author: GLASSER, District Judge:

text:
    UNITED STATES of America, v. Adham Ahmed K. BADR, Anthony Owens, Sergio Boris Acosta-Rojas, James Edward O’Connell, Nelson DeJesus Rueda, Defendants.
    No. 84 Crim 00672.
    United States District Court, E.D. New York.
    March 8, 1985.

      Asst. U.S. Atty., Thomas Milton, Eastern Dist. of N.Y., for plaintiff.
    Francis Murray, Murray & Skoff, New York City, for Badr.
    Richard Finkelstein, Legal Aid Services, Brooklyn, N.Y., for O’Connell.
    Michael A. Laurano, Boston, Mass., for Acosta-Rojas.
    William Brodsky, Baden, Kramer, Huffman & Brodsky, New York City, for Rueda.
    Howard Jacobs, New York City, for Owens.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

GLASSER, District Judge:

In a one count indictment filed on December 14, 1984, the defendants were charged with conspiracy to knowingly and intentionally distribute and possess with intent to distribute a substantial quantity of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a), 846. Thereafter, on February 1, 1985, a superseding indictment was filed which contained a second count charging the defendants with possession with intent to distribute a substantial quantity of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

A motion to suppress statements made and physical evidence seized was made by the defendants Acosta-Rojas, O’Connell and Rueda. A motion was made by each of the defendants to dismiss the superseding indictment pursuant to 18 U.S.C. § 3161(b) or, in the alternative, to postpone the commencement of the trial pursuant to 18 U.S.C. § 3161(c)(2). In addition, the defendants O’Connell, Acosta-Rojas and Rueda have moved for a severance pursuant to Rule 14 of the Fed.R.Crim.P.

Hearings were held on each of the motions and the Court makes the following findings of fact and reaches the following conclusions of law.

I.

Events Leading to Arrests

On November 30, 1984, Kathleen Bennett, an agent of the Drug Enforcement Administration (DEA), was acting in an undercover capacity and together with an informant was to arrange for the purchase of a quantity of heroin or cocaine or both. Arrangements were made on that day for a meeting between them and the defendant Badr at the Hilton Inn at Logan Airport in Boston, Massachusetts. The meeting took place that afternoon. Accompanying Badr was the defendant Owens (also known as Tony Massai) who was introduced by Badr as the man who could provide the drugs.

Owens stated that he had people who were then at the Holiday Inn at LaGuardia Airport ready to do business in cocaine and eventually plans were made to consummate the transaction in New York on December 5, 1984. Bennett and the informant were in New York on that day and met Badr at LaGuardia Airport as he arrived on the Eastern Airlines shuttle from Boston. The three went to the Sheraton Inn where, after some discussion, Badr announced that he was required to take the informant to Flanagan’s Bar at 65th Street and First Avenue in Manhattan so that someone there could view the informant and approve him as someone who could be dealt with safely. If approval was given, Badr would contact Owens, who would come to New York and conclude the transaction.

When Badr and the informant returned to the Sheraton, Agent Bennett was told by Badr that Owens was contacted and that he would arrive on the 5:00 o’clock shuttle from Boston to New York. In Boston, DEA agents were stationed at Logan Airport and Bennett was advised by them shortly before 6:00 P.M. that Owens and two others who were later identified as defendants Acosta-Rojas and O’Connell, arrived in a white Lincoln automobile and were observed proceeding down the ramp towards the Eastern shuttle to New York.

The informant was awaiting the arrival of Owens at LaGuardia Airport; so were many agents of the DEA who observed Owens, Acosta-Rojas and O’Connell on the Eastern shuttle ramp leading from the Boston plane. Owens departed with the informant. Acosta-Rojas made a telephone call, after which he and O’Connell waited outside the terminal until a blue Toyota Corolla, driven by a person wearing a ski jacket and later identified as the defendant Rueda, arrived. Acosta-Rojas and O’Connell entered that vehicle and drove off.

DEA agents followed that Toyota until it parked on a street in Queens and the three occupants were seen entering an apartment house.

In the interim, back at the Sheraton, the informant arrived with Owens and they met with Badr and agent Bennett. Owens informed the others that his people had gone to pick up the cocaine and would bring about four kilos of it to the Sheraton before long. He also told them that he expected to receive $40,000 per kilo or a total of $160,000.

While Bennett, Badr, Owens and the informant were working out the details for completing the transaction, DEA agents were in virtually every strategic area of the Sheraton and were in continuous communication with each other by radio, sign or word of mouth. The blue Toyota was observed to arrive in the Sheraton parking lot. DEA agents observed conversations between Acosta-Rojas and Owens; they observed Acosta-Rojas meet with Rueda; Acosta-Rojas meet with O’Connell; and a meeting between O’Connell and Owens.

Owens informed Bennett, Badr and the informant that the cocaine had arrived. He told them that it was in a car nearby and that he ahd the informant would walk to the vehicle to get the cocaine. Agent Bennett and Badr were to go to another vehicle to get the money. The four would then meet on an adjacent road and consummate the transaction. Agent Bennett repaired to the ladies room where, by prearranged plan, she notified another DEA agent, Mary Vecchi, of those arrangements. Shortly thereafter, all the defendants were arrested. A search of the blue Toyota uncovered four kilos of cocaine in the trunk.

II.

The Individual Arrests

A. Acosta-Rojas

This defendant was arrested by DEA Agents Alfred Cavuto and John Peluso, in the lobby of the Sheraton Inn and then driven to DEA headquarters in Manhattan by Agents Cavuto and Peluso. Also in the automobile at the time was the defendant Owens. Agent Cavuto advised them of their Miranda rights and each stated that they understood them (Tr. 144, 156): After they arrived at the DEA office and while Agent Cavuto was obtaining pedigree information from him, Acosta-Rojas volunteered that he was approached by a man with a beard and asked if he could get cocaine. After thinking about it for a while, he thought about someone in New York and then introduced “these people” (Tr. 146).

B. O’Connell

The defendant was arrested by DEA Agent Courtney immediately outside the Sheraton lobby (Tr. 289). He was advised of his Miranda rights (Tr. 290). Approximately ten minutes later, Agent Ball, after ascertaining that O’Connell had been given his Miranda warnings, engaged him in conversation and asked him some questions to which O’Connell responded. Some of those questions related to the presence of cocaine in the apartment in Queens which O’Connell was observed entering.

O’Connell was then driven to the DEA headquarters in Manhattan by Agents Millar and Vecchi. Agent Millar again advised O’Connell of his Miranda rights and O’Connell stated, when asked, that he understood them. (Tr. 84, 85). O’Connell also stated that he did- not wish to waive those rights (Tr. 89). After arriving at DEA headquarters, Agent Millar took O’Connell to an interrogation room for the purpose of obtaining pedigree information. During the course of that process, O’Connell volunteered that he was receiving $500 for his role in the events which had just transpired (Tr. 90, 111, 112, 132). He also inquired of the agents whether he would receive medical attention in a federal institution to which he would be confined if convicted.

After Agent Millar completed his pedigree inquiries of O’Connell, Agent Ball came into the room, ascertained from Agent Millar whether O’Connell had received his Miranda warnings and after being told that he did, Ball asked O’Connell whether he understood those warnings, to which O’Connell responded affirmatively. A conversation then ensued between Ball and O’Connell during which inculpatory statements were made. The conversation continued until O’Connell requested to consult an attorney concerning Ball’s suggestion that he cooperate with the DEA. At that point, the conversation ended.

Although many questions were put to DEA agents at the hearing as to whether O’Connell requested to speak to an attorney prior to making that request of Agent Ball, I find no evidence that he had prior to that time (Tr. 101, 119, 130).

C. Rueda

Agent Courtney observed Rueda in a game room off the lobby of the Sheraton. He was wearing a ski jacket which appeared to be the same as the one worn by the driver of the blue Toyota (Tr. 29). Agent Courtney approached Rueda, displayed his badge and announced that he was a federal narcotics officer. Rueda was asked to identify himself and responded that he didn’t understand. He was asked for identification, something with his picture or name on it. He was asked whether he had an automobile, whether he drives and whether he had anything that could identify him. To all of those inquiries, Rueda replied either that he didn’t understand or “no.” (Tr. 291-292).

Rueda had his right hand in his pocket during the exchange. Agent Courtney placed his hand on top of Rueda’s and felt keys and something else in his pocket. Fearing for his safety, he asked Rueda to empty his pocket. Rueda complied and a key ring with a car key on it was placed on top of a video machine. At that point, Agent Courtney was joined by Agent Smith, who said that Rueda was the same person as the one seen at the airport and Rueda was then placed under arrest. The key from his pocket was the key to the blue Toyota which the agents then searched. In the trunk of that car they found four kilograms of cocaine. Also taken from Rueda was $17,000 in cash (Tr. 184).

Agent Moore advised Rueda of his Miranda rights and Rueda indicated he understood them (Tr. 181-184; 216-218). In response to some questions, Rueda said that the drugs came from Colombia.

III.

Conclusions of Law

A. The Arrests

It would be an affectation of research to multiply citations for the proposition that a warrantless arrest may be made if there is probable cause to believe that a crime is being or has been committed and the person arrested committed it.

It would similarly be an affectation of research to multiply citations for the meaning of probable cause. Perhaps two will suffice. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, the court said, at pp. 175-176, 69 S.Ct. at pp. 1310-1311:

The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating ... often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law abiding citizens at the mercy of the officer’s whim and caprice.

