source: Caselaw Access Project

author: GLASSER, District Judge:

license: Public Domain

text:
    Robert W. LATZER, Petitioner, v. Robert ABRAMS, Attorney General of the State of New York, Respondent.
    No. 84 Civ. 3693.
    United States District Court, E.D. New York.
    Feb. 21, 1985.
    Patrick M. Wall, New York City, for petitioner.
    Anthony J. Girese, Bruce E. Whitney, Asst. Dist. Attys., Nassau County, Mineóla, N.Y., for respondent.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

This is a petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. Petitioner was convicted, after a jury trial in County Court, County of Nassau, of committing sodomy in the second degree by engaging in sexual acts with a thirteen year old boy, Christopher T. Petitioner was sentenced to an indeterminate term of imprisonment with a minimum of one year, eight months, and a maximum of five years. He appealed to the Appellate Division, Second Department, of the Supreme Court of the State of New York. The Appellate Division unanimously affirmed the judgment of conviction, without an opinion. People v. Latzer, 101 A.D.2d 1030, 475 N.Y.S.2d 963 (2d Dept.1984). Petitioner’s subsequent application for leave to appeal to the New York Court of Appeals was denied. People v. Latzer, 63 N.Y.2d 708, 469 N.E.2d 110 (1984).

Petitioner asserts three claims in support of his petition for a writ of habeas corpus. First, he contends that his confrontation rights under the Sixth and Fourteenth Amendments of the United States Constitution were violated by the trial court’s refusal, pursuant to the New York “rape shield” statute, N.Y.Crim.Proc.Law § 60.42, to permit cross-examination of two prosecution witnesses with respect to their sexual activities with persons other than petitioner. Second, petitioner contends that he was denied due process by an impermissibly suggestive in-court identification. Lastly, he argues that his Sixth Amendment right to a public trial was impaired by the trial court’s order to lock the courtroom doors during the court’s charge to the jury.

After thoroughly reviewing the record in this case, this Court concludes, for the reasons that follow, that petitioner’s confrontational rights guaranteed by the Sixth and Fourteenth Amendments were violated when the cross-examination of two key witnesses was unduly restricted. Accordingly, the petition for writ of habeas corpus should be granted.

Background

A. The Incident

The alleged events which form the basis of the crime charged against petitioner occurred during one day in December of 1980. On that day, three brothers, Matthew T., age 12, Christopher T., age 13, and Anthony T., age 14, traveled from their home in New Jersey to the home of one Martin Swithinbank in Baldwin Harbor, Nassau County, New York. There they were introduced to a man named “Bob Fox,” whom each brother identified at trial as the petitioner, Robert Latzer. The five ate dinner at Swithinbank’s house and then traveled to a local theatre to see the play Grease.

After Grease, the five returned to the Swithinbank home. Anthony went to sleep in a room on the first floor. Christopher and Matthew testified that Christopher and Swithinbank then went to an upstairs bedroom while Matthew and Fox remained in the dining room downstairs. Fox allegedly performed a sexual act with Matthew and then they both went upstairs, where Fox allegedly performed the sexual act with Christopher which constituted the basis of the sodomy charge. Matthew and Fox then returned downstairs where Fox allegedly performed a further sexual act with Matthew. The next day, the brothers left the Swithinbank home and returned to New Jersey.

From May 4, 1981 to July 11, 1981, members of the Nassau County Police Department Vice Squad conducted an investigation into allegations of illieit sexual activities occurring at the Swithinbank home. The police maintained surveillance on the Swithinbank home in Baldwin and on an apartment building in Manhattan where Swithinbank allegedly maintained an apartment and conducted his business. On July 4, 1981, Officer Gordon Bradberry was watching the Manhattan building when he saw a man he later identified as Robert Latzer leave the building. Officer Brad-berry testified that he observed Latzer load up a car and then get into the car along with Swithinbank and Matthew. The officer and his partner followed the car to Baldwin. A. 384-386.

On July 11, 1981, the police executed a warrant to search the Swithinbank house. Swithinbank was arrested that same day. A warrant for the arrest of petitioner was issued on July 30, 1981.

B. The Trial

At trial, the defense focused on the claim that Latzer had been mistakenly identified as the “Bob Fox” who had allegedly committed the crime of sodomy. There were several inconsistencies in the testimony of the brothers, in addition to those discussed in the preceding footnotes, that tend to support the defense of mistaken identification. First, Christopher originally described Bob Fox to the police as being 5'5" tall. A. 300, 306. At trial, Latzer was measured at 5'9V2" without shoes and 5'103/i" with shoes. Second, Matthew originally described Fox as having grey hair. A. 356. Officer Bradberry, who saw Latzer with Matthew on July 4, 1981, described Latzer’s hair as dirty blond. A. 385. Third, Matthew, when first interviewed by the police on July 12, 1981, stated that he had “met” Bob Fox on July 4, 1981 in Swithinbank’s apartment in Manhattan. During that first interview, Matthew did not mention any sexual incident with Fox in December 1980. A. 341-46. Matthew first mentioned the December 1980 incident when interviewed by a different detective two days later on July 14, 1981, but during that interview Matthew failed to mention that Anthony had traveled with Christopher and him to Swithinbank’s home at the time of the alleged incident. A. 344. At trial, Matthew testified that he first met Fox in December 1980. A. 322.

Petitioner challenges three adverse rulings made by the trial court. The first contested ruling involves the trial court’s repeated denial of petitioner’s requests for disclosure of certain statements made by Christopher and Matthew, and the repeated denial of requests for permission to cross-examine those boys with respect to their sexual relations with men other than petitioner. Shortly after the arrest of Swithinbank, Christopher and Matthew gave several statements to various police officers. Some of those statements, and the boys’ Grand Jury testimony, purportedly indicate that the boys had relations with a number of different men at the Swithinbank home.

