author: BELL, District Judge.

text:
    PREMIUM BUILDING PRODUCTS COMPANY, Plaintiff, v. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CIC, et al., Defendants.
    No. C85-20-A.
    United States District Court, N.D. Ohio, E.D.
    Aug. 16, 1985.
    Craig I. Kaufman and David A. Campbell, Akron, Ohio, for plaintiff.
    Henry A. Arnett and Stewart R. Jaffy, Columbus, Ohio, for defendants.
   ORDER

BELL, District Judge.

Plaintiff brought this action to vacate an arbitrator’s award setting aside the discharge of its employee, Darrell Brinker. Jurisdiction is invoked pursuant to the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and the United States Arbitration Act, 9 U.S.C. §§ 9, 10. A state claim under Ohio Revised Code § 2711.-10(D) is also asserted pursuant to this court’s pendent jurisdiction. Defendants have filed a counterclaim under the same federal enactments to enforce the arbitrator’s award relating to Darrell Brinker. Plaintiff is an employer and defendantscounterclaimants, a labor organization within the meaning of the Labor Management Relations Act of 1947. 29 U.S.C. §§ 152(2), (5).

The parties entered a collective bargaining agreement effective from November 1, 1982 through October 31, 1985 which provided for binding arbitration. See Exhibit A to Amended Complaint at Article IX, § 2(b). The matter of Darrell Brinker’s discharge was submitted to arbitration after the preliminary steps of the grievance procedure failed to resolve his grievance related to his discharge. The parties agreed to the selection of Thomas C.B. Letson as arbitrator. Mr. Letson conducted a hearing on October 11, 1984 and thereafter issued a written opinion and findings in October 29, 1984 which is the subject of this dispute.

The parties have submitted cross-motions for summary judgment in this matter each claiming that there are no material issues of fact in dispute and that it is entitled to summary judgment. Challenges to arbitration awards have been resolved through cross-motions for summary judgment on a paper record when there are no disputed issues of material facts. Storer Broadcasting Co. v. American Federation of Television and Radio Artists, Cleveland Local, AFL-CIO, 600 F.2d 45, 49 n. 15 (6th Cir.1979); Exquisito Services, Inc. v. Bartenders, Motel, Hotel and Restaurant Workers Local Union No. 222, 579 F.Supp. 873, 876-77 (S.D.Ohio 1984). The following facts have been drawn from the record before this court.

At approximately 7:30 P.M. during the afternoon shift on January 3, 1984, plaintiff’s extrusion foreman, James Fagin, Jr., entered the tool and dye room and noticed Darrell Brinker standing in an alcove. Fagin observed Brinker holding a pair of needlenose pliers to his lips. There was a glow visible at the tip of the pliers. Fagin approached Brinker and asked what he was doing. Brinker did not reply. Fagin asked Brinker to step aside and when he did, a portion of marijuana cigarette was found and recovered from the spot. Fagin took the remains of the cigarette and Brinker’s needlenose pliers and reported the incident to the plant supervisor. Brinker was thereafter relieved and sent home. After management personnel reviewed the statements of the matter, Brinker was discharged. Chemical analysis indicated traces of marijuana on the pliers and that, in fact, the cigarette did contain marijuana.

Brinker denied any knowledge of the cigarette or that he was smoking marijuana. The area where this incident occurred is a walk-through utilized by other employees. The arbitrator, however, disbelieved Brink-er totally and stated that he was persuaded beyond a reasonable doubt that Brinker was smoking marijuana.

Brinker had worked for plaintiff for approximately four years prior to his discharge. The record reveals no other disciplinary incidents during his tenure with plaintiff.

At the arbitration hearing, the United Steelworkers of America, AFL-CIO-CIC, (the Union) presented some evidence of inconsistency of disciplinary treatment among employees involved with marijuana and pointed out that there were no work rules dealing directly with the use of alcohol or drugs on plaintiff’s premises. After finding factually that Brinker had smoked marijuana as charged, the arbitrator moved on to the issues raised by this evidence. The arbitrator found that even though there were no written work rules governing use of drugs and alcohol on plaintiff’s premises, “it is well established ... that either is a serious and dischargeable offense in the industrial setting.” Opinion and Award, Grievance 84-4, at 4. However, he found that in Brinker’s case there was no offensive conduct except the act of smoking itself. Id.

The evidence as to inconsistent disciplinary procedures was not complete and appeared not to be a basis for his finding. The arbitrator did not state any factual conclusion based on that evidence. Neither did he conclude that the Union’s arguments of lack of due process had any effect on his finding.

Pursuant to the collective bargaining agreement between the parties, plaintiff could discharge an employee for just or proper cause. See Exhibit A to Amended Complaint, Articles III, § 7a; XII, § 1; XIV, § 5. The arbitrator thus framed the issue before him as whether Brinker was discharged for just cause. He found that there was no just cause for discharge but that Brinker’s conduct warranted severe discipline. Accordingly, he set aside the discharge and ruled that Brinker should be reinstated but should receive no back pay or seniority credit for the ten months since his discharge.

Plaintiff seeks to have the award vacated because it fails to draw its essence from the collective bargaining agreement. Specifically, plaintiff claims that:

(1) The Award violates and contravenes well defined and dominant federal and state public policies regarding drug use and perjury.

(2) An examination of the four page opinion accompanying the Award reveals no support whatsoever for the determination to reinstate Darrell Brinker.

(3) The Award is improperly based on alleged procedural irregularities in the grievance process and concepts of fundamental unfairness.

(4) The Award lacks fundamental rationality and is arbitrary and capricious. Plaintiff’s Motion for Summary Judgment at 2.

Defendant Unions, on the other hand, contend in opposition and in their motion for summary judgment that the award does draw its essence from the collective bargaining agreement, that the arbitrator’s finding was consistent with his power to interpret the contract and that the award should be confirmed in that the statutory grounds for vacating an award have not been met. See 9 U.S.C. § 10 and Ohio Revised Code § 2711.10 which allow for an arbitration award to be vacated only:

(a) Where the award was procured by corruption, fraud, or undue means.
(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual final, and definite award upon the subject matter submitted was not made.

In reviewing the issues in this matter, it must be remembered that national policy has favored the use of arbitration to resolve disputes concerning collective bargaining agreements. See South Prairie Construction Co. v. Local 627, IUOE, AFL-CIO, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) and the Steelworkers Trilogy: United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). It is a well settled principle based on the favored status arbitration has received that judicial review of an arbitration award should be very narrow. Diapulse Corp. of America v. Carba, Ltd., 626 F.2d 1108, 1110 (2d Cir.1980), and cases cited therein. See also 9 U.S.C. §§ 10, 11. While an arbitrator’s powers are not unlimited, “his award should be upheld as long as he does not disregard or modify plain and unambiguous provisions of a collective bargaining agreement.” General Telephone Co. of Ohio v. Communications Workers of America, AFL-CIO, 648 F.2d 452, 457 (6th Cir.1981). See also Johnston Boiler Co. v. Local Lodge No. 893, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, 753 F.2d 40, 43-44 (6th Cir.1985).

A court must refrain from substituting its own judgment on the merits for that of the arbitrator when the essence of an award is drawn from the bargaining agreement. W.R Grace & Co. v. Local 759, International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, 461 U.S. 757, 764-66, 103 S.Ct. 2177, 2182-84, 76 L.Ed.2d 298 (1983); Timken Co. v. Local Union No. 1123, United Steelworkers of America, AFL-CIO, 482 F.2d 1012, 1014 (6th Cir. 1973). When the parties provide for arbitration in their bargaining agreement “it is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362.

In this case the parties provided for binding arbitration of their disputes. See Exhibit A to Amended Complaint at Article IX, § 2(b). They bargained further that:

The arbitrator may interpret this Agreement and apply his interpretation to the particular grievance but shall have no authority to add to, subtract, modify, or amend in any way the terms and conditions of this Agreement.

Id. In relation to discharges, the collective bargaining agreement provides that plaintiff may discharge for proven justificable cause, Article III, § 7(a); proper cause, Article VII, § 1; and just cause, Article XIV, § 5. These terms are not defined in the body of the collective bargaining agreement and are, therefore, subject to interpretation by the arbitrator in relation to a particular grievance as provided in Article IX, § 2(b).

Plaintiff’s position appears to be that the arbitrator exceeded his authority in reinstating Brinker after making the factual finding that he was smoking marijuana at his workplace. That, however, is not the case. The arbitrator has the power to interpret the terms of the contract in relation to a particular grievance, which he did in this case. While stating that the use of marijuana at the workplace was a serious and dischargeable offense even without written work rules proscribing this activity, he found the facts in this case did not warrant discharge. He pointed out in his factual findings that the only offensive conduct upon which the discharge was based was the act of smoking itself. This he concluded was not just cause for discharge. Even if this court should rule differently on the merits, it cannot find that the arbitrator’s conclusion is inconsistent with his factual findings. It is the arbitrator’s interpretation that the parties bargained for. W.R. Grace & Co. v. Local 759, International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, 461 U.S. at 764-66, 103 S.Ct. at 2182-84.