And in United States v. Webb, 623 F.2d 758 (2d Cir.1980), at pp. 761-762, the court wrote:

The essence of probable cause is a reasonable objective basis for belief in a suspect’s guilt, although not necessarily proof of guilt beyond a reasonable doubt. While the rule prohibiting law enforcement officers from making arrests without probable cause serves to protect the public from harassment or arbitrary police actions, the rule must also serve the concommitant interest of allowing the police to enforce the law without undue restraint____ As such, probable cause to arrest is not limited to those instances where the arresting officer has acquired evidence which would be sufficient to convict the suspect at trial____ Similarly, facts ostensibly sufficient to establish probable cause for an arrest are not negated simply because such facts also may be consistent with the suspect’s innocence.
In short, while the rule of probable cause does impose a requirement on police to act with more than mere suspicion of wrongdoing, the rule also gives police a permit to act with less than absolute certainty of guilt. ‘In dealing with probable cause, we deal with probabilities.’

This standard of probable cause is more than satisfied by the facts in this case. The presence of Acosta-Rojas and O’Connell on the same plane with Owens was no coincidence. They were seen boarding the plane with Owens at Boston and that fact was communicated to agents in New York by agents in Boston, who also provided a description of the men. Owens was by then known to be a drug dealer. He had been negotiating with an undercover agent and an informant.

Acosta-Rojas and O’Connell were then seen deplaning from the aircraft with Owens. They were seen entering a blue Toyota driven by a man wearing a distinctive ski jacket. They were followed to an apartment in Queens. They were seen shortly thereafter at the Sheraton where Owens had previously arrived to consummate the drug deal and announced that the cocaine was on its way. The same blue Toyota that drove them to the airport was in the Sheraton parking lot. The agents knew from Kathleen Bennett working under cover that the cocaine was about to be exchanged for cash. Surely prudent, reasonable, cautious drug enforcement agents, guided by their experience and training, (United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975)), dealing with probabilities, could conclude that there was something more than mere coincidence guiding the movements of Acosta-Rojas, O’Connell and Rueda. In short, they had ample probable cause to believe that a crime was being committed and that those three, together with Badr and Owens, were committing it.

The defendants would make much of the fact that the knowledge of all the facts which equal probable cause was not known to each and every agent participating in and effectuating the arrest. They would contend that the collective knowledge of all the agents does not suffice. That argument need not long detain us. As has been indicated in the findings of fact, the agents employed in the investigation were in continuous communication with each other by radio, by sign and by word of mouth. See, e.g., United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965); United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978); United States ex rel LaBelle v. LaVallee, 517 F.2d 750 (2d Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976); United States v. Almonte, 575 F.Supp. 1549 (E.D.N.Y.1984). To require the arresting officer to have first-hand knowledge of the negotiations in Boston, of the plane trip to New York, of the simultaneous meeting at the Sheraton and the trip to the Queens apartment, to mention just some of the logistical complexities, as a precondition for probable cause would be as absurd as it would be impossible. It is also not the law. In United States v. Hawkins, 595 F.2d 751 (D.C.Cir.1978) at fn. 2 on pp. 752-753, the court said: “We dismiss appellant’s argument that the supervisory officer, who ordered the search ..., himself lacked probable cause____ In the first place, probable cause may emanate from the collective knowledge of the police, though the officer who performs the act of arresting or searching may be far less informed (citations omitted)____ The whole complex of swift modern communication in a large police department would be a futility if the authority of an individual officer was to be circumscribed by the scope of his first hand knowledge of facts concerning a crime or alleged crime.” Moreover, the supervisory officer who initiated the search challenged here had been in constant radio communication with the officers on the scene, had been given details of the observations of the other officers, and thus was aware of the possible involvement in drug dealings. See also United States v. Ayres, 725 F.2d 806 (1st Cir.1984); Calero v. United States, — U.S. -, 105 S.Ct. 519, 83 L.Ed.2d 408 (observations of fellow officers of the Government, engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number).

B. The Search

The arrests being lawful, the search of O’Connell’s shoulder bag incident to his arrest was lawful, as was the search of Rueda’s person which yielded $17,000 in cash.

It may be argued that the detention of Rueda immediately prior to the formal announcement that he was under arrest (Tr. 293) was unlawful. The brief encounter occurred in a public area of a busy hotel lobby. Agent Courtney wore no uniform and displayed no weapon. He did not summon Rueda to him but instead approached Rueda and identified himself as a federal agent. To this point this case is virtually identical with United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and Agent Courtney’s conduct was based on specific and articulable facts that justified at the very least a suspicion of criminal activity.

We come then to the emptying of Rueda’s pocket. Agent Courtney testified that he was concerned for his safety and about the possibility that Rueda might be armed. (Tr. 292, 293). He was in the midst of the flurry of activity and arrests marking the culmination of an investigation of a large drug transaction. His concern for his safety was not imagined. Rueda had his hand in his pocket and Agent Courtney felt some unidentifiable object in the pocket. Our courts have frequently recognized that “to substantial dealers in narcotics firearms are as much tools of the trade as are most commonly recognized articles of narcotics paraphernalia.” United States v. Wiener, 534 F.2d 15, 18 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); United States v. Martinez-Gonzalez, 686 F.2d 93 (2d Cir.1982). The validity of Agent Courtney’s request of Rueda that he remove his hand from his pocket and the contents thereof is plainly if not eloquently supported by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). In discussing whether there was justification for the search of Terry for weapons, the Court said, at pages 23-24, 88 S.Ct. at page 1881:

We are now concerned with more than the governmental interest in investigating crime; in addition there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed---- Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

Continuing on page 27, 88 S.Ct. at page 1883, the court said:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

In determining whether a particular stop and search is valid, a court must view the surrounding circumstances “as a whole, not as discrete and separate facts” and “through the eyes of a reasonable and cautious police officer on the scene guided by his experience and training.” United States v. Barlin, 686 F.2d 81, 86 (2d Cir.1982).

If Rueda had testified at the suppression hearing that he believed he was not free to leave and if the placing of Agent Courtney’s hand upon his might be deemed “some physical touching of the person of the citizen,” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, which might indicate an arrest, and if the emptying of the pocket were therefore deemed a search, I would nevertheless hold that both were lawful. I have already alluded to the authorities for the principle that probable cause may emanate from the collective knowledge of the police though the officer who performs the act of arresting or searching may be far less informed. That principle is especially applicable here. The fact that the formal announcement of his arrest was not made until a moment (or perhaps even seconds later upon the appearance of Agent Smith) after his pocket was emptied is of no legal consequence. If he was in fact arrested prior thereto it was because his freedom of movement was restrained. It is that restraint which effectuates an arrest, not formal words or “station house bookkeeping.” See Dunaway v. United States, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979); Reed v. United States, 401 F.2d 756, 761 (8th Cir.1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48 (1969); United States v. Skinner, 412 F.2d 98, 103 (8th Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969). Given the finding of probable cause to arrest Rueda, and where it is clear that evidence seized in a contemporaneous search was not necessary to establish probable cause, the search is incidental to the arrest. The search is valid whether it took place moments before or moments after Agents Courtney and Smith formally announced Rueda’s arrest. United States v. Skinner, supra; United States v. Jenkins, 496 F.2d 57, 73 (2d Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975) (“The mere fact that the trooper reversed the procedure, conducting the search before the arrest did not render it illegal as long as probable cause to arrest existed at the time of the search).

The subsequent search of the automobile was lawful. The DEA agents had ample cause to believe that contraband was concealed somewhere within the Toyota and properly conducted a search of the vehicle that was as thorough as a Magistrate could authorize in a warrant “particularly describing the place to be searched.” United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. See also United States v. Mejia, 578 F.Supp. 1541 (E.D.N.Y.1984).

The motion to suppress the physical evidence is denied.

C. The Interrogation

1. Acosta-Rojas:

The uncontradicted testimony at the suppression hearing was that Acosta-Rojas was advised of his Miranda rights by Agent Cavuto and he stated that he understood those rights. Any statements made by him during his custodial interrogation were made with full knowledge and understanding of his rights and were made voluntarily. The statement the defendant seeks to suppress, however, was not made in response to interrogation but was volunteered by him while furnishing pedigree information — namely, that he was approached by a man with a beard and asked if he could get cocaine — and then introduced “these people” in New York (Tr. 146). The motion, made by the defendant, to suppress his statements, is denied.

2. Rueda:

The defendant moved to suppress his. statement that the cocaine came from Colombia (Tr. 183). The uncontradicted evidence elicited at the suppression hearing was that Rueda was advised of his Miranda rights in Spanish and indicated his understanding of those rights (Tr. 181-184, 216-218). His willingness to respond to questions thereafter was the manifestation of a knowing and voluntary waiver of those rights and his motion to suppress is denied.

Rueda contends that his statement that the drugs came from Colombia came at a point in the interrogation when he was told that drugs were found in his house and in the car and he was asked whether he knew where the drugs came from, to which he replied, “Colombia” (Tr. 183). Because the drugs seized from the house was incident to a warrantless search, he contends that the basis of the Agent’s question was, in essence, fruit from a poisoned tree and that his answer should, therefore, be suppressed. At the time he was questioned, cocaine had already been seized from the car and that seizure was lawful. The government has represented that they do not intend to offer as evidence' things seized from the house. Since the question as to the origin of the drugs lawfully seized from the car is not in any way tainted, the defendant’s contention lacks merit.

