author: NICKERSON, District Judge.

text:
    UNITED STATES of America, v. Aniello DELLACROCE, et al., Defendants.
    No. 85 CR 178.
    United States District Court, E.D. New York.
    Jan. 3, 1986.
    See also, D.C., 613 F.Supp. 312.

      Raymond J. Dearie, U.S. Atty. (Diane F. Giacalone, John Gleeson, Asst. U.S. Attys., of counsel), Brooklyn, N.Y., for plaintiff.
    Slotnick & Cutler (Bruce Cutler, of counsel), New York City, for defendant John Gotti.
    Anthony Lombardino, Kew Gardens, N.Y. (Herald Price Fahringer, New York City, of counsel), for defendants John Carneglia and Charles Carneglia.
    Michael F. Coiro, Jr., Bellmore, N.Y., (Hoffman, Pollok & Gasthalter, New York City, of counsel), for defendant Eugene Gotti.
    Richard A. Rehbock, New York City, for defendant Wilfred Johnson.
    David DePetris, New York City, for defendant Anthony Rampino.
    Susan Kellman, New York City, for defendant Leonard DiMaria.
    Barry S. Turner, New York City, for defendant Nicholas Corozzo.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

The ten defendants named in the indictment moved for various relief prior to trial. Subsequent to oral argument one defendant died and another pled. By memorandum and order dated November 25, 1985 (familiarity with which is assumed) this court denied that part of the motion based on the Double Jeopardy clause.

The “Introduction” to the two count indictment alleges that two “crews” of the “Gambino Crime Family” plus their supervisor, defendant Aniello Dellacroce, now deceased, were “associated in fact” and constituted an “enterprise” within the meaning of the Racketeer Influenced Corrupt Organization Act (RICO), 18 U.S.C. § 1961(4). The Introduction describes the two crews as the Fatico/Gotti crew and the DiMaria/Corozzo crew, and asserts that the enterprise conducted its criminal activities by force and threats of force.

Count One alleges that in violation of 18 U.S.C. § 1962(d) defendants conspired to violate 18 U.S.C. § 1962(c). The latter section makes it unlawful for any person associated with an “enterprise” to conduct or participate in the conduct of its affairs through a pattern of racketeering activity or collection of unlawful debt. Count Two alleges a violation of 18 U.S.C. § 1962(c) and sets forth fifteen predicate acts constituting the pattern of racketeering activity.

I

Defendants urge that the indictment does not plead a single “enterprise” within the meaning of 18 U.S.C. §§ 1961 and 1962. They say that according to the indictment the two crews were distinct from one another, committed different types of crimes at wholly different times, and operated independently without a common purpose, and that this is not enough to make out an “enterprise.”

The pleading of an “enterprise” is sufficient. The indictment describes the “enterprise” as made up of persons “associated in fact,” namely, the two crews and their supervisor, comprising a “segment” of the Gambino Crime Family and alleges that this Crime Family supervised and participated in illegal activities generating money and other economic advantage. The indictment does not specifically repeat that the “enterprise” had this purpose. But, even if the law requires the pleading to state the purpose of the enterprise, the allegations are adequate. They plainly contemplate that the enterprise, that is, the “segment” of the Gambino Crime Family had the same objective as the larger entity.

The statute does not require an “enterprise” made up of individuals “associated in fact” to have the identical associates throughout its existence. Provided those charged are associated in fact at the times alleged, they constitute an “enterprise,” 18 U.S.C. § 1961(4), which does not cease to exist when some leave or others join.

II

Defendants contend that the indictment does not properly allege a “pattern of racketeering activity” within the meaning of 18 U.S.C. §§ 1961 and 1962. They say that the fifteen acts of racketeering are sporadic and unrelated criminal episodes over a lengthy period and thus do not show persons engaged in a course of conduct for a common purpose. No doubt the government must prove at trial that the racketeering acts were done in the conduct of the affairs of the enterprise. Count Two so alleges, and no more is required.

The statute does not provide that the acts be similar in kind. United States v. Weisman, 624 F.2d 1118, 1122 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980). The only time requirements as to racketeering acts are set forth in 18 U.S.C. § 1961(5).

III

Defendants ask the court to dismiss Count Two because they claim that the paragraphs charging racketeering acts 6, 7, 13, 14, and 15 each allege more than one crime. In the alternative the defendants urge the court to strike the “duplicitous” language.

The allegations charging act 7 set forth only one crime. Under 18 U.S.C. § 1955 the state law violation is an element of the federal crime.

The other paragraphs referred to charge two crimes; paragraphs 6, 14, and 15 allege both a conspiracy to commit a substantive crime and the substantive crime; paragraph 13 alleges the possession of both contraband and stolen cigarettes.

There is no reason to dismiss the count or strike the allegations. The court will instruct the jury that it may not find guilt based on one of the acts charged in the alternative unless the jurors all agree on at least one alternative.

IV

Defendants contend that the allegations of racketeering acts 6 and 10, charging conspiracy to murder, are defective because they do not allege overt acts in furtherance of the conspiracies. Defendants point out that section 105.20 of the applicable New York Penal Law conditions convictions for conspiracy on the pleading and proof of an overt act.

The defendants’ argument is inconsistent with the language in United States v. Bagaric, 706 F.2d 42, 62-63 (2d Cir.) cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983). Even if proof of an overt act is required, the RICO statute does not incorporate state rules of pleading.

V

Defendants argue that Count One, the conspiracy count, is defective because it does not allege an overt act, and that 18 U.S.C. § 1962(d) is unconstitutional if it does not require proof of such an act.

That section does not require proof of an overt act. United States v. Ivic, 700 F.2d 51, 59 (2d Cir.1983).

The act of conspiring is an act. The case of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), finding in violation of the Eighth Amendment a statute making criminal the addiction to drugs is hardly comparable. The prosecution of defendants in Count One is not for what they are but for what they allegedly did, namely, conspire to commit illegal acts.

Nor does Count One charge, in alleged violation of the First Amendment, simply an agreement to advocate or to assemble to advocate crimes. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), is thus not pertinent. The charge is that defendants conspired to do something against the law, that is, to participate in the conduct of an enterprise through a pattern of racketeering activity.

VI

Defendants, citing Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), contend that the two counts in the indictment merge and that the court should dismiss one.

The Jeffers case discussed whether 21 U.S.C. § 846, making a narcotics conspiracy illegal, was a lesser included offense in a prosecution for a continuing narcotics criminal enterprise under 21 U.S.C. § 848. The latter section provides in subsection (b) that a person is engaged in such an enterprise if, among other things, he commits a federal felony drug offense that is part of a series of such violations undertaken by him “in concert with” five or more others whom he supervises. The Supreme Court assumed for the sake of argument that the words “in concert” require an “agreement” and thus treated § 848 as requiring proof of every fact necessary to show a violation of § 846.

In contrast 18 U.S.C. § 1962 contemplates that a conspiracy to participate in the conduct of the affairs of the “enterprise” through a pattern of racketeering activity is not the same thing as being part of the enterprise. An enterprise may consist of a single individual. However, the defendants contend that because the indictment alleges that the individuals who are “associated in fact” and comprise the “enterprise” consist of the two crews and their supervisor (encompassing all the defendants), the “conspiracy” here is the same as the “association,” and that one count merges into the other.

The statute presupposes that an “enterprise” composed of individuals “associated in fact” is not inevitably composed only of those who conduct and participate in the conduct of its affairs through a pattern of racketeering activity or collection of unlawful debt. An “enterprise” consisting of persons “associated in fact” may engage in some legitimate affairs or even have a laudable goal. The statute does not define the element of association in such an enterprise to require that each member agree to conduct the affairs of the association through a pattern of racketeering activity or collection of unlawful debt.

An unincorporated association may have many members and a perfectly proper purpose, while a few of its members in pursuit of that purpose engage in a pattern of racketeering activity or conspire to do so. Only those who do so violate 18 U.S.C. § 1962(c) of (d). Perhaps the same evidence will justify a finding of the existence both of an enterprise and of an illegal conspiracy charged. But the elements of the “association” and the “conspiracy” are not identical. Under the reasoning of Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), the counts do not merge.

VII

Defendants assert that Count Two improperly alleges conspiracies as predicate acts. The case of United States v. Ruggiero, 726 F.2d 913, 918-19 (2d Cir.), cert. denied, - U.S. -, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984), forecloses this argument.

VIII

Defendants ask the court to dismiss the charges contained in seven of the racketeering acts asserted in Count Two on the ground that they are “stale.” They urge that to require defendants to answer charges as to acts committed between November 1967 and April 1974 would be to violate due process.

By 18 U.S.C. § 1961(5) a pattern of racketeering activity requires at least two acts of such activity, the last act of which occurred within ten years after the commission of the prior act. The acts alleged meet the statutory standard, and defendants have shown no prejudice to justify a due process challenge.

IX

Defendants argue that the court should strike what they term surplus and prejudicial allegations in the indictment. They point to references such as the “Gambino Crime Family,” the characterizations of various persons as boss, underboss, made members, capos, and the like, and the description of “Big Paul” Castellano as boss of the Gambino Crime Family. Defendants also regard the term “the Old Man” as prejudicial.

The government claims that it will prove at trial all these appellations and that they are relevant to the charges. The court cannot say the allegations are irrelevant and will not strike them.