Plaintiff’s public policy arguments do not alter this result. The cases cited by plaintiff stand for the proposition that in arbitration award may be vacated if its enforcement would contravene well defined and definite public policy. W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. at 766, 103 S.Ct. at 2183; United States Postal Service v. American Postal Workers Union, AFL-CIO, 736 F.2d 822, 824-25 (1st Cir.1984); Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, 124 (5th Cir.1983); Local No. P-1236, Amalgamated Meat Cutters & Butchers Workers of North America, AFL-CIO v. Jones Dairy Farm, 680 F.2d 1142, 1144-45 (7th Cir.1982); World Airways, Inc. v. International Brotherhood of Teamsters, Airline Division, 578 F.2d 800, 802-04 (9th Cir.1978). All of these cases are factually distinguishable, however, and involve clearly defined public policy areas. The World Airways, Inc. case involved an arbitrator’s order to retrain a pilot demoted for judgmental deficiencies and to give him an opportunity to requalify as pilot-in-command. The Great Western case also involved public safety issues. There, an arbitrator ordered a truck driver reinstated who had admitted drinking alcohol prior to overturning an eighteen-wheel rig. The United States Postal Service case involved an arbitration order reinstating a discharged window clerk to a different position where money was not handled after the clerk had been convicted of embezzling postal funds. The Jones Dairy Farm court vacated an arbitrator’s award because it was based on a work rule that was contrary to public policy and violative of the collective bargaining agreement. The work rule required employees to deal through plant supervisors rather than directly with the United . States Department of Agriculture concerning any deficiencies or unsanitary conditions at the dairy.

The public policy plaintiff argues as having been violated by the arbitrator’s award in this case is not so clearly defined as are the safety considerations and condo-nation of corrupt acts for which a person is convicted involved in the cases above. The arbitrator was reviewing a set of facts which involved a single incident of smoking marijuana with no allied facts regarding safety or judgment concerns. In his view this conduct warranted serious discipline but was not just cause for discharge. This court cannot establish an across-the-board ruling that public policy requires that anyone caught smoking marijuana at their workplace is subject to discharge in all cases. This is not to minimize the seriousness of this offense which, this court would think, should be the subject of clear work rules dictating company policy. It is merely an area which involves more general considerations of public policy better left to the balance of the grievance procedure where all the facts can be heard.

Plaintiff further argues that public policy factors are involved because Brinker perjured himself at the grievance hearing. The basis of this argument is the arbitrator’s finding, that Brinker was smoking marijuana. These findings, however, were based on judging credibility. There have been no admissions or convictions of perjury in this case.

Plaintiff argues also that this award must be vacated because it is fundamentally irrational, arbitrary and capricious in that it finds that Brinker did the act for which he was charged and yet reinstated him. The arbitrator did not, however, reinstate him without serious discipline. He apparently found that because the conduct was smoking and no other offensive conduct, the event was not dischargeable. Without any statement on the merits, this court cannot say his ruling was fundamentally irrational.

Finally, plaintiff argues that the award must be vacated pursuant to 9 U.S.C. § 10(d) because the arbitrator exceeded his powers. The court cannot so find.

Contrary to what plaintiff contends, the arbitrator did draw his conclusion from the essence of the bargaining agreement and did not modify or amend its provisions. Plaintiff’s claims represent a dissatisfaction with the arbitrator’s conclusion, a matter outside the scope of this court’s review once it is determined that it was rendered within the confines of the parties’ agreement. The construction of the agreement by the arbitrator is what the parties bargained for in this case and as it drew its essence from the agreement, it should stand undisturbed by this court. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362.

Accordingly, summary judgment is granted in favor of the defendant and this cause dismissed.

IT IS SO ORDERED.


source: Caselaw Access Project

author: STEVENS, District Judge.

license: Public Domain

text:
    HALLMARK CARDS, INCORPORATED, Plaintiff, v. HALLMARK DODGE, INCORPORATED, Defendant.
    No. 83-1377-CV-W-8.
    United States District Court, W.D. Missouri, W.D.
    Aug. 16, 1985.

      Barry M. Katz, M. Theresa Hupp, Kansas City, Mo., for plaintiff.
    Gerald H. Rosen, Kansas City, Mo., for defendant.
   ORDER

STEVENS, District Judge.

Before the court is plaintiff Hallmark Cards, Incorporated’s June 10, 1985 motion to disqualify the law firm of Rosen & Silverman as defense counsel for Hallmark Dodge, Incorporated on the grounds that that firm’s continued participation in this action violates Canons 4, 5, and 9 of the Code of Professional Responsibility incorporated in Missouri Supreme Court Rule 4 and adopted by the Western District pursuant to Local Rule 2D. Specifically, plaintiff argues that Silverman’s dual role as a Gage & Tucker partner and a Rosen & Silverman partner during a portion of the month of May violated Canon 5 in that he owed simultaneous and conflicting duties to Hallmark Cards, a Gage & Tucker client, and to Hallmark Dodge, Incorporated, a Rosen & Silverman client. Plaintiff next argues that, notwithstanding Silverman’s denial of actual knowledge relating to the Hallmark trademark file, Silverman must be conclusively presumed to possess the confidences and secrets disclosed by plaintiff to that firm. Since those confidences and secrets are undeniably related to issues now raised by Dodge in this litigation, plaintiff asserts that Rosen & Silverman must be disqualified under Canon 4. Finally, plaintiff argues that Silverman’s admitted access to Gage & Tucker files, particularly during the period in which he actively participated in this action as a defense attorney, his admitted knowledge that Gage & Tucker represented Hallmark Cards in other matters, and the “intensified interest of Dodge” in those “other matters” after Silverman’s arrival at the Rosen & Silver-man firm create an obvious appearance of impropriety in violation of Canon 9. For reasons which follow, the court finds that defense counsel have violated Canons 4 and 9 of the Code of Professional Responsibility and, therefore, plaintiff’s motion to disqualify will be granted.

Facts

For fifteen years, Myron F. Silverman was employed by the law firm of Gage & Tucker. In 1970, when Gage & Tucker hired Silverman as an associate, the firm was a medium-sized firm with approximately twenty-seven attorneys. Silverman became a partner with the firm in 1975 and continued with them until May 31, 1985. By this time, the firm had nearly doubled its size.

It is undisputed that plaintiff Hallmark Cards was and continues to be a client of Gage & Tucker. During the fifteen years in which Silverman worked for and with Gage & Tucker, one of the actions in which Gage & Tucker represented Hallmark Cards was a California lawsuit entitled Hallmark Cards, Inc. v. Hallmark of Hollywood, Inc., et al. That suit, like this one, involved issues of trademark infringement or trademark protection. Thus, it is clear that Gage & Tucker rendered advice on these issues to Hallmark Cards.

While Silverman denies having any knowledge of any legal matters relating to Hallmark Cards, Silverman admits that he was aware that Gage & Tucker represented Hallmark Cards. Further, affidavits submitted by plaintiff indicate that this “awareness” included knowledge that Gage & Tucker represented plaintiff in Hallmark Cards, Inc. v. Hallmark of Hollywood, Inc., et al.

It is also undisputed that Hallmark Cards has disclosed confidences and secrets to Gage & Tucker related to trademark issues and that Gage & Tucker retains a file entitled Hallmark Cards, Inc.—Trademark Protection Plan. Until May 31, 1985, Silverman admittedly had full access to this file but he denies having taken the opportunity actually to review it.

In addition, Silverman admits that he knows of a 1971 or 1972 research memorandum prepared for Hallmark Cards but unrelated to issues in this action. However, Silverman, in his affidavit, does not indicate whether this “knowledge” was gained from discussing the issues with others in the firm, from reading the memorandum, or from preparing it.

Although technically employed at Gage & Tucker until May 31, 1985, Silverman began his association with Gerald Rosen on or about May 7,1985. It is undisputed that his association with Rosen & Silverman began prior to May 31, 1985 and pleadings filed on May 7, 1985, indicate that Rosen’s firm had by that time officially changed its name to Rosen & Silverman. Immediately upon his association with Rosen, Silverman became actively involved in the action at bar.

On or about the time that Silverman became involved in this action, defendant, through depositions, interrogatories, and a proposed amended answer, sought information concerning other Hallmark trademark protection matters. Thus, although this action was filed nearly two years ago, it was not until Silverman’s association with Rosen that defendant made extensive inquiries concerning other Hallmark actions and that defendant sought to amend its answer to add affirmative defenses based upon plaintiff Hallmark Cards, Incorporated’s treatment of other entities using the Hallmark name.

Discussion

It is well-established that “[t]he district court bears the responsibility for the supervision of the members of its bar.” Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir.1977), cert. denied, 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978), citing Hull v. Celanese Corp., 513 F.2d 568 (2nd Cir.1975). In this district, that supervision is conducted in accordance with Missouri Supreme Court Rule 4, the Code of Professional Responsibility. See Local Rule 2 D.

Canon 5 of the Missouri Code of Professional Responsibility provides that “a lawyer should exercise independent professional judgment on behalf of a client.” EC5-1 states in pertinent part, “The professional judgment of a lawyer should be exercised ... free of compromising influence and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.” Since Silverman denies any knowledge of the confidences and secrets disclosed by Hallmark Cards to Gage & Tucker and denies knowledge of the trademark matters in which Gage & Tucker represented Hallmark Cards, it is very possible that his independent professional judgment was not actually impaired in this action. However, his loyalty was undeniably divided during the period of time in which he continued employment with Gage & Tucker and began his employment with Rosen & Silver-man. Thus, while this court does not find an actual violation of Canon 5 which would alone warrant disqualification, the overlapping period of representation does give rise to a violation of the ethical considerations within that Canon.

Canon 4 of the Missouri Code provides for the “preservation of confidences and secrets of a client.” It is “designed to preserve the trust of the client and his lawyer, without which the practice of law, whatever else it might become, would cease to be a profession.” Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 607. Thus, Canon 4 gives to clients a privilege to bind their lawyers to secrecy. Id.