3. O’Connell:

Immediately after his arrest and while being escorted to a DEA vehicle at the rear of the Sheraton parking lot, O’Connell was given his Miranda warnings (Tr. 290). Approximately ten minutes later, Agent Ball came to the rear of the parking lot and asked another agent whether O’Connell had been advised of his rights and was told that he was. Ball then asked him where the cocaine was, to which O’Connell replied he didn’t know about cocaine. Ball then suggested that O’Connell would be well advised to cooperate and detailed the evidence the DEA had against him thus far. He again asked O’Connell “where is the cocaine,” and “what are you doing in the bar sitting with a shoulder bag?” O’Connell said: “That’s all I’m supposed to do, come in, sit in a bar.” (Tr. 328, 329). In response to other questions, O’Connell said he was doing a favor for Tony (the defendant Anthony Owens, a/k/a Tony Massai). Ball also asked O’Connell whether there was “any more dope up in the apartment?” to which he replied, “I don’t think so.” He was then asked, “Did you see any?” and replied, “I didn’t.” “Is there anybody else in the apartment?” to which he replied, “I don’t know.” He was asked, “Was anybody else there when you left?” and he replied, “I don’t think so.” Finally he was asked, “Did you see any weapons in the apartment?” to which he said, “No, I didn’t.”

Unquestionably, O’Connell was in custody when these questions were asked and they were asked of him after he was advised of his Miranda rights. O’Connell is an articulate, intelligent man (Tr. 332). He understood his Miranda rights and knew how to assert them. Indeed, a short while later, while being driven to DEA headquarters, he was again advised of his Miranda rights by DEA Agent Millar and expressly stated that he did not wish to waive them. In responding to Agent Ball’s questions, O’Connell clearly manifested a knowing and voluntary waiver of his rights. With respect to that portion of the colloquy between Agent Ball and O’Connell that related to the desirability of O’Connell’s cooperation, it has been held that such discussion is not inherently a form of questioning for purposes of Miranda. United States v. Guido, 704 F.2d 675 (2d Cir.1983). It has also been held that furnishing a suspect with details of the evidence against him does not constitute interrogation within the meaning of Miranda. Guido, supra. If defendant O’Connell were to contend that since the warrantless search of the apartment was illegal, questions put to him based upon information obtained from that search and the responses thereto were fruits of a poisoned tree, his contention would have no merit.

The facts as found can leave no doubt that O’Connell, a Bostonian who had come to New York in connection with this transaction, had no reasonable expectation of privacy as to the Queens apartment and had no standing to contest the validity of the search of that apartment. It follows that the tree as to James O’Connell was not poisoned and neither were its fruits.

Knowledge of the likelihood that the Queens apartment was the place from which the cocaine had come was, in addition, already known to the DEA agents. They did follow Rueda, Acosta-Rojas and O’Connell there from LaGuardia Airport. Owens had indicated at the Sheraton that the drugs would arrive shortly. The blue Toyota and Rueda, O’Connell and Acosta-Rojas did arrive at the Sheraton and the drugs were in the car. Even absent a search, the agents had independent reason to believe that the apartment was the source of the drugs or, as it is known in that trade, the “stash pad.”

The motion to suppress these statements is denied.

As has already been indicated, O’Connell was again advised of his Miranda rights by Agent Millar while being driven to DEA headquarters in Manhattan and chose not to waive them. After arriving at the headquarters, Millar proceeded to obtain pedigree information from O’Connell. It should be noted here that even if Miranda warnings had not been given, they need not be when pedigree or background data is being gathered. United States v. Prewitt, 553 F.2d 1082 (2d Cir.1977); United States v. LaVallee, 521 F.2d 1109 (2d Cir.1975). During the course of obtaining this background data, O’Connell volunteered in a conversation he initiated himself, “All this for $500.” (Tr. 90). O’Connell also asked whether he would obtain medical treatment for his many ailments in a federal institution if he were convicted. Agent Millar believed that he would and told him so (Tr. 87). Volunteered statements of any kind and spontaneous, unprovoked, incriminating statements are not barred by the Fifth Amendment. Guido, supra. Nor would the response to O’Connell’s questions about medical treatment be precluded.

After Agent Millar was completing the gathering of O’Connell’s personal data, Agent Ball entered the room. In response to his question, Agent Millar told him that O’Connell “had his rights.” Ball then asked O’Connell, “Do -you understand your rights?” to which O’Connell responded, “Yes, I do.” (Tr. 31). Ball asked him whether he knew that the case started out as a heroin case and if it had been, O’Connell “would be looking at a lot more exposure.” O’Connell said, “I wish it was a heroin deal ... if it was, I wouldn’t be here because I don’t have anything to do with that stuff” (Tr. 332). O’Connell again asked whether he would receive needed medical attention in a federal institution if convicted and was told that he would. He also told Ball that he was involved because he needed the money. Ball again suggested that O’Connell cooperate and encouraged him to talk to his lawyer about it. (Tr. 333).

O’Connell contends that after he advised Agent Millar that he did not wish to waive his Miranda rights, further questioning by Agent Ball thereafter was prohibited. When the Miranda court decreed that the interrogation must cease upon invocation of the right to silence, it did not create a per se proscription of indefinite duration upon any further questioning. Wilson v. Henderson, 584 F.2d 1185, 1187 (2d Cir.1978). Questioning can resume after new warnings are given and police may ask a defendant to reconsider his refusal to answer questions so long as such reconsideration is urged in a careful non-coercive manner at not too great length and in the context that a defendant’s assertion of his right not to speak will be honored, it does not violate the Miranda mandate. United States v. Collins, 462 F.2d 792 (2d Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972). This is not a case in which the defendant was badgered by relentless interrogators and there is no evidence to suggest that O’Connell’s will was overborne by persistent or coercive questioning. The defendant 'O’Connell’s motion to suppress is, therefore, denied.

The Motion to Dismiss Pursuant to 18 U.S.C. § 3161(b)

18 U.S.C. § 3161(b), provides in pertinent part:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges.

The defendants were arrested on December 5, 1984. The original one count indictment was filed on December 14, 1984 charging them with conspiracy to knowingly and intentionally distribute and possess with intent to distribute a substantial quantity of cocaine hydrochloride. On February 1, 1985, a superseding indictment was filed charging them in a second count with knowingly and intentionally possessing with intent to distribute a substantial quantity of cocaine hydrochloride. The superseding indictment was filed more than 30 days after their arrest and hence their motion to dismiss the second count of the superseding indictment.

The sanction for late filing of an indictment is to be found in 18 U.S.C. § 3162(a)(1) which reads in relevant part:

If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped____ (emphasis added)

The complaint against the defendants which was filed on December 6, 1984 charges them only with conspiracy. The indictment as to that complaint was filed within the time prescribed by § 3161(b).

In United States v. Pollock, 726 F.2d 1456 (9th Cir.1984), the defendant was initially arrested and held to answer on the single charge of conspiracy to manufacture and distribute methamphetamine. He was subsequently indicted on 50 counts, some of which involved offenses based upon the same criminal episode, but most of which specified separate offenses discovered during the grand jury’s investigation. The court said, at p. 1462:

We must decide which charges to dismiss when an indictment is not timely and the offenses specified in the indictment are not confined to those in the complaint. We hold that when the government fails to indict a defendant within 30 days of arrest, section 3162(a)(1) requires dismissal of only the offense or offenses charged in the original complaint.
This construction follows the clear meaning of the statutory language. Section 3162(a)(1) states that only “such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.” (emphasis added). Cf. United States v. Kripplebauer, 463 F.Supp. 291 (E.D.Pa.1978) (arrest on one charge does not trigger the running of time on some other criminal offense). “Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction.” Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744 (1981).
Moreover, Congress implicitly rejected the broad construction of the dismissal sanction urged by Pollock. Only in the initial draft of the Act did the bar against reprosecution apply to “that offense or any offense based on the same conduct or arising from the same criminal episode.” Partridge, supra, at 32-33. This language would have required courts to engage in the complex task of investigating the relationship between the conduct underlying the offenses charged in the complaint and the conduct underlying the offenses listed in the indictment. The House Judiciary Committee confined the bar to those offenses “which were known or reasonably should have been known at the time of dismissal.” Even this version would have forced courts to make an intrusive inquiry into what the prosecutor knew at various stages in the prosecution. The version of section 3162 actually passed by Congress, however, creates a sensible legal test that courts can efficiently apply. With the present more restrictive language the offenses to be dismissed are now apparent on the face of the complaint.

The decision in Pollock is precisely applicable here. Accordingly, the motion to dismiss the second count of the superseding indictment is denied. See also United States v. Heldt, 745 F.2d 1275 (9th Cir.1984).

The Defendant's Motion Pursuant to 18 U.S.C. § 3161(c)(2)

18 U.S.C. § 3161(c)(2) provides:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel____

When the superseding indictment was filed on February 1, 1985, the trial was scheduled to commence on February 12th. Because of the variety of motions which have been filed, including the defendant Badr’s motion for a continuance, the trial is currently scheduled to commence on March 11, later than the thirty days required by the statute. The motion is, therefore, moot. Were it otherwise, however, the resolution of that motion would have rested within the discretion of the court to direct the parties to trial without further delay. United States v. Guzman, 754 F.2d 482 (2d Cir.1985).

O’Connell’s Motion to Sever

The defendant James O’Connell has moved pursuant to Rule 14 of the Fed.R. Crim.P. to sever his trial from the trial of his co-defendant, Adham Badr. The court is informed by counsel for O’Connell that his motion is joined in by co-defendants Acosta-Rojas and Rueda.

The basis upon which this motion is made is the understanding by O’Connell’s counsel that co-defendant Badr’s defense will be his claim that he ostensibly acted as a government agent during the negotiation of the drug transaction. Specifically, it is his understanding that Badr will assert that he was recruited by the informant to do a favor for a friend — do a good service for the government and make some money by assisting in the set-up of the drug transaction. O’Connell also asserts the likelihood that Badr will testify at trial thus compelling him (O’Connell) to defend against accusations of both the government and his co-defendant, Badr. He contends that would give rise to inconsistent and mutually exclusive defenses, thereby precluding the possibility of a fair trial. O’Connell has not made known his own defense nor has he specified how his and Badr’s defense will necessarily conflict.