Petitioner’s initial pretrial request for discovery of those statements was denied by order of the trial court. At the beginning of the trial, petitioner requested permission to cross-examine the boys regarding their sexual activities with other men, and also requested copies of all portions of the disputed statements that might be considered “exculpatory” material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The request regarding cross-examination was denied. A. 213. The court agreed to inspect the statements in camera for Brady material. After such inspection, the court stated that “[n]one of this material is relevant to defendant Robert Latzer” and declined to direct that the statements be turned over to petitioner. A. 215. Petitioner renewed his request for the statements just prior to the cross-examination of Christopher. The request was again denied. A. 291-92. After the prosecution’s summation, petitioner requested permission to recall Christopher and Matthew to elicit testimony regarding their sexual encounters with other men. This request was also denied. A. 488-89, 502-05.

Petitioner’s second objection is to the trial court’s ruling in allowing an allegedly suggestive in-court identification of Latzer and the court’s refusal to strike that identification. At the trial, Anthony identified Latzer in court as “Bob Fox” by pointing to Latzer who was seated at the defendant’s table. Anthony had never previously been asked to identify Latzer as “Bob Fox,” either in person, by photograph or otherwise, during the 22 months since the December 1980 incident.

Petitioner’s third objection is to the trial court’s order that the courtroom doors be locked during the court’s charge to the jury. In response to petitioner’s post-trial objection to the practice, the court noted that “[t]he public was not excluded during the charge. They merely were limited in their coming and going for a short period of time. No one who was present when the charge began was denied the right to hear and see the court charge the jury.” A. 136.

All three claims asserted by petitioner before this Court were raised in petitioner’s appeal to the Appellate Division. Respondent correctly concedes that petitioner has fully exhausted his state remedies on all three claims raised here. Those claims are therefore appropriate for review on the merits in this habeas corpus proceeding.

Discussion

Petitioner contends that the trial court’s ruling which prohibited cross-examination of the brothers with respect to their sexual conduct deprived petitioner of rights guaranteed by the confrontation clause of the Sixth Amendment. Respondent maintains that the court’s ruling was a proper application of the New York “rape shield” statute, N.Y.Crim.Proc.Law § 60.42. Under that statute, evidence of a victim’s sexual conduct is inadmissible in a sex crime trial unless such evidence satisfies certain conditions specified in the statute. The salutary, purpose of that statute is to prevent cross-examination from “focusing upon the immaterial issues of the victim’s chastity [which] tends to demean the witness, discourages the prosecution of meritorious cases and leads to acquittals of guilty defendants.” Memorandum of Assemblyman Stanley Fink, accompanying Assembly Bill No. 6698, Senate Bill. No. 4821, N.Y.Legis.Ann. (1975) at 47-48. The ultimate question in the present case is whether, under the particular circumstances presented here, the policies embodied in the rape shield statute must yield to petitioner’s constitutional right to confront witnesses called to testify against him.

The right of a criminal accused to cross-examine the prosecution’s witnesses “is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation____ It is, indeed, ‘an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ ” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973), citing Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (other citations omitted). The right to cross-examine is not absolute. It is “[s]ubject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation,” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), “and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295, 93 S.Ct. at 1046. However, state evidentiary rules which unduly restrict or prohibit cross-examination may deprive a criminal defendant of his rights under the confrontation clause, even if the evidentiary rules serve otherwise valid state interests. Davis, 415 U.S. at 319, 94 S.Ct. at 1111.

In Davis, the petitioner was convicted of burglary in connection with the theft of a safe from a bar. Richard Green, a juvenile, provided crucial testimony for the prosecution. He testified that he had a conversation with the defendant who was at the time standing beside a car implicated in the crime and located at the place where the stolen safe was later discovered. At trial, the petitioner opposed a protective order which prohibited cross-examination of Green with respect to his being on probation for a prior adjudication as a juvenile delinquent. The petitioner argued that the juvenile record was probative of Green’s possible bias or motive to testify falsely so as to shift possible suspicion away from Green himself. The trial court excluded any such evidence, relying on provisions of Alaska law that prohibited the admission of evidence concerning juvenile adjudications in later court proceedings. 415 U.S. at 309-11, 94 S.Ct. at 1107-08.

The Supreme Court in Davis first noted that the “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id. at 316-17, 94 S.Ct. at 1110-11. The Court then weighed the competing interests of the state and the petitioner. While recognizing that the state had a legitimate interest in preserving the anonymity of juvenile offenders, the Court observed that the excluded evidence could have done “[sjerious damage to the strength of the state’s case____ In this setting we conclude that the right of confrontation is paramount to the state’s policy of protecting a juvenile offender.” Id. at 319, 94 S.Ct. at 1112. The Court reversed the judgment affirming the petitioner’s conviction. Id.

The threshhold question in the present case is whether the Davis holding is applicable where, as here, a state evidentiary rule is invoked to exclude cross-examination challenging the credibility of identification testimony. The lower federal courts have regularly applied the Davis balancing test to hold that the Sixth Amendment rights of criminal defendants have been violated by various restrictions on the cross-examination of witnesses for improper motive or bias. State courts construing rape shield statutes have similarly concluded that sex crime defendants cannot constitutionally be prohibited from cross-examining victims with respect to their sexual history for purposes of showing the victim’s possible improper motive or bias in testifying. See, e.g., Winfield v. Commonwealth, 225 Va. 211, 301 S.E.2d 15 (1983); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181 (1981); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976) (en banc). To avoid such potential constitutional problems, the courts in at least two states have also narrowly construed rape shield statutes so as to permit the introduction of evidence concerning a rape victim’s prior sexual activity to rebut specific elements of proof offered by the state.