To give substance to this privilege, courts have long held that “[cjonfidential disclosures, actual or presumed, necessitate disqualification of [an] attorney when he represents an adverse interest in a related matter.” State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380, 384-85 (8th Cir.1979). Courts presume that confidential disclosures have been made and that disqualification is warranted when three elements are present:

(1) the movant party was previously represented by the attorney whose disqualification he seeks; (2) the matters embraced within the pending suit are substantially related to the matters of the cause of action for which the attorney previously represented the movant party; and (3) the attorney is representing an adversary of the movant party in the pending suit.

Black v. State of Missouri, 492 F.Supp. 848, 863 (W.D.Mo.1980). In this action, it is undisputed that confidences and secrets substantially related to the matters at issue were disclosed to the firm of Gage & Tucker while attorney Silverman was employed there.

Because “clients can expect that confidences disclosed to one attorney will be shared with others in the firm,” State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 385, confidences imparted to one attorney are presumed shared among his partners and among other employees associated with him at the time. State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 385; Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608. “The public perceives, a client has the right to expect, and the goals of the Code require us to assume that the members and staff of a law firm working on. a suit do so collectively rather than individually____ State of Arkansas v. Dean Foods Products .Co., Inc., 605 F.2d at 387. Further, the attorney’s liability for disqualification is not cured by dissolution of or departure from the partnership. Id.

Disqualification of Silverman thus rests on the imputation to him of knowledge disclosed by Hallmark Cards to the Gage & Tucker firm partners. Relying on a Second Circuit case, Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751 (2nd Cir.1975), defendant argues that the confidences disclosed by Hallmark to Gage & Tucker should not be imputed to attorney Silverman since that firm has grown to nearly sixty attorneys. The court disagrees.

First, as the Eighth Circuit has noted, regional differences, including the number of persons employed by a firm, rarely, if ever, should be the basis for disparate or differential application of the Code of Ethics. State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 385, n. 4. Second, the court notes that even if a differential were applied, Gage & Tucker, at the time it became involved with Hallmark Cards trademark issues and at the time attorney Silverman became associated with it, was not a large firm. Finally, the court notes that the case relied upon by defendant is inapplicable since the presumption that confidences were given to the firm did not arise. In that case, the matters embraced within the pending suit were not substantially related to the matters for which the firm previously represented the movant party. See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751 (2nd Cir.1975). Thus, while the court bolstered its argument for denial of disqualification by labeling the presumption of confidences described above as “rebuttable,” no presumption existed. The imputation of confidences to the attorney of this large eighty-man firm was therefore particularly irrational.

More analogous to the case at bar is State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir.1979). In Dean Foods Products, the court expressly found that the attorney had no actual knowledge of the file at issue and had never looked at the substantially related file. Id. at 387. His only connection with the client involved the ministerial acts of filing papers and conducting a title search. Nevertheless, the court found that the firm’s knowledge must be imputed to him and, upon “switching sides,” he was disqualified. Id. at 386. Attorney Silver-man must likewise be disqualified in this action.

Canon 9 provides that “a lawyer should avoid even the appearance of professional impropriety.” For Canon 9 to apply, “there need be no proof of actual wrongdoing,” but there must be a “reasonable possibility” of some “specifically identifiable impropriety.” Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.1976). See also Williams v. Trans World Airlines, Inc., 588 F.Supp. 1037, 1041 (W.D. Mo.1984). Thus, whether Silverman did in fact receive confidential information is irrelevant under Canon 9 and in fact, the policy against disclosure of confidences precludes that inquiry. State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 386. See also Fred Weber, Inc. v. Shell Oil Co., Inc., 566 F.2d at 609.

In this action, the ultimate question under Canon 9 should be stated as follows: Would a member of the public or bar see an impropriety in the representation of defendant against plaintiff by a lawyer whose former firm received confidences and represented plaintiff in a related matter, by a lawyer who had access to plaintiffs otherwise confidential files during a period of time in which he actually represented defendant in this action, and by a lawyer whose new firm, only upon his active participation in the case, became intensely interested in issues and affirmative defenses related to plaintiff’s prior actions. The court finds that with respect to each of these facts, there is a grave “likelihood of public suspicion”—a reasonable person would see an impropriety in the representation of defendant by Rosen & Silverman.

While the confidences imputed to one attorney will not automatically be imputed to the attorneys in his or her new firm, it is to be expected that “a lawyer having earlier received confidential information, could at least inadvertently direct his staff to proceed along lines dictated or influenced by that information.” State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 387. Even though an attorney may have no actual knowledge of his firm’s client's file, when he becomes associated with a firm opposing that client, an appearance of impropriety may arise and his subsequent associates may be disqualified as well. Id. at 387. To protect against the appearance of impropriety and to insure that these confidences are not revealed, the new firm can build a “Chinese Wall” between the attorney who has “switched sides” and all further matters dealing at all with litigation of that client. EZ Paintr Corp. v. Padco, Inc., 746 F.2d at 1462.

In this case, Rosen did not build a “Chinese Wall” and Silverman was not “screened off” when he joined the new firm. Rather, he immediately began his active participation in this case. Rosen and Silverman freely discussed defense of this action. Thus, continued representation by that firm violates the spirit of Canon 9.

Because no “Chinese Wall” was erected, and because the facts in this action give rise to the reasonable possibility of specifically identifiable improprieties, a reasonable person would see an impropriety in the continued participation of the law firm Rosen & Silverman. Such continued participation in this action by that firm violates . Canon 9’s proscription against actions which give rise to the “appearance of impropriety.”

The public’s interest in maintaining the “fairness and integrity of the judicial process” and the plaintiff’s interest in “a trial free from the risk that confidential information has been unfairly used against it” in this case outweigh defendant’s interest in being represented by the Rosen & Silver-man law firm. Williams v. Trans World Airlines, Inc., 588 F.Supp. at 1046. As stated by the Eighth Circuit, an attorney’s “conduct must be such as to breed at least the confidence normally reposed in the parish priest.” State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 386. To insure that defendant is not prejudiced by disqualification of its attorneys, however, the court will allow Rosen & Silver-man to turn over to substitute counsel all work product developed or discovered prior to May 7, 1985, the date when Silverman’s name first appeared on pleadings associated with this action. All defense motions filed after May 7, 1985, will be considered withdrawn, as well as defendant’s response to plaintiff’s July 31, 1985 motion to compel answers to interrogatories. This matter must be handled by substitute counsel. Accordingly, it is

ORDERED that plaintiff’s motion to disqualify the firm of Rosen & Silverman in this action is granted. It is further

ORDERED that all defense motions now pending in this action are withdrawn. It is further

ORDERED that defendant procure substitute counsel in this matter on or before August 30, 1985. It is further

ORDERED that substitute counsel enter his appearance in this action on or before September 6, 1985.

      . In point of fact, this finding is unnecessary since the court accepts the law in the Eighth Circuit—that is, that the attorney-client relationship raises an irrefutable presumption that plaintiff Hallmark Cards disclosed confidences and secrets to Gage & Tucker. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608. See also State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 384. But see EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1462 (Fed.Cir.1984), and Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2nd Cir. 1975), for the proposition that this presumption is rebuttable.

      . Both Fred Weber and Dean Foods have been overruled on other grounds. In re Multi Piece Rim Products Liability, 612 F.2d 377, 378 (8th Cir.1980). See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

      . To determine whether a Canon 9 violation has occurred, the Fifth Circuit has developed a twofold test. First, there must be a "reasonable possibility that some specifically identifiable impropriety did in fact occur” and second, there must be a "likelihood of public suspicion” which outweighs the interests served by a lawyer’s continued participation in a case. Woods v. Covington County Bank, 537 F.2d at 813. There is some confusion as to whether the Eighth Circuit has adopted this test. Indeed, in Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 609, the Eighth Circuit quoted from Woods v. Covington County Bank, the first-part of this test. However, the court failed to apply the Fifth Circuit test in its analysis of the case. In a more recent Eighth Circuit case, State of Arkansas v. Dean Foods Products Co., Inc., 605 F.2d at 386-87, the court neither mentioned the Fifth Circuit test nor adopted it in its analysis of Canon 9. While, under the facts of this case, this court could find a Canon 9 violation under the Fifth Circuit two-part test as stated above, it would be inappropriate to do so. Specifically, the first-part of the test is unduly rigid. To require that plaintiff show by even a reasonable possibility standard that a specifically identifiable impropriety "did in fact occur” undermines the role of Canon 9 in preserving the public trust.


author: SELYA, District Judge.

text:
    UNITED STATES of America v. George E. CHAPDELAINE.
    Cr. No. 85-040-S.
    United States District Court, D. Rhode Island.
    Aug. 16, 1985.

      James H. Leavey, Asst. U.S. Atty., Providence, R.I., for U.S.
    Kirk Y. Griffin, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

SELYA, District Judge.

On May 14, 1985, between 8:30 and 9:00 p.m., George Chapdelaine, the defendant herein, was arrested at the Cloverleaf Motel in Lincoln, Rhode Island by members of the Lincoln police department, acting in concert with and under the aegis of the federal Drug Enforcement Administration (DEA). A subsequent search of the defendant’s luggage and vehicle turned up sizable quantities of both cash ($6,000) and cocaine (approximately 3.5 pounds). In short order, Chapdelaine was bound over to a grand jury, indicted for possession of a Schedule II controlled substance with intent to distribute, see 21 U.S.C. § 841, and detained pending trial. He thereupon moved to suppress the introduction of the above-described evidence, along with certain inculpatory statements which he allegedly made while in custody at the Lincoln police station.

An evidentiary hearing was held on June 25-27, 1985. A briefing schedule was thereafter implemented. The court took the matter under advisement as of July 18, 1985. This rescript comprises the court’s resolution of the questions presented.

I.

