; Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978); Aguilar v. Texas, 378 U.S. 108, 110-11, 84 S.Ct. 1509, 1511-12, 12 L.Ed.2d 723 (1964). Further, the officer should put forth in the affidavit only information he believes to be true. Franks, 438 U.S. at 164-65, 98 S.Ct. at 2680-81.

Johnson, however, did not simply present the relevant facts to the issuing judge. In an effort to enhance his chances of obtaining a search warrant, Johnson took one meeting with a “typical cocaine addict” who had supplied relatively innocuous information, and attempted to glorify it into a continuous relationship with a proven reliable informant. Intentionally or recklessly preparing a search warrant affidavit to unmistakably create an impression of enhanced reliability for an informant constitutes an affirmative misstatement for fourth amendment analysis. See Rule, 594 F.Supp. at 1240. Here, Johnson’s actions, at best, constitute a reckless disregard for the truth. Not only did Johnson create unmistakable false impressions, but he omitted relevant information from his search warrant affidavit. In sum, the Court finds that Johnson recklessly disregarded the truth in the preparation of his search warrant affidavit and that the judge issuing the warrant was misled as a result.

Even accepting all the statements contained in the search warrant affidavit as true, the Magistrate concluded that the search warrant affidavit failed to meet the Gates totality-of-the-circumstances test for probable cause. 1st R & R at 8. Nevertheless, the Magistrate concluded that the fruits of the October 19, 1984 search were admissible under the “good faith” exception established in Leon. The Court fully agrees that the search warrant affidavit failed to satisfy even the lenient Gates totality-of-the-circumstances test, and the Court adopts the reasoning of the Magistrate on this point. The Court does not, however, agree that Leon permits admission of the fruits of the search in this case.

In summarizing its holding in Leon, the Supreme Court stated that the exclusionary rule would still apply in cases involving a search warrant only if one of three circumstances existed:

1. the issuing “magistrate abandoned his detached and neutral role,” or
2. “the officers were dishonest or reckless in preparing their affidavit,” or
3. the officers executing the warrant “could not have harbored an objectively reasonable belief in the existence of probable cause.”

Leon, 104 S.Ct. at 3423. Earlier in the opinion, the Supreme Court stated that “[sjuppression ... remains ... appropriate ... if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for reckless disregard of the truth.” Leon, 104 S.Ct. at 3421 (citing Franks). Here, the Court has found that, at best, Johnson showed a reckless disregard for the truth in preparing the search warrant affidavit and that the judge issuing the warrant was misled as a result. Therefore, the exclusionary rule still applies.

The Magistrate, to be sure, considered the possibility that Johnson intentionally or recklessly omitted and misrepresented some information from the warrant affidavit. The Magistrate concluded that even if the defendant had established that Johnson intentionally or recklessly omitted information, the alleged omissions would not “have established that probable cause for the warrant did not exist.” 2d R & R at 6. The Magistrate also concluded that even if Johnson had lied in stating that he had known Hamilton for a month, the two week difference would not have been material to the probable cause determination. 2d R & R at 6.

Under Franks whether or not an intentional or reckless misrepresentation in a search warrant affidavit was material in the issuing magistrate’s determination of probable cause is a key issue. If a defendant establishes by a preponderance of the evidence that the affiant intentionally or recklessly included false material in the search warrant affidavit, then the reviewing court must excise that information and determine if the information remaining in the affidavit still supports a finding of probable cause. Franks, 438 U.S. at 155—56, 98 S.Ct. at 2676-77. Similarly, the reviewing court must add to the search warrant affidavit intentional or reckless omissions, and determine if the new information causes the affidavit to no longer support a determination of probable cause. See, e.g., United States v. House, 604 F.2d 1135, 1141 n. 9 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980). Thus, the starting point in Franks is always a search warrant affidavit which on its face supports a finding of probable cause. The reviewing court next deletes and adds to the affidavit and then determines whether the adjusted warrant affidavit still supports a determination of probable cause.

As defendant points out, however, in the present case the Magistrate had previously concluded that the search warrant affidavit, even on its face, failed to establish probable cause under Gates. 1st R & R at 8. (Again, the Court agrees with this conclusion.) The adjustments a court makes to a search warrant affidavit as the result of a Franks hearing only serve to lessen the affidavit’s chances of establishing probable cause. Yet, when the affidavit fails to establish probable cause in the first place, reviewing the adjusted affidavit for probable cause is a meaningless exercise.

The Leon decision, moreover, does not require such a meaningless exercise. The Supreme Court stated that suppression is still appropriate if police “officers were dishonest or reckless in preparing their affidavit.” Leon, 104 S.Ct. at 3423. This standard makes no mention of a materiality requirement. See United States v. Segovia-Melgar, 595 F.Supp. 753, 757 (D.D.C. 1984). The Supreme Court also stated in another passage in Leon that suppression was appropriate if the issuing magistrate was misled by false information intentionally or recklessly included in a search warrant affidavit. Leon, 104 S.Ct. at 3421. Presumably, issuing magistrates would be misled only by relevant considerations. Yet, to say that a magistrate was misled, is not to say that the false information would have transformed an affidavit establishing probable cause to one which would not.

The Leon court’s failure to mention the concept of materiality to the probable cause determination or the warrant adjusting process of Franks is understandable because the Supreme Court assumed that it was reviewing an affidavit which on its face, failed to establish probable cause. Leon, 104 S.Ct. at 3412. By definition, in fact, a reviewing court need never proceed to a Leon analysis if it first determines that a warrant affidavit does establish probable cause. E.g., United States v. Young, 745 F.2d 733, 758 (2d Cir.1984); United States v. Hendricks, 743 F.2d 653, 654 (9th Cir.1984). The Court therefore concludes that once a reviewing court finds a search warrant affiant to be dishonest or reckless, suppression is appropriate under Leon regardless of whether or not the misrepresentation or omission would be material under Franks,

Finally, the Court notes that after a finding that Johnson recklessly prepared the search warrant affidavit, his objective good faith reliance on the warrant is no longer at issue. Certainly Leon emphasizes that the good faith exception it ereated is based on an objective standard. Leon, 104 S.Ct. at 3420 n. 20. In establishing its objective standard, the Supreme Court held that if the officers executing a warrant could not have held an objectively reasonable belief that the warrant was valid, then suppression was appropriate. Yet, the Supreme Court listed dishonesty or recklessness of the warrant affiant as an independent basis for suppression, a basis distinct from lack of objective good faith.