While these cases do establish that, under Davis, rape shield rules must yield to a criminal defendant’s right to cross-examine witnesses for bias or improper motive, the cases do not conclusively establish whether the defendant has a similar right to cross-examine witnesses with respect to possible sources of mistaken identification (i.e., faulty memory). There is substantial authority, however, upon which to base such an extension of the Davis doctrine. The most analogous case was decided by the Sixth Circuit, which held that a trial court could not constitutionally prohibit a defendant from cross-examining witnesses with respect to suppressed out of court identifications where the witnesses were permitted to identify the defendant in court. Flowers v. State of Ohio, 564 F.2d 748 (6th Cir.1977). The court noted that the “state’s asserted interest in the finality of suppression, similar to the state’s interest in Davis, must fall before defendant’s fundamental right of confrontation ... as to the credibility of the in-court identifications.” Id. at 750.

Further support for extending the Davis rule to this case can be drawn from the observation that challenges to both bias and faulty memory have been traditionally treated as comparably important forms of impeachment. In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Supreme Court observed that the right to confront and cross-examine government witnesses is important both where the individuals’ “memory might be faulty” and where the individuals might be “motivated by malice, vindictiveness, intolerance, prejudice or jealousy.” Id. at 496, 79 S.Ct. at 1413. In Davis, the Supreme Court noted that the partiality of a witness is “always relevant as discrediting the witness and affecting the weight of his testimony.” 415 U.S. at 316, 94 S.Ct. at 1110, citing 3A Wigmore, Evidence (Chadbourne rev. 1970). Weinstein and Wigmore have similarly observed that credibility of a witness can always be attacked with proof that “his capacity to observe, remember or narrate is impaired.” 3 J. Weinstein, Weinstein’s Evidence, ¶ 607[04], at 607-44 (1982), citing 3A Wigmore, Evidence, § 931-935, 989-995 (Chadbourne rev. 1970). These authorities indicate that impeachment by proof of bias or faulty memory are of equal importance and therefore should be accorded comparable protection by the confrontation clause. Accordingly, I conclude that under Davis, undue restriction of cross-examination that is probative of a witness’ faulty memory may deprive a criminal defendant of rights guaranteed by the Sixth Amendment.

The determination of whether the confrontation clause has been violated in any individual case requires a close “examination of all [the] circumstances and evidence.” Chipman v. Mercer, 628 F.2d 528 (9th Cir.1980). In the present case, petitioner has raised substantial questions as to the veracity of the brothers’ identification testimony. As discussed above, there were discrepancies between the brothers’ initial descriptions of “Bob Fox” and the actual appearance of Robert Latzer at trial. •Furthermore, Matthew initially stated that he first met Fox in July 1981, over six months after the date of the alleged crime. Petitioner had thus established a sufficient foundation for his defense of mistaken identification to justify cross-examination of the brothers regarding their sexual history for purposes of further supporting that defense. Petitioner was not seeking to launch a generalized challenge to the witnesses’ credibility by adducing evidence to besmirch their reputation for chastity. Rather, the prohibited cross-examination would have been directed toward challenging a critical element of the state’s case— the identity of the alleged criminal. The trial court’s absolute prohibition on any questions regarding the brothers’ sexual history deprived petitioner of his constitutional right to “a certain threshhold level of cross-examination....” Chipman, 628 F.2d at 530. See also Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir.1981); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 188 (1981). Under such circumstances, the state’s interest in shielding the brothers from questions regarding their sexual history must yield to the petitioner’s right to confront witnesses called to testify against him. See Davis, 415 U.S. at 320, 94 S.Ct. at 1112.

Respondent conceded at oral argument that Davis might be applicable where a court unduly restricted cross-examination regarding misidentification, but argues that the particular evidence excluded in the present case is not relevant to the brothers’ identification of petitioner. In making this argument, respondent relies on the trial court’s in camera determination that the sealed statements given by Christopher and Matthew to police officers did not contain any Brady material, and respondent’s own discussion of the contents of those statements in its memorandum of law submitted to this Court. Neither of these sources provides an appropriate basis for determining the relevance of the brothers’ sexual history. As discussed earlier, neither petitioner nor this Court has seen the disputed statements. Consequently, in the proceedings before both courts, petitioner was seriously hindered in his ability to argue about the relevance of the events contained in those statements, resulting in a possible denial of his due process rights. See In re Taylor, 567 F.2d 1183, 1187-88 (2d Cir.1977). Furthermore, it is not clear from the record that the trial court’s refusal to order disclosure of the statements reflects a determination that the statements are not relevant to a defense of mistaken identification. The court’s ruling may have been based solely upon a determination that the statements did not contain material considered “exculpatory” under Brady. Even if it is assumed that the sealed statements describe only irrelevant events, there is no assurance that those statements, which were presumably elicited through sympathetic questioning by police, reflect all the sexual activities of the brothers which might be revealed through cross-examination. As the Supreme Court has observed:

Counsel cannot often learn in advance what pertinent facts may be elicited on cross-examination. For that reason, it is necessarily exploratory____ To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931).