The determination of whether to grant or deny a motion for severance lies within the discretion of the court and should not be granted absent a showing of “substantial prejudice” resulting from its denial. Recognition dictated by reality is also given to the acceptability of a certain amount of prejudice given the judicial economies that result from a joinder. United States v. Carpentier, 689 F.2d 21, 27 (2d Cir.1982).

When the defendant seeks a severance based upon antagonistic defenses, a “simple showing of some antagonism between defendants’ theories of defense does not require severance.” United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.1984); Carpentier, 689 F.2d at 27. The Second Circuit has endorsed the stringent test for a severance that was first enunciated by the Fifth Circuit in United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981). That test is:

The defense of a defendant reaches a level of antagonism [with respect to the defense of a co-defendant] that compels severance of that defendant if the jury, in order to believe the core of testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant.

The decision in Carpentier, supra, dictates precisely the resolution of this motion. In that case, two defendants were indicted on charges of conspiracy and bribery in conjunction with a scheme to acquire a “green card” for an illegal alien. The indictments flowed from the ABSCAM investigation in which an FBI agent, through a paid informer, approached the defendant Carpentier who told the FBI agent that he could obtain green cards. Carpentier then arranged for the green card transaction with the other defendant, Alexandra. At trial, Alexandra asserted by way of defense that he pretended to go along with the illegal scheme in order to carry out his own investigation into corruption. The court rejected Carpentier’s contention that this defense was prejudicial:

It is difficult to see how Alexandra’s defense that he was ferreting out corruption prejudiced Carpentier in the least; it certainly failed to rise to the standard enunciated by the Berkowitz court____ There appears to be no reason why the jury could not have believed Alexandra’s story and yet still have found that Carpentier lacked the requisite intent to commit the crimes with which he was charged.

689 F.2d at 28.

In the present case, Badr, like Alexandra, is allegedly basing his defense on the claim that he was acting in an attempt to assist the government in investigating illegal activities. The reasoning of the court in Carpentier is precisely applicable. As has been indicated, O’Connell has failed to state the nature of his defense and to specify in what respect any antagonism of defenses exists. The same deficiency obtains as to Acosta-Rojas and Rueda. Where a defendant fails to state the nature of his defense and in which respect, if any, his defense is inconsistent with or antagonistic to that of his co-defendant, there is no basis for severance. United States v. Pellon, 475 F.Supp. 467, 482 (S.D.N.Y.1979); United States v. Wheaton, 463 F.Supp. 1073, 1077 (S.D.N.Y.1979), aff'd 614 F.2d 1293 (2d Cir.1979). The motion for severance is, therefore, denied.

SO ORDERED.

      . On March 4, 1985, Oregon v. Elstad, was decided by the Supreme Court and reported in — U.S. -, 105 S.Ct. 1285, 84 L.Ed.2d 222. The Court held that the Self-Incrimination Clause of the Fifth Amendment does not require the suppression of a confession made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the suspect. "The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative." — U.S. at-, 105 S.Ct. at 1298. (emphasis added). In an earlier portion of the opinion, the Court made this relevant observation:
      Once warned, the suspect is free to express his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted that ‘a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized____ [Tjhe living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’ (citations omitted).
      — U.S.-, 105 S.Ct. 1293.


source: Caselaw Access Project

author: PÉREZ-GIMÉNEZ, Chief Judge.

license: Public Domain

text:
    BIOMEDICAL INSTRUMENT & EQUIPMENT CORP., Plaintiff, v. CORDIS CORPORATION, Defendant.
    Civ. No. 84-1628(PG).
    United States District Court, D. Puerto Rico.
    March 8, 1985.
    David Carrión Fuentes, San Juan, P.R., for plaintiff and for Miguel Arrieta.
    Francisco Ponsa Flores, San Juan, P.R., for defendant Cordis Corp.
   OPINION AND ORDER

PÉREZ-GIMÉNEZ, Chief Judge.

Before us is a Motion for Partial Summary Judgment, an opposition, and a reply to the opposition. This motion, if granted, would dispose of Biomedical Instrument and Equipment Corporation’s (Biomedical) cause of action against defendant Cordis Corporation (Cordis) for an allegedly illegal termination, under Law 75 of June 24, 1964, (10 L.P.R.A. § 278, et seq.), of their dealership agreement. Litigation would continue as to a counterclaim filed by defendant, a third party complaint and another counterclaim.

Defendant Cordis alleges there would be just cause to terminate the agreement under Section 278a because Biomedical was chronically overdue in paying the amounts due Cordis, as we shall see, and therefore, plaintiffs action based on said Law 75 should be dismissed. Before considering this issue, we believe we must rule on the threshhold issue of whether this Court should stay its hand and certify this as yet undecided point of Puerto Rican law.

This action was originally brought in the Superior Court of Puerto Rico, San Juan Part, and properly removed under 28 U.S.C. § 1446, plaintiff being a citizen of the Commonwealth of Puerto Rico and with principal place of business there, and defendant being a Florida corporation with principal place of business in that state.

The fact that a federal court possesses jurisdiction does not imply that it has or should necessarily be exercised. The Supreme Court has ruled that under certain circumstances the court should abstain from that exercise (See, Wright, Law of Federal Courts, 4th Edition, Section 52, p. 302, et seq.). Of those, we shall consider whether resort to the certification mechanism is proper under the circumstances.

The doctrines of abstention are based on notions of comity and deference to state courts in resolving unsettled questions of state law. The Supreme Court of Puerto Rico has considered on several occasions the propriety of this mechanism and the circumstances in which it should be utilized, this being purely a matter of local law. Where the answer is reasonably clear, as when the constitutional provision is identical or very similar to the one in the United States Constitution, and when the law or regulation covering the situation is clear in its terms, certification has been denied. (See, Pan Ame. Comp. Corp. v. Data Gen. Corp., 112 D.P.R. 780 (1982); Córdova and Simonpietri v. Crown American, 112 D.P.R. 797 (1982); Dapena Thompson v. Colberg, 84 J.T.S. 72, October 8, 1984).

The Supreme Court of the United States stated in Lehman Brothers v. Schein, 416 U.S. 386, at 390-391, 94 S.Ct. 1741, at 1743-1744, 40 L.Ed.2d 215 (1974) that

the mere difficulty in ascertaining local law is no excuke for remitting the parties to a state tribunal for the start of another law suit. We do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory. It does, of course, in the long run save time, energy and resources and helps build a cooperative judicial federalism. Its use in a given case rests in the sound discretion of the federal court.

We do not think certification to be warranted in this case.

We believe that Section 278 of Law 75, which reads:

Just cause: non performance of any of the essential obligations of the dealer’s contract, on the part of the dealer, or any action or omission on his part that adversely and substantially affects the interests of the principal or grantor in promoting the marketing or distribution of the merchandise or service,

and Section 278a, which reads:

... no principal or grantor may directly or indirectly perform any act detrimental to the established relationship or refuse to renew said contract on its normal expiration except for just cause ...

are clear in their meaning so that, according to the Supreme Court of Puerto Rico, certifying such questions would not be proper. We thus retain jurisdiction on this point.

Notwithstanding, we are bound by the decisions of the Supreme Court of Puerto Rico in interpreting Law 75, and we are aware of the holding that decisions under the Dealers’ Day in Court Act and the decisions in the different states concerning similar statutes have “very little persuasive valve” due to their different objectives and purposes. See, Warner Lambert v. Tribunal Superior, 101 D.P.R. 378 at 403 (1973).

Defendant alleges in its- motion for partial summary judgment, in its response to plaintiffs opposition, in a memorandum in support of a motion to set aside order (which is verified) and in various affidavits, 1) that Biomedical was chronically in arrears concerning payment to Cordis; 2) all amounts were due 90 days after billing date; 3) over the past 2 years Biomedical’s account had been and is past due in an average sum of over $18,000.00; 4) that “at present” (June 21, 1984) Biomedical owes Cordis $15,134.77, all past due and that this amount constituted 46% of the total Biomedical sales of Cordis products for the current fiscal year, 5) that Cordis has done everything possible to accommodate and facilitate credit to Biomedical by increasing the credit terms and accepting return of unsold products for credit; and 6) that all efforts to have Biomedical’s account brought up to date bore no fruit.

Defendant further alleges that under these circumstances it had “just cause” within the meaning of 10 L.P.R.A. 278 and 278a to terminate their agreement, and therefore, plaintiff’s cause of action alleging there was no just cause to terminate must be dismissed.

Plaintiff contends there is a genuine and material controversy because, as the supporting affidavits read, “Cordis represented and warranted to Biomedical that the cash limitation of Biomedical would never be a detrimental factor in their relationship in view of the fact that Cordis was willing to grant Biomedical a credit line as high as necessary ... ”; that “every time there were outstanding invoices not paid ... Cor-dis would accommodate Biomedical”, and at the time of termination “the line of credit granted by Cordis to Biomedical was $20,000 and it was in excess of the amount due to Cordis by Biomedical”. The other affidavit made by the Sales Manager for the area until 1984 essentially states that “to the best of my knowledge, the credit situation between Biomedical and Cordis was never a fact considered as detrimental to the relationship between Biomedical and Cordis ... ”. In a motion for summary judgment, the moving party “must offer evidence sufficient to support a finding in his favor upon every element of his claim for relief except those elements admitted by his adversary”. 28 Fed.Proc., L.Ed. § 62:535 p. 33. We believe this burden has been met. Plaintiff produced documents and affidavits supporting the claim that the account had been past due.