Furthermore, for the Court to avoid suppression because Johnson could have held an objectively reasonable belief in the warrant’s validity, would be extremely anamolous in light of the Court’s finding that Johnson, at best, acted with a reckless disregard for the truth. The purpose of an objective good faith exception is to hold police officers to a higher standard than that required by a subjective standard. See Leon, 104 S.Ct. at 3422 n. 20. Under a subjective good faith exception, a police officer could argue that even though any reasonable officer would have known a search warrant was invalid, he himself did not know. By using an objective standard for good faith, however, the Supreme Court requires that all police officers conduct themselves as reasonable police officers. In sum, the objective standard of good faith cannot provide a shield for a warrant affiant under the circumstances in this case.

Neither does the objective good faith of the other law enforcement officers executing the search warrant with Johnson save the admissibility of the evidence in question. As a factual matter, Johnson was one of the officers executing the warrant, thus his objective good faith cannot provide the basis for admissibility. Even if Johnson had not been one of the officers executing the warrant, the Court’s conclusion would be unchanged. A police officer cannot prepare a search warrant affidavit under these circumstances, and then circumvent suppression simply by letting other officers, unaware of those circumstances, execute the warrant. See United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984); United States v. Roberts, 747 F.2d 537, 546 n. 10 (9th Cir.1984); Rule, 594 F.Supp. at 1239. To allow such a process would make a mockery of the fourth amendment.

The Court, to be sure, does not lightly order the suppression of inherently trustworthy evidence. Suppression of evidence obtained from a search warrant, moreover, will rarely be appropriate. See Leon, 104 S.Ct. at 3421. Nevertheless, the exclusionary rule is still necessary to deter police conduct in limited situations. See Leon, 104 S.Ct. at 3413. The case at bar is such a situation.

Based upon the Court’s independent de novo determination of the Magistrate’s report, findings, and recommendation, IT IS ORDERED that:

1. defendant’s objections to the report and recommendation are sustained;

2. the Magistrate’s report and recommendation is adopted only so far as the Court has indicated in this opinion; and

3. defendant’s motion to suppress the evidence obtained as a result of the October 19, 1984 search of defendant’s residence is granted.

      . Defendant argues that Johnson intentionally wrote October 18, 1984 in an effort to convey the impression that he had spent more time corroborating Hamilton's story than was actually the case. Yet, as the Magistrate pointed out, the affidavit stated that it was sworn to on October 19, 1984. The Magistrate concluded that the date "10/18/84” in the body of the affidavit must have been a typographical error. December 28, 1984 Report and Recommendation at 6. The Court agrees with the Magistrate.

      . This affidavit was sworn to one day after Johnson testified at the November 15, 1984 suppression hearing. The government submitted this affidavit in camera to the Magistrate before the Magistrate issued his first report and recommendation dated November 30, 1984. At the Franks hearing on December 19, 1984, the Magistrate ordered that all in camera affidavits be unsealed. December 19, 1984 Transcript at 137 (hereafter 2d Tr.). Defense counsel first had access to this affidavit after the Magistrate issued the December 19, 1984 report.

      . At the hearing, Hamilton previously had testified that his meeting with Johnson was only one week before Hamilton implicated the defendant, 2d Tr. at 108, 111, but Hamilton’s final answer was that the interval was no longer than two weeks. 2d Tr. at 112.

      . A Franks hearing allows defendants in criminal actions to challenge the veracity of a search warrant affidavit. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Defendants are entitled to such a hearing only if they make a substantial preliminary showing of police dishonesty or reckless disregard of the truth. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77.

      . Intentional or reckless omissions from search warrant affidavits can be equally as serious as affirmative misrepresentations. See, e.g., United States v. House, 604 F.2d 1135, 1141 n. 9 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980).

      . In Gates, the Supreme Court abandoned the technical Aguilar-Spinelli test of evaluating informants’ tips in favor of a common sense totality-of-the-circumstances approach. The Supreme Court noted, however, that the reliability of an informant is still highly relevant. Gates, 103 S.Ct. at 2327.

      . Another indication that Johnson would be aware of the importance of an informant’s reliability and track record is Johnson’s extensive involvement in cases in which the sufficiency of a search warrant was an issue. See, e.g., United States v. Thompson, 751 F.2d 300 (8th Cir.1985); United States v. Singer, 687 F.2d 1135, 1139-40 (8th Cir.1982), rev’d, 710 F.2d 431 (1983) (en banc), on remand, 575 F.Supp. 63, 65-66 (D.Minn.1983); United States v. McGlynn, 671 F.2d 1140, 1141-42 (8th Cir.1982); House, 604 F.2d at 1137-39; United States v. Carwell, 491 F.2d 1334, 1335 (8th Cir.) (per curiam), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974).

      . The Gates test is "considerabl[y] more indulgent to official conduct” than the prior Aguilar-Spinelli test. United States v. Sager, 743 F.2d 1261, 1264 (8th Cir.1984).

      . The government has never taken issue with this conclusion of the Magistrate, but the Magistrate’s finding in favor of the government on other grounds made such a challenge unnecessary.

      . The Court has found that here the judge issuing the warrant was misled by Johnson’s reckless disregard for the truth.

      . The decision in United States v. Sager, 743 F.2d 1261 (8th Cir.1984), is not to the contrary. In Sager, the court observed that the district court had implicitly found that the warrant affiant was neither dishonest or reckless. Sager, 743 F.2d at 1266. Sager was not, therefore, addressing Leon's dishonest nor reckless affiant justification for suppression.

      . The Court expresses no view on this issue.


source: Caselaw Access Project

author: WEBER, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Thomas E. LEECH, Robert M. Leech.
    Crim. A. No. 84-90 ERIE.
    United States District Court, W.D. Pennsylvania.
    Feb. 4, 1985.

      J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., Rosemary Casey Meyers, David G. Barger, Sp. Attys., U.S. Dept, of Justice, Washington, D.C., for U.S.
    John P. Garhart, Erie, Pa., for defendant Thomas Leech.
    Leonard G. Ambrose, III, Erie, Pa., for defendant Robert M. Leech.
   FINDINGS AND OPINION

WEBER, District Judge.