X

Defendants urge the court to dismiss the indictment saying that the above “prejudicial” allegations show that the grand jury heard evidence to support them.

If the statements are relevant, the government properly submitted the evidence on which they were based.

XI

Defendants ask for a severance on the ground that a joint trial will violate due process and Rule 14 of the Federal Rules of Criminal Procedure.

The number of defendants, here eight, the nature of the acts of racketeering (conspiracies to murder, robbery, loan-sharking and the like), and the possible length of the trial are all matters of concern and factors that this court has weighed in determining whether defendants can get a fair trial. The fact that other, evidently more complex, cases involving organized crime and more numerous defendants are going forward in this and other courts is, of course, not conclusive.

This court’s experience in other prosecutions of a magnitude and complexity similar to this suggests that with careful instructions the jury will be able to function properly and to make appropriate distinctions between defendants. For example, in United States v. Praetorius, CR 78-00135(s) (E.D.N.Y.1978), an earlier stage of which is reported at 451 F.Supp. 371 (E.D.N.Y.1978) and later stages of which are reported at 462 F.Supp. 924 (E.D.N.Y.1978), and 622 F.2d 1054 (2d Cir.1979), cert. denied, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980), the jury found several of thirteen defendants guilty of conspiracy to import and distribute heroin, acquitted some of conspiracy, and could not agree as to the substantive offenses charged against any. This has not been an isolated instance in the court’s experience. The juries in this district appear to have been conscientious and to have applied the court’s instructions carefully and intelligently. A jury in this case can do the same.

The court finds no substance in the argument of defendant DiMaria under Rule 8 of the Federal Rules of Criminal Procedure. The indictment pleads only one enterprise. Nor do his contentions under Rule 14 have merit.

XII

Since defendant Armond Dellacroce has pled guilty, the court need not consider the particular arguments he advanced for severance.

XIII

Defendants ask the court to conduct a hearing to determine whether statements the government intends to offer as co-conspirator declarations are admissible under Rule 801(d)(2)(E), citing United States v. James, 576 F.2d 1121 (5th Cir.1978), modified en banc, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).

The government opposes this request except as it concerns alleged statements made by defendant Wilfred Johnson and one William Battista. The government says that they played double roles, acting both as informants and as co-conspirators. Their statements as informants would not be admissible; those made by them as co-conspirators would be. The court will therefore hold a hearing on the issue.

The court finds no sufficient reason to conduct hearings as to the statements of other alleged co-conspirators. The court will follow the procedure heretofore used in this circuit. See, e.g., United States v. Margiotta, 688 F.2d 108, 136-37 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

XIV

The court in its memorandum and order dated November 25, 1985, denied defendants’ claims that the Double Jeopardy clause requires dismissal of certain racketeering acts.

XV

Defendants make a variety of challenges to the admissibility of conversations intercepted and recorded pursuant to orders of state and federal courts. One such claim is as to conversations intercepted by telephone wiretap and “bug” at the residence of Angelo Ruggiero.

The same contentions with respect to the Ruggiero tap and bug are before Judge Costantino in the case of United States v. Ruggiero, et. al, CR 83-00412. The parties have submitted the matter on the papers in that case.

Judge Costantino has been holding hearings as to whether the agents failed to “minimize” the interception of communications. That matter is not in issue because only Angelo Ruggiero, not a defendant here but whose premises the agents tapped and bugged, has standing to raise it. United States v. Fury, 554 F.2d 522, 526 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977).

Defendants, by letter dated December 19, 1985, urge that while only Ruggiero may have standing to claim a failure to minimize, all those defendants whose conversations were intercepted have standing to complain about continuous “live monitoring.” They say that such monitoring is analogous to the execution of a general warrant or “rummaging” in the execution of a general warrant and is a violation of the Fourth Amendment, whereas the failure to minimize is merely a statutory violation.

The court does not accept the distinction. The citation in the Fury case, supra, of Alderman v. United States, 394 U.S. 165, 171-76, 89 S.Ct. 961, 965-68, 22 L.Ed.2d 176 (1969), shows that the Court of Appeals was applying a general principle that only the person whose premises were tapped or bugged could complain. To put it in modern parlance, only he had a legitimate expectation of privacy.

This court holds that none of the defendants in the present case has standing to raise objections to the manner of execution of the warrants.

Nor has any defendant in this case standing to raise the issue now before Judge Costantino of whether the agents improperly intercepted confidential communications between Ruggiero and his alleged lawyer. The attorney client privilege is solely that of the client.

It could be argued that defendant Eugene Gotti, to the extent he was a party to the conversations between Ruggiero and the lawyer, may object to them. The argument is that (1) Eugene Gotti and Ruggiero were then both clients of the lawyer, and the communications were for the purpose of enabling the lawyer to give legal advice to them jointly, and (2) even if the conversation was not privileged as to Eugene Gotti, he is an “aggrieved person” within the meaning of 18 U.S.C. § 2510(11) because he was a “party” to the intercepted communications and thus under 18 U.S.C. § 2518(10)(a)(i) was entitled to move to suppress them as “unlawfully intercepted” because privileged.

The court has examined the affidavits of Eugene Gotti and the lawyer as well as the transcripts of the conversations where Eugene Gotti, Ruggiero, and the lawyer were all present. The court is satisfied that none of those conversations had to do with the obtaining or giving of legal service or advice to Eugene Gotti.' He therefore had no attorney client privilege with respect to them. Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir.1961).

Since Eugene Gotti had no attorney client privilege, neither did Ruggiero as to communications in the presence of Eugene Gotti. There is no privilege when a third party participates. United States v. Jamil, 546 F.Supp. 646, 651 (E.D.N.Y.1982), rev’d on other grounds, 707 F.2d 638 (2d Cir.1983); United States v. Pipkins, 528 F.2d 559, 563 (5th Cir.), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). Thus such communications were not “unlawfully intercepted” as to Ruggiero within the meaning of 18 U.S.C. § 2518(10)(a)(i).

But even if the conversations were “unlawfully intercepted” as to Ruggiero because of the attorney client privilege, they were not “unlawfully intercepted” as to Eugene Gotti. As noted, the privilege belongs to the client. Eugene Gotti thus is not an “aggrieved person” under 18 U.S.C. § 2510(11). That term is to be construed in accordance with the usual standing rules. Alderman v. United States, supra, 394 U.S. at 176 n. 9, 89 S.Ct. at 968 n. 9.

This court does not pass on the propriety of interception of any conversation during which Eugene Gotti was absent.

Defendants’ other contentions are that (a) the government failed to obtain the “immediate” sealing of the Ruggiero wiretap evidence pursuant to 28 U.S.C. § 2518(8)(a), (b) the applications for the Ruggiero orders did not meet the “alternative investigative procedures” of 18 U.S.C. § 2518, and (c) there was insufficient probable cause to sustain the interceptions. In a case involving the identical orders, United States v. Massino, 605 F.Supp. 1565 (S.D.N.Y.1985), Judge Sweet decided all these matters.

The court agrees with Judge Sweet’s rulings for the reasons stated in his opinion. This court denies defendants’ motion to suppress except as to the sixth and final order and suppresses it fruits.

The court is informed that an appeal is pending in the Massino case. In the event the Court of Appeals reverses Judge Sweet’s order this court will entertain an application for reconsideration.

XVI

Defendants attack the validity of a court ordered wiretap of two pay telephones in a vacant storefront next to the Bergin Hunt and Fish Club (the Bergin Club) in Queens.

The initial wiretap order by the New York State Supreme Court was based on an affidavit of New York City Detective John J. Holder, Jr. He sought authority to intercept the conversations of Frank Guidici and William Battista and bookmakers and bankers of gambling operations over the two telephones. Defendants contend that the affidavit did not establish probable cause to believe that the telephones were being used to conduct an illegal gambling business, but showed only that Guidici and Battista were placing bets, an offense for which wiretapping is not authorized.

Holder’s affidavit makes, in substance, the following statements. Assigned for nine years to the Organized Crime Control Bureau, he had investigated numerous gambling and usury violations and had often qualified as an expert witness on gambling. Since late September 1980 he and fellow officers had maintained a sustained surveillance of the vacant storefront and the Bergin Club which had no telephones.

No one used the two telephones in the storefront other than the frequenters of the Bergin Club. Battista and Guidici, among others, often used them to make outgoing and receive incoming calls. Pen registers revealed that calls from the phones were made to numbers registered to an R. Bell in Ridgewood, Queens. On March 5, 1981, Holder pursuant to a warrant searched that Queens location and seized records showing a daily gross of some $5,000 in gambling receipts. The records included a sheet tacked to the wall listing among other numbers those for the two telephones in the storefront. Holder arrested a Peter Schiavone at the same time, and he later pled guilty to promotion of gambling and possession of gambling records.

Less than two weeks after that search and seizure, two telephones were installed at another address in Ridgewood, Queens and registered to an Albert Bell. Between March 25, 1981 and April 3, 1981 Battista, Guidici, and a Richard Gotti made calls to these telephones from the storefront. Schiavone was seen on two occasions, on April 14, 1981 and April 15, 1981, going to this second Ridgewood address and then leaving it and proceeding to a Brooklyn address with a brown paper bag which he left there.