The precise meaning of “relevant evidence” has long been a subject of lively scholarly debate. See generally 1A Wigmore, Evidence, §§ 24-37.7 (Tillers rev. 1983). Perhaps the most pragmatic definition of relevancy, however, is set forth in Rule 401 of the Federal and Revised Uniform Rules of Evidence:

‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

In this case, the trial court prohibited cross-examination as to facts which could tend to disprove a critical element of the state’s case by making it more probable than it would otherwise appear that the brothers mistakenly identified petitioner as the man who committed the alleged sodomy. The prohibited cross-examination would therefore have addressed a facially relevant line of inquiry. If the trial court doubted whether any or all aspects of the brothers’ sexual activities were of sufficient similarity to the crime charged to be probative of mistaken identification, the court had broad discretion to limit the scope or means of cross-examination. Alford, 282 U.S. at 694, 51 S.Ct. at 220; United States v. Brown, 511 F.2d 920, 923 (2d Cir.1975). For example, the court could have held a special hearing to determine the relevance of the specific sexual activities of Christopher and Matthew, N.Y. Crim.Proc.Law § 60.42(5), or required the development of an appropriate foundation before the description of each incident, or limited the depth of inquiry into the details of each relationship. The court chose, however, to completely bar any inquiry into this facially relevant subject matter. This absolute bar on cross-examination impermissibly restricted petitioner’s Sixth Amendment rights. Greene, 634 F.2d at 275; Chipman, 628 F.2d at 530; Joyce, 415 N.E.2d at 188.

The final question is whether this deprivation of petitioner’s Sixth Amendment rights warrants setting aside petitioner’s conviction. While Davis implied that prejudice need not be shown when an accused is denied the right of effective cross-examination, 415 U.S. at 318, 94 S.Ct. at 1111, the clear rule in this Circuit is that a writ of habeas corpus should not issue where violations of the confrontation clause are “harmless beyond a reasonable doubt.” Klein v. Harris, 667 F.2d 274, 290 (2d Cir.1981), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); U.S. ex rel. Santiago v. Vincent, 423 F.Supp. 103, 106 (S.D.N.Y.1976), aff'd 573 F.2d 1295 (2d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). The Second Circuit noted, however, that “a reviewing court should not lightly find a constitutional error to have been non-prejudicial....” Klein, 667 F.2d at 290. In this case, the excluded evidence, when viewed in conjunction with the inconsistent identification testimony already on the record, could possibly have raised a reasonable doubt as to petitioner’s guilt in the mind of the jurors. The full impact of the excluded evidence cannot be determined on the basis of the present record because petitioner was never permitted to adduce any evidence concerning the sexual activities of the brothers. I therefore cannot find that the constitutional error in this case was harmless beyond a reasonable doubt.

Accordingly, it is hereby ordered that the petition for a writ of habeas corpus is granted unless the state affords petitioner a new trial within sixty (60) days of the issuance of the order herein. It is further ordered that petitioner shall remain released on bail, pursuant to the terms of the Order of this Court dated September 12, 1984, pending the final determination of this petition.

In light of the above, I find it unnecessary to address the second and third claims raised in the petition for a writ of habeas corpus.

SO ORDERED.

      . The parties have contested the exact week in December 1980 during which the alleged events occurred. The indictment charged that the crime occurred in December 1980. In response to petitioner's pretrial request for greater specificity of the date, the prosecuting attorney stated that "after extensive interviews," neither the victim, Christopher, nor his brother, Matthew, were "able to specify the date with greater exactitude.” (Appellant’s [Petitioner’s] Appendix submitted to the Appellate Division, Second Dep’t, at 110 ("A. 110”)). Petitioner maintains that before the Grand Jury, Christopher testified that the incident occurred in the beginning of December and Matthew testified that the incident occurred “during the first week of December.” A. 122. At trial, petitioner presented alibi evidence indicating that he was traveling in the western United States during the first ten days of December. Christopher then testified that the date of the event was in the "beginning of December," A. 294, but his brothers, Anthony and Matthew, and their mother, testified that the event occurred in the middle of December. A. 264, 357, 371.

      . There is a minor discrepancy in the brothers’ accounts of when they first met Bob Fox. Anthony and Christopher testified that they met Fox when he accompanied Swithinbank in picking up the brothers at the Baldwin train station. A. 253, 323. Matthew stated he and his brothers did not meet Fox until they arrived at the Swithinbank home. A. 350-51.

      . There was also some controversy regarding the testimony of Christopher and Matthew that they saw a play called Grease. A. 253-54, 324. Both Christopher and Matthew testified that they had never before been to a show with live actors, A. 283-84, 295, 351, though Christopher had previously been to a rock concert. A. 283-84. The prosecutor used this testimony in summation to support her argument that the brothers’ identification testimony was credible because they spent an entire evening with the alleged assailant that was "a special evening like seeing a show____’’ A. 471-72. However, Christopher and Matthew had originally told the police that they saw a movie called Grease on the night in question. A. 295, 352.

      . Those statements and the Grand Jury testimony were not submitted to this Court. The statements and Grand Jury record were sealed by order of the trial court. There is testimony on the record, however, indicating that the brothers made numerous trips to the Swithinbank house. Anthony testified that he had been to the house "about ten" times and Matthew testified that he had visited the house "around 20" times. A. 251, 321.

      . Section 60.42 provides:
      Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law unless such evidence:
      1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or
      2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the prosecution; or
      3. rebuts evidence introduced by the people of the victim’s failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or
      4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
      5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.

      . See, e.g., Greene v. Wainwright, 634 F.2d 272 (5th Cir.1981) (restriction on cross-examination regarding the mental condition of the witness and ongoing criminal proceedings against him); Chipman v. Mercer, 628 F.2d 528 (9th Cir.1980) (restriction on cross-examination regarding the witness’ dislike for the defendant’s aunt); United States v. Williams, 592 F.2d 1277 (5th Cir.1979) (restriction on cross-examination regarding witness’ status as an informant and a possible deal with the government for the witness’ testimony); U.S. ex rel. Santiago v. Vincent, 423 F.Supp. 103 (S.D.N.Y.1976), aff’d 573 F.2d 1295 (2d Cir.1977), cert denied 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978) (restriction of cross-examination of witness’ knowledge that her brother had been arrested for the crime for which the defendant was being tried). But see Johnston v. Pittman, 731 F.2d 1231 (5th Cir.1984), cert. denied, _ U.S. _, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985) (restriction on cross-examination regarding a rape victim’s past sexual relationship with the investigating officer held constitutional); United States v. Houghton, 554 F.2d 1219, 1225-26 (1st Cir.1977), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977) (restriction on cross-examination regarding bias held constitutional where “no specific parts of the record ... suggest any showing of bias in the testimony of any of the government agents”).