Briefly summarized, the defendant argues that the physical evidence was obtained as a proximate result of (i) a warrantless arrest divorced of probable cause, and (ii) a warrantless search and seizure of his motor vehicle, which (a) was not incident to a lawful arrest, and (b) lacked probable cause. Chapdelaine further asseverates that his in-custody statements should be suppressed as they were obtained in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), and in the wake of his requests for counsel. These claims will be treated seriatim.

A. The Arrest

Chapdelaine’s arrest on May 14, 1985 capped a five-day DEA investigation headed by Special Agent Frank DiCarlo. The DEA had received information from Lt. Tempest of the Woonsocket police department that a plan was afoot to transport five kilograms of cocaine from Florida to Rhode Island for distribution in the New England region. On May 9, DiCarlo interviewed one Pamela Harnois at the Lincoln police station. During several audiences with Harnois over the next few days, the following people were also present at different intervals: DEA Agents Moffett and McCarthy; Lt. Tempest; Lt. Wood of the Lincoln police department; Assistant United States Attorney Leavey; and Detective Roy of the Providence police (a special deputy United States Marshal).

In substance, Harnois told the officers that she had travelled to Florida with the defendant and her quondam boyfriend (Albert Gagnon) in mid-January, 1985; that the trip was made in an automobile rented from a Hertz agency in Rhode Island; and that, at Chapdelaine’s request, she had held $50,000 in cash for him during that jaunt. While the group was in Miami, and from the vantage point of a motel room there, she observed the defendant apparently purchasing five kilograms of cocaine with the money she had carried. After the transaction was consummated, Harnois and Gag-non began the trip back to Rhode Island in the rental car (detouring en route to experience the elaborate fantasies of Disney World). They rejoined Chapdelaine near Kinston, North Carolina; he had relatives there and had previously dropped off a rattletrap bus which he planned to convert into a luxury mobile home. The trio left North Carolina ensemble, crossed the Mason-Dixon line, and returned to Rhode Island. Once there, they brought the cocaine to the Cloverleaf Motel, where Chapdelaine (who, according to Harnois, knew the owner) apparently stayed on a frequent, if intermittent, basis. At some point, Chapdelaine mentioned that Frank Kowal (affectionately known as “Babe”) and Jimmy Lyons, both of whom resided in southeastern New England, were destined to become involved in the scheme. Harnois buttressed her tale by noting that she had taken a series of snapshots during this journey. In addition, Harnois informed the officers that the defendant had told her that every time he went to Florida, he returned with cocaine. And, there was more.

She related that, predicated upon a discussion with Chapdelaine’s son in early May, she believed that the defendant was in Florida at the moment. She thought that he was returning immediately (perhaps that very evening) to Rhode Island. She noted that he would be driving either a blue Volkswagen pickup truck with a “different-colored” door or a rented car. Finally, Harnois warned that the defendant kept company with an automatic weapon—probably an Uzi submachine gun—while engaged in narcotics trafficking; he had indicated to her that he would kill anyone who tried to- interfere in his drug business because he did not want to go back to jail.

It must be emphasized at this juncture that this informant’s revelations did not tumble aimlessly into a vacuum. All four of the names mentioned by Harnois were known to the police (three of them in a drug-related context). Chapdelaine’s son had previously been arrested on drug charges; during that federal trial (several months earlier), Chapdelaine had advised Lt. Tempest that he would cooperate with the DEA regarding his knowledge of drug trafficking if the prosecution would recommend a sentence of less than jail for his offspring. Lyons had been arrested on cocaine charges by Massachusetts state police just a few weeks prior to the May 9 contact. Kowal had been arrested by Special Agent McCarthy in 1975 (in West Warwick, Rhode Island) while in possession of hundreds of thousands of vials of morphine; he was later convicted and sentenced to a lengthy prison term. Harnois also told Agent DiCarlo that Gagnon had set a fire to order in Warwick, Rhode Island in September 1984, and that he had to be treated for burns at a local hospital (Fogarty) as a result. Warwick detectives confirmed that a home had indeed been torched and hospital records showed that Gagnon was hospitalized the day after the Warwick ustulation, suffering from first, second, and third degree burns.

With this information in hand, Agent Di-Carlo ordered a surveillance of the motel, and had Pamela Harnois call to see if the defendant was due to arrive that night (May 9). The owner of the hostelry confirmed that Chapdelaine often stayed at the Cloverleaf, but denied that he was expected that evening. On May 10, DiCarlo confirmed (through the DEA in North Carolina) that Chapdelaine was in the Kinston area, driving a blue VW pickup truck with an oddly-colored door and bearing Rhode Island license plates. (Harnois had voiced her belief that the defendant had a brother, Joseph, and a nephew, Allan, in Kinston; the pickup truck was spotted in North Carolina at the home of a Joseph Chapdelaine.) The Rhode Island plates bore the number 69582; a Registry of Motor Vehicles check showed that the plates had been issued to George Chapdelaine. On the same day, at DiCarlo’s urging, Harnois placed calls to the homes of the two Chapdelaines listed in the Kinston telephone directory—William Allen and Joseph William. A woman at one of those numbers acknowledged that George was overseeing the finishing touches on the rehabilitation of his mobile home, but that he would be leaving soon.

On May 11, fearing detection in the sparsely settled environs of rural Kinston, the DEA terminated the North Carolina surveillance exercise. On May 14, Agent DiCarlo learned from Harnois that she had called North Carolina again and had been told that Chapdelaine had left early that morning for Rhode Island. DiCarlo arranged for intensified surveillance in the vicinity of the Cloverleaf Motel. Lincoln police officers were instructed to look for a blue VW pickup truck with Rhode Island registration 69582, and to arrest the defendant. At approximately 8:45 p.m., the truck pulled into the motel parking lot and stopped near the office entrance. Chapdelaine left the motor running, exited the vehicle, and entered the office. He was refused lodging. As the defendant turned to leave, Detective Shey accosted him, asked if he was George Chapdelaine, and upon the defendant’s answering affirmatively, placed him under arrest.

The defendant argues that there was no probable cause for his arrest because the information upon which the constabulary relied was stale (dated to January 1985), and because the informant’s tip was unworthy of credence. In the latter regard, he urges particularly that the instability of the data source is made manifest by Harnois’ prediction that he would be carrying an automatic weapon; such an augury was contradicted when no firearm was discovered at or after his arrest. Though Chapdelaine’s assault upon the lawfulness of the arrest has been artfully mounted, he is firing blanks. His rodomontade is largely sound and fury, signifying little of consequence.

As the Court has recently emphasized, “[pjerhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a ‘practical nontechnical conception.’ ” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). In Gates, the Court explicitly linked its earlier observation regarding “particularized suspicion” to the probable cause standard:

‘The process does deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’

Gates, 462 U.S. at 231-32, 103 S.Ct. at 2328-29, quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

Thus, “probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. at 2329. See also United States v. Curry, 751 F.2d 442, 446 (1st Cir.1984). The Court’s recent affirmation of the totality-of-the-circumstances test in Gates requires evaluation not of the isolated morsels upon which the defense so eagerly focuses, but of the full panoply of events leading up to Chapdelaine’s apprehension.

First and foremost, Harnois clearly incriminated herself in the January 1985 drug transaction; that fact alone betokens and furthers her reliability. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2081-82, 29 L.Ed.2d 723 (1971). And, although the evidence concerning the four-month-old cocaine haul may not have been entirely fresh, Harnois reported that the defendant had advised her that every time he sojourned to Florida, he went to buy cocaine. She quoted the defendant’s son (currently) to the effect that Chapdelaine was at that very moment in Florida. The defendant’s presence in Kinston, too, was of a piece with the scenario; the May pattern was sufficiently similar to the January agenda to generate suspicion. This evidence, when added to clues already in the possession of the police (e.g., that someone was due to arrive in Rhode Island from Florida with a large quantity of cocaine, and that Chapdelaine had earlier attempted to bargain drug trafficking information in exchange for a lesser sentence for his son) strongly supported the inference that he was then embarked upon yet another drug deal.

Furthermore, the information which Harnois relayed to the officers was corroborated in several key particulars. Many of the persons mentioned to Harnois by the accused were known by the police to be involved in drug trafficking; Chapdelaine was, as Harnois had forewarned, travelling in a distinctive blue VW pickup truck; his route had taken him to Kinston, North Carolina; and he was having a bus converted into a customized mobile home. Like a swallow returning to Capistrano, he had made a beeline for the Cloverleaf. Corroboration of these details made the informant’s tip highly reliable. United States v. Butler, 763 F.2d 11, 14 (1st Cir.1985). See also Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959) (finding probable cause where police corroborate details of informant’s advices). The pattern—movement of cocaine northward from Florida—was a significant one to trained DEA observers. A tipster need not deliver an ironclad case to the authorities on the proverbial silver platter. It suffices if, viewed in the real-life context of ongoing events, the proffer is such that a prudent law enforcement officer would reasonably conclude that the likelihood existed that criminal activities were afoot, and that a particular suspect was probably engaged in them. Such was the case here.

The defendant further argues, however, that Harnois’ reliability was destroyed, and probable cause thus undermined, when the police failed to discover a weapon when they searched the defendant immediately upon his arrest. But, when Chapdelaine departed the truck and entered the hotel (where, it should be remembered, he was well-known and frequently stayed), he had no reason to suspect that trouble was brewing. He certainly would not have jeopardized his good relations with the motel owner (an elderly lady) and/or his freedom to use the premises by toting a gun with him to register. Inasmuch as the police arrested the defendant in the course of a simple errand to secure his accommodations, they could still reasonably have believed that he did customarily carry a firearm and that it would be found somewhere in the truck. At least at this point in the sequence of events, the police did not have adequate reason to doubt that Chapdelaine was armed.