Thomas and Robert Leech were found guilty by a jury on November 8, 1984 on three counts involving false corporate income tax returns and three counts of tax evasion on their personal income tax returns. On January 15, 1985, sentences of imprisonment, probation and fines were imposed on each. On January 16, 1985 they filed a notice of appeal and on January 22, 1985 they filed a motion for bond pending appeal.

On October 12, 1984 the Comprehensive Crime Control Act of 1984 was signed into law imposing new conditions for release on bond on appeal. The Act is applicable to these defendants. As applied to defendants the Act is not an unconstitutional ex post facto law. United States v. Miller, (3d Cir.1985), 753 F.2d 19. The defendants have abandoned this ground raised in their motion.

The criteria for release on appeal are set forth in Section 3143 of the Act:

(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT.
The judicial officer ... shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ... and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in a reversal or an order for a new trial.

We have no difficulty with the first section as we had announced at the time of sentencing and we hereby make the finding required of Section 3143(b)(1).

With respect to the second we set a time for argument, and required defense counsel to set forth the issues to be raised on appeal and required the government to respond. On learning of the opinion of the Court of Appeals in United States v. Miller, filed January 18, 1985, we notified all counsel of the opinion which dealt with the identical problem.

We are instructed by that opinion that “a court must determine that the question raised on appeal is a ‘substantial’ one, i.e. it must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent or which is fairly doubtful.” (P. 23).

Further the court “must determine that the issue is sufficiently important to the merits that a contrary appellate ruling is likely to require a reversal or a new trial.” (P. 23).

Finally, the issue must be one that is “likely to result in reversal or an order for a new trial on all counts on which a sentence of imprisonment was imposed.” (P. 24).'

With these standards in mind we will examine the questions for appeal that the defendants have raised in their motion.

I. The trial court admitted into evidence a statement of Thomas Leech to the effect that he and Robert split the cash received from the sale of scrap produced by their corporation. The statement was given in evidence by the Internal Revenue Service agent who was conducting the civil investigation of the matter. Neither Thomas nor Robert Leech took the witness stand.

Primarily, this fact was never disputed at trial by defendants and was largely established by defense evidence. The government’s first witness, a scrap metal dealer, testified as to payments of cash to both defendants. The defendant Thomas Leech being interviewed was the treasurer of the corporation owned principally by both defendants in equal shares, and he was the person available for interview at the time the civil investigation began. The defense of the defendants was that the receipt of payment for the scrap was omitted from the corporation’s records and income tax return by mistake or inadvertence, and that the cash received by the individual defendants was not income to them because they were loans from the corporation. In support of this defense defendants presented documents including a belated entry into the corporate minute book ratifying the loans in equal amounts to the two officers, by undated demand promissory notes by each defendant agreeing to repay equal amounts of money to the corporation, and by subsequent amended tax returns showing additional receipts of equal amounts of money from the corporation, the corporate cash receipts journal showing repayment in equal amounts by the defendants, and by the actual cancelled checks of defendants showing the repayment of equal amounts. Of course it is not material to the charges whether or not the “split” was equal; defendants’ evidence establishes that it was equal.

In any event, the testimony if admitted in error, has relevance only to the counts relating to the individual tax returns. The defendants were also both convicted and sentenced to terms of imprisonment on the three counts against each defendant dealing with the false corporation tax return.

We, therefore, find that defendants have failed to show that the admission of such evidence is sufficiently important to the merits that a contrary appellate ruling is likely to require reversal or a new trial.

II. The defendants also appeal on the grounds that the court in its charge to the jury on the point of wilfulness refused the request of defendants to include the term “gross negligence.”

The court did charge the jury on all the other definitions of wilfulness requested, including the points requested that mistake or negligence is not sufficient to constitute wilfulness. The court heard arguments on the point before giving the charge, and specifically excluded the words “gross negligence” because of the possibility of jury confusion over this term of art. The court at that time found, and subsequent research has found, no commanding authority for such inclusion. We only found one reported instance of its use. United States v. Klee, 494 F.2d 394 (9th Cir.1974), and there it was not in issue. The appeal by the defendants in that case raised the question of the court’s refusal to define wilfulness by including a particular sentence which the trial court rejected. In affirming the conviction, the Court of Appeals in a footnote set forth the charge given, which included the term “gross negligence” as not sufficient to constitute wilfulness.

The charge given by the court was in accordance with the established precedents on which the court relied, basically United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976), and United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). We therefore do not find the question novel or one which has not been decided by controlling precedent, vid. United States v. Miller, supra (P. 23). A defendant is not entitled to a specific wording of a requested instruction if the instruction given is adequate, and the trial court relies on the language of the controlling precedents in framing its charge because, in the words of Lord Coke, “the known certainty of the law is the safety of all.”

We do not find that the specific objection to the charge meets the statutory requirement of Section 3143(b)(2) of a substantial question of law likely to result in reversal or new trial.

III. The defendants raise a question of the conduct of the trial judge during trial as indicating the court’s belief in the defendants’ guilt. They gave no specifics in their memorandum and when pressed at oral argument gave a few instances of the judge posing questions to witnesses. Generally, the questions posed were clarifying questions on a single matter. There was no extended questioning of any witness.

The presentation of defendants by memorandum or oral argument fails to show any issue that is fairly doubtful.

IY. The defendants’ original motion asked for recusal of the trial judge. We feel that this was impelled by a discussion between counsel and the court at the time of sentencing concerning the application of Section 3143(b), which the government asked to be applied to deny bail. At that time the court expressed the same concerns as did the trial judge in United States v. Miller, supra (P. 22), that a court “could grant bail on appeal only upon finding that its own rulings were likely to be reversed” and that “it would be, I think a very rare case that the judicial officer would make such a finding ... ”. We were determined nevertheless to set the matter for full argument, and in the meantime we received the teachings of United States v. Miller from our Court of Appeals.

At argument defense counsel did not press the argument for recusal, and in any event they did not attempt to follow the procedures of 28 U.S.C. §§ 144 and 455. There is no suggestion that any judicial bias stemmed “from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from participation in the case.” United States v. Grinnell Corporation, 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). Nor do we think that the statement of the court to the defendants on sentencing that the evidence strongly supported the verdict of guilty is applicable here.

An appropriate order will be entered.


author: MOODY, District Judge.

text:
    Grace CHAMBLY, Plaintiff, v. Alberta M. LINDY and Postal Service, Defendants.
    Civ. No. 83-800.
    United States District Court, N.D. Indiana, Hammond Division.
    Feb. 4, 1985.