      . See State v. LaClair, 121 N.H. 743, 433 A.2d 1326 (1981) (cross-examination as to victim’s prior sexual activity permitted (1) to challenge victim’s credibility through a prior inconsistent statement that she was a virgin; and (2) to rebut the inference that presence of sperm in victim’s vagina tended to prove intercourse with the defendant); State v. Howard, 121 N.H. 53, 426 A.2d 457, 462 (1981) (evidence of prosecutrix’s prior sexual activity admissible to attack her credibility where the "average juror" probably would not believe that the "prosecutrix has the experience and ability to contrive a statutory rape charge”); Shockley v. State, 585 S.W.2d 645 (Ct. of Crim.App.Tenn.1978) (evidence of prosecutrix’s prior sexual activity admissible to rebut inference that her pregnancy proves intercourse with the defendant).

      . The suppressed identification evidence included both the victims’ initial inability to identify the defendant in a photographic lineup and their subsequent identification of him in person under highly suggestive circumstances. At trial, the defendant relied on a defense of mistaken identification. 564 F.2d at 749.

      . As Professor Vivian Berger noted in her extensive critique of the evidentiary rules applied in rape cases:
      In order to assess the rape shield laws one must ask whether these state interests, as embodied in particular statutory standards applied in specific factual contexts, outweigh the defendant’s valued right to meet the prosecution’s case with proof that he is indeed innocent. Where the balance inclines toward the accused, any provision excluding his evidence cannot be squared with the Constitution.
      V. Berger, Man’s Trial, Woman’s Tribulation, 77 Col.L.Rev. 1, 55 (1977).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Petitioner contends in his third claim that he was denied his Sixth Amendment right to a public trial by the trial court’s order that the courtroom doors be locked during the court’s charge to the jury. Were I to reach this claim, I would feel compelled to dismiss it by virtue of the Second Circuit’s decision in United States v. Romano, 684 F.2d 1057 (2d Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982). In Romano, the court held:
      The claim that the defendants were deprived of a public trial because the district court locked the courtroom doors while it charged the jury is frivolous. Members of the public were permitted to be and were present within the courtroom during the charge. Locking the door while the charge was read was a reasonable limitation to ensure that the jury was properly instructed without distraction. See Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 581-82 n. 18, 100 S.Ct. 2814, 2830 n. 18, 65 L.Ed.2d 973 (1980). Indeed, no one even tried to enter the courtroom while the doors were locked.
      The holding in Romano may deserve reconsideration by the Second Circuit in light of two recent decisions of the Supreme Court. Waller v. Georgia, _ U.S. _, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). In Press-Enterprise, the Court noted that trials are entitled to a “presumption of openness" and held that a trial court could not constitutionally close voir dire proceedings to the public. 104 S.Ct. at 824-25. Press-Enterprise addressed a First Amendment challenge brought by an organization of the press and did not concern a criminal defendant’s Sixth Amendment right to a public trial. Shortly thereafter, however, the Court addressed that Sixth Amendment right in Waller. The Court there held that under the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the following tests: the party seeking closure “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the hearing, and it must make findings adequate to support the closure.” 104 S.Ct. at 2216.
      If, as held in Romano, the avoidance of any jury distraction justified the closure, may the courtroom be locked to assure that a jury is not distracted during the crucial testimony of a principal witness? And, although in Romano, members of the public were permitted to be and were present in the courtroom during the charge, would it matter if the courtroom was empty when the charge began and members of the public were excluded thereafter?
      The footnote in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), to which the court made reference in Romano, explicitly recognizes that a trial judge may, “in the interest of the fair administration of justice, impose reasonable limitations on access to a trial” just as "a government may impose reasonable time, place and manner restrictions upon the use of the streets in the interest of such objectives as the free flow of traffic.” 448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18. The Court went on to say that “ ‘the question in a particular case is whether that control is exercised so as not to deny or unwarrantedly abridge ... the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.’ ” Id., quoting Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941). That view was reasserted in yet another footnote in Press Enterprise, 104 S.Ct. at 825 n. 10. Whether the judge’s charge to the jury which is, at its best, a lesson in law and in the fundamental prerequisites of a fair trial gives rise to a significant opportunity “for the communication of thought and the discussion of public questions” is at least arguable.


author: LOUIS H. POLLAK, District Judge.

text:
    UNITED STATES of America v. Jordan B. COLLETTA, D.O.
    Crim. A. No. 84-307.
    United States District Court, E.D. Pennsylvania.
    Feb. 21, 1985.

      Linda D. Hoffa, Asst. U.S. Atty., Philadelphia, Pa., for the government.
    Samuel C. Stretton, West Chester, Pa., for defendant.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

Before me is a motion by defendant for release upon bail pending appeal. Defendant argues that, under the terms of the Bail Reform Act of 1984, as construed by the Court of Appeals for the Third Circuit in United States v. Miller, 753 F.2d 19 (1985), he is entitled to bail pending appeal because his appeal raises substantial issues which, if resolved in his favor, would be likely to result in reversal. For the reasons that follow, I agree.

I.