“When a motion for summary judgment is made and supported as provided in FRCP. 56(e), the adverse party may not rest upon the mere allegations or denials of his pleadings; ... [he] must produce significant evidence tending to support his position ... [and] some affirmative indication that his version of relevant facts is not fanciful.” Supra, § 62.537, at p. 35.

Plaintiff, in its opposition, did not controvert the fact that the amounts were due 90 days after billing date, that the outstanding balance had averaged $18,000 and had been as high as $32,685, nor that Cordis tried to have Biomedical bring the accounts up to date. Plaintiff forgets that a line of credit is made up of two elements, the monetary ceiling (as to which there is no dispute) and the time period before which the balance must be paid. The granting of a line of credit as “high as necessary” does not imply it to be for as long as necessary. The facts that the outstanding balance was ' less than the credit ceiling or the fact that Cordis accommodated Biomedical in the payments, fare no better. The account was chronically overdue. The other affidavit, stating that to the best of his knowledge the credit situation was never considered detrimental, is nothing more than an allegation of a conclusive nature and not a fact. An opinion of this kind cannot successfully defeat a properly supported motion for summary judgment.

We thus find that plaintiff failed to controvert defendant’s showing that there is no genuine issue as to a material fact. We must now consider if defendant is entitled to partial summary judgment as a matter of law.

The purpose of Law 75 was to protect Puerto Rican dealers from the arbitrary termination of their contracts once the “ground-breaking” had been done and a market had been established. See, Diario de Sesiones, vol. 18, part 3, p. 1531 and part 4, p. 1727 (1964); Warner Lambert Co. v. Tribunal Superior, supra. For this reason, Section 278a states that the contract shall be renewed and cannot be terminated except for just cause. Just cause is defined in Section 278 (see above). When a dealer consistently owes the principal considerable amounts of money and does not timely pay them so that there is a balance of over $18,000 extending over a period of two years before termination, and being payment of the amounts due one of the principal, of not the most important, reason for entering any contract, we hold that the dealer did not perform one of the essential obligations of the dealer’s contract. Furthermore, this “action or omission on his part ... adversely and substantially affects the interests of the principal or grantor in promoting the marketing or distribution of the merchandise or service” and, thus, constitutes just cause for termination. To hold otherwise would mean that Cordis would have to continue selling to Biomedi-' cal regardless of Biomedical’s refusal to pay in a timely fashion. In all fairness, and considering the objectives of Law 75, this cannot be. This is a cause attributable solely to the dealer and thus not within the intended protections afforded by Law 75. The purpose of this law was to protect the dealer from arbitrary actions by the principal, who we believe has acted reasonably, and cannot be interpreted as giving the dealer a free hand to default on duties as important as timely payment of amounts due because of a business relationship.

For the foregoing reasons, Cordis Corporation’s motion for partial summary judgment is hereby GRANTED.

IT IS SO ORDERED.


author: KANNE, District Judge.

text:
    CITICORP, Plaintiff, v. BANK OF LANSING, Defendant.
    No. H 81-513.
    United States District Court, N.D. Indiana, Hammond Division.
    March 8, 1985.
    As Amended March 20, 1985.

      Sidney Mishkin, R. Davy Eaglefield, III, Mishkin, Eaglefield & Grossman, Indianapolis, Ind., for plaintiff.
    Daniel L. Freeland, Highland, Ind., William M. Freeman, Lansing, 111., for defendant.
   ORDER DENYING DEFENDANT’S MOTION TO DISMISS

KANNE, District Judge.

This matter is before the court upon defendant’s Motion to Dismiss. The material facts as disclosed by the complaint are as follows: Mr. and Mrs. John Swets were beneficiaries of three Indiana land trusts holding real estate in Lake County, Indiana. On January 29, 1980, the Swets gave a security interest on their beneficial interest in these land trusts to the defendant, Bank of Lansing, to secure a loan for their business. For purposes of this motion the court accepts as true plaintiff’s allegation that the defendant, an Illinois financial institution, failed to perfect that security interest.

The Swets defaulted on an installment contract for grain bins and other farm equipment. On April 29, 1980, the plaintiff, Citicorp Leasing, Inc., obtained a judgment in the Lake County Circuit Court against the Swets for $308,912. Thereafter, Citicorp initiated proceedings supplemental to execution against the Swets pursuant to I.C. 34-1-44-1. Plaintiff did not obtain a writ of execution against the Swets prior to initiating the proceedings supplemental.

On September 17, 1980, the trustee sold all three land trusts for the sum of $590,-000 and paid the entire amount to the defendant in satisfaction of the Swets’ debt with defendant.

Plaintiff filed suit in the instant case on September 25,1981, in order to recover the proceeds from the sale of these land trusts from the defendant.

Plaintiff argues that pursuant to Indiana’s judgment lien statute, I.C. 34-1-45-1, its judgment of April 29, 1980, gave rise to a lien on the Swets’ interest in the land trusts. Further, plaintiff argues that the Swets’ interest of the land trust is a “chattel real” under Indiana law and therefore plaintiff had a valid judgment lien on that interest and the resulting proceeds which take priority over defendant’s unperfected security interest.

Defendant, on the other hand, contends that the beneficiary of an Indiana land trust has only a personal property interest. Since Indiana’s judgment lien statute applies only to real property interests or chattels real, defendant argues that a judgment lien never attached to the Swets’ interest in the land trusts and that therefore plaintiff never acquired a lien which could take priority over the defendant’s unperfeeted security interest.

The issue is whether, under Indiana law, a lien attaches to the beneficiary’s interest in a land trust as a result of a judgment against that beneficiary.

Therefore, if the beneficiary of an Indiana land trust does not have an interest which can be characterized either as real property or as chattel real, no lien can attach to that interest solely because of a judgment against the beneficiary.

A brief historical perspective is necessary for this analysis. The use of the land trust, which had developed in Illinois, became relatively routine in northwest Indiana prior to the adoption of the Indiana Trust Code in 1971. In fact, the use of the Illinois land trust appears to have been the catalyst which brought about the implementation of Indiana Trust Code provisions relating to land trusts. The Indiana Trust Code Commission Comments state that:

Notwithstanding the lack of authority, the use of the land trust began to grow in northwestern Indiana, spilling over from the Chicago areas. Indeed, when the commission began to investigate its use, it found that a surprisingly large number of commercial and multi-family residential tracts in Lake and Porter Counties were owned as land trusts. The commission decided that it should recommend that Indiana follow other states, such as Florida, by enacting the statute validating the land trust.

Ind.Code Ann. § 30 (West 1984-85 Supp. p. 83).

It is clear that in Illinois the beneficiary of a land trust has no interest, either legal or equitable, in the real estate held in the land trust. Sterling Savings & Loan Association v. Schultz, 71 Ill.App.2d 94, 218 N.E.2d 53, 60 (Ill.App.1966). It is equally apparent that under Illinois law a beneficiary’s interest in a land trust is personalty. Chicago Title & Trust Company v. Mercantile Trust & Savings Bank, 300 Ill.App. 329, 20 N.E.2d 992 (1939). Thus it has been held that since the only interest of a beneficiary under a land trust is considered to be personal property, a judgment cannot attach to such interest. The Court in Sterling Savings & Loan Association v. Schultz, stated that:

The Illinois Statute relating to judgments against real estate specifically states that a judgment is a lien on real estate. It makes no mention of personal property, nor of the interest of a beneficiary under a land trust.

Id. 218 N.E.2d at page 60.

The Illinois Appellate Court in Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425 (1st Dis.Ill.1968), explains the nature of a land trust in Illinois:

“The Illinois Land Trust, by its very nature, is characteristically different from common law land trusts. While the common law accomplishes a split between the legal title in the trustee and the equitable title in the beneficiary, in an Illinois land trust, the trustee has both legal and equitable title. By placing with the trustee the ‘full, complete and exclusive title to the real estate, both legal and equitable, ’ the beneficiary in an Illinois land trust is left with a personal property interest only ...” (citations omitted) (emphasis added).

In Levine the Court went on to hold that, for the purposes of the Uniform Commercial Code (U.C.C.), the beneficial interest in a land trust is most aptly described as a “general intangible,” which means “any personal property other than goods, accounts, contract rights, chattel paper, documents and instruments.” U.C.C. § 9-106.

The Illinois statute with respect to the lien of judgments Ill.Rev.Stat. ch. 110 ¶ 12-101 (1984), says:

[A] judgment is a lien on the real estate of the person against whom it is entered ... from the time a transcript, certified copy or memorandum of the order of revisal is filed____

Further, Ill.Rev.Stat. ch. 110 ¶ 12-105 defines real estate for the purposes of the statute:

[R]eal estate ... includes lands, tenements, hereditaments, and all legal and equitable rights and interests therein____

It would appear that the definition of real estate in the Illinois judgment lien statute includes all legal and equitable rights to real estate. This is not the case. Even where a land trust was not involved and a beneficiary was determined to have an equitable interest in a trust which included real estate, that equitable and beneficial interest was determined not to be subject to a judgment lien under Illinois law although the term “real estate” as used in the Illinois judgment lien statute was defined to include “all legal and equitable rights and interest therein and thereto”. Potter v. Couch, 141 U.S. 296, 320, 11 S.Ct. 1005, 1011-1012, 35 L.Ed. 721 (1890).

It is not surprising, therefore, that with regard to an Illinois land trust where both equitable and legal title are placed with the trustee and the beneficiary’s interest is determined to be personalty — a judgment lien will not attach to the beneficiary’s interest.