      Jo Anne Tapocsi, Valparaiso, Ind., for plaintiff.
    Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for defendants.
   ORDER

MOODY, District Judge.

The plaintiff, Grace Chambly, brings this action against Alberta M. Lindy, an employee of the United States Postal Service, and against the United States Postal Service, to recover for injuries she allegedly received when she and defendant Lindy were involved in an automobile accident on December 7, 1981. The action was filed on December 7, 1983 in Porter Superior Court. The plaintiff filed an administrative claim with the United States Postal Service on the same date. The Porter Superior Court case was removed to Federal District Court by the United States on December 29, 1983.

Following removal to Federal District Court, and pursuant to the provisions of § 2679(d) of Title 28, United States Code, the United States Attorney certified that Alberta M. Lindy was within the scope of her employment by the United States Postal Service on December 7, 1981 when the accident took place. The plaintiff’s exclusive remedy therefore became an action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2679(b)-(e).

On February 7, 1984 the United States moved the Court to dismiss the action for lack of jurisdiction and failure to exhaust administrative remedies. In retrospect, it is clear that the plaintiff should have responded with evidence that she was pursuing her administrative remedies and requesting a stay. Instead, she was silent. The Court granted the government’s unopposed motion on March 13, 1984, acknowledging that there is no federal jurisdiction until the administrative agency has made a final disposition of the case. The plaintiff filed this motion asking the Court to reconsider its order of dismissal on June 12, 1984. In the motion, the plaintiff indicates that her administrative remedies were exhausted on or about June 7, 1984 — six months after she filed her claim with the U.S. Postal Service. I reconsider the earlier dismissal in light of this new development.

DISCUSSION

1. THE FEDERAL DRIVERS ACT

The Federal Drivers Act establishes that an action against the United States government is the exclusive remedy against a federal driver involved in an accident while operating a motor vehicle within the scope of his employment. 28 U.S.C. § 2679(b). However, no tort action may be brought against the United States unless, the claim is first presented in writing to the appropriate federal agency and finally denied. 28 U.S.C. § 2675(a); Tazelaar v. United States, 558 F.Supp. 1369, 1371 (N.D.Ill.1983). Such an action is barred unless it is presented in writing to the federal agency within two years after it accrues, or within six months after mailing of notice of final denial of the claim by the agency. 28 U.S.C. § 2401(b).

2. ADMINISTRATIVE CLAIM WAIVER

The provisions of 28 U.S.C. §§ 2675 and 2401(b), which require both filing and final disposition of an administrative claim before instituting a tort claim suit against the United States, are jurisdictional prerequisites to suit in Federal District Court. Staple v. United States, 740 F.2d 766, 769 (9th Cir.1984); Binn v. United States, 389 F.Supp. 988, 991 (E.D.Wis.1975). Even so, under certain circumstances where failure to comply with the specific dictates of the statutory provisions was not due solely to the plaintiff’s disregard of these provisions, courts have found jurisdiction. McGowan v. Williams, 623 F.2d 1239 (7th Cir.1980); Van Lieu v. United States, 542 F.Supp. 862 (N.D.N.Y.1982). See also Staple v. United States, 740 F.2d 766 (9th Cir.1984).

The Seventh Circuit, for example, has ruled that by filing a suit in state court a plaintiff complies with the requirement of 28 U.S.C. § 2401(b) that suit must be filed against the United States within six months after denial of an administrative claim. McGowan v. Williams, 623 F.2d 1239. In that case, the United States attorney certified the case before denial of the administrative claim but did not remove it to federal court at that time. After the administrative claim was denied, neither party removed the suit. Finally, six months after denial of the administrative claim, the United States removed the case to Federal District Court and moved the Federal Court to dismiss the action on the grounds that the plaintiff had failed to comply with the provisions of § 2401(b) by filing a timely federal court claim. While holding that the claim was timely even though the filing was in state and not federal court, the court stated:

We do not suggest that the U.S. attorney here acted in a dilatory manner [by not removing until the six month period had elapsed]. But we do not think Congress intended to allow the United States to ‘sandbag’ plaintiffs.

McGowan, 623 F.2d at 1243.

Plaintiffs have also been allowed to maintain Federal Tort Claims Act suits, under certain circumstances, even though they filed no administrative claim at all. In Van Lieu v. United States, 542 F.Supp. 862, a federal district court ruled that the plaintiff was not required to comply with the two-year statute of limitations for filing an administrative claim where through no fault of his own, he failed to discover that the defendant was a government employee. The Court relied on a test set forth in Harris v. Burris Chemical, Inc., 490 F.Supp. 968, 971 (N.D.Ga.1980). The test centers on the plaintiffs subjective understanding of the situation and provides that:

[i]n a case in which the plaintiff prior to filing suit knew or had reason to know that the driver was (1) a federal employee (2) acting within the scope of his employment at the time of the accident, the requirement of § 2675 applies. The plaintiff is required to seek administrative remedies; filing in state court is not a means of avoiding this requirement. Where the driver of a motor vehicle is sued individually in state court because the plaintiff did not know and had no reason to know that the defendant was (1) a federal employee (2) on federal business at the time of the accident and the United States subsequently removes the action to federal court under Section 2679, no exhaustion of administrative remedies is required.

Van Lieu, 542 F.Supp. at 865.

The court also agreed with the Harris court’s explanation of this test:

Ignorance of the law which results in filing a state court action should not be allowed to thwart the Congressional intent of requiring the filing of administrative claims. On the other hand,-nothing in the removal provisions indicates that Congress intended that a person who innocently files suit in state court because he is unaware of the facts which would indicate that the requirements of the Tort Claims Act must be met, should suffer the extreme penalty of having his suit dismissed.

Van Lieu, 542 F.Supp. at 865.

Courts have not uniformly accepted the Van Lieu approach. In Rogers v. United States, 675 F.2d 123 (6th Cir.1982), the Sixth Circuit refused to allow a plaintiff who filed no administrative claim but simply filed a state court suit to proceed once the case was removed to federal court. The court there held that neither the plaintiff’s ignorance of the defendant’s governmental status nor the United States’ removal of the case eliminated the jurisdictional requirements where no administrative claim was filed at all. Rogers, 675 F.2d at 124.