On July 18, 1984, defendant was indicted for three counts of mail fraud. The indictment charged that defendant, a doctor of osteopathy, purposely overstated the number of office visits of certain patients in order to (1) enable the patients to reach the $750 threshold required by Pennsylvania law in order to collect damages for pain and suffering, and (2) collect more money from whatever insurance company was liable for the patients’ medical expenses. After a two-day jury trial, defendant was convicted on all three counts on September 13, 1984. Post-trial motions were filed, and oral argument was heard on December 21, 1984. These motions, which sought, in the alternative, judgment of acquittal or a new trial, were denied following oral argument. Defendant was then sentenced to (1) three years of probation, the first six months of which are to be served in a Community Treatment Facility, and (2) restitution to the defrauded insurance companies. At sentencing, defendant indicated that he would appeal his conviction, and requested the court to set bail pending the appeal. I denied this request, for the reason that success on appeal was not in my judgment probable, and was therefore foreclosed under the Bail Reform Act of 1984. Defendant proceeded to file his appeal, and again moved, pursuant to Federal Rule of Appellate Procedure 9(b), for bail pending appeal. In an Order entered on January 21, 1985, the Court of Appeals for the Third Circuit denied defendant’s motion without prejudice to an application to this court to reconsider, in light of the recent Miller decision, its prior denial of bail. Defendant filed such an application on January 28, 1985. The government filed its response on February 13, 1985.

II.

The recently enacted Bail Reform Act of 1984 governs defendant’s application. See United States v. Miller, supra, at 21 (1984 Act applies to cases tried before Act took effect). That Act provides in pertinent part:

(b) RELEASE OR DETENTION PENDING APPEAL BY THE DEFENDANT.
—The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).

18 U.S.C. § 3143(b). There is no evidence that defendant, who is suffering from serious medical problems, would either flee or “pose a danger to the safety of any person or the community” if released pending his appeal. Nor does the government contest defendant’s motion on this ground. Rather, the government argues that defendant’s appeal does not raise “a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143(b)(2).

In United States v. Miller, supra, the Third Circuit discussed the requirement created by subsection (b)(2). Milter arose on a motion pursuant to Federal Rule of Appellate Procedure 9 for bail pending appeal. The district court had denied a similar motion after finding that the defendants’ appeal was not likely to result in reversal or a new trial order. Miller, supra, at 22. The Court of Appeals rejected the district judge’s reading of the statute, which would have required that bail be granted only if the district court found that, more probably than not, it had committed a reversible error. Id. Instead, the. Court of Appeals found that subsection (b)(2) calls for two distinct findings: (1) whether the question raised on appeal is “substantial” within the meaning of the Act, and (2) if so, whether a ruling in defendant’s favor on that question would require reversal or a new trial. Id. at 23. Thus, the Miller court found, the Act does not require district judges “to be put in the position of ‘bookmakers’ who trade ®n the probability of ultimate outcome.” Id. at 23. Rather, it requires, as a prerequisite to an order establishing bail pending appeal, a finding that a criminal defendant’s ground for appeal is both substantial and likely to be outcome-determinative. Id. at 23.

As the Court of Appeals discussed in some detail, Congress intended these two requirements to, in effect, create a presumption against the granting of bail pending appeal. See S.Rep. No. 225, 98th Cong., 1st Sess. at 26 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 1, 29 (Supp. 9A); Miller, supra, at 22-23. To that end, Congress changed the requirement in former 18 U.S.C. § 3148 — that the question on appeal not be “frivolous” — to the “substantial question of law or fact” standard embodied in the newly enacted 18 U.S.C. § 3143(b)(2). See Miller, supra, at 22-23. That standard is designedly stringent, requiring the district court to find “that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful.” Id. at 23. The second prong of subsection (b)(2) — that the alleged error be potentially outcome-determinative — complements the substantial question requirement: both are designed to limit bail to those relatively few cases in which the court perceives that the applicant has a reasonable likelihood of prevailing on appeal.

I turn now to.the question whether defendant’s claims on appeal satisfy the standard which Congress enacted in subsection (b)(2), as defined by the Court of Appeals in the Miller case.

III.

Defendant’s brief on appeal raises four grounds for reversal. First, defendant argues that the evidence at trial was insufficient to prove the three mailings which provided the jurisdictional bases for the indictment. Second, defendant contends that the evidence was insufficient to show that reports purportedly prepared or signed by defendant were in fact so prepared or signed. Third, defendant maintains that certain medical records seized during a search of his office should have been suppressed on Fifth Amendment grounds and on the ground that their seizure violated a physician-patient privilege. Finally, defendant argues that counsel for the government made inflammatory statements to the jury which denied defendant his right to a fair trial.

Of defendant’s four arguments on appeal, two involve no basic dispute as to the applicable legal standard. The contentions that the evidence was insufficient to prove the requisite mailings and defendant's connection with certain reports raise factual questions. As to these issues, the first two prongs of the Miller definition of “substantial” — that the question be “novel” or “not ... decided by controlling precedent” — do not sensibly apply. Rather, factual determinations like those presented here require the court to decide whether the evidence presents a close case — in other words, whether the question is one “which is fairly doubtful.” Id.

In my judgment, neither of defendant’s sufficiency-of-the-evidence arguments raises a “doubtful” question.