Holder’s expert opinion was that Schiavone, as clerk, was operating the second Ridgewood address as a wireroom for illegal gambling operations, and was receiving calls from bettors and bookmakers, including calls from bookmakers to lay off bets. Based on his experience Holder was of the opinion that the list of telephone numbers seized at the first Ridgewood address was the type of list that a wireroom clerk has of the numbers of his bosses and other bookmakers to enable him to lay off bets. Holder gave his opinion that the Brooklyn address was Schiavone’s “figure room” or “bank” where he tallied the numbers and processed the work.

On April 3, 1981 Battista and Guidici had a heated conversation in front of the Bergin Club. Guidici was angry because a “ticket” for $1000 was “put in” for $500 and insisted that “he owes five hundred yet.” Battista advised Guidici not to get excited and to call “him.” Guidici then called the wireroom from the vacant storefront. In Holder’s opinion the “ticket” referred to a $1000 bet placed with a bookmaker and put through by the bookmaker for $500. Holder said that the conversation between Guidici and Battista could not possibly be about a bet Guidici had placed. It had been “put in” for only $500 rather than $1000, and when Guidici talked about the bookie owing $500, this obviously was not a reference to payment on a winning bet. Holder concluded that Guidici was the boss of Schiavone’s wireroom and that the calls made by Guidici were to his confederates in the gambling operation.

Defendants concede that Schiavone was operating an illegal gambling wire-room and that the two telephones used at the storefront were used to call the wire-room. Defendants contend, however, that those phones were used only by ordinary bettors to place bets but not by bosses in furtherance of an illegal gambling operation. They argue that the frequency of certain calls made by Battista within the same minute to the two numbers of the wireroom phones is more consistent with betting than bossing. They say an anxious bettor would do just such a thing to place his bet.

However, the conclusions drawn by Holder from the conversation between Guidici and Battista seem reasonable even to a layman. The words exchanged do not sound as if they concerned a bet Guidici phoned in for himself. The inference is more plausible that they referred to someone else’s bet for which the gambling operation was responsible. It is more likely that the statement “he owes $500 yet” refers to a debt owed to the organization which employed the bookie than to a debt owed to an ordinary bettor.

The court concludes that the affidavit sufficiently set forth probable cause.

Defendants argue that the application did not show a necessity for the wiretap. In the affidavit Holder set forth his reasons for believing that other investigative procedures had failed, were unlikely to succeed, or were too dangerous to employ (Affidavit Ml 20-23). It is true that no pen registers or wiretaps were installed on Schiavone’s wirerooms. But this could hardly have been expected to yield the information sought (Affidavit ¶ 23). The court cannot say that Holder’s reasons for not using informants more extensively were without substance. The investigation made before the application for the wiretap was reasonably lengthy and extensive, and there was no precipitous resort to electronic surveillance that should have been denied.

Defendants argue that the order twice amended and twice extended should not have been extended beyond July 2, 1981. They contend that by then the objectives of the investigation had been or should have been attained. Even if the electronic surveillance before the order of that date established probable cause, the law does not require the investigation to end at that point. United States v. Carubia, 377 F.Supp. 1099 (E.D.N.Y.1974). The government was entitled to develop the full scope of the operation and the identities of the participants.

XVII

Defendants ask the court to hold a hearing to determine whether statements in the affidavit in support of the warrant for the electronic surveillance of the Ravenite Social Club (the Ravenite) were intentionally false or recklessly untrue.

Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), defendants may have such a hearing if they make “a substantial preliminary showing” of perjury or reckless disregard of the truth in the affidavit, provided its remaining content is insufficient to establish probable cause.

In January 1980 defendant Armond Dellacroce appeared pursuant to a subpoena before a New York County grand jury and refused to answer questions based on information obtained through the same allegedly illegal electronic surveillance of the Ravenite as is at issue here. The affidavit in support of the application for a warrant referred to statements by police officers describing conversations they allegedly overheard outside the Ravenite.

Armond Dellacroce’s attorney retained Dr. Louis Gerstman, a professor of psychology and speech at City College, who, after conducting experiments, concluded that the officers could not have heard the conversations. A Justice of the New York Supreme Court then denied the attorney’s motion to hold a hearing as to the credibility of the probable cause affidavit, finding that the affidavit of Dr. Gerstman had “not made the showing required” by the Franks case.

Defendants resubmit the affidavit of Gerstman dated April 8, 1980, and reassert the contentions made in that year. The six conversations in issue allegedly took place between March 23,1979 and June 12,1979. Each was said to have been heard by a detective or an officer from an observation point across the street from the Ravenite.

The Gerstman affidavit does not meet the criteria established by the Franks case. He conducted his observations some distance away from the position from which the officers say they overheard the conversations. He assumed that they took place in “free fields,” that is, outdoors without “reflections,” although they occurred close to buildings, which presumably would reflect the sound across the street. He also assumed that five of the six conversations were in voices at a “normal” level, a condition hardly likely given the nature of what was said.

In any event, this court holds that, even if those conversations were deleted from the affidavit, the remaining content is sufficient to support a finding of probable cause. The affidavit details observations of occurrences outside the Ravenite and recites various conversations (other than those at issue) establishing probable cause to believe that some repetitive criminal activity was going on there. Moreover, several specific conversations made likely the conclusion that the kind of illegal activity the denizens of the club were conducting was loansharking. Affidavit H1Í14-15, 18-19, 38-39, 48-49. For example, it is hardly unreasonable to infer that when a man before entering the club tells someone else that a debtor should get some “bread up” in the amount of $5000 or “he could slip on the ice and break both his (expletive deleted) legs,” the reference was to loansharking. Affidavit ¶¶ 18-19.

Defendants say that the extension of the warrant pursuant to the application of July 17, 1979 was improper because the taped conversations referred to in the warrant affidavit are inaudible. Defendants also ask for an audibility hearing to determine whether the tapes are admissible. The court will hold such a hearing.

XVIII

Defendants ask the court to suppress evidence derived from a wiretap obtained by the Suffolk County District Attorney for the telephone of defendant DiMaria. They contend that (1) the Suffolk District Attorney had no authority to apply for a Brooklyn wiretap order that yielded information contained in the later DiMaria wiretap application, (2) the warrant affidavit did not show facts establishing probable cause for the Brooklyn order, and (3) the affidavits for that order and the DiMaria order failed to show that normal investigative techniques had been tried and found wanting.

The first argument has no substance. There was as much “nexus” between the Suffolk County investigation and Kings County as there was between the two counties in People v. DiPasquale, 47 N.Y.2d 764, 417 N.Y.S.2d 678, 391 N.E.2d 710 (1979).

The facts stated in the affidavit in support of the Brooklyn order were sufficient to show probable cause. The conversation recorded on the Suffolk County tape of the person who answered the Brooklyn telephone plainly showed he was engaged in the illegal gambling conspiracy being investigated in Suffolk County.

A chief target of the Suffolk County investigation was acutely aware the authorities were following him. Persistent surveillance through wiretaps and other means had not revealed the scope of the operation and the identity of the participants. The District Attorney was not required to use further means.of investigation before applying for the Brooklyn order.

The claim that normal investigative procedures were not used before applying for the DiMaria order is inconsistent with the statements in the affidavit that surveillance of two of the chief conspirators and of the meetings of the members of the conspiracy had not disclosed what went on at the meetings or the role of each conspirator. It was reasonable to believe conventional procedures would be unsuccessful in obtaining this information.

The application to suppress the information derived from the DiMaria wiretap is denied.

XIX

The government has represented that it does not intend to offer any statements of defendants other than those taken post arrest relating to pedigree and those made at guilty pleas. There are thus no statements for the court to rule on.

XX '

Although defendants have made a generalized request for a hearing on all evidence illegally seized, they cite no specifics. Their request is therefore denied.

XXI

Defendants move to suppress any identification based on a lineup, show up, photo display, or voice exemplar. The government represents there were none.

XXII

Defendants ask that the government furnish further particulars of the charges pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure.

On November 22, 1985 the court focussed at oral argument on the items requested and has studied the parties’ briefs. The government has made available considerable information and in court made certain factual representations, stating it was prepared to supply further information as to certain items, namely, numbers 4, 8, 9, 10, 11, 12, 13, 14 and 15. The court does not preclude defendants from making further application should the government not supply that information. But the court will not require disclosure of the identity of coconspirators, the dates on which each conspirator joined, the identity of each place where a crime occurred, the means each defendant used to conspire, the identity of witnesses, or the other particulars demanded.

The government does not seem to have stinted in making available extensive documents and details. The tone of the requests of defendants’ attorneys is to require the government to disclose, as they put it in request number 28, “all acts of each defendant, verbal or non-verbal, which would entitle the trier of fact to infer that the defendants” conspired. The court will not order the government to furnish such details.

XXIII

Defendants, while agreeing that the government has been cooperative in providing certain material, ask for further discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the Fourth, Fifth, Sixth and Ninth Amendments, “and any other applicable federal statutes, regulations and court rules, as well as the cases thereunder.” They do not specify these “applicable” statutes, rules and cases, relying nc doubt on the court to know or to find them.

As to these demands the government’s brief has made representations that the court accepts in the absence of specific refutation. The court will not require revelation now of material required to be produced under 18 U.S.C. § 3500. Nor will the court order disclosure of the identity of witnesses or informants other than Johnson and Battista.