We will now turn from the law of Illinois to the law of Indiana. Prior to 1971, Indiana had no statute or body of common law which specifically provided for “land trusts”. The common law relating generally to trust estates comprised of land and judgment liens is succinctly set forth at 17 I.L.E. § 467 Judgment — Trust Estates, p. 468, 469:

Although the lien of a judgment does not attach to the mere legal title to land existing in the judgment debtor, when the equitable and beneficial title is in another, ... since the statute [I.C. 34-1-45-1] makes lands held in trust for another subject to execution, a lien of a judgment against a beneficiary of a trust will attach to his interest in the trust (emphasis added).

The statute referred to above, I.C. 34-1-45-1, provides as follows:

The following real estate shall be liable to. all judgments ...
Fourth. Lands, or any estate, or interest therein, holden by any one in trust for, or to the use of another.
Fifth. All chattels real of the judgment debtor.

Under Indiana common law it is clear that a beneficiary’s interest in a trust which includes real estate is classified as an equitable interest. It is further clear that such a beneficial interest in a trust is subject to a judgment lien in Indiana.

The case of Maxwell v. Vaught, 96 Ind. 136 (1884), applied the forerunner of I.C. 34-1-45-1 to an issue similar to the one presented in this case. The Indiana Supreme Court asked 100 years ago: What rights have the judgment creditors of a beneficiary against the lands held in trust for him? The Indiana Supreme Court answered the question by stating that lands held in trust have been liable to sales on execution issued on judgments against beneficiaries since the enactment of R.S.1881, § 752, in 1852. The Court went on to say that prior to 1852 the cases affirmed the doctrine that “in general mere equitable estates in land are not subject to execution, but none [of those cases] hold that estates held in trust for another ... can not be levied upon.”

The court in Maxwell further made the analogy that under the statute, “lands held in trust for another, and lands fraudulently conveyed stand on the same footing, and are equally subject to execution.”

Finally, in the Maxwell decision, the court quoted Wilson v. Rudd, 19 Ind. 101 (1862), in reference to the provisions in the predecessor of I.C. 34-1-45-1 that “These provisions, it seems to us, make every interest which a judgment debtor has in real estate, liable to execution.”

The trust code adopted in Indiana in 1971, while validating the use of land trusts and attempting to clarify the interests of the parties involved, does not seem to have altered the provisions contained in I.C. 34-1-45-1 which have been interpreted by the Indiana courts.

As we have seen, in Illinois both legal and equitable title in a land trust are vested in the trustee. Under Indiana law, however, this is not the case. I.C. 30-4-2-7 provides that the beneficiary takes an equitable interest in the trust property. I.C. 30-4-2-7 also provides that, except under limited conditions, the beneficiary’s equitable interest is personal property.

There is a basic and fundamental difference between Indiana and Illinois law insofar as the effect of judgment liens on beneficial interests of land trust is concerned. These may be enumerated as follows:

(1) Under Indiana law a land trust beneficiary has an equitable interest; under Illinois law a land trust beneficiary has neither an equitable or legal interest; and
(2) Under Indiana common law a beneficiary’s equitable interest in a general trust is subject to a judgment lien; under Illinois common law a beneficiary’s equitable interest in a general trust is not subject to a judgment lien.

The only similarity in the nature of a beneficiary’s interest in a land trust under both Indiana and Illinois law is that that beneficial interest is classified as personal property.

As we have seen, Illinois courts determined that because a beneficial interest in a land trust is classified as personal property, it constitutes neither a legal nor equitable interest and is not subject to a judgment lien. However, in Indiana the fact that a beneficial interest in a land trust is personal property is not dispositive of whether or not such equitable interest is subject to a judgment lien. In fact, it is clear from I.C. 30-4-4-3 that judgment liens do attach to a beneficiary’s interest in a trust estate. No distinction is made between land trusts and trusts in general.

The effect of a judgment lien against a beneficiary is set forth in I.C. 30-4-4-3(b):

(b) When trusts property is properly sold or disposed of by the trustee to a third person, the liens against a beneficiary’s interest in the trust estate, if any, will be divested from that property and will attach to the interest of that beneficiary in the proceeds from its sale or other disposition.

Based on the foregoing, it does not appear that the Indiana trust code has altered the common law which provides that the lien of a judgment against a trustee does not attach to the trust property, but the lien of a judgment against a beneficiary does attach to it. 17 I.L.E. § 467 Judgment — Trust Estates, p. 468.

The reason why trusts, which consist of land and “land trusts”, are treated alike lies in the fact that Indiana’s judgment lien law provides that “All final judgments ... shall be a lien upon real estate and chattels real liable to execution in the county where ... such judgment has been duly entered____” I.C. 34-1-45-2 (emphasis added).

A “chattel real” is an interest having the character of immobility, less than freehold, annexed to, or growing out of, real estate, such as an estate at will and by sufferance, and an estate for years. At common law, chattels real were regarded as personal property but, under the present statute, I.C. 34-1-45-2, judgments are liens upon chattels real and they are sold as real estate. 24 I.L.E. § 2 Property, p. 4. The Indiana Supreme Court has left little doubt that the conversion of real property to personal property by agreement cannot be used to defeat the rights of third parties. Cf. Comer v. Light, 175 Ind. 367, 93 N.E. 660 (1911). While the real estate, which forms the res of the trust, is not subject to a judgment lien obtained against a beneficiary, that beneficiary’s equitable interest will be subject to such a lien.

Thus, where a beneficial interest in a land trust is equitable in nature, the fact that it is denominated as personal property does not insulate it from a judgment lien. Personal property has within it, that species described as “chattels real” and chattels real are subject to judgment liens in Indiana. Thus, it is not inconsistent, under the Indiana trust code, to have a beneficial and equitable interest in a land trust subject to a judgment lien as provided under I.C. 30-4-4-3(b). The personal property interest of the beneficiary constitutes a “chattel real”.

Illinois law developed in a different fashion. A beneficial interest in a land trust where both equitable and legal title are vested in a trustee leaves the beneficiary with an interest defined only as personal property. The fact that the Illinois judgment lien statute does not include chattels real coupled with the fact that an Illinois beneficiary has no equitable interest in the land trust insulates that beneficiary’s interest from a judgment lien. The distinction between Indiana law and Illinois law compels differing results.

The Swets’ interest in the three land trusts in question are chattels real subject to plaintiff’s judgment against them under I.C. 34-1-45-1 and gave rise to a lien against the Swets’ interest in the land trusts pursuant to I.C. 34-1-45-2. Upon the sale of the three trusts, this lien attached to the interest of the Swets in the proceeds from the sale according to I.C. 30-4-4-3(b) which states:

When trust property is properly sold or disposed of by the trustee to a third person, the liens against a beneficiary’s interest in the trust estate, if any, will be divested from that property and will attach to the interest of that beneficiary in the proceeds from its sale or other disposition.

Therefore, as of April 29, 1980, plaintiff had a lien against the Swets’ interest in the land trusts, and upon the sale of the land trusts the plaintiff had a lien on the sale proceeds due the Swets. Defendant acquired a security interest in the same property on January 29,1980. But for the legal analysis here the question remains open whether this security interest remained .unperfected or was perfected.

The provisions of the Indiana U.C.C., I.C. 26-1-9-301, governs priorities involving unperfected security interests. Section 301 provides that:

[A]n unperfected security interest is subordinate to the rights of (b) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected____

There is no averment that plaintiff had knowledge of the unperfected security interest in the instant case. Further, plaintiff acquired the status of a U.C.C. “lien creditor” on April 29, 1980, when they obtained a judicial lien against the Swets. See e.g., Ralston Purina Co. v. Detwilee, 173 Ind.App. 513, 364 N.E.2d 180 (1977).

Plaintiff’s judgment lien against the proceeds from the sale of the land trusts would take priority over defendant’s prior unperfected security interest in the proceeds. On the other hand, if defendant’s interest was perfected prior to plaintiff’s obtaining judgment then, under the Indiana Uniform Commercial Code, defendant was entitled to the proceeds of Swets’ interest. The general rule of first in time — first in right would obtain.

In accordance with the above, defendant’s motion to dismiss should be denied.

IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss is OVERRULED and DENIED.


author: VIETOR, District Judge.

text:
    Patricia G. NELSON, et al., Plaintiffs, v. A.E. MINNER, in his official capacity as Clerk of the Iowa District Court for Marshall County, Defendant.
    Civ. No. 84-225-B.
    United States District Court, S.D. Iowa, C.D.
    March 8, 1985.

      Mark W. Bennett, Babich, Bennett & Nickerson, Des Moines, Iowa, for plaintiffs.
    Philip L. Krejci, Marshall County Atty., Marshalltown, Iowa, for defendant.
   MEMORANDUM OPINION, RULING ON MOTIONS, AND ORDER OF DISMISSAL

VIETOR, District Judge.

The court has before it plaintiffs’ and defendant’s motions for summary judgment.

In this action under 42 U.S.C. § 1983, plaintiffs present the question of whether Iowa Code § 595.11 (1983), which imposes a monetary forfeiture upon parties to a marriage which is not solemnized in the manner prescribed by statute, violates the Equal Protection clause of the Fourteenth Amendment to the' United States Constitution.

FACTS

The material facts are not in dispute. On June 3, 1983, plaintiffs received a marriage license from the office of defendant Minner, the Marshall County Clerk of Court. Plaintiffs married one another on June 11, 1983, in a ceremony without the solemnization services of a judicial officer or minister of the gospel as required by Iowa Code § 595.10 (1983). They have never claimed that they are entitled to the benefit of Iowa Code § 595.17 (1983), which exempts “members of a denomination having an unusual mode of entering the marriage relation” from the requirements of § 595.10. Plaintiffs made a return of the marriage certificate to the defendant explaining that the ceremony was solemnized without the services of a judicial officer or minister of the gospel. Defendant then informed plaintiffs that their marriage could not be recorded until defendant received the forfeiture provided by Iowa Code § 595.11 (1983), which provides:

Marriages solemnized, with the consent of parties, in any other manner than as herein prescribed, are valid; but the parties thereto, and all persons aiding or abetting them, shall forfeit to the school fund the sum of fifty dollars each; but this shall not apply to the person conducting the marriage ceremony, if within fifteen days thereafter he makes the required return to the clerk of the district court.