When the mise-en-scene is dispassionately viewed, it cannot be gainsaid but that Chapdelaine’s arrest was amply supported by probable cause. The fragments of Harnois’ account, together with the available corroboration, arranged themselves into a pattern highly suggestive of the suspect’s participation in the narcotics trade, like iron filings organized within the field of a powerful magnet. Only if each piece is viewed in utter isolation from the others—a triage which Chapdelaine urges, but which Gates forbids—could a plausible doubt arise.

B. The Search

After Chapdelaine had been placed under arrest by Shey at the entrance to the motel lobby, he was led down the stairs and searched in the parking lot while positioned against his vehicle. Lincoln police officers conducted a once-over of the truck’s interior and cargo bed, but turned up nothing. Sgt. Marcoux then escorted Chapdelaine to the Lincoln police station, while other officers secured the vehicle pending the arrival of members of the federal drug task force. As soon as the federal presence materialized, special deputy marshals Henry Roy and Daniel Silva searched the vehicle, finding a brown vinyl suitcase in the rear cargo area. Roy opened the luggage and examined it just closely enough to determine that it contained a large quantity of United States currency. Following the discovery, the vehicle and its contents were removed to the Lincoln police station.

At police headquarters, both the truck and the suitcase were more exhaustively searched. The suitcase was found to eontain $6,000 and a small quantity of cocaine. Shortly after this find, a cavity search of the truck revealed two large plastic bags containing roughly three and one-half pounds of cocaine secreted within the rim of a spare tire.

The court need not tarry overlong anent the defendant’s argument that the search and seizure of his vehicle were not incident to a lawful arrest. The defendant’s arrest, being based on probable cause, see text ante at Part 1(A), was licit. And, while there may be some modest question as to whether the scope of these searches can be justified as incident to the arrest, see generally Chimel v. California, 395 U.S. 752, 763-66, 89 S.Ct. 2034, 2040-41, 23 L.Ed.2d 685 (1969), the key issue here is whether there was probable cause to search the vehicle itself.

As both parties correctly note, the “vehicle exception” to the warrant requirement was established in Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925). This exception “applies only to searches of vehicles that are supported by probable cause,” with the result that “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982). And, if a warrantless search of the truck was permissible, the scope of the search need not be artificially circumscribed. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 825, 102 S.Ct. at 2173.

At the time the police arrested Chapdelaine, they had probable cause to believe that he was transporting cocaine from Florida and carrying an automatic weapon with him. In view of the fact that he exited his vehicle at the hostelry with the motor running and merely to ascertain if there were any vacancies for the night, the police had every reason to think that they would locate these items in the truck. It may be argued that once the police did not find an automatic weapon in either of their two preliminary searches, they no longer had probable cause to believe the defendant was carrying one. (If Chapdelaine was carrying the weapon to protect himself, as Harnois had forecast, he presumably would have kept it within reach.) On the other hand, it is not impossible, or even illogical, that the defendant, either on entering Rhode Island or when approaching the Cloverleaf, might have hidden the weapon, either because he felt it was no longer a necessary adjunct of his nearly-completed mission or to prevent its detection. More importantly, however, the fact that the police did not immediately unearth a submachine gun did not automatically destroy their belief that the defendant was laden with cocaine. (After all, much of what Harnois had predicted had been borne out.) Cocaine, perhaps unlike a weapon for self-defense, would need to be hidden very carefully. The small size and easy packageability of the substance made concealment a fairly simple matter. As the Supreme Court has recently emphasized, the scope of a warrantless search of an automobile “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Boss, 456 U.S. at 824, 102 S.Ct. at 2172. A search for cocaine could logically take the officers into every nook and cranny of a vehicle, including the luggage.

The fact that the police also opened a separate container—the brown vinyl suitcase—does not further the defendant’s cause. As the Boss court noted:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search____ A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle must give way to the interest in the prompt and efficient completion of the task at hand.

Boss, 456 U.S. at 820-21, 102 S.Ct. at 2170-71. See also United States v. Johns, — U.S. —, 105 S.Ct. 881, 884-85, 83 L.Ed.2d 890 (1985).

The defendant contends, however, that even if there was probable cause, this warrantless prospecting did not fit within the circumstances justifying invocation of the vehicle exception. But, this contention does not withstand close scrutiny. The Court’s decisions after Carroll have focussed on two reasons for the automobile exception. First, the car’s mobility, i.e., its capability to be quickly moved, may make it impossible to require strict observance of the procedural formalities of the fourth amendment. Secondly, the expectation of privacy stemming from a vehicle is materially less than that stemming from a private residence. See generally California v. Carney, — U.S. —, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406 (1985); South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); Cardwell v. Lewis, 417 U.S. 583, 588, 94 S.Ct. 2464, 2468, 41 L.Ed.2d 325 (1974); Cady v. Donbrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 789, 17 L.Ed.2d 730 (1967).

In this instance, once Chapdelaine had been arrested and the police had secured his truck, the notion that the vehicle was in danger of being moved and the evidence destroyed was clearly unfounded. But, law enforcement personnel who have probable cause to believe there is contraband in an automobile may nevertheless conduct a warrantless search, “even after [the vehicle] has been impounded and is in police custody.” Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080, 73 L.Ed.2d 750 (1982) (per curiam). See also Ross, 456 U.S. at 807 & n. 9, 102 S.Ct. 2163 & n. 9; Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975) (per curiam); Chambers, 399 U.S. at 52, 90 S.Ct. at 1981; McHugh, at 864-867. “It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.” Thomas, 458 U.S. at 261, 102 S.Ct. at 3080. In short, the lawful (warrantless) search of a vehicle is restricted neither temporally nor spatially.

Though his position sinks to the bottom in this sea of authorities, Chapdelaine grasps (feebly) at one final reed: he argues that because the Cloverleaf Motel was his frequent place of residence while he was in Rhode Island, it should be construed as his abode. Along this line, he urges the court to picture his pickup truck as if it were parked on his private property, and thus to accord it a greater expectation of privacy than would otherwise be the case. See Coolidge v. New Hampshire, 403 U.S. 443, 460-62, 91 S.Ct. 2022, 2034-35, 29 L.Ed.2d 564 (1971); United States v. Bradshaw, 490 F.2d 1097, 1103 (4th Cir.), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). Such a holding would, Chapdelaine suggests, get him home free.

Given the added vitality which the Court has lately breathed into the vehicle exception, e.g., California v. Carney, supra; United States v. Johns, supra, the precedential value of Coolidge may itself be suspect. Yet, this court need not explore that path for purposes of this case. Here, assuming arguendo that Coolidge is good law, the facts belie its applicability. While Chapdelaine was a frequent visitor to the Cloverleaf, he did not maintain a room there, nor ever stop over at prescribed times of the month or season. In this instance, he did not have a reservation; Chapdelaine had only just driven onto the property and had left the motor running while he went in search of lodging for the evening. In fact, his request for a room for the night was turned aside by the manager immediately before his arrest. There was no room at the inn. On this occasion, he was neither a guest of, nor a visitor at, the motel.

There is nothing to justify the defendant’s professed belief that he had a greater expectation of privacy in this automobile than if he had been stopped on the highway, a minute or two earlier, before wheeling into the motel’s parking lot. The accused’s argument to the contrary pyramids possibility atop possibility, and strives to give a sense of stability to the merest of vellieties. The edifice which Chapdelaine tries to erect in the flickering shadow of Coolidge is a flimsy, jerry-built construct; it cannot survive even the mild breezes of cursory examination.

Thus, as there was probable cause to justify the search and seizure, this case fits squarely within the encincture of the automobile exception to the warrant requirement. The police conduct in this regard was not beyond the pale; indeed, it did not even wander close to the periphery.

C. The Custodial Interrogation

Following his arrest, Chapdelaine was advised of his rights at police headquarters (by Sergeant Marcoux). The defendant requested that his attorney be summoned forthwith. But, he was not permitted to make the necessary telephone call at that moment. In the meantime, Agent McCarthy, accompanied by the United States Attorney (Lincoln Almond), went to the cell-block and asked the accused to sign a consent to search his vehicle. McCarthy claims that he was not aware that the defendant had invoked his right to legal representation; Chapdelaine disputes this; Almond did not testify. The distinction is nugacious: “once a suspect has invoked the right to counsel, knowledge of that request is imputed to all law enforcement officers who subsequently deal with the suspect.” United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.1983). See also United States v. Downing, 665 F.2d 404, 407 (1st Cir.1981). Whatever the state of McCarthy’s or Almond’s actual knowledge, they were charged with notice of the accused’s statement to Marcoux. And, in any event, Chapdelaine did make his intentions plain when he declined their request, stating that he would never sign anything in the absence of his attorney.

Faced with the accused’s refusal to sign the consent form, the federal officials determined that the search could go forward nonetheless. The truck and the suitcase were thereupon examined. See text ante at Part 1(B). In the midst of the inspection, Chapdelaine asked to see McCarthy, who reappeared at his cell about four or five minutes later. According to Chapdelaine, he had decided to authorize the search; he “knew” that the officers would go through his truck and belongings anyway and figured there was no use wasting time by continuing to withhold his cooperation. (Unbeknownst to Chapdelaine, the cocaine cache had already been uncovered.) The defendant then allegedly made certain statements and was informed by McCarthy that the hidey-hole in the tire rim had theretofore been found.

Agent McCarthy then proceeded to pose a number of questions about other people to the defendant. What Chapdelaine later termed a “friendly discussion” then ensued. That colloquy was followed by a case-specific interrogation, in which McCarthy asked Chapdelaine a number of potentially incriminating questions, all of which the defendant claims he denied. At no point during this tete-a-tete did McCarthy give the defendant his Miranda warnings or otherwise advise him of his rights.