XXIY

The government asserts that it has complied and will continue to comply with its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and says that it is not aware of any exculpatory information. The government is aware of decisions such as Grant v. Alldredge, 498 F.2d 376 (2d Cir.1974), and therefore presumably knows of no specific evidence of a material nature requiring pretrial disclosure to allow for full exploitation by the defense. Impeachment evidence generally need not be disclosed before trial.

XXV-XXXI

Defendants assert that various improprieties may have taken place before the grand jury, namely, that (1) unauthorized persons may have appeared, (2) the government may not have presented exculpatory evidence or may have presented insufficient evidence, (3) some grand jurors may not have heard all the evidence, (4) the grand jurors may have received misinstruction on the law, and (5) the government may have made improper use of summary witnesses and of hearsay. Defendants ask that the court either undertake to examine the grand jury proceedings or order discovery concerning them.

Some of defendants’ assertions do not state improprieties. But in any event the arguments are inconsistent with the requirement that grand jury proceedings remain secret except upon a showing of compelling and particularized need. In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 28 (2d Cir.1981), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983); In re Rosahn, 671 F.2d 690, 695 (2d Cir.1982). Defendants have not advanced any facts that would justify the court in disturbing the secrecy of the grand jury proceedings.

The court denies defendants’ motions except to the extent stated. The court will hold hearings to determine the extent to which the statements of Wilfred Johnson and William Battista are admissible and the audibility of the conversations recorded on the Ravenite tapes made pursuant to the extension order sought July 17, 1979. The court suppresses the fruits of the sixth and final Ruggiero order.

So ordered.


source: Caselaw Access Project

author: VARNER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Limmie Lee KILLOUGH, et al, Defendants.
    Civ. A. No. 85V-1154-N.
    United States District Court, M.D. Alabama, N.D.
    Jan. 3, 1986.

      John C. Bell, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., Robert L. Ashbaugh, Michael F. Hertz and William S. Liebman, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for the U.S.
    Joseph T. Deep, pro se.
    Lewis B. Hickman, Jr., Montgomery, Ala., for Williams.
    Jack W. Sullivan, pro se.
    J. Bernard Brannan, Jr., Montgomery, Ala., for Harrell, individually and d/b/a LRH Mobile Contractors.
    George B. Azar, Azar, Campbell & Azar, Montgomery, Ala., for L.M. and L.R. Henry and J.R. Peters.
    Ronald P. Slepian, M. Donald Davis, Jr., McDermott, Slepian, Windom & Reed, Mobile, Ala., for Fountain-Lowery Enterprises.
    James Jerry Wood and S. Alec Spoon, Wood & Parnell, P.A., Montgomery, Ala., for William Donald Fountain and Hugh T. Fountain.

      Edward Massey and Melissa Posey, Clay, Massey & Gale, Mobile, Ala., for Ronny Caswell Kirkland.
   ORDER

VARNER, District Judge.

This cause is now before the Court on motions to dismiss filed herein by Defendants William Donald Fountain and Hugh T. Fountain; Defendant Ronny Caswell Kirkland; Defendant James Harrell, Individually and d/b/a LRH Mobile Contractors, Inc.; Defendant Don Williams, individually and d/b/a Mar-Don-Pat, Inc.; Defendant Luther Manuel Henry, individually and d/b/a Henry Tree Surgery, Inc.; Defendant Louis Rodney Henry, individually and d/b/a LRH Mobile Contractors, Inc.; Defendant John R. Peters, individually and d/b/a J & J Trim Shop; and Defendant Jack W. Sullivan, individually and d/b/a Sullivan Service Company. (These defendants are sometimes hereinafter referred to as non-official Defendants).

In its complaint filed herein September 27, 1985, Plaintiff, the United States acting on behalf of the Federal Emergency Management Agency (“FEMA”), alleged that the non-official Defendants who provided services to the State of Alabama under the United States Hurricane Frederic Disaster Relief Effort had violated the False Claims Act, 31 U.S.C. §§ 3729-3731 and committed other violations of state law. In particular, the United States has charged that these Defendants entered into a kick-back scheme with Defendants Limmie Lee Killough and Joseph Toofie Deep, Jr., who at the time period pertinent to the Complaint were the respective Director and Deputy Director of the Temporary Housing Program, an office set up by the Alabama Civil Defense Disaster Housing Office to handle disbursement of federal disaster funds. (Messrs. Killough and Deep are hereinafter sometimes referred to as the official Defendants). It is alleged that based on the solicitation of one or more official Defendants, and at times on the solicitation of Defendant Williams, the nonofficial Defendants submitted bids on projects to provide and set-up mobile homes for the Temporary Housing Program, and aforesaid bids were inflated to assure that the official Defendants would receive a kick-back. As a result, the United States is seeking damages under the False Claims Act and under state law.

In the various motions to dismiss before the Court, each of the Defendants has claimed that the False Claims Act does not afford protection to the Plaintiffs. Recovery under the False Claims Act, they charge, is limited to those instances in which a person has defrauded the United States government, and in the case herein, Defendants have asserted that the alleged action served to defraud only the State of Alabama. Specifically, they note that the fraudulent claims, if any, were made against the Temporary Housing Program, which was an office of the State of Alabama, and they were made against that agency after the United States had agreed to provide relief to the State of Alabama and after FEMA had in fact allotted the funds to finance the Temporary Housing Program. Thus, they claim that the complaint fails to allege that the federal government has been harmed as a result of the alleged fraud.

Title 31, Section 3729 of the United States Code provides, in pertinent part:

[A] person ... is liable to the United States Government ... because of the act of that person ... if the person — (1) knowingly presents, or causes to be presented, to an officer or employee of the Government or a member of an armed force a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved; (8) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid____

For purposes of this case, it is important to note that a person can be held liable under the False Claims Act if he either presents or causes a fraudulent claim to be made against a Government official. As the United States Supreme Court has observed, the requirements of the statute can be met even where a fraudulent claim is actually filed with a state agency that is dependent upon federal government funding. United States ex rel. Marcus v. Hess, 317 U.S. 537, 544, 63 S.Ct. 379, 384, 87 L.Ed. 443 (1943). One of the arguments of the Defendants is that the Plaintiffs have failed in their pleadings to allege any link between the allegedly fraudulent claims made against the Temporary Housing Program and the United States. (See Motion to Dismiss of Defendant Kirkland, page 1; Letter Brief of Defendant Kirkland, p. 2). It is the opinion of the Court that the Plaintiff is not required to allege a direct link between the United States and the fraudulent claims. Plaintiff merely needs to allege that Defendants defrauded the Temporary Housing Program, an organization which was dependent on the federal government for funding. The Court finds that the Plaintiff has sufficiently set forth a cause of action under the False Claims Act.

The critical factor in determining liability under the False Claims Act is whether a claim has been presented “upon or against the Government of the United States.” In other words, do the allegedly fraudulent claims cause an injury to the funds or property of the United States if the claims are indeed paid? United States v. Azzarelli Construction Co., 647 F.2d 757, 759 (7th Cir.1981).

In Azzarelli, the Seventh Circuit held that because the United States Treasury was not injured when a fraudulent claim was made upon funds distributed by the United States to the State of Illinois pursuant to the Federal-Aid Highway Act, the United States could not assert a cause of action under the False Claims Act. The court noted that under the Federal-Aid Highway Act, Illinois was entitled to a fixed and determinate yearly contribution from the United States, and any fraudulent claim made against the Illinois fund may have affected how that fund was distributed but it could not have influenced the total contribution of the United States to Illinois. Azzarelli, supra at 761. In contrast, in the instant case, as the Court discusses below, the law provides for accountability and refund to the United States of unexpended funds.

Defendants seek to use the reasoning of Azzarelli to dismiss the case herein. According to the Defendants, the Treasury of the United States was not harmed because once the funds were transferred from FEMA to Alabama for use in the Hurricane Fredric Disaster Relief Effort, they lost their federal character and thus, any claim against the funds would pose no burden on the United States Treasury. They point out that that FEMA had advanced funds to the State of Alabama before any of the Defendants had presented bids on the mobile home projects. Pursuant to the Federal-Státe Disaster Assistance Agreement, FEMA agreed to advance funds to the State of Alabama in order to finance the Temporary Housing Program and the State agreed to execute a Temporary Housing Program in accordance with federal law and regulations. The checks issued by the United States Treasury were forwarded from the Alabama Department of Civil Defense to the Alabama Department of Finance for deposit into a separate account for receipt and distribution of the federal funds. The account served as the sole source of payments to persons who rendered services in connection with the mobile home set-up contracts. Specifically, contractors providing such services submitted written invoices specifying the services rendered on their set-up contracts to accounting personnel in the Mobile office of the Alabama Department of Civil Defense, which after approving said invoices, forwarded them to the Headquarters of the Alabama Department of Civil Defense in Montgomery, Alabama. Upon approval of the Director of the Alabama Department of Civil Defense, all of the documents, including the invoices, vouchers, and purchase requisition forms, were sent to the State Finance Department, which after final approval issued state warrants (checks) against the federal funds in the account to the Civil Defense Disaster Housing Office in Mobile for distribution to the contractors.