While none of the situations discussed above is precisely the same as the present case, the dicta of these opinions are helpful in the situation at bar. McGowan, for example, indicates that a state court filing is sufficient ■ to meet the statutory requirement of bringing suit against the United States within six months following final disposition by the administrative agency. The Court there recognized that “[ajlthough the remedy against the United States is exclusively federal, Congress anticipated that state suits would continue to be filed.” McGowan, 623 F.2d at 1242. More importantly, McGowan holds that the United States attorney will not be allowed to “sandbag” the plaintiff by failing to remove the case from the state court until more than six months after final disposition of the administrative claim.

The situation in the present case is analogous. By removing the case before the plaintiff had received a final disposition of her administrative claim, and then moving to dismiss because the plaintiff had not received that decision, the United States was able to defeat the claim because of circumstances beyond the plaintiff’s control. The plaintiff is not required to wait to file suit in state court until such time as the administrative decision is rendered. Staple v. United States, 740 F.2d 766, 768 (9th Cir.1984). If the agency ultimately ruled that the defendant was not within the scope of federal employment when the accident occurred, the plaintiff could properly pursue a state tort remedy. For this reason, the court in McGowan recognized that Congress intended to permit state court suits to be filed. McGowan, 623 F.2d at 1242. The plaintiff in McGowan was allowed to proceed though he remained in state court until his right to bring suit in federal court had expired; the plaintiff in this case has been forced into federal court at a time prior to which she has a right of action, even though that right would yet accrue. This looks like another variety of sandbagging, and as the Court of Appeals observed, it is doubtful that Congress intended to allow it. Staples, 740 F.2d at 770 n. 2; McGowan, 623 F.2d at 1242.

The holding and reasoning in Van Lieu is also relevant to the present situation, though that holding has not been universally adopted, e.g., Rogers. The Van Lieu test waives the exhaustion requirement when a plaintiff is unaware that the defendant was a federal employee, and unaware that the defendant was on federal business. The Van Lieu decision indicates that the courts are willing to forego a mechanical application of the statutory requirements of the Federal Tort Claims Act under certain circumstances.

Such a flexible approach is appropriate here. The manner in which Ms. Chambly proceeded with this case was perfectly proper. She filed her state court claim and awaited the final disposition of her administrative claim. See Staple, 740 F.2d at 768. The plaintiff had no way of knowing whether the defendant was on federal business at the time of the accident, and therefore a proper party to the suit, until disposition of the administrative claim or certification by the United States. Unlike the plaintiff in Van Lieu, who filed no administrative claim at all, the plaintiff here filed the proper claim within the two-year period as required by 28 U.S.C. § 2401(b). The Rogers court refused to create an exception to § 2401(b) when the plaintiff failed to file a claim. But unlike the Rogers plaintiff, Chambly has pursued all possible avenues of relief in a timely and prudent fashion.

The earlier dismissal order of March 13, 1984 was certainly legally correct. Plaintiff Chambly did not counter the government’s assertions that administrative remedies had not been exhausted, nor did she respond to the motion with indications that she was pursuing these remedies. The plaintiff’s motion to reconsider, however, presents new developments which materially change the circumstances at bar. The McGowan and Van Lieu opinions argue, and I agree, that the suit should have been stayed rather than dismissed, and that Ms. Chambly should be allowed to proceed without additional expense now that her administrative remedies have been exhausted.

3. STATUTE OF LIMITATIONS

There is a further practical reason for granting the plaintiff’s motion to reinstate this claim. The statutory six month period has now passed sihce the date that the plaintiff filed her administrative claim. Her right to file the federal court claim has ripened. My choice is between reinstating this claim or requiring that the plaintiff file a new suit.

Title 28 of the United States Code § 2401(b) bars a tort claim against the United States “unless action is begun within six months after the date of mailing, by certified or registered mail of notice of final denial of the claim by the agency to which it is presented. In addition, 28 U.S.C. § 2675(a) provides:

The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a).

In Mack v. United States Postal Service, 414 F.Supp. 504 (E.D.Mich.1976) the court held that these two provisions of the Act must be read together to determine the time limit for filing in the federal court following the running of the six month period after a claim has been filed with the proper administrative body. In that case, the court accepted the plaintiff’s contention that the phrase “at the option of the claimant any time thereafter” in § 2675(a) gives the claimant the power to determine the date on which the unanswered claim shall be deemed denied for purposes of the six month period of § 2401(b). Mack, 414 F.Supp. at 506. This interpretation of Sections 2401(b) and 2675(a) was accepted by the Seventh Circuit Court of Appeals in Miller v. United States, 741 F.2d 148 (7th Cir.1984). See also Leonhard v. United States, 633 F.2d 599, 624 (2nd Cir.1982); Boyd v. United States, 482 F.Supp. 1126 (W.D.Pa.1980).

In the present case, the plaintiff filed her administrative claim on December 7, 1983. Under 2675(a), failure of the federal agency to respond within six months should “at the option of the [plaintiff] any time thereafter be deemed a final denial.” Therefore, as of June 7, 1984, or any time thereafter, if the federal agency had not responded, the plaintiff was free to commence suit in federal court. Since there is no indication that the plaintiff’s claim was ever answered, she was free to initiate this action at any time after June 7, 1984. She petitioned the court to reinstate the action on June 12, 1984, and this motion being timely, the suit should be reinstated.

On the other hand, if the federal agency responded, 28 U.S.C. § 2401 controls and the plaintiff had six months after notice of final denial to begin this action. On February 17, 1984, the United States filed its motion to dismiss and in support of that motion indicated that the plaintiff had failed to exhaust her administrative remedies. It is undisputed that if the federal agency did respond, that response came after February 17, 1984. The plaintiff would have then had until at least August 17, 1984 in which to file the claim. Since she moved that the claim be reinstated on June 12, 1984, she was within the six month period provided by § 2401(b).

CONCLUSION

It is therefore ORDERED that the plaintiff Grace Chambly’s Motion to Reconsider is GRANTED and upon reconsideration the earlier Motion to Dismiss is DENIED. The case will be reinstated in this Court’s docket.


author: TASHIMA, District Judge.

text:
    SHILEY, INC., etc., Plaintiff, v. BENTLEY LABORATORIES, INC., etc., Defendant. BENTLEY LABORATORIES, INC., etc., Counter-Claimant, v. SHILEY, INC., etc., Counter-Defendant.
    No. CV 81-3262 AWT.
    United States District Court, C.D. California.
    Feb. 4, 1985.