Plaintiffs refused, and continue to refuse, to pay the forfeiture, and defendant refused, and continues to refuse, to file the certificate of marriage.

LAW

Plaintiffs contend that the monetary forfeiture statute infringes their constitutional right to marry, and that there is no rational basis for the statute so as to justify it under the state’s power to control the forms or procedures necessary to solemnize marriages. Defendant contends that there is a rational basis for the forfeiture statute.

Marriage is a fundamental right within the protective ambit of the Equal Protection clause of the Fourteenth Amendment. Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). However, “[b]y reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Id. at 386, 98 S.Ct. at 681.

Among the marriage matters that may be controlled by the state are the forms and procedures necessary to solemnize marriages. Salisbury v. List, 501 F.Supp. 105, 107 (D.Nev.1980); O’Neill v. Dent, 364 F.Supp. 565, 568 n. 6 (E.D.N.Y.1973). Under Iowa law persons desiring to marry need only appear before a judge or religious leader (and perhaps pay a small fee) for solemnization of their marriage without forfeiting money under § 595.11. This statutory provision does not “significantly interfere” with the right to marry; therefore, it is valid if supported by any rational basis.

Defendant asserts in paragraphs 24-27 of his answer the following matters as providing a rational basis for the monetary forfeiture statute:

Save, perhaps, for certificates of birth or death, no record effects property rights of persons as significantly as the certificate of marriage.
The purpose of the certificate of marriage is to prove that the event which it records actually occurred.
The state, and all of its citizens, have a substantial interest in maintaining the integrity of the process for recording marriages and the records that relate to the significant property rights effected. Such property rights should be easily and clearly determinable from public records.
Proof that a marriage occurred can best be provided by persons knowledgeable or trained in the recordkeeping process. * * Thus, in an effort to encourage solemnization of marriages by persons so trained or knowledgeable, a small civil penalty is imposed when a different method is employed.

Defendant urges that the recited matters demonstrate that the challenged statute bears a rational relationship to the need to clearly establish property rights.

As the Supreme Court noted in Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 729, 31 L.Ed. 654 (1888), the marriage relationship creates new legal rights and obligations for the parties, and is a relationship in which “the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”

Much that is important depends on the accuracy of the information contained in the return of a marriage certificate. Paramount, of course, is the recitation that the marriage actually was entered into. Accuracy of the date of the marriage is also important. (For example, surviving spouse’s pension benefits often depend on the length of the marriage.) The state is entitled to do what is reasonable to assure the accuracy of the information reflected on the return of a marriage certificate.

The court concludes that the forfeiture required by Iowa Code § 595.11 (1983) for marriages not solemnized in accordance with law is rationally related to maintaining the integrity of marriage records. It encourages solemnization of marriages by judicial officers or religious leaders — individuals that the state can reasonably expect to provide accurate returns of marriage certificates. No denial of equal protection resulted to plaintiffs from defendant’s application of the forfeiture statute.

RULING AND ORDER OF DISMISSAL

Plaintiffs’ motion for summary judgment is denied. Defendant’s motion for summary judgment is granted, and it is ordered that plaintiff’s complaint be dismissed.

ATTORNEY’S FEES REQUEST

Defendant, who is the prevailing party, seeks attorney’s fees under 42 U.S.C. § 1988.

“A prevailing defendant may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983). This is not such a case and defendant’s request is denied.

      . Plaintiffs’ complaint also raises a Fourteenth Amendment Due Process challenge to § 595.11, but plaintiffs' counsel has advised the court that the due process claim is withdrawn.

      . Iowa Code § 595.10 (1983) provided:
      Marriages must be solemnized by:
      1. A judge of the supreme court, court of appeals, or district court, including a district associate judge, or a judicial magistrate.
      2. Some minister of the gospel, ordained or licensed according to the usages of his denomination.
      Section 595.10 was amended, effective July 1, 1983, to read:
      Marriages may be solemnized by:
      1. A judge of the supreme court, court of appeals, or district court, including a district associate judge, or a judicial magistrate.

        2. A person ordained or designated as a leader of the person’s religious faith.
      1983 Iowa Acts ch. 159; 1983 Iowa Code Supp. § 595.10. The amendment is not involved in this case because it became effective shortly after the date of plaintiffs' marriage.


author: LUONGO, Chief Judge.

text:
    Giulia COLELLA v. Margaret HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 83-3323.
    United States District Court, E.D. Pennsylvania.
    March 11, 1985.

      Catherine Baggiano, Carano & Kunken, Philadelphia, Pa., for plaintiff.
    Sharon Ferrucci, Dept, of Health & Human Services, Philadelphia, Pa., for defendant.
   OPINION

LUONGO, Chief Judge.

Plaintiff Giulia Colella began to receive Social Security disability insurance benefits in May, 1976. On November 13, 1981, the Secretary of Health and Human Services administratively terminated plaintiff’s benefits. After a de novo hearing on October 7, 1982, an Administrative Law Judge found that plaintiff was no longer disabled and upheld the decision to terminate her benefits. The Appeals Council denied plaintiff’s request to review the AU’s decision, and plaintiff brought the instant action seeking judicial review.

Both parties moved for summary judgment, and the matter was referred to Magistrate Powers for report and recommendation. Magistrate Powers, in a report filed October 1, 1984, recommended that plaintiff’s motion for summary judgment be granted and the Secretary’s motion denied. No objections were filed. In an order entered October 17, 1984, I adopted the Magistrate’s Report and Recommendation and remanded the case to the Secretary with directions that she reinstate plaintiff’s disability insurance benefits.

Currently before me is the Secretary’s motion under Fed.R.Civ.P. 60(b) to amend the judgment. The Secretary requests that I vacate my order and remand the case for her to reconsider under the new medical improvement standard set forth in the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984).

Rule 60(b) provides: “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding” on certain specified grounds. Although the Secretary has not set forth the grounds upon which she bases her motion, she has argued in effect that summary judgment should not have been granted in light of the Reform Act. Thus, I will consider whether this alleged error of law is a basis for relief under Rule 60(b)(1), which permits a judgment to be vacated on grounds of “mistake.” I will also consider whether “the judgment is void” for purposes of 60(b)(4) or whether relief should be granted for “any other reason” under 60(b)(6).

Under the Reform Act, the Secretary may not terminate a recipient’s disability benefits unless she finds substantial evidence of medical improvement in the recipient’s condition. The Act requires the court to remand “actions relating to medical improvement” in which “a request for judicial review was pending on September 19, 1984” to the Secretary for reconsideration under the new standards. P.L. 98-460 § 2(d)(2). The Act defines “action relating to medical improvement” as:

an action raising the issue of whether an individual who has had his entitlement to benefits under title II, XVI, or XVIII of the Social Security Act based on disability terminated (or period of disability ended) should not have had such entitlement terminated (or period of disability ended) without consideration of whether there has been medical improvement in the condition of such individual (or another individual on whose disability such entitlement is based) since the time of a prior determination that the individual was under a disability.

Id. § 2(d)(6).

In the instant action, plaintiff’s request for judicial review was pending as of September 19, 1984. Sections 2(d)(2) and (6), however, require a remand only if the Secretary terminated plaintiff’s benefits without considering whether her condition had improved medically. I must therefore determine as an initial matter whether the Secretary considered the issue of medical improvement.

An Administrative Law Judge, in an opinion dated February 2, 1983, found that plaintiff had no severe impairment which would prevent her from engaging in substantial gainful activity. He held that her disability had ceased as of November, 1981 and that her entitlement to benefits ended in January, 1982. He did not explicitly state whether he based his decision on a reassessment of plaintiff’s condition under the Secretary’s current standards or upon a finding that plaintiff’s condition had improved medically. The Third Circuit has since held in Kuzmin v. Schweiker, 714 F.2d 1233, 1237-38 (3d Cir.1983), that the Secretary must show medical improvement in order to justify a termination of benefits. Before the AU made his decision in plaintiff’s case, however, a number of federal courts had already required a showing of medical improvement. E.g. Miranda v. Secretary of Health, Education & Welfare, 514 F.2d 996, 998 (1st Cir.1975); Singleton v. Schweiker, 551 F.Supp. 715, 723 (E.D.Pa.1982); Shaw v. Schweiker, 536 F.Supp. 79, 82-83 (E.D.Pa.1982); Timblin v. Harris, 498 F.Supp. 1107, 1108 (W.D.Pa.1980).

In a brief supporting her motion for summary judgment in the instant case, the Secretary recognized that she would have to show medical improvement. She therefore asserted that “there is substantial evidence of record to support a conclusion that plaintiff’s condition has improved to such an extent as to render her capable of engaging in substantial gainful activity.” Brief in Support of Defendant’s Motion for Summary Judgment at 3-4, Colella v. Heckler, No. 83-3323. Applying the Kuzmin standard, Magistrate Powers determined that plaintiff’s condition could not be found to have improved and that the Secretary’s decision to terminate her benefits was not based on substantial evidence.