There is no doubt that throughout this process the State of Alabama played a significant role in managing the funds, assuring their accountability, and finally in distributing them to the contractors. For instance, as Defendant Kirkland has observed, employees of the Alabama Civil Defense Department handled the alleged fraudulent claims of the Defendants, state officials controlled and administered the account, and the State Treasury, after approval of claims by the Alabama Department of Finance and the Alabama Civil Defense, released the funds for distribution. (Letter Brief of Defendant Kirkland, p. 2). Furthermore, the Agreement itself stated that the State of Alabama was responsible for maintaining and administering the funds. (See Agreement, paragraphs 5, 7 and 11-13).

On the other hand, the Agreement does assign to the federal government a significant role in the administration of the disaster program. As the Plaintiff has noted, the oversight authority of the federal government was extensive, giving the United States the power to approve project applications before the State distributed funds to the contractors, to withhold funding if the State breaches an applicable federal statute, regulation or the Agreement itself, and to audit records. (See letter brief of Plaintiff, p. 3). Moreover, the State was required to comply with federal provisions relating to debarment and suspension of contractors and it was required to maintain a program of nondiscrimination in accordance with federal laws. (See letter brief of Plaintiff, p. 3).

Furthermore, the Agreement itself characterized the funds as “federal” funds. (See Agreement, paragraphs 3, 9, 14). Indeed, in describing the purpose of the separate account the Acting Director of the Alabama Department of Civil Defense, Joe B. Hedrick, stated in his affidavit that the state account “was established to account for receipt and distribution of federal funds.” (Affidavit of Joe B. Hedrick, p. 3, attached to Defendant Kirkland’s letter brief). He also observed that the state warrants issued to compensate the contractors were “issued against federal funds deposited into fund account number ...” Thus, not only did the Agreement classify the money as federal assistance but the top State official responsible for supervising the relief effort considered it to be federal money.

Finally, of controlling importance is that the State of Alabama had a duty to return to the federal government any of the funds advanced to the State which were in excess of actual expenditures. That is, FEMA was entitled to receive from the State any advanced funds of the Temporary Housing Program which exceeded approved expenditures. (Agreement, paragraphs 1, 3(G)]. Unlike Azzarelli, where the State of Illinois was not compelled to refund excess funds, in the instant case, Alabama was required to refund any excess amount and to the extent that the State did not make a refund or the refund was reduced because of fraudulent claims made against the fund, the United States Treasury was impaired. In other words, the allegedly fraudulent claims of the Defendants could have either reduced or eliminated entirely the size of the refund to which the United States was entitled and thus imposed a burden on the United States government.

In light of the fact that, as a result of the allegedly fraudulent claims of the Defendants, the United States would have been injured and the fact that the Agreement between both parties stated that the funds were federal assistance and provided the United States with an important role in the disbursement of the funds, it is the opinion of the Court that the case herein is distinguishable from Azzarelli and that the motions to dismiss on the ground that the Plaintiff is not entitled to relief under the False Claims Act are due to be denied.

Some non-official Defendants, William Donald Fountain, Hugh T. Fountain, James Harrell, Don Williams, Luther Manuel Henry, individually and d/b/a Henry Tree Surgery, Inc., Louis Rodney Henry, individually and d/b/a LRH Mobile Contractors, Inc., and John R. Peters, individually and d/b/a J & J Trim Shop further contend that the United States has waived any right to bring this civil suit against said Defendants. In particular, they assert that in previous criminal actions the United States represented to the court that these Defendants were “extorted” and should not be required to pay restitution as a condition of their probation. According to the Defendants, such representation bars the United States from making a claim for damages under the False Claims Act or from filing any other suit for damages.

In their motion to dismiss, Defendants William Donald Fountain and Hugh T. Fountain stated that the Presentence Report of Defendant William Donald Fountain contains an admission by the United States that said Defendants are not required to pay any restitution. The Court has read the Presentence Report and is of the opinion that it does not make reference to the fact that these Defendants are not required to pay any restitution. [The Victim and Witness Protection Act, 18 U.S.C. § 3579, was not in effect.] It is further the opinion of the Court that even if Defendants can bring forth evidence to show that the United States stated that they were not required to pay restitution as a condition of probation, and if such a representation constitutes an admission, this Court may still hear the action under the False Claims Act and under the civil laws of Alabama. Such an admission would have been binding in the criminal proceeding but it does not waive the right of the United States to seek damages in a later civil suit. Matter of Raiford, 695 F.2d 521, 523 (11th Cir.1983).

In addition, Defendant Williams has charged that the doctrine of collateral estoppel bars the United States from seeking recovery in the case herein. According to Defendant Williams, all causes of action involving the recovery of sums paid by the Civil Defense Department to Defendant Williams should have been raised in a prior suit, CV-80-500406, which was brought by the State of Alabama in the Circuit Court of Mobile County and dismissed with prejudice on September 26, 1984. Under the doctrine of collateral estoppel, a party is foreclosed' from relitigating matters that have once been litigated and decided. C. Wright, Federal Courts 680 (1983). From the papers that Defendant Williams has filed with the Court, the Complaint and the Stipulation for Dismissal, it is impossible to determine what issues were litigated and decided in the action in the Circuit Court of Mobile County. Accordingly, it is the opinion of the Court that the doctrine of collateral estoppel is not applicable to the case herein. Additionally, the United States was not a party to that proceeding and could therefore not be bound thereby.

A number of the Defendants have also alleged that venue is improper in the instant case. According to Defendants William Donald Fountain and Hugh T. Fountain, venue is improper because they are life-long residents of Brewton, Alabama, which is located in the Southern Division of the Southern District of Alabama. Defendants Luther Manuel Henry, Louis Rodney Henry, and John Peters, as well, contend that venue is improper because they are residents and citizens of the State of Louisiana and at all times material hereto have been residents of, citizens of, and resided in the State of Louisiana.

Under the False Claims Act venue clause: “Trial is in the judicial district within whose jurisdictional limits the person charged with a violation is found or the violation occurs.” 31 U.S.C. § 3730(b)(1). It is the opinion of the Court that the Plaintiff has alleged that the conspiracy violations and substantive violations took place in Montgomery, Alabama, where the false claim was presented to the Temporary Housing Program, and Montgomery is in the Northern Division of the Middle District of Alabama.

Accordingly, the motions to dismiss should be, and they hereby are, denied.

      . Plaintiffs seek additional or alternative relief under the theories of fraud, unjust enrichment, and mistake of fact.

      . Plaintiffs have alleged that the bids of the non-official Defendants were inflated by approximately $1200 per mobile home.

      . In alleging that defendants "caused" the presentation of false claims to the federal government, the Plaintiff has set forth with specificity the legal relationship between FEMA, the Temporary Housing Program and the Defendants and the means by which the fraudulent claims could have harmed the United States government. Compare United States ex rel. Simmons v. Smith, CV 85-0698-H, S.D.Ala (Aug. 14, 1985), attached to Defendant Kirkland’s letter brief.

      . In 1982, Title 31, United States Code, which includes the False Claims Act, was enacted. Act of September 13, 1982, Money and Finance, Codification, Public Law No. 97-258, § 1, 96 Stat. 877. Prior to the codification, the False Claims Act, 31 U.S.C. § 231, punished any person who presented a false claim “upon or against the [federal] Government.” In the 1982 codification, the quoted language was omitted as mere surplus. H.R.Rep. No. 97-651, 97th Cong., 2d Sess. 143, reprinted in 1982 U.S.Code Cong. & Ad.News, 1895, 2037. As the legislative history makes clear, Title 31 was codified without making any substantive changes in existing law. 128 Cong.Rec. H 9528, reprinted in 1982 U.S.Code Cong. & Ad.News, 4301-02.

      . See paragraph 11 of the Agreement. Officials of Alabama's Civil Defense Disaster Housing Office forwarded to FEMA certain documents which were required for obtaining federal funds. Based on the information in these documents, FEMA ordered the United States Treasury to issue checks to the State in connection with the Temporary Housing Program. See Affidavit of Joe B. Hedrick, p. 3, attached to Defendant Kirkland’s letter brief.

      . See Affidavit of Joe B. Hedrick, supra note 5, at p. 3.

      . In this final stage, the Civil Defense personnel also recorded the issuance of the warrant numbers into the Department's ledger on the account.

      . See also Affidavit of Sam B. Slone, III, successor to Mr. Hedrick, attached to Plaintiffs Notice of Filing (describing the money as "federal” funds).

      . According to Defendants Harrell, Luther Henry, Louis Henry and Peters, the United States refused to offer or require restitution. On the other hand, the United States attorneys have stated in affidavits that when they entered into plea agreements with Defendants, they did not promise not to bring civil action. (Affidavits, U.S. Attorney John C. Bell and Assistant U.S. Attorneys D. Broward Segrest and Charles L. Trúncale).


author: SHADUR, District Judge.

text:
    Marie HARTNETT, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 85 C 5118.
    United States District Court, N.D. Illinois, E.D.
    Jan. 3, 1986.

      Robert M. Hodge, Chicago, 111., for plaintiff.
    Anton R. Valukas, U.S. Atty., Elizabeth Stein, Asst. U.S. Atty., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Marie Hartnett (“Hartnett”) seeks judicial review of a final decision by Secretary of Health and Human Services Margaret Heckler (“Secretary”) denying Hartnett disability insurance benefits. Hartnett initially applied for benefits under Social Security Act (“Act”) §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423. After a June 19, 1984 evidentiary hearing (the “Hearing”), Administrative Law Judge Russell S. Bar-one (“AU Barone” or simply the “ALT”) denied Hartnett’s application January 2, 1985. Hartnett then exhausted her administrative remedies in proper sequence (a process that resulted in the AU’s decision becoming Secretary’s) and brought this action against Secretary pursuant to Section 405(g).