The government has stressed, with considerable fanfare, the fact that the defendant had been given his Miranda warnings by Marcoux early on, and thus knew that he had a right not to talk with McCarthy. But, Miranda requires not only that a defendant be informed of his rights, but that the police behave in a manner consistent with those rights. Thus, a defendant who is abstractly aware of his Miranda rights (and with the popularity of police shows on television, there are few persons who are not familiar with the litany) must also be assured that they will be respected in his situation. In this instance, after the arrestee had plainly and unequivocally invoked his right to an attorney to one law enforcement officer, and after he had at least insinuated to another pair that he preferred to await his lawyer’s arrival, McCarthy resumed the interrogation in the absence of counsel and without making even a cursory attempt to discover whether the defendant had reconsidered and elected to waive his rights. Though the accused’s background and experience are germane to the question of waiver, see Fuentes v. Moran, 733 F.2d 176, 181 (1st Cir.1984), the government cannot rely on such intangibles alone. Even if this defendant was wise in the ways of the stationhouse, or was attempting to bargain with the police, his savvy cannot substitute for the employment of proper police procedures and/or the strict observance of his constitutional rights.

As the Supreme Court has recently indicated, while the accused may himself validly waive his rights and respond to interrogation, additional safeguards are necessary when a request for counsel is on the table. Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981). “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. See also Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 2834, 77 L.Ed.2d 405 (1983).

Based upon the testimony adduced at the hearing, it is extremely difficult to discern whether the resumption of the interrogation was a brainstorm of the police, or whether it flowed naturally from the defendant’s self-initiated conversation with McCarthy. See Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1884-85. At bottom, such fine nuances matter little in this case. Even if, as the government would have it, McCarthy’s interrogation came about in consequence of Chapdelaine’s invitation, the prosecution has not convincingly refuted Chapdelaine’s claim that he requested an attorney, nor has it offered any substantial evidence whatsoever to indicate that, as Edwards demands in such circumstances, he knowingly and intelligently abandoned his right to counsel and his right to silence. See Edwards, 451 U.S. at 485-86 & n. 9, 101 S.Ct. at 1885 & n. 9. The failure is critical. As the Supreme Court cautioned recently, “even if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Bradshaw, 462 U.S. at 1044, 103 S.Ct. at 2834.

The government’s sole offering in this direction is the claim that Chapdelaine asked to see McCarthy. But see n. 5, ante. Assuming this is true, it does not indicate that the defendant actually intended to renounce the rights which he had earlier unhesitatingly claimed. Chapdelaine’s avowal that he sought to see McCarthy only for the limited purpose of executing the consent-to-search form stands unrebutted on this record. The court must also note that the circumstances of this case do not readily suggest a waiver. This defendant was arrested at gunpoint and taken to the police station. There, he was confronted by a veritable array of officers from several different law enforcement agencies, accompanied by the United States Attorney. Despite his requests to be allowed to call his attorney, he was not permitted to do so until his arraignment the following day. Under the circumstances, any withdrawal of the defendant’s original insistence that his attorney be present should not lightly be inferred. The custodial interrogation conducted by McCarthy, who failed either to remind the defendant of his rights or to discover whether a change in position was being knowingly and intelligently advanced, violated the defendant’s fifth amendment rights under Edwards.

The burden of proving that a waiver of the right to counsel was effected “is on the government and is a heavy one.” United States v. Montgomery, 714 F.2d 201, 203 (1st Cir.1983). In this case, the prosecution has fallen measurably short of establishing that the defendant, under his own steam, “evinced a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. at 2835. The claim of waiver is untenable. Accordingly, the defendant’s statements made in response to McCarthy’s questioning must be suppressed. But, inasmuch as the fruits of the search were fully harvested before the statements were made, this holding does not inhibit the government’s right to use the seized items as evidence in Chapdelaine’s trial. The prosecution did not gain that evidence through any exploitation of the fifth amendment violation which produced the accused’s admissions.

II.

The motion to suppress is granted as to the inculpatory admissions allegedly made by the accused to Agent McCarthy while he was in custody in the holding cell at the Lincoln police station. In all other respects, the motion to suppress is denied.

It is so ordered.

      . After all, in assessing the totality of the circumstances, "the expertise and experience of the law enforcement officers must also be taken into account.” United States v. McHugh, 769 F.2d 860, 865 (1st Cir.1985) (citations omitted).

      . Even if the police knew to a certainty that Harnois was mistaken in this single detail, that realization, standing alone, would not have automatically eradicated probable cause to believe that he was hip-deep in a cocaine transaction. The other indicia of reliability which attended the central parts of Harnois’ story were too staunch to be so easily undercut. Though an informant’s trustworthiness should be carefully assessed by a police officer, there is no requirement that the tipster be letter perfect in every particular. Gates, 462 U.S. at 233-35, 103 S.Ct. at 2329-30. There is probable cause to believe that Larry Bird, who averages 89% from the line, will make his next foul shot; the fact that he misses it will not, in and of itself, alter either the reasonableness or the likelihood of the conclusion.

      . Indeed, Chapdelaine appears to have virtually conceded the point. Though his initial (prehearing) brief raised this banner aloft, his valedictory (post-hearing) brief eschewed it.

      . Agent McCarthy did testify that, after he had left the cellblock on this occasion, he returned and belatedly advised Chapdelaine of his Miranda rights. Even if this testimony is credited, it was plainly too little, too late. The horse had long since cantered out of the barn.

      . It is not without significance that the government never produced the police officer to whom Chapdelaine reportedly announced his turnabout desire to speak with McCarthy (and who then called McCarthy to the cellblock). In point of fact, that officer’s identity was never made known at the hearing.

      . The defendant has also challenged these statements as stemming from the original, illegal arrest and urged their suppression under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This argument is baseless: there was no unlawful arrest here. See text ante at Part 1(A).


author: O’NEILL, District Judge.

text:
    In re Henrietta AUERBACHER, Settlor, First Account of First Pennsylvania Bank, N.A., Trustee Under Deed and Letter of Investment Instructions Dated June 23, 1952, and Amendments Dated June 1, 1959, December 8, 1961, January 25, 1962, July 30, 1961, and August 27, 1963 by Henrietta Auerbacher, Keystone Living Trust Plan, Stated From June 27, 1952 to June 27, 1985, Account Stated by Reason of the Death of John O. Grom Life Tenant on May 22, 1984.
    Civ. A. No. 85-4515.
    United States District Court, E.D. Pennsylvania.
    Aug. 16, 1985.

      G. Bradley Rainer, Philadelphia, Pa., for First Pennsylvania Bank, N.A.
    Cletus P. Lyman, Philadelphia, Pa., for Cheryl Francis.
   MEMORANDUM

O’NEILL, District Judge.

On July 3, 1985, First Pennsylvania Bank, N.A., Trustee under Deed of Henrietta Auerbacher, filed its first and final account with the Orphans’ Court Division of the Court of Common Pleas of Montgomery County, Pennsylvania. Thereafter, counsel for the Bank sent a notice dated July 15, 1985, to Cheryl Grom Francis, the remainder beneficiary, that the account would be called for audit on August 5, 1985. The notice stated in part:

“A dispute has been raised by Cheryl Grom Francis by the filing of suit in Federal District Court contending that the accountant erroneously made principal distributions to one of the life beneficiaries over 10 years ago, that the accountant showed partiality to life beneficiaries, particularly after 1979, by making investments with relatively high income, but with risk of loss of principal and little opportunity for principal gain, and that the accountant mismanaged the investments of the trust from at least 1964. The accountant does not agree with the interpretations of its performance of its duties and will contest any such objections raised by Cheryl Grom Francis at Audit.”

Ms. Francis filed a petition for removal with this Court on August 2, 1985. In the petition she alleges the requisite jurisdictional amount, that she is the defendant in the state court proceeding, that the Bank is a citizen of Pennsylvania, and that she is a citizen of Massachusetts.

A number of general principles govern the exercise of removal jurisdiction. Under 28 U.S.C. § 1441(a), removal is not proper unless this Court would have had original jurisdiction of the state court action. The propriety of removal is to be determined according to plaintiff’s pleading at the time of the petition for removal and it is defendant’s burden to show the existence of federal jurisdiction, Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir.1985). The removal procedure is statutory; the statute expresses a strong Congressional policy to restrict the right of removal; therefore, the statute must be strictly construed, LaChemise Lacoste v. The Alligator Co., Inc., 506 F.2d 339, 344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94, reh’g denied, 421 U.S. 1006, 95 S.Ct. 2408, 44 L.Ed.2d 674 (1975). All doubts should be resolved in favor of remand to the state court, Abels v. State Farm Fire & Cas. Co., supra, at 29.

Petitioner does not contend that the Bank could have invoked federal jurisdiction by filing its account in federal court in the same form as was used in the state court. Petitioner asserts, however, that the Bank could have filed a declaratory judgment action in this Court pursuant to 28 U.S.C. §§ 2201-2202 and that in such an action the Court could adjudicate the matters raised in the state court audit proceeding and grant the relief sought therein. Assuming, without deciding, that this contention is correct, it does not follow that the present case is removable. Declaratory judgment also is available in the state court, 42 Pa.C.S.A. §§ 7531-7541, but the Bank did not proceed under that statute. In determining removability, the Court is required to look to plaintiffs pleading, which controls. Amer. Fire & Cas. Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1951). The propriety of a removal is determined by the pleading actually used by plaintiff and not by what he could have asserted had he chosen to do so. W.D. Greenshields v. Warren Petroleum Corporation, 248 F.2d 61, 65 (10th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957).