The mailings alleged in the indictment are three letters from counsel for certain of defendant’s patients transmitting medical bills to the insurance companies liable for those bills. As to each of these letters, the government elicited testimony from personnel at the recipient insurance company regarding the ordinary procedure for processing incoming mail and the manner in which the particular letter was processed. Thus, Edward Maulé, a claims superintendent for State Farm, testified that the letter from the Rosenfield law firm which forms the basis for count one of the indictment was processed in State Farm’s mail and filing department, as shown by the date stamp on the letter. Tr. at 23-24 (Sept. 12, 1984). Maulé also testified that such correspondence was ordinarily received by mail. Id. When counsel for defendant asked whether the letter could have been hand-delivered or sent by courier, Maulé stated that it was possible but unlikely. Id. at 33-35. On re-direct, Maulé testified that in twenty-nine years of employment at State Farm, he had never heard of a letter being hand-delivered from an attorney to the company’s offices. Id. at 42. The testimony with regard to the mailing alleged in count two is essentially the same, id. at 48-49, with one exception: Debra Stout, an insurance adjuster for Pennsylvania National Mutual Casualty Insurance Company, testified that correspondence which entered that company's office by courier service would probably have the envelope attached to the correspondence in the file. Id. at 59-60. The letter in question did not have an envelope attached. Id. at 55. Finally, with regard to the mailing alleged in count three, a notation appears at the bottom of the letter indicating that the letter was sent by certified mail. See id. at 73. As to each of the three letters, I find the evidence of mailing quite substantial.

Defendant’s second sufficiency-of-the-evidence argument goes to the question whether defendant prepared or had knowledge of the medical bills enclosed in the three mailings. Each of the bills is typed on stationery bearing defendant’s name and address, and each bears a signature which purports to be defendant’s. Moreover, copies of three of the four bills in question were found in defendant’s office files. This evidence would appear to provide fair support for the inference that defendant prepared or had knowledge of the bills in question. Accordingly, I find defendant’s second argument insubstantial.

In addition to these factual contentions, defendant raises two essentially legal arguments. The first of these derives from the introduction of certain medical records seized from defendant’s office. Defendant argues that the use of these records violated both his Fifth Amendment privilege against self-incrimination and a common-law privilege protecting physician-patient communications. The Fifth Amendment argument rests on the fact that, during the course of the search, defendant assisted the agent in locating the relevant files. Under United States v. Doe, _ U.S. _, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), even if the assistance furnished by the defendant to the agent were to be regarded as compelled, the resulting Fifth Amendment immunity would go only to his authentication of the records and not to their contents. At trial, however, defendant’s involvement in the records’ production was brought out by defendant and not by the Government. See Tr. 75-76 (Sept. 12, 1984) (testimony of Agent Trovarello). Defendant cannot, therefore, complain of the admission into evidence of testimony relating to defendant’s involvement in the search. And Doe clearly establishes that there is no Fifth Amendment privilege inherent in records voluntarily prepared in the course of a business, as were these records. Doe, supra, 104 S.Ct. at 1241-42.

The claim of physician-patient privilege is similarly insubstantial. Defendant fails to recognize that there is no general federal common-law physician-patient privilege. Whalen v. Roe, 429 U.S. 589, 602 n. 28, 97 S.Ct. 869, 877 n. 28, 51 L.Ed.2d 64 (1977); Robinson v. Magovern, 83 F.R.D. 79, 90 (W.D.Pa.1979); E. Cleary, McCormick on Evidence §§ 98, 101 (2d ed. 1972) (privilege exists by statute in a number of states). Defendant does note (correctly) that Government access to private medical records is subject to the patients’ constitutional right of privacy, United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.1980), but such protection is not absolute. The Westinghouse case sets forth “[t]he factors which should be considered in deciding whether an intrusion into an individual’s privacy is justified,” 638 F.2d at 577:

... the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.

Id. As applied to the facts of this case, the Westinghouse factors seem easily satisfied. There is a strong public policy, embodied in the mail fraud statute, in deterring fraud of the sort alleged in the indictment. Moreover, since cases like this one will often involve concealment of certain medical data, any blanket rule disallowing doctor’s office searches even when justified by probable cause would make prosecution very difficult, because police would be forced to rely on the oral testimony of the parties to the fraud. The injury to the doctor-patient relationship that may be occasioned by disclosure is slight, since the Government introduced only the records of the four patients whose bills were allegedly inflated by defendant. Only fraudulent communications are deterred by such disclosures. Finally, there is no allegation that the Government disclosed irrelevant information, or that its disclosures were broader than was reasonably necessary. In short, I find that defendant’s arguments regarding the introduction of the medical records raise questions which are neither novel nor undecided.

Defendant’s fourth argument on appeal presents a far more difficult question. Defendant maintains that counsel for the Government made improper and inflammatory remarks to the jury during her closing argument. The remarks cited in defendant’s brief refer to the existence of a “corrupt situation” in which lawyers exaggerate clients’ claims in order to inflate insurance recoveries. Tr. 109-110 (Sept. 12, 1984). Counsel stated that “[t]he corrupt situation that Dr. Colletta was taking advantage of was [that] the lawyers and clients will file claims at times against insurance companies that exaggerate the injuries that are involved.” Id. at 110. After pointing out that the fraudulent scheme in this case did not necessarily involve billing insurance companies for fictitious accidents, counsel continued:

So the fictitious accident scheme is not the scheme that I am talking about that Dr. Colletta took advantage of. The situation that Dr. Colletta took advantage of was simply the every day situation of lawyers making claims against insurance companies and trying to exaggerate, perhaps only in an advocacy way, the amount of injuries that their clients have sustained. That was the situation he took advantage of. He knew nobody was going to check this. The lawyer wasn’t going to check this.