As invariably occurs in these actions, which come to this Court on the administrative record and a decision by Secretary, the parties have filed cross-motions for summary judgment. For the reasons stated in this memorandum opinion and order, Hart-nett’s motion is denied and Secretary’s is granted.

Facts

Hartnett, who was 53V2 years old at the time of the Hearing, had carried her formal education through two years of high school (R. 50). Beginning in 1969 she was employed by National Can Company (“National Can”), where she became a “double seamer operator” in 1975 (R. 52). That job involved running a machine that put tops and bottoms on cans, and it required constant bending and lifting of weights up to 40 pounds (R. 53). Wherever she could, however, Hartnett bid for work as an assistant quality-control inspector. Consequently she did such work for six to nine months each year since 1976, taking cans apart with nippers and measuring them with gauges and micrometers (R. 55-59). On that job Hartnett did little lifting or standing: Occasionally she lifted gauges or boxes of empty cans weighing up to 15 pounds (R. 62-63). Once or twice a year (during slow production periods) she was called on to clean the can-manufacturing machines, a task that was not part of her double-seamer job or quality-control work. Machine cleaning required some crawling on hands and knees (R. 65-66).

Hartnett has had three spinal laminectomies, the first two in 1972 and 1973 and the third in 1982 (R. 69, 124). Her 1982 operation was necessitated by an on-the-job injury late in 1981 (R. 69). Though she returned to work in August 1982 she was laid off during a January 1983 cutback at her plant, in part because she lacked seniority and in part because National Can did not feel she had the physical ability to do quality-control work full time (R. 69-71).

After her layoff, Hartnett applied for state unemployment benefits. As part of that application, she stated she was “ready, willing and able” to take a job (R. 72). National Can took the position before the Illinois Department of Labor that Hartnett was physically unable to return to her former work (R. 74, 247). Her application for unemployment benefits was successful, based on a showing she had diligently sought a job from March to September 1984 (R. 247). At the time of the Hearing, she was taking a vocational class in horticulture eight hours each day (R. 79). She does her own driving, housework, cooking and shopping (R. 49, 80-81).

Hartnett complains of low back pain radiating up to her shoulders and down to her legs (R. 88). She cannot move the toes of her left foot (R. 97), and she occasionally feels pain while braking her car (R. 67). Formerly she took various medications, including Darvon, Motrin, Medrol and steroids, but she experienced adverse side effects from those and now takes only aspirin (R. 83-84).

Medical evidence at the time of the Hearing offered the following picture:

1. Following Hartnett’s discharge from hospital after her third laminectomy, Dr. Kling’s March 19, 1982 Discharge Summary found her progress to be “relatively satisfactory considering the long standing history of difficulty,” noting she was experiencing “some mild residual pain.” She was directed to restrict her activity “with no lifting, no climbing stairs, outside activity or excess exercise” (R. 177).
2. On January 27, 1983 Hartnett’s treating physician Dr. Soriano supplied her with a note saying (R. 213):
This is to certify that Marie Hartnett is still under my care at this time. She is on light duty and is to do no bending and only occasional lifting up to ten pounds.
3. Dr. Soriano’s April 28, 1983 note advised Hartnett (R. 214):
against consistent bending or lifting. It is also advised for the patient to have a weight limitation of 10 pounds.
4. Dr. Soriano’s report of a September 29, 1983 examination (R. 197-99) showed mild paralysis of the left-foot dorsiflexor muscle, with overall residual capacity for pushing and pulling, gross manipulation, fine manipulation and lifting 10 to 20 pounds. No gait abnormalities were observed, but there was “minimal” atrophy of the left calf. “Pins & needles” pains were found in Hartnett’s legs, as well as decreased left ankle reflexes. Overall her condition was “improving,” and a return to full weight bearing was expected by October 1983.
5. After a May 17, 1984 examination (R. 219-21) Dr. Soriano described Hart-nett’s stance, gait and coordination of extremities as “fair.” Her ambulation was “somewhat stiff but no gross abnormalities.” Cervical spine flexion and extension were “full range” and rotation “ok,” while lumbar spine flexion was 80%, extension 90% and rotation 60%. Her condition was “stable.” Dr. Soriano suggested she could lift up to 15 pounds and walk or stand six to eight hours per day with “occasional sitting.”

To supplement that information, the AU solicited post-Hearing evidence from vocational expert Dr. Sharon Geist. AU Bar-one’s June 27, 1984 letter to Dr. Geist (R. 222-23):

(a) described Hartnett’s job as an assistant quality control inspector in the same terms Hartnett had herself used at the Hearing (see R. 55-65); and
(b) asked Dr. Geist to assume Hart-nett could lift, carry, push or pull up to 15 pounds, could stand or walk six to

eight hours per day (with occasional sitting) and could not do any work requiring consistent bending or lifting (R. 222). That set of limitations corresponds with those set out in Dr. Soriano’s May 17, 1984 examination report.

Based on the AU’s description, the vocational expert’s August 8, 1984 letter response concluded (R. 224):

1. Hartnett’s work at National Can was “semi-skilled.”
2. Hartnett had become skilled in the use of small hand tools and fine measuring devices.
3. Those skills were transferable to jobs in other industries.
4. There were jobs “available in abundance in various manufacturing industries in the local Chicago area” that could be performed by a person with Hart-nett’s skills and exertional limitations.

But Dr. Geist also qualified that last conclusion (R. 224-25):

However, [those jobs] are usually reserved for persons who have obtained some degree of seniority within a company after doing more physically stressful work at an entry level. This might make placement more difficult.

AU Barone gave Hartnett’s counsel the opportunity to comment on Dr. Geist’s findings. Counsel’s October 12, 1984 letter reply (R. 238-39) argued:

1. Dr. Geist’s qualifying statement made her finding as to the availability of jobs for Hartnett “ambiguous,” in the sense that though such jobs were theoretically available Hartnett probably could not get one.
2. Because Hartnett was past 53 years old at the Hearing, she would likely be past 55 — what the Grid calls “advanced age” (Reg. § 1563(d)) — by the time she became familiar enough with a new industry to work in quality control. Thus she should be considered as being of “advanced age” even in the current use of the Grid.
Administrative Findings
AU Barone found Hartnett (R. 20):
has a severe impairment which considerably affects her ability to perform numerous basic exertional work functions, including repeated bending and stooping, heavy lifting, climbing, and other strenuous job functions.

That finding led to a conclusion Hartnett was unable to perform her past relevant work as a double seamer operator (R. 24).

Once a claimant has demonstrated an impairment of sufficient severity to preclude the type of work he or she previously performed, the burden shifts to Secretary to show the claimant (Section 423(d)(2)(A)):

cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

See also Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982) (discussing burden shift to Secretary).

In meeting that burden an AU typically looks to the Grid’s guidelines, which balance a claimant’s physical limitations against his or her age, education and work experience to determine whether a significant number of jobs exist in the national economy for a person with the claimant’s characteristics. Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984). AUs may also base that determination on other evidence, including assessment by a vocational expert (Reg. § 1566(e)).

Here AU Barone made these determinations relevant to the Grid (R. 24):

1. Based on Dr. Soriano’s September 29, 1983 report, Hartnett had the residual functional capacity to perform “virtually the full range of light work.”
2. Hartnett was what the Grid terms “approaching advanced age” (Reg. § 1563(c)).
3. Hartnett had what the Grid calls a “limited education” (Reg. § 1564(b)(3)) but was literate in English.
4. Hartnett was able to do “semiskilled work” (Reg. § 1568(b)), and the skills she acquired at National Can — the ability to use small hand tools and fine measuring devices — were applicable to other sorts of jobs.

With those findings as a predicate, the AU held the Grid directed a finding Hartnett was “not disabled,” whether or not her skills were considered transferable (R. 24 findings 10, ll).

That decision, which has become Secretary’s, must be affirmed by this Court unless it is not supported by substantial evidence or it reflects the application of incorrect legal standards (Section 405(g)). Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), has defined “substantial evidence” as:

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Hartnett’s Contentions

Hartnett advances four arguments for reversing AU Barone’s decision. Her Mem. 1 says the AU:

1. mischaraeterized the nature of her past work and her reasons for leaving it;
2. erred in finding her receipt of unemployment benefits was an admission she could do any type of substantial gainful activity;
3. incorrectly used the Grid after having obtained evidence from a vocational expert; and
4. erred in finding the vocational expert’s report provided a basis for holding Hartnett’s skills were transferable to a significant number of jobs in the national economy.

None of those contentions, either singly or in combination, carries the day.

1. Hartnett’s Past Work

Reduced to syllogistic form, Hart-nett’s first argument amounts to this:

1. National Can’s assistant quality control inspector job was “light” work.
2. Hartnett was let go because she could not do that job.
3. Therefore Hartnett is unable to do a full range of light work.

That argument simply misreads the facts. Hartnett herself testified there were layoffs due to a cutback in staff at National Can (R. 69). Further, her attorney asserted at the Hearing that National Can had added heavier duties to the quality-control job, and that made it impossible for Hart-nett to perform (R. 71, 75, and see R. 101). Under those circumstances, Hartnett’s layoff is hardly probative of her ability to do “light work” as that term is used in Social Security proceedings (see n. 5).