      John E. Kidd, Gidon D. Stern, Stephen J. Harbulak, Pennie & Edmonds, New York City, Darrell L. Olson, Knobbe, Martens, Olson & Bear, Newport Beach, Cal., for plaintiff.
    R. Douglas Lyon, Coe A. Bloomberg, Allan W. Jansen, David B. Murphy, William Steffin, Lyon & Lyon, Los Angeles, Cal., for defendant.
   MEMORANDUM OPINION

TASHIMA, District Judge.

This is a patent infringement action in which defendant has counterclaimed for a declaration of invalidity. The patents in suit pertain to a bubble blood oxygenator (the “lung” portion of the heart-lung machine employed during open-heart surgery). The action was tried to a jury which, after a lengthy trial, rendered its verdict for plaintiff on all issues. The special verdict included, inter alia, the jury’s findings that none of the claims in suit was invalid, that plaintiff was entitled to recover for its lost profits in the amount of $17,528,000, that a reasonable royalty is twelve percent (12%) of the selling price of the accused device, that plaintiff was not guilty of inequitable conduct before the United States Patent and Trademark Office and, most importantly to our present inquiry, that defendant’s infringement of plaintiff's patents was willful.

The Court heretofore has denied defendant’s motion for new trial and motion for judgment notwithstanding the verdict on all grounds, except willful infringement, on which decision was reserved. Before me now is decision on that JNOV issue and plaintiff’s motions for: (1) increased damages; and (2) an injunction. For the reasons hereinafter set forth, I grant both of plaintiff’s motions and deny defendant’s JNOV motion.

1. Increased Damages — Willfulness

Plaintiff, after verdict, has moved for increased damages in the maximum amount, under 35 U.S.C. § 284, which provides in part as follows:

When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed.

As stated, the jury, by its special verdict, found that defendant’s infringement was willful. The issue now before the Court is whether that finding is binding or only advisory, i.e., whether, when a jury is demanded on all issues triable to a jury, the issue is one for the jury or for the Court.

The issue has not been definitively addressed by the case law. The non-Federal Circuit cases which have confronted the issue are almost evenly split. Compare Yoder Bros., Inc. v. California-Florida Plant Corp., 537 F.2d 1347, 1383 (5th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S.Ct. 1108, 51 L.Ed.2d 540 (1977); White v. Mar-Bel, Inc., 509 F.2d 287, 292 (5th Cir.1975); Medtronic, Inc. v. Catalyst Research Corp., 547 F.Supp. 401, 405 (D.Minn.1982) (each holding the jury’s finding to be advisory) with Creative Cookware, Inc. v. Northland Aluminum, 678 F.2d 746, 749 (8th Cir.1982); Norfin, Inc. v. International Business Mach., 625 F.2d 357, 366 (10th Cir.1980) (both holding that the jury’s verdict on willfulness is to be disturbed on appeal only where clearly erroneous). Moreover, none of these cases has attempted any systematic analysis of the problem — their pronouncements are conclusory. There is no controlling case law from the Federal Circuit.

Section 284 appéars clearly to indicate that whether infringement and damages are tried to the jury or the court, the authority to increase damages is reserved to the court — “In either event, the court may increase the damages____” See Topliff v. Topliff, 145 U.S. 156, 174, 12 S.Ct. 825, 832, 36 L.Ed. 658 (1892); Swofford v. B & W, Inc., 336 F.2d 406, 412-13 (5th Cir.), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965) (court determination of increased damages issue does not violate constitutional right to jury trial). However, the court’s discretion to award increased damages is limited by the judicially imposed limitation that such damages may be awarded only in cases of willful infringement. E.g., Lam, Inc. v. Johns-Manville Corp., 668 F.2d 462 (10th Cir.), cert. denied, 456 U.S. 1007, 102 S.Ct. 2298, 73 L.Ed.2d 1302 (1982); Deere & Co. v. International Harvester Co., 658 F.2d 1137 (7th Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 514, 70 L.Ed.2d 386 (1981); Leesona Corp. v. United States, 599 F.2d 958, 969, 220 Ct.Cl. 234, cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). Therefore, if, as plaintiff contends, the jury’s finding of willfulness is binding on the court, much of the discretion vested by Congress in the court will have been shifted to the jury. If the jury should find that infringement was not willful, the court would be foreclosed from awarding increased damages. If, as in the case at bench, the jury does find willful infringement, the only issue remaining would appear to be the extent of increased damages. Certainly, a plaintiff who recovered no increased damages, despite a binding finding of willfulness, might have a fair case for abuse of discretion by the trial court.

This analysis is confirmed by an examination of the historical development of the discretionary treble damage provision. Both the original Patent Act of 1790, 1 Stat. 109, and the 1800 amendment, 2 Stat. 37, contained variations of a mandatory treble damage provision. See Seymour v. McCormick, 57 U.S. (16 How.) 479, 488, 14 L.Ed. 1024 (1853). The Supreme Court characterized the apparent dissatisfaction with this “horizontal rule equally affecting all cases” thusly:

Experience had shown the very great injustice of a horizontal rule equally affecting all cases, without regard to their peculiar merits. The defendant who acted in ignorance or good faith, claiming under a junior patent, was made liable to the same penalty with the wanton and malicious pirate. This rule was manifestly unjust.

Id. The Court then made clear the respective roles of jury and judge in the assessment of damages under the Patent Act of 1836, 5 Stat. 117:

In order to obviate this injustice, the Patent Act of 1836 confines the jury to the assessment of “actual damages.” The power to inflict vindictive or punitive damages is committed to the discretion and judgment of the court within the limit of trebling the actual damages found by the jury.

Id.

In short, acceptance of plaintiff’s position would render meaningless Congress’ clearly expressed intent in enacting the 1836 amendment to the Patent Act and subsequent reenactments of that provision that the issue of increased damages is to be determined by the court and not by the jury. I, therefore, conclude that the jury’s verdict on the issue of willful infringement is advisory only. I turn now to the issue of whether defendant’s infringement in this case was or was not willful.

Defendant here obtained several of plaintiff’s devices prior to bringing its own oxygenators onto the market. These early devices of plaintiff were marked “patent pending.” It appears that defendant then engaged in “reverse engineering.” It ordered a key component — a helically wound, helically ribbed coil — from plaintiffs supplier and specifically ordered that the part be made to plaintiffs specifications. Defendant also had access to plaintiffs descriptive brochure. Defendant thereafter, within a few months, began marketing the infringing device. From these facts, plaintiff claims copying and such an inference is warranted; however, it is unnecessary to rely on this contention.