The Court is especially mindful of the recent admonition of the Court of Appeals that all doubts are to be resolved in favor of remand. Petitioner has failed to sustain her burden to demonstrate that this Court has jurisdiction and the case will be remanded for that reason.

Even if the Court were to determine that jurisdiction of this action exists, we would abstain from its exercise, Reichman v. Pittsburgh Nat’l. Bank, 465 F.2d 16, 18 (3d Cir.1972). In Reichman, plaintiff beneficiary, a citizen of New York, sued the trustee in federal district court on the basis of diversity of citizenship. The complaint sought to surcharge the trustee for gross mismanagement and requested an accounting. After commencement of the federal action, the trustee filed an account in the Orphans Court. The Court of Appeals held that the district court had jurisdiction of the action but that it was proper for it to abstain:

“We agree that the facts herein demonstrate a proper case for abstention____ we rely on the substantial identity of the issues raised in Orphans’ Court with those presented in the district court and the special ability of the state court to decide those issues in view of its exclusive state jurisdiction over trusts and estates.”

      . Ms. Francis filed her suit against the Bank in this Court on May 17, 1985, C.A. No. 85-2777. The complaint asserts the claims described in the notice of audit and seeks an accounting, surcharge of defendant and compensatory and punitive damages.

      . The Petition for Removal asserts only that the Bank is a citizen of Pennsylvania. In C.A. No. 85-2777, Ms. Francis alleges that the Bank is a national bank. Counsel has argued that the Bank is a Pennsylvania citizen because it is located here and not in Massachusetts, 28 U.S.C. § 1348.

      . In cases based on federal question jurisdiction, the federal controversy must be disclosed on the face of the complaint, unaided by the answer or by the petition for removal. Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Westmoreland Hospital Ass’n v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 122 (3d Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed.2d 759 (1980); LaChemise Lacoste v. The Alligator Co., Inc., 506 F.2d 339, 343-344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94, reh’g denied, 421 U.S. 1006, 95 S.Ct. 2408, 44 L.Ed.2d 674 (1975). Since the present petition for removal is based on diversity of citizenship the Court may consider the allegations in the petition, Mattingly v. N.W. Virginia Railroad Co., 158 U.S. 53, 56, 15 S.Ct. 725, 726, 39 L.Ed. 894 (1895) 1A Moore’s Federal Practice § 0.161, p. 267 (2d ed. 1985); see Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3734 (1985).
      We do not reach the question whether Ms. Francis is a defendant entitled to remove under 28 U.S.C. § 1441(a) or the related question whether there are other interested parties whose citizenship would have to be alleged and who would have to join in the petition. The petition does not allege to whom the notice of audit was sent. We do not know whether there are creditors or other claimants against the trust res. One of the questions raised in No. 85-2777, an allegedly wrongful payment to the deceased life tenant, suggests that his estate might have an interest in the resolution of that issue.

      . In Princess Lida of Thum and Taxis v. Thompson, 305 U.S. 456, 59 S.Ct. 275, 83 L.Ed. 285 (1934), the Supreme Court held unanimously that the trustees’ filing of an account in state court prior to commencement of a federal action operated to vest exclusive jurisdiction in the state court. The Court of Appeals distinguished Princess Lida on the ground that Reich-man began his federal action before the trustees’ account was filed in' the state court.


text:
    UNITED STATES of America, Plaintiff, v. Carl Angelo DeLUNA, et al., Defendants.
    Nos. 83-00124-01-CR-W-8, 83-00124-04-CR-W-8, and 83-00124-07-CR-W-8 to 83-00124-15-CR-W-8.
    United States District Court, W.D. Missouri, W.D.
    Aug. 19, 1985.

      Oscar B. Goodman, Las Vegas, Nev., and Byron N. Fox, Kansas City, Mo., for Carl Angelo DeLuna.
    David W. Russell, Kansas City, Mo., for Carl Wesley Thomas.
    Santo J. Volpe and Allan A. Ackerman, Chicago, Ill., for Joseph John Aiuppa.
    Charles Norman Shaffer, Peter I.J. Davis, Rockville, Md., Jack P. Cerone, Chicago, Ill., Joseph DiNatale, Oak Park, Ill., for John Phillip Cerone.
    Judith Halprin and Frank Oliver, Chicago, Ill., for Joseph Lombardo.
    Gerald M. Werksman, Chicago, Ill., John J. Momot and Oscar B. Goodman, Las Vegas, Nev., for Anthony John Spilotro.
    Louis Carbonaro, Chicago, Ill., for Angelo LaPietra.
    Alan P. Caplan, San Francisco, Cal., and Thomas Rockman, Cleveland, Ohio, for Milton John Rockman.
    Russell L. Stewart, Lynn Ellen Hackbarth, Milwaukee, Wis., for John Joseph Balistrieri.
    Joseph P. Balistrieri, Milwaukee, Wis., for Joseph Phillip Balistrieri.
    Glenn C. Reynolds, Madison, Wis., and Philip L. Atinsky, Milwaukee, Wis., for Frank Peter Balistrieri.
   ORDER

STEVENS, District Judge.

Before the court is defendant Anthony Spilotro’s motion for reconsideration of this court’s August 6, 1985 order denying him leave to file a motion to suppress eighty-one wiretapped conversations. In his motion for reconsideration, defendant argues that 18 U.S.C. § 2518(10)(a) provides ample authority for his filing the proposed motion to suppress approximately nine months after the motion deadline set by this court and six months after suppression hearings were held in this action. Specifically, defendant argues that he must be excused from the court’s deadlines since he was “not aware of the grounds of the motion.” For reasons explained in this court’s August 6, 1985 order and further discussed in this order, defendant’s motion will be denied.

Facts

The government filed its indictment of this action on September 30, 1983. On October 26, 1983, Chief Magistrate Calvin K. Hamilton ordered defendants to file all pretrial motions on or before November 23, 1983. Pursuant to a Memorandum of Understanding reached between all parties and adopted by this court in its February 9, 1984 order, the deadline for discovery motions was extended to May 15, 1984 and the deadline for suppression motions was extended to November 1, 1984. On October 26, 1984, this court granted defendants’ motion to extend the deadline for the filing of motions to suppress to December 3, 1984. On December 3, 1984, this court again granted defendants’ request to extend the deadline, this time to December 5, 1984.

All defendants, including Spilotro, filed suppression motions. Perhaps because much of the evidence which the government seeks to introduce has been reviewed in other actions and by other courts, or perhaps because it was “overlooked,” no defendant in this action alleged that the government in its surveillance violated the minimization standards of Title III and no defendant argued that the government failed to comply with 18 U.S.C. § 2517(5). In any case, on March 5, 1985, this court, having completed a careful review of the evidence presented and the arguments pursued by defendants, notified the parties of its intent to deny defendants’ motions to suppress.

Defendant Spilotro has been represented by competent counsel throughout these proceedings and, for purposes of pretrial preparation, he is now represented by three attorneys. Oscar Goodman, a well-known Las Vegas defense attorney entered his appearance on defendant’s behalf on November 10, 1983. On March 19, 1984, this court, without written objection from defendant, disqualified Goodman as trial counsel because of various conflicts of interests. John Momot, another experienced lawyer, entered his appearance on June 27, 1984. Because Momot previously represented one prospective government witness, the court, at defendant’s suggestion, ordered defendant to retain separate counsel for the cross-examination of that witness. This counsel was to enter his appearanee on or before September 1, 1984. See Order, filed July 31, 1984. Momot was otherwise allowed to remain as defendant’s trial counsel. Gerald Werksman entered his appearance, not on September 1, 1984 as ordered by the court, but on March 1, 1985.

Werksman’s affidavit, filed in support of defendant’s August 9, 1985 motion for reconsideration states in pertinent part:

It was not until late April that it occurred to me that the conversations the government intended to offer against my client were the result of wiretaps which took place in Las Vegas five years before the indictment in this case was returned. I then reviewed again the files in [another defense attorney’s] office as well as all of Mr. Goodman’s materials to find the appropriate order under Title 18, Section 2517(5). When I was unable to find the order, I asked Mr. Goodman whether he had ever filed a pre-trial motion based upon violation of Section 2517(5). Mr. Goodman told me that it had never occurred to him.

It was not directly after the April discovery, however, but “in early June” that Werksman called the government and indicated that he was unable to locate any order issued pursuant to section 2517(5) for the 1978 Las Vegas wiretaps. In response, the government indicated that it believed such an order has been produced but noted that no formal request for it had been made. It then suggested that defendant file an appropriate motion for its production. Defendant filed a motion, not in early June, but on June 27, 1985. This motion was a “waste of time” because it asked for production of a Section 2517(5) application and order for conversations recorded in 1979. On July 10, 1985, defendant recognized his error and filed an “appropriate motion” for production. On July 16, 1985, this motion was rendered moot because the government, while it opposed defendant’s motion as “untimely,” attached the requested application and order.

Thereafter, on July 31, 1985, defendant Spilotro sought leave to file a motion to suppress eighty-one wiretapped conversations and requested that further suppression hearings be conducted. Defendant’s July 31, 1985 motion was unsupported by any legal authority. Rather, counsel expressly apologized for the lateness of the filing. The court denied defendant’s motion for leave to file the motion out of time and, on August 9, 1985 defendant filed the motion for reconsideration which is presently at issue.