If in terminating plaintiff’s benefits the Secretary considered the issue of medical improvement as now required by Kuzmin, I conclude that the statute would not require a remand of the instant case to the Secretary. The wording of the Reform Act’s provision concerning medical improvement is almost identical to the holding in Kuzmin. Compare Social Security Disability Benefits Reform Act § 2(c)(5)(A) (decision to terminate benefits must be supported by “substantial evidence which demonstrates that — (i) there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and (ii) the individual is now able to engage in substantial gainful activity”) with Kuzmin, 714 F.2d at 1237 (“the Secretary must present evidence that there has been sufficient improvement in the claimant’s condition to allow the claimant to undertake gainful activity.”)

The question remains, however, as to whether the Secretary considered even the Kuzmin standard in terminating plaintiff’s benefits. Although the Secretary represented in moving for summary judgment that the record shows medical improvement, the Administrative Law Judge’s opinion is silent concerning the issue. In light of that silence, I cannot conclude that the issue was properly considered in the administrative proceedings below.

Despite the Secretary’s failure to consider explicitly the issue of medical improvement, a refusal to remand is justified in this case. Magistrate Powers thoroughly reviewed the AU’s evaluation of the evidence in light of the proper standard.' My order adopting the Magistrate’s Report and Recommendation in effect holds that the record could not support a decision by the Secretary that plaintiff’s condition has improved. In the Reform Act’s legislative history, Congress clearly expresses its disapproval of the Secretary’s widespread and seemingly arbitrary termination of benefits. The Act, reflecting the concerns expressed in cases such as Kuzmin, establishes a clear and specific medical improvement standard for the benefit of disability insurance recipients. The remand provision was included to assist recipients terminated before the new Act became operative. See, e.g., H.R.Rep. No. 618, 98th Cong., 2d Sess. 2-3, 9-13, reprinted in 1984 U.S.Code Cong. & Ad.News 3038, 3039-40, 3046-50; 130 Cong.Rec. S1145254 (1984) (statement of Sen. Dole); id. at H9836 (statement of Rep. Pickle).

Plaintiff Colella, who has been without benefits since January of 1982, is a member of the class which the Reform Act is designed to protect from arbitrary termination of benefits. If this case is remanded and the Secretary, who has already asserted that the evidence supports a finding of medical improvement, predictably rejects plaintiff’s claim, it may be years before plaintiff’s benefits are restored. Congress surely did not intend to force a plaintiff to undergo a repetition of the entire administrative process when a court has already determined that the evidence cannot support a finding of medical improvement.

I recognize that a number of federal courts have asserted that the Act’s remand provision is mandatory. E.g. Nowells v. Heckler, 749 F.2d 1570, 1571 (11th Cir.1985); Steele v. Heckler, 748 F.2d 492, 494 (8th Cir.1984); Kinney v. Heckler, 596 F.Supp. 821 (D.Me.1984). In these cases, however, the district court apparently had either not yet reviewed the Secretary’s termination of benefits or affirmed the Secretary’s decision after September 19, 1984. Remand was therefore consistent with the Reform Act’s remedial provisions.

Only one court to date has spoken to the issue of whether a case in which the district court decided after September 19 to reinstate benefits should be remanded. Stewart v. Heckler, 599 F.Supp. 298, 300 (S.D.N.Y.1984). In Stewart, the court had on October 3, 1984, reversed the Secretary’s decision to terminate the plaintiff’s disability insurance benefits. Upon the Secretary’s timely motion for reargument under Fed.R.Civ.P. 6(a), the court determined that the Reform Act did not require a remand. The court held that benefits must be restored on grounds independent of the medical improvement standard, but stated that it would have refused to remand even if medical improvement had been the only issue. The court’s reasoning is equally applicable to the case at bar:

[The Secretary’s] request to remand, following as it does ... [her] decision not to appeal or object to the Magistrate’s Report and Recommendation, is both inappropriate and inconsistent with the broad remedial purposes of the new legislation. ... In this case, the Court adopted the Magistrate’s decision which, inter alia, applied the “medical improvement” standard which the new law explicitly requires. If the Secretary’s motion to “reargue” were granted, plaintiff could not hope to recover the benefits he lost in the April, 1983 termination decision until the Secretary “redetermines” his claim under “medical improvement” — the standard already applied by the Magistrate and the Court in the instant action, a process that could take a considerable period of time. This is especially true since the new law allows the Secretary six months to enact regulations designed to implement the “medical improvement” standard and since the legislative history indicates that approximately 40,000 people are affected by the new law’s remand provisions.
Should the Secretary again decide against the plaintiff on the grounds of “medical improvement,” the matter would again wend its tortured way to a district court for review. In essence, the “medical improvement” claim would be litigated twice' under the same standard. ... In passing the new legislation Congress could not reasonably have intended a result so at variance with the remedial purposes of that legislation.

Id. at 300 n. 6.

The strength of the equitable considerations in this case is emphasized by the holding in Claassen v. Heckler, 600 F.Supp. 1507 (D.Kan.1985). Claassen was an action for judicial review of the Secretary’s decision to terminate the plaintiff’s Social Security benefits. Although the case was pending before the court as of September 19, 1984, and the record did not show that the Secretary had considered the issue of medical improvement, the court refused to remand for the Secretary’s reconsideration. Instead, the court held that there was no evidence supporting the Secretary’s decision and remanded the case with directions that the Secretary reinstate plaintiff’s benefits.

The court stressed the fact that the Reform Act was designed to aid Social Security claimants rather than to place additional procedural hurdles in their paths. In addition, the court noted that the Reform Act requires the Secretary to apply the legal standard previously established by the courts:

This new law sets forth a standard that is more beneficial to the Plaintiff than the previous standard applied by the Secretary despite its universal rejection by the courts. This Court has ruled that Plaintiff is entitled to benefits under the law as it existed prior to the passage of the Reform Act, which in effect requires the Secretary to follow the law that had already been established in the federal courts. No useful purpose could be served by remanding for the Secretary to consider Plaintiffs claim again under a more liberal standard.

Claassen v. Heckler, at 1513.

I conclude that equitable considerations and the policy underlying the Reform Act justify a refusal to remand this case to thé Secretary. As the Third Circuit has stated, “A Rule 60(b) motion is ‘addressed to the sound discretion of the trial court guided by accepted legal principles applied in light of all the relevant circumstances.’ ” Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.1981) (quoting 7 J. Moore, Federal Practice ¶ 60.27[1] at 351 (2d ed. 1979)). Because the Reform Act does not require remand under the circumstances of this case, the entry of summary judgment on October 17, 1984 was not based on an error of law and the judgment is not void. In addition, the equitable concerns relevant under Rule 60(b)(6) militate in favor of refusing to vacate the judgment entered October 17. I have already determined that the Secretary’s decision to terminate plaintiff’s benefits was not supported by substantial evidence. The Secretary did not appeal the grant of summary judgment in plaintiff’s favor. I will not now accord the Secretary an opportunity to reconsider her decision, which she has already claimed is justified under a medical improvement standard. The Secretary’s motion to amend the judgment and vacate the order entered on October 17, 1984, will be denied.

      . I note that it is not generally appropriate to challenge an alleged error of law by means of a Rule 60(b) motion. The Third Circuit Court of Appeals has held that a Rule 60(b) motion “may not be used as a substitute for appeal.” Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 911 (3d Cir.1977) (quoting In re Imperial “400" National, Inc., 391 F.2d 163, 172 (3d Cir.1968)). See also Cooper v. Harris, 87 F.R.D. 107, 109 (E.D.Pa.1980). Since legal error can generally be corrected on appeal, a number of courts have held that such error in itself cannot be the basis for relief under Rule 60(b). See id. at 912 n. 4. Other courts, however, have permitted relief under 60(b) if a motion was made within the time allowed for appeal by Fed.R.App.P. 4. See id. Because the Secretary's Rule 60(b) motion was filed within the 60 days which Rule 4 allows for appeal when a United States officer or agency is a party, I will consider whether she is entitled to relief from the judgment entered October 17, 1984. See Perez v. Duesberg-Bosson Co., 78 F.R.D. 439, 441 (E.D.Pa.1978); Allison v. United States, 379 F.Supp. 490, 495 (M.D.Pa.1974).

      . Termination is also permitted on the basis of several other specified conditions not relevant to this case. P.L. 98-460 § 2(a) & (c).

      . I note that the two standards do differ concerning the weight to be accorded to the prior determination of disability. Under Kuzmin, a claimant who produces evidence that his condition has remained essentially the same since he was found to be disabled is entitled to a presumption of continuing disability. 714 F.2d at 1237. The Reform Act now mandates that a decision concerning termination of benefits be made on a neutral basis. No inference as to disability is to be drawn from the prior determination. P.L. 98-460 § 2(c). Under both Kuzmin and the Reform Act, however, the claimant bears the ultimate burden of proving entitlement to benefits. Kuzmin, 714 F.2d at 1237; Joint Explanatory Statement of the Committee of Conference, H.R. Conference Rep. No. 1039, 98th Cong., 2d Sess. 26, reprinted in 1984 U.S. Code Cong. & Ad.News 3080, 3084. In the case before me, I determined that the Secretary’s decision to terminate plaintiff’s benefits was not based on substantial evidence. The existence or nonexistence of a presumption of disability does not affect the fact that the record does not support a finding of medical improvement, required by both Kuzmin and the Reform Act. The Reform Act’s provision concerning neutral evaluation of the evidence therefore does not require a remand.

      . If I remand this case to the Secretary, plaintiff may under the Reform Act elect to receive payments pending the Secretary’s redetermination. P.L. 98-460 § 2(e). Such payments, however, will continue only until plaintiff's case is decided by an Administrative Law Judge. If the ALJ’s decision is adverse to plaintiff, she will be required to repay all payments received during the administrative appeal process. H.R.Rep. No. 618, 98th Cong., 2d Sess. 4, reprinted in 1984 U.S.Code Cong. & Ad.News 3038, 3041.