It is undisputed that defendant obtained a copy of the patent in issue within days of its issuance. It is now the law that:

Where, as here, a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing.

Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389 (Fed.Cir. 1983). I find by clear and convincing evidence that defendant failed to do its affirmative duty to exercise due care; therefore, that its infringement was willful.

First, defendant claims that it promptly obtained an oral opinion in 1978. The totality of the testimony on this “oral opinion” is that when defendant’s vice president of legal and medical affairs received “a copy of the front cover” of the patent in issue in early 1978, “the first time I had seen the patent,” he called defendant’s outside patent counsel “who was writing the patents for me, and I said, ‘Lets discuss this,’ and we did. And we both agreed that it was a different device. It functioned different, and it was a totally different operating device.” Counsel who engaged in this discussion was never called as a witness to explain the basis of his “opinion”. In terms of the requirement of Underwater Devices, id. at 1390, this cannot even be characterized as legal advice or an opinion, much less as a competent opinion.

Two and one-half years later, by letter dated August 21, 1980, defendant received a written opinion from its outside patent counsel. The letter itself notes that by that time the “BOS-10 oxygenator,” the infringing device, “has been on sale for almost three years, for a substantial period of time.” Thus, defendant here did not perform its affirmative duty which “includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. In this case, [defendant] obtained its counsel’s advice after it commenced its infringing activities.” Id. at 1390 (citations omitted; emphasis in original). Contrary to the strong suggestion in Underwater Devices, there is no evidence that counsel reviewed the file histories. In fact, the letter does not discuss validity at all and is limited to a narrow non-infringement opinion. Even that opinion is undercut by a subsequent letter, dated November 11, 1981, from counsel with the qualification that, “it is also true that a design change in the Bentley BOS-10 oxygenator to a heat exchange tube having individual annular ribs rather than continuous helical ribs will materially reduce, even on a worst case basis, Bentley’s exposure to Shiley.” The evidence also disclosed that defendant admittedly never conducted any search or study relating to invalidity, scope of enforceability of any claim, patentability of the claimed subject matter or infringement. In summary, I find that the credible evidence presents no good faith, reasonable basis for defendant to believe it had the right to commit the infringing acts. Stickle v. Heublein, Inc., 716 F.2d 1550, 1565 (Fed.Cir.1983).

Based on this evidence, I conclude that defendant has failed to discharge its affirmative duty to exercise due care to determine whether or not it was infringing the patents in suit. I therefore find, based on “the totality of the circumstances presented in the case,” Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1577 (Fed.Cir.1983), that the infringement was wanton and willful. It follows that this is a case in which increased damages may be awarded under § 284, in the Court’s discretion. Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 742 (Fed.Cir.1984). The amount of any increased award, as well as whether or not to make one, is also “within the discretion of the district court and will not be overturned absent a clear showing of abuse of discretion.” Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1547-48 (Fed.Cir.1984) (upholding award of treble damages).

In exercising my discretion, I have in mind that increased damages under § 284 are punitive in nature — a primary purpose of such an award is to punish the wrongdoer and to deter like conduct in the future by way of example — to protect the integrity of our patent system. Having reviewed the entire trial record and based on the totality of the circumstances in this case, I conclude that double damages is an appropriate increased damage award. The jury having returned a verdict of actual damages in the sum of $17,528,000, I exercise my discretion and award a like amount, $17,528,000, as increased damages for a total award of $35,056,000, before application of prejudgment interest, a post-verdict accounting and costs and attorneys’ fees.

2. Propriety of Injunctive Relief

As indicated earlier, the patents in suit, U.S. Patent No. 4,065,264 and U.S. Patent No. 4,138,288, both pertain to bubble blood oxygenators. Blood oxygenators are used in open-heart by-pass surgery and the sales are substantial. The total market is in the range of $50-$100 million in annual sales. The parties here are two of the leading manufacturers and sellers. Plaintiff markets its “S” series of bubble blood oxygenators and defendant markets its “BOS” series of the same type oxygenator. Other types are available on the market, but the bubble type appears to be highly popular, if not the most popular type. In 1984, defendant sold well in excess of 100,000 units.

On the basis of the jury’s special verdict, rejecting all claims of invalidity and finding that the accused device infringes all claims in suit of both patents, plaintiff now moves for the issuance of a permanent injunction enjoining defendant from future infringement of the patents in suit.

Under 35 U.S.C. § 283, a court “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” Under this section, the decision whether to grant an injunction is thus within the judge’s discretion. Roche Prod. v. Bolar Pharmaceutical Co., 733 F.2d 858, 865 (Fed.Cir.1984); Smith Int’l, Inc. v. Hughes Tool Co., 718 F.2d 1573 (Fed.Cir.1983). As a court of equity, the court must consider all of the circumstances, including the adequacy of the legal remedy, irreparable injury, whether the public interest would be served, and hardship on the parties and third parties. Roche, 733 F.2d at 865-66; Smith, 718 F.2d at 1577-79.

In a patent infringement case,. where the infringing device will continue to infringe and thus damage plaintiff in the future, monetary damages are generally considered to be inadequate. This inadequacy results from the nature of the patent right itself — the right to exclude others. As the court stated in Smith Int’l:

Without the right to obtain an injunction, the right to exclude granted to the patentee would have only a fraction of the value it was intended to have, and would no longer be as great an incentive to engage in the toils of scientific and technological research.

718 F.2d at 1578. Here, plaintiff has satisfied this requirement. It is still producing its “S” line of oxygenators and its patents are being infringed by defendant’s competing BOS oxygenators. Thus, monetary damages would not adequately compensate plaintiff for its loss of the right to exclude defendant. Moreover, where validity and continuing infringement have been established, irreparable injury is presumed. Id. at 1581.

That this case meets the foregoing requirements is not contested. The issue here is framed by defendant’s contention that issuance of an injunction would dis-serve the public interest.

How the public interest will be affected must be considered in every injunction action. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). In Roche, the Federal Circuit held, “the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases____” 733 F.2d at 865-66 (quoting Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944)). Other courts have similarly considered the public interest in patent injunction cases. In City of Milwaukee v. Activated Sludge, 69 F.2d 577 (7th Cir.), cert. denied, 293 U.S. 576, 55 S.Ct. 87, 79 L.Ed. 673 (1934), injunctive relief to prevent future infringement of a patent was denied where the requested relief would have resulted in the closing of the city’s sewage treatment plant. The court held that an injunction was inappropriate because the result would be to endanger the lives of over a half million people by forcing residents to dispose of their sewage in Lake Michigan. Id. at 593.