On August 13, 1985, the court heard oral arguments on defendant’s motion for reconsideration. In those arguments, defendant explained that his new motion to suppress would be based upon the government’s alleged failure to make a 2517(5) application “as soon as practicable” and the government’s alleged violation of the minimization requirements of Title III. In response, the government stated that it was not “practicable” to make the 2517(5) application prior to 1983 because, until other evidence was obtained, the 1978 conversations did not appear relevant to the current action. While this court declines to discuss the merits of defendants proposed motion to suppress, it now reaffirms its former position that good cause does not exist to allow defendant to file his untimely motion and to reopen suppression hearings two weeks before trial.

Discussion

Contrary to defendant’s original motion for leave to file out of time a motion to suppress, defendant in his motion for reconsideration argues that his motion would not be untimely. His sole authority for this proposition is 18 U.S.C. § 2518(10)(a). 18 U.S.C. § 2518(10)(a) states that all motions to suppress “shall be made before trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion.”

It is undisputed that defendant’s motion exceeds the court’s deadline and that defendant failed to move for any further extension on or before December 5, 1984. It is further undisputed that defendant’s motion was not made before the suppression hearings in this action were actually held. However, defendant argues that under 18 U.S.C. § 2518(10)(a) his actions are excused since he was “not aware of the grounds of the motion.” We disagree.

18 U.S.C. § 2518(10)(a) must be read in pari materia with the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 41(f) states that “a motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12.” The relevant provisions of Fed.R.Crim.P. 12, as amended in 1975, are as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion____ The following must be raised prior to trial:
(3) Motions to suppress evidence;
(e) Motion Date. Unless otherwise provided by local rule, the court may, at the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.
(f) Effect of Failure To Raise Defenses or Objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

Pursuant to Rule 12(c) the court may “set a time for the making of pretrial motions or requests” and it is clear that the defendant and, as appropriate, the government have an obligation to comply with the motion dates set by the court pursuant to this subdivision. Advisory Committee Note to the 1975 Amendment to Rule 12(f). See also 1 C. Wright, Federal Practice and Procedure Criminal 2d § 193 at 697, n. 22 (2d ed. 1982). Further, the Advisory Committee Notes to the 1975 amendment of Rule 12(f) (hereinafter the Committee Notes) explain that failure to make the motion ‘at the time set by the court’ pursuant to subdivision (c) or prior to any extension “constitutes a waiver thereof, but the court is allowed to grant relief from the waiver if adequate cause is shown.” See 1 C. Wright, Federal Practice and Procedure Criminal 2d, § 192 at 691 and § 193 at 697, n. 22; United States v. Mangieri, 694 F.2d 1270, 1282 (D.C.App.1982).

The Committee Notes reveal the purpose of Rule 12—it is “designed to make possible and to encourage the making of motions prior to trial, whenever possible, and in a single hearing rather than in a series of hearings.” As the Eighth Circuit has explained, Rule 12 time limits are necessary since “for trials to proceed expeditiously, evidentiary questions must be resolved promptly.” United States v. White, 718 F.2d 260, 262 (8th Cir.1983). Further, pretrial disposition of motions to suppress gives to the government and defendants the “time and flexibility to change [their] theory of the case” and their trial strategy in accordance with the court’s decision. United States v. Worthington, 698 F.2d 820, 823-24 (6th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 109, 83 L.Ed.2d 53 (1984). In summary, the timely filing and disposition of such motions are critical to the “orderly and fair administration of the criminal justice system itself.” United States v. Sisca, 503 F.2d 1337, 1349 (2nd Cir.1974), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974).

“[G]iven the intricacies of trial scheduling and crowded dockets, and the desirability of deciding questions of government misconduct not relevant to the issue of guilt prior to trial, courts are understandably reluctant to grant relief except in unusually meritorious cases for untimely motions under Rule 12(f).” United States v. Mangeiri, 694 F.2d at 1283. See also 1 C. Wright, Federal Practice and Procedure: Criminal 2d 193 at 698, 703 n. 36 (concluding that courts rarely grant relief from Rule 12(f) “waivers”). Where defendant has been represented throughout the proceedings by counsel, the addition or substitution of new counsel does not constitute good cause compelling a court to grant relief from defendant’s waiver. See United States v. Johnson, 614 F.2d 622, 623 (8th Cir.1980); Brooks v. United States, 416 F.2d 1044, 1047-48 (5th Cir. 1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970). Further, courts generally reject defense arguments that “additional discovery” disclosed after the deadline was a necessary predicate to the filing of a late motion. See United States v. Childress, 721 F.2d 1148, 1151 (8th Cir. 1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) (defendant failed to establish good cause for Rule 12(f) relief based upon the government’s alleged failure to supply defendant with a police report); United States v. Mangeiri, 694 F.2d at 1283-84 (since several clues pointed to a need to undertake some basic discovery and since there was no reason to believe the government would have blocked any such inquiries or discovery, defendant’s argument that he could not have discovered the government’s allegedly illegal conduct earlier through due diligence was without merit); United States v. Grandmont, 680 F.2d 867, 872-73 (1st Cir.1982) (fact that defendant did not have affidavit for probable cause in his possession prior to trial was not grounds for relief under Rule 12(f) since government disclosed to defendant search warrant and the items seized one and half months before trial, and since counsel could have obtained the affidavit underlying the warrant had he requested it); United States v. Geelan, 509 F.2d 737, 740 (8th Cir.1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975) (where there was no showing that defendants were misled or that needed information was withheld, and where defendants could have ascertained the facts necessary for their motion through a simple inquiry, defendant did not exercise due diligence in discovering the grounds of his motion).

In this action, defendant was provided with the original applications for probable cause, the Title III orders authorizing surveillance, and rough transcripts of the conversations intercepted over a year and a half ago. It is readily apparent from the face of those documents that a section 2517(5) application and order authorizing use of the 1978 Las Vegas conversations in the prosecution of this action was necessary. Indeed, defense counsel Werkman’s affidavit indicates that he was aware of a possible section 2517(5) argument following his review of the warrant and original Title III order but prior to his review of the section 2517(5) application and order. See p. 536, supra. Thus, even if the government had not produced the 2517(5) application and order at issue, no good excuse exists for defendant’s failure to request its production in a timely fashion. Where such facts are readily apparent, this court assumes that defendant’s failure to seek production or to object promptly was simply a matter of “trial strategy.” See United States v. Sisca, 503 F.2d at 1349 (defendant failed to raise minimization issue in a pretrial motion notwithstanding that he was well aware of the factual basis for a motion to suppress for failure to minimize); United States v. Echols, 577 F.2d 308 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1288, 59 L.Ed.2d 499 (1979) (where facts were apparent on the face of the warrant issued two years prior to trial and where the trial court had set pretrial motion deadline one year prior to defendant’s filing of a motion to suppress, defendant’s motion to suppress filed six days before trial was properly denied as untimely); United States v. Williams, 421 F.2d 529, 532 (8th Cir.1970) (late filing of defendant’s motion was a “dilatory challenge ... a fishing expedition ... [and] a diversionary tactic designed to obtain yet another delay”).

United States v. Long, 88 F.R.D. 701 (D.C.Pa.1981), aff’d, 676 F.2d 688 (3rd Cir. 1982), cert. denied, 459 U.S. 828, 103 S.Ct. 64, 74 L.Ed.2d 66 (1982) is analogous to the case at bar. That case, like this one, was a complex case with multiple defendants. The court’s deadline for the filings of motions was October 1, 1980. Defendants in fact filed over one hundred motions. Hearings were held pursuant to these motions and determination of them occupied a good portion of the court’s time. In early October, an investigation ensued into facts surrounding the grand jury process. Nevertheless, defendant Long did not seek to extend the motion deadline. In November, at the latest, grounds for a new motion were apparent, but Long waited until December 29, 1980, to file the disputed motion. Given these facts and the court’s docket, the court concluded that the motion was intended to delay the trial. Defendant’s motion filed a month before trial was therefore denied as untimely pursuant to Rule 12(c) and 12(f) as well as 28 U.S.C. § 1867(a).

In enacting 18 U.S.C. § 2518(10)(a) and Fed.R.Crim.P. 12(f), Congress provided for relief from deadlines in the court’s discretion and particularly in those limited instances in which a defendant could not have been aware of the grounds for a motion prior to the deadline. Contrary to defendant’s assertions, mere inadvertence or unjustified ignorance does not provide cause for relief. If inexcusable inadvertence could legally justify defendant’s actions, the time provisions of 12(c), 12(f) and 18 U.S.C. § 2518(10)(a) would be meaningless.

In summary, defendant Spilotro was represented by competent counsel throughout these proceedings. He has been afforded numerous opportunities to file motions to suppress and, in fact, he has filed several motions which have been considered by this court. The facts herein presented, including the fact that “it did not occur” to counsel to argue the grounds now asserted in his proposed motion or that he was “unaware” of the grounds until the government produced the section 2517(5) application and order do not provide good cause for relief under Rule 12(f) or 18 U.S.C. § 2518(10)(a) since defendant by due diligence could easily have discovered the necessary facts prior to December 5, 1984. Further, this court will not exercise its discretion to grant defendant leave to file his proposed motion less than one month before trial of eleven remaining defendants since to do so would disrupt the orderly administration of this complex action and could delay trial. Accordingly, defendant’s motion for reconsideration is DENIED.

      . These arguments form the basis of defendant’s proposed motion to suppress.

      . This is not inconsistent with the Eighth Circuit's ruling in United States v. Scavo, 593 F.2d 837 (8th Cir.1979), which merely holds that a party who never asserts ignorance of the grounds of an untimely motion will have waived his rights under 18 U.S.C. § 2518(10)(a) to thereafter assert a section 2517(5) argument. See also In re Application of Kansas City Star Co., 527 F.Supp. 70, 77-78 (W.D.Mo.1981).