In any event, the AU did not rest on Hartnett’s description of her past work. Instead he relied strongly on the reports of her own treating physician: His description of her limitations in the letter to the vocational expert recited Dr. Soriano’s most recent report almost verbatim.

2. Hartnett’s Unemployment Benefits

Hartnett’s second argument is similarly a blind alley. In her application for state unemployment benefits, she said she was “ready, willing and able” to work. AU Barone did not take that as an admission Hartnett could do “any type of substantial gainful activity” (Mem. 1). Rather he concluded Hartnett’s statement was an admission she “does not regard herself as unable to engage in ‘any substantial gainful activity’ ” (R. 22). In other words, the AU recognized Hartnett does not regard herself as totally disabled — as indeed it appears she does not.

True enough, a claimant’s self-characterization is not determinative of her entitlement to disability benefits. She may have the best will in the world to work, yet still fall within the benefit guidelines. But the AU did not rely on the unemployment-application evidence to prove Hartnett could do any and all work. He merely used it as one piece of evidence tending to show Hart-nett’s assertion of pain, though “somewhat credible,” was “not totally consistent” with her description of her daily activities (R. 24). There is no error here.

3. Use of the Grid

Hartnett’s third assertion has some merit but does not ultimately help her cause. AU Barone’s application of his factual findings to the Grid was wrong: He found (R. 24) Hartnett had the residual functional capacity to perform “virtually the full range of light work (20 CFR 404.-1567)” and consequently used the “light work” Grid (Grid Table No. 2). But the predicate for use of that Grid is the ability to do “a full range of light work” (Grid 'Virtually” a full range is not good enough. Specifically, “light work” as defined in Reg. § 1567(b) includes the ability to lift weights up to 20 pounds. But the AU’s apparent basis for finding Hartnett could do “virtually” the full range of light work was Dr. Soriano’s limitation of her lifting to 15 pounds in his most recent report (R. 220). § 202.00).

It was thus erroneous to look to Grid Table No. 2 (“light” work) rather than Table No. 1 (“sedentary” work). But as Hartnett then points out (Mem. 12-13):

However, assuming that claimant has transferable skills, § 201.11 of Table 1 (sedentary RFC) of the Grid mandates a finding of “not disabled.” That would seem to end claimant’s case.

Whether or not Hartnett’s skills were properly deemed “transferable” is therefore crucial at this stage, for Table No. 1 would yield a finding of “disabled” under Grid § 201.10 if her skills were not transferable. But although there may be some fault in the form of the AU’s finding on that score (see n. 8), Hartnett does not now dispute that finding.

What she challenges instead is the AU’s use of the Grid at all when evidence was also taken from a vocational expert. She argues it is inappropriate to use the Grid in that case because a vocational expert’s evidence is “preferred.” See Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981).

This Court need not decide that question. Even were Hartnett’s proposition accepted arguendo, Dr. Geist’s evidence also supports the conclusion Hart-nett is not disabled. ALJ Barone described Hartnett’s past work and present physical limitations to Dr. Geist in terms precisely corresponding to those used by Hartnett and her doctor. In particular, the AU told Dr. Geist to assume Hartnett could not lift more than 15 pounds on the job, avoiding any possible confusion from the use of terms such as “light” and “sedentary.” Dr. Geist then listed no less than six jobs in six different industries for which Hartnett was qualified and suited. That would meet even the arguably over-strict Cowart standard.

J. “Ambiguity" of the Vocational Expert’s Findings

Finally Hartnett claims Dr. Geist’s finding as to the transferability of Hart-nett’s skills was ambiguous, in light of the expert’s qualifying statement that quality-control jobs would be hard to get without seniority (R. 224-25). As this opinion has already suggested (see n. 8), that position impermissibly merges the concepts of skill-transferability and job-availability. Skills are “transferable” when the nature of the task performed, tools used and materials involved resembles that of other jobs (Reg. § 1568(d)(2)). Relevant to that finding would be the number of job categories available, but not the absolute number of jobs open to the claimant on the market.

When in doubt, it is always best to return to the law. Here that requires Secretary to show Hartnett cannot do “any other kind of substantial gainful work which exists in the national economy” (Section 423(d)(2)(A)). Arguably it is a Catch-22 to say to Hartnett:

Many jobs exist for which you are qualified, but in fact you would never get those jobs.

Yet that is precisely what the statute says: Secretary is not required to consider “whether a specific job vacancy exists for [a claimant] or whether [she] would be hired if [she] applied for work” (id.). And see Reg. § 1566(c)(3):

We will determine that you are not disabled if your residual functional capacity and vocational abilities make it possible for you to do work which exists in the national economy, but you remain unemployed because of ... [t]he hiring practices of employers____

See Wright v. Gardner, 403 F.2d 646, 647 (7th Cir.1968) (per curiam) (claimant is not disabled merely because he would not actually be hired for work he can perform).

We might well wonder what point there is in determining a claimant has the ability to do work for which there are no job openings. But as Lopez Lopez v. Secretary of HEW, 512 F.2d 1155, 1157 (1st Cir.1975) (citations omitted, emphasis in original) teaches:

As this court has previously stated, the statutory scheme is not an “ancillary unemployment compensation device”____ It is not necessary that the Secretary demonstrate that a particular claimant would actually be hired, or even that there is a realistic chance of his being so. It is sufficient that he show that there are specific jobs in the national economy which a claimant is capable of performing. “Disability” as provided in the Act, although defined by reference to concepts similar to employability, is actually a term of art looking to the physical and mental capacity to engage in certain activities, regardless of whether the opportunity for any such activity actually exists.

Dr. Geist’s statement that Hartnett would have a “difficult” time getting a quality-control job because she lacked seniority thus does not undercut the finding that there are significant numbers of jobs in the national economy Hartnett could do. There is no ambiguity — and no lack of validity — in such a finding. Cases cited by Hartnett as purportedly to the contrary are beside the point.

Hartnett’s final assault on the vocational expert’s evidence focuses on her age. If placement would be difficult, she says, then by the time she adjusted to new job requirements she would be of “advanced age” — 55 or over (Reg. § 1563(d)). Transferability of skills in persons of advanced age is considered rather restricted under the Grid (id.). In essence Hartnett argues if it would take two years actually to get a job, she should be considered now as if she were over 55 (see Oct. 12, 1984 letter from Hartnett’s attorney to AU Barone, R. 239).

That argument would have appeal only if the prior one were valid. If Hartnett’s ability actually to obtain employment is irrelevant to a disability determination, the fact it might take her two years to get a job is a factor this Court cannot consider. Secretary must take this claimant as she finds her.

Conclusion

Secretary’s decision to deny Hartnett disability benefits is supported by substantial evidence and is correct as a matter of law. Secretary’s motion for summary judgment therefore is granted and Hartnett’s is denied. This action is dismissed.

Appendix

As with the ALJ’s mistaken use of Grid Table No. 2, Dr. Geist’s listing of jobs available to Hartnett posed some problems of characterization. But just as with the ALJ’s error, Dr. Geist’s does not ultimately help Hartnett’s case.

Thus it is true Dr. Geist labelled all but one of the six jobs “light” (see n. 4). It is also true Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (1981 ed.) (“SCOD-DOT”) puts all the job titles listed by Dr. Geist in the “light” category {id. at 83, 143, 144, 233), although in three of the six cases the titles used by Dr. Geist do not correspond precisely with SCOD-DOT’s usage: “Quality-Control Coordinator” (drug preparation) is called “Quality-Control Clerk” {id. at 233), “Quality-Control Inspector” (garment) is called “Quality-Control Checker” {id. at 144) and “Quality-Control Clerk” (bakery products) is called “Quality-Control Inspector” {id. at 143). That may suggest carelessness on Dr. Geist’s part and error on the AU’s. Where an AU relies on a vocational expert who has listed jobs as suitable for a claimant that SCOD-DOT puts beyond the claimant’s exertional capability, there is reversible error. Tom, 779 F.2d at 1255-56.

But in Tom the AU had told the vocational expert to assume Tom was capable of “no more than sedentary work” {id. at 1255). Here AU Barone told Dr. Geist to assume Hartnett was limited to lifting 15 pounds, and Hartnett has made no suggestion Dr. Geist ignored that limit. Categories embodying a range of limits are useful for generalizing, but specific underlying measurements are more trustworthy. According to the Grid’s rules, a job requiring lifting of 15-pound weights would indeed be classified as “light,” yet Hartnett would be able to perform it. Even if, for purposes of applying the Grid, the AU should have used Table No. 1 (“sedentary”), that does not mean, where the more particularized information of a vocational expert is used, judgments as to a claimant’s ability to perform jobs falling within the boundaries of the next-highest category cannot be accepted by the AU. Only government bureaucracy divides the job world into watertight compartments of “sedentary,” “light,” “medium” and “heavy.” Employers do not. And employers surely do not reshape the real world requirements of their jobs to fit those categories precisely.

In any event, Hartnett’s own argument against use of the Grid in her case is based on the presumption that a vocational expert’s evidence is more accurately fitted to a particular claimant’s case than the categorizations embodied in the Grid. And on that premise (necessary to Hartnett’s effort to escape the “not disabled” conclusion prescribed by the Grid) she is hoist by her own petard.