Defendant claims that removal of its oxygenators from the market will have an advérse effect on many candidates for open heart surgery. In support of this contention, it has filed numerous ex parte declarations of hospital administrators and perfusionists who use the BOS oxygenator exclusively. The tenor of these declarations is that all of these declarants consider defendant’s model to be “superior” to plaintiff’s. Undoubtedly this (belief) is so, else, I presume, they would be among the hundreds of users of plaintiff’s model. Suffice it to say, and I so find, that no credible evidence in the trial record supports any finding that either is objectively superior in performance or that either is defective or unsafe in any way or does not properly perform as intended and required in the operating room. The evidence amounts to no more than a mere expression of preference. It should be noted that the record contains ample evidence of institutions and individual perfusionists who use plaintiff’s model exclusively and of those who use both models.

Other complaints are raised by BOS users, such as potential short-term supply problems from the sudden cutoff of further BOS supplies without notice and the lag-time in training staff to use another slightly different model. Those complaints may be real, but they can be greatly alleviated by the provision of a transition period before the injunction’s prohibition becomes flatly effective.

On balance, I find that the public interest will not be disserved by issuance of an injunction in the circumstances of this case and that the public interest to be served by protection of the nation’s patent system outweighs any temporary inconvenience or one-time costs associated with staff training or other costs associated with a changeover to another model. See Smith Int'l, 718 F.2d at 1581.

The permanent injunction will contain a six-month transition period to allow an efficient and non-disruptive changeover for those institutions who now employ the BOS oxygenator exclusively. Defendant shall pay to plaintiff a 12 percent royalty for the first two months, a 15 percent royalty for the next two, and an 18 percent royalty for the final two months of the transition period. This royalty shall be on all sales commencing February 1, 1985 and ending July 31, 1985. The royalty shall apply to defendant’s average unit selling price for the months of November and December, 1984. An additional royalty of 50 percent of any increase in the unit price above the November-December base price shall also be paid.

Two final points should be mentioned. Defendant argues that an injunction will drive it out of business because the bubble oxygenator is its primary product. In effect, it argues for a compulsory license, which Congress did not see fit to include in the Patent Laws. The Court has found the infringement in this case to be willful and wanton. The argument must be rejected. Id.

Defendant also seeks to limit the injunction to oxygenators having a substantially continuous helical rib (along the heat exchanger coil) as opposed to a series of individual annular ribs. There is no evidence that such an oxygenator is being made. The request appears to be advisory. See Velo-Bind, Inc. v. Minnesota Mining & Mfg. Co., 647 F.2d 965, 974-75 (9th Cir. 1981). Moreover, an injunction need not be limited to the specific accused device.

Such an injunction [after trial on the merits] prohibits infringement by any product, not just those involved in the original suit. The burden of avoiding infringement at the risk of contempt falls upon the one enjoined.

Smith, Int’l, 718 F.2d 1581 n. 8.

Conclusion

The judgment entered herein shall include a permanent injunction consistent with the foregoing and an award of double damages.

To the extent the same are required, this Memorandum Opinion shall constitute my findings of fact and conclusions of law under F.R.Civ.P. 52(a).

      . There are also pending three additional motions by plaintiff for: (1) attorneys’ fees; (2) prejudgment interest; and (3) a post-verdict accounting. These motions are disposed of concurrently herewith by an unpublished Supplemental Memorandum.

      . In support of its position that willfulness is an issue to be decided by the jury, plaintiff relies, in part, on pronouncements from the Federal Circuit that the issue is a question of fact. E.g., Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 742 (Fed.Cir.1984); Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389 (Fed.Cir.1983). Such cases shed no light on the issue of whether that question of fact should be decided by the jury or by the court.

      . Neither party contends that resolution of this issue implicates the Seventh Amendment right to trial by jury. See generally Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

      . This appears to be the standard of review on appeal of this issue. Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1548 (Fed. Cir.1984).

      . Because of this conclusion, defendant’s motion under F.R.Civ.P. 50(b) for judgment notwithstanding the verdict on the issue of willful infringement is rendered moot and is denied for that reason. See Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 895 n. 5 (Fed.Cir. 1984) (JNOV motion applies only to binding jury verdicts).

      . This component, the Turbotec coil, apparently was itself patented and not available from other suppliers.

      . The competency of counsel is not an issue.

      . All of the findings on willful infringement are made under the "by clear and convincing evidence" standard.

      . In addition to its lost profits award of $17,-528,000, the jury also found that a reasonable royalty was 12 percent of the sales price of the infringing devices. Based on the uncontradicted evidence of such sales the 12 percent royalty would amount to $17,215,025. Plaintiff has elected the higher lost profits award and the double damage award is based on that award of actual damages. Should the lost profits verdict be disturbed on appeal, but the propriety of the reasonable royalty affirmed, I would exercise my discretion to then award increased damages in the sum of $17,215,025.

      . Under Beacon Theatres, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, the court must accept these fact determinations of the jury for purposes of making its determination on the equitable issues. There may be one exception. The special verdict included the jury’s finding that none of the patent claims in suit was invalid for obviousness. The question of obviousness is ultimately a question of law. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966). In answering that question, however, the ultimate conclusion must be based on an adequate factual underpinning. It is "not error” to submit the question to the jury, if the jury is given "appropriate instructions” of the factual inquiry to be made. Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1547 (Fed.Cir. 1983). Here, the jury was fully instructed on the law of obviousness. Jury Instructions Given, 48(a) to 48(j). On this record, therefore, and in light of the case law, I fully accept the jury’s special verdict that none of the patent claims in suit is invalid for obviousness.

      . Paragraph 8.7 of the Pretrial Conference Order listed as an issue of law preserved for trial whether, if infringement were found, defendant should be enjoined. No evidence on the public interest issue was presented at trial and no motion to reopen was made. In this circumstance, I cannot and do not give much credit to these declarations which are untested by cross-examination. Plaintiff contends that if it had been aware that such declarations would be offered by defendant, it would have gathered and filed an equal number of declarations to the contrary, attesting to the superiority of its “S” oxygenator over the BOS oxygenator.