      . All further statutory citations in this opinion will take the form "Section — ," following the numbering in Title 42 rather than the Act’s internal numbering. In citing to the relevant regulations:
      1. Where the reference is to the medical-vocational guidelines found at 20 C.F.R. Part 404 Subpart P, Appendix 2, this opinion will speak of such guidelines collectively as the "Grid" and individually as "Grid § —.”
      2. Where the reference is to any other provision of 20 C.F.R. Part 404, this opinion will omit that part of the citation entirely and will speak simply of "Reg. § —” (listing only the portion of the citation after the decimal point that follows "404”).

      . Only one variation on the usual pattern presented itself here: Hartnett's counsel elected not to file a reply memorandum, leaving the matter to be decided on two briefs rather than three. As might be guessed from the length of this opinion (forced by the issues to be discussed), when contrasted with the brevity of the parties’ submissions (a five-page legal discussion in Hartnett’s memorandum and some six pages — much of it purely evidentiary — in Secretary’s), the burden has improperly been shifted from the litigants (where it belongs) to this Court’s law clerk, C. Steven Tomashefsky, Esq. (where it does not). Though he has — unsurprisingly — responded to the need, that should never have happened. Clearly the litigation system really breaks down when the major work has to be performed by a resource in short supply (a law clerk with responsibility for half this Court's calendar) rather than by the lawyers who have responsibility for just the case at issue (and who are able to control their caseloads by accepting or rejecting cases, as this Court and its clerks are not).

      . AU Barone’s letter does not mention Hartnett by name but refers to a "hypothetical person" answering to Hartnett’s description. Hartnett neither (1) challenges the practice of an AU’s using post-hearing questions to, and answers from, a vocational expert (see R. 38) (cf. Tom v. Heckler, 779 F.2d 1250, 1252 n. 2 (7th Cir.1985), referring to the process difficulties inherent in that procedure but treating the issue as waived if not raised by counsel) nor (2) disputes the AU’s characterization of Hartnett’s physical condition and past work in his letter. Indeed (as this opinion later discusses) she relies on the vocational expert’s response.

      . Dr. Geist listed the industries (R. 224): following job titles and
      Job Title Industry
      Quality control inspector Garment-light
      Quality control clerk Bakery products-light
      Quality control coordinator Drug prep[a]ration-sedentary
      Quality control technician Photo finishing-light
      Quality control tester Hosiery-light
      Quality control tester Paper goods-light

      . “Light work” is a term of art, defined by Reg. § 1567(b) as involving lifting of no more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds. Further, the regulation specifies that even if a job requires lifting of only slight weights, a job will be classified as “light" (rather than the lowest category, “sedentary") if it requires a good deal of walking or standing, or if it involves sitting most of the time with some pushing and pulling of arm or leg controls.

      . Reg. § 1563(c) defines "closely approaching advanced age” as ages 50-54. ALJ Barone mistakenly put Hartnett’s age at 50 (in fact she was 53‘/2 at the time of the Hearing). Though the age given was thus erroneous, the ALJ’s classification of Hartnett’s age was not.

      . That determination speaks to what the Grid considers "transferability” (Reg. § 1568(d)(1)) of skills:
      We consider you to have skills that can be used in other jobs, when the skilled or semiskilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs.

      . Finding 10 states:
      10. The claimant has acquired work skills, such as the ability to use small hand tools and fine measuring devices which she demonstrated in past work. Considering her residual functional capacity, these skills can be applied to meet the requirements of semi-skilled work activities of other work which exists in significant numbers in the national economy (20 CFR 404.1568).
      Nothing in the “transferability" definition (see n. 7) requires an AU to take residual functional capacity into account. Indeed, to do so tends to blur distinctions among the various factors the Grid employs. Moreover, the AU’s finding that Hartnett’s skills are applicable to other work “which exists in significant numbers in the national economy" is conclusory of the very result the application of the Grid’s separate factors is designed to reach. But while Finding 10 is inartful in both those respects, the flaws are harmless to Hartnett. To the extent, if any, Finding 10 warps application of the Grid’s factors, it could only narrow the potential of transferability and thus increase the chances of finding Hartnett disabled.

      . That position is of a piece with Hartnett’s assertion (advanced persistently if irrelevantly) that she has filed a complaint with the Illinois Human Rights Commission alleging National Can discriminated against her by failing reasonably to accommodate her physical limitations (R. 44-46).

      . Hartnett cites this Court’s opinion in Lundquist v. Heckler, No. 84 C 8955, slip op. at 8-10 (N.D.Ill. Sept. 4, 1985) to urge the AU’s dismissal of her allegations of pain was overly cavalier. But here the AU gave reasons for his finding — including Hartnett’s regular attendance at vocational classes and her ability to do her own housework and shopping — and did not rely solely (or even principally) on "sit and squirm" findings. See Lundquist, slip op. at 9. He might also have mentioned Hartnett’s statement in her September 30, 1983 Disability Report (R. 122) that she was trying to learn ballroom dancing as a hobby. Further, the medical evidence of record (mainly that of Hartnett’s own treating physician), far from contradicting the AU’s finding, consistently emphasizes Hartnett’s ability to work —albeit within exertional limitations decreasing over time (R. 197, 213, 214, 216, 220-21). Contrast Lundquist, slip op. at 8-9.

      . "Sedentary” work involves the lifting of weights up to 10 pounds (Reg. § 1567(a) ). Dr. Soriano’s 15-pound limit for Hartnett thus satisfies the "sedentary" limit but not that for "light” work — a fact Hartnett’s attorney noted at the Hearing (R. 46):
      The — the difficulty in this case is that the doctor, Doctor S[o]riano, her treating physician, has placed a weight limitation on her of either 10 or 15 pounds, which is kind of — I’m not sure if he's aware of the Social Security standards with respect to light. But it seems to indicate that he thinks that she cannot lift 20 pounds frequently and I don’t know if he's thought about that to a great deal.

      . It is also odd that the AU, after having found Hartnett "not disabled” based on the transferability of her skills (R. 24, finding 11), went on to find “alternatively” she would not be deemed disabled according to the Grid even if her skills were not transferable (id., finding 12). That might be taken to indicate the AU entertained some doubt as to transferability. But it appears from the text of the AU’s opinion he made that arguendo finding in response to Dr. Geist’s reservation about the number of job openings available to quality-control personnel with low seniority, not in response to the question of transferability per se (see R. 23). As this opinion later reflects, Dr. Geist's reservation is irrelevant to Hartnett’s claim.

      . Cowart, decided just at the time the Grid was promulgated by Secretary, took a dim view of the Grid’s probative value. 662 F.2d at 736 n. 1. In view of later authority from our Court of Appeals upholding use of the Grid to meet Secretary’s burden of showing the existence of significant numbers of jobs a claimant can do (see, e.g., Smith, 735 F.2d at 270), any support by Cowart for Hartnett's position is seriously undercut.

      . See Appendix.

      . Secretary Mem. 4 n. 2 faults Hartnett’s lawyer for not taking advantage of “the opportunity to cross-examine the vocational expert" to eliminate what is now challenged as "ambiguous." That notion is bizarre at best — when practicing law, this Court found cross-examination of a piece of paper extraordinarily difficult (and see Tom, 779 F.2d at 1252 n. 2). In light of this opinion’s conclusion, however, this Court need not resolve that conundrum or decide whether the burden of any “ambiguity” would fall on Hart-nett or Secretary.

      . Lest this Court be mistaken by taking that statement literally, it may be well to acknowledge its ironic intent. Too often in this (and other) areas, courts tend to get lost in a conceptual sea without thinking to look to the map provided by the statute being applied. When they do resort to the latter, the frequent result is that they find themselves praised or condemned (depending on the observer's perspective) as "strict constructionists” or “excessively literal.”

      . For example, in Smith v. Secretary of HHS, [1983 Transfer Binder] Unempl.Ins.Rep. (CCH) ¶ 14,704 (D.S.C.1982) the issue was the number of job positions available capable of being performed by the claimant, not the number of job openings. In Maynard v. Schweiker, [1982-83 Transfer Binder] Unempl.Ins.Rep. (CCH) ¶ 14,-263 (E.D.Cal.1982) the issue was whether intelligence, interest level and other personality factors were "skills" at all within the meaning of the regulations, not whether they were transferable to a significant number of jobs. It is worth observing this case does not present the problem discussed so trenchantly in Atkins v. Califano, 446 F.Supp. 1017, 1022 (N.D.Ill.1978) (footnote omitted):
      We are cognizant that many courts give a literal reading to the language of ... 42 U.S.C. § 423(d) and do not require either any showing by the government that any appropriate job exists which would be suitable for a claimant in his own locality or that there be any vacancies for which he might conceivably qualify. This Court cannot subscribe to such a rigid view which deals only with theoretical abstractions and ignores the realistic impact which such decisions have on individual claimants in quite specific locations.

        Atkins properly emphasized Secretary must consider a claimant’s employability in light of his or her whole personal situation. But general job-market conditions are not a part of a claimant’s personal situation. It could hardly be clearer from the text of the statute that the existence of job vacancies for a particular claimant is not a factor Secretary must consider.

      . It should be observed that even if Hartnett were considered in the "advanced age” category and capable of doing only sedentary work, Grid Table No. 1 would direct a result of “not disabled” (Grid § 201.03).