Id. These remarks were made over defendant’s objection. Defendant argues on appeal that these remarks were unsupported by any record evidence in this case, and were clearly designed to inflame the jury-

Upon reconsideration of defendant’s argument, I conclude that there is some force in defendant’s contention that the remarks in question should have been excluded, because they referred to matters which were (1) not of record, and (2) irrelevant to defendant’s guilt or innocence. See, e.g., United States v. Monaghan, 741 F.2d 1434, 1442 (D.C.Cir.1984); United States v. Fowler, 608 F.2d 2, 11-12 (D.C.Cir.1979); United States v. Small, 443 F.2d 497, 500 (3d Cir.1971); United States v. Schwartz, 325 F.2d 355, 357-58 (3d Cir. 1963). There is certainly enough force in defendant’s contention to persuade me that, in the light of Miller, defendant has raised “a substantial question of law or fact” within the meaning of subsection (b)(2). The remaining question is whether or not this issue is one which, assuming the Court of Appeals finds error, is “likely to result in reversal or an order for a new trial.”

In United States v. LeFevre, 483 F.2d 477 (3d Cir.1973), the Court of Appeals for the Third Circuit concluded that statements by the prosecuting attorney that refer to facts not in evidence do not necessarily require that the defendant be granted a new trial. 483 F.2d at 479. Instead, the court is obliged in such instances to “consider the entire record to determine whether the errors were sufficiently prejudicial to have tipped the scales and thereby denied defendant a fair trial.” Id. In deciding defendant’s motion for bail pending appeal, I am obliged to decide this question once removed: rather than simply decide whether or not the error, if error it was, was harmless, I must decide whether it is “likely” within the meaning of the Bail Reform Act that the offending remarks were not harmless.

I conclude that permitting counsel for the Government to make the remarks in question — a ruling which, arguendo, I will assume to have been erroneous — was an error which is sufficiently likely to lead to an order for a new trial that I must grant defendant’s application for bail pending appeal. Although the prosecutor’s comments appear to have been directed primarily at lawyers — a class of persons to which defendant does not belong — those comments may be taken to imply that defendant knowingly conspired with corrupt plaintiffs’ counsel, a crime with which defendant was not charged and as to which no evidence was introduced. The remarks could therefore be seen as prejudicial, because they arguably invited the jury to consider defendant’s culpability for a “corrupt situation” which was neither charged nor proved. Compare United States v. Schwartz, 325 F.2d 355, 357-58 (3d Cir.1963) (finding prejudice where prosecutor argued, without supporting evidence, that defendant’s key witness was an adulterer who had clandestine meetings with a mistress in hotel rooms) with United States v. Fowler, 608 F.2d 2, 11-012 (D.C.Cir.1979) (finding no prejudice where prosecutor argued, without supporting evidence, that prostitutes were typically “sold between pimps, addicted to narcotics”; defendants were accused of violating the White Slave Traffic Act by selling women to prostitution rings).

In reaching the conclusion that (1) defendant has raised a “substantial question of law or fact” on appeal, and (2) a contrary appellate ruling on that question would likely lead to an order for a new trial, I do not mean to suggest that in my judgment such an order is probable. Miller expressly eschews any calculation that focuses on whether there is at least a fifty-one percent chance of reversal or a new trial. Miller, supra, at 23 (“the phrase ‘likely to result in reversal or an order for a new trial’ cannot reasonably be construed to require the district court to predict the probability of reversal”). Instead, the court construed the word “likely” in subsection (b)(2) as “going to the significance of the substantial issue to the ultimate disposition of the appeal.” Id. A question is “likely to result in reversal or an order for a new trial,” then, when there is a significant chance that a contrary appellate ruling would lead the appellate court to overturn the judgment below. I find that this standard is met here.

IV.

For the foregoing reasons, I shall enter an Order granting defendant’s motion for bail pending appeal.

      . My then-reading of the Bail Reform Act was essentially the same as that of the district judge whose denial of bail pending appeal led to the Miller decision. See United States v. Miller, supra, at 21.

      . In the ordinary case, the decision whether to grant bail pending appeal will be made shortly after sentencing, well before the criminal defendant has prepared the brief which he plans to use on appeal. Such is not the case here because of the timing of the Miller decision, which was filed some three weeks after defendant was sentenced. By the time defendant filed the application for reconsideration in light of Miller, defendant's brief on appeal was already prepared. A copy of that brief, which renews the claims raised in defendant's post-trial motions, was supplied to my chambers shortly after the filing of the motion now before me.

      . For purposes of this discussion I presume, without deciding, that defendant has standing to invoke the privacy interests of his patients in this case.

      . This second step of the Miller inquiry is separate from the first. Having determined that defendant has raised an issue which is "substantial,” I must, for purposes of assessing the likelihood of reversible error, assume that error in fact exists. As the Court of Appeals phrased the likelihood standard, "[a] court may find that reversal or a new trial is ‘likely’ only if it concludes that the question is so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.” Miller, supra, at 23 (emphasis added).


author: WARRINER, District Judge.

text:
    UNITED STATES of America v. Darion BURGESS.
    Crim. No. 85-00007-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Feb. 21, 1985.

      Gregory Welsh, Asst. U.S. Atty., Richmond, Va., for plaintiff.
    Jeffrey L. Everhart, Richmond, Va., for defendant.
   OPINION

WARRINER, District Judge.

This is an appeal to the district court from a misdemeanor conviction before the United States Magistrate. In an order dated 25 January 1985 this Court cited Fed.R.App.P. 16 as being the rule that controls the procedure to be followed and the composition of the record on review of a magistrate’s conviction. After further research I am convinced that the Federal Rules of Appellate Procedure do not control appeals to the district court of a misdemeanor conviction before a magistrate.

18 U.S.C. § 3402 provides:

In all cases of conviction by a United States magistrate an appeal of right shall lie from the judgment of the magistrate to a judge of the district court of the district in which the offense was committed.
The Supreme Court shall prescribe the rules of procedure and practice for the trial of cases before magistrates and for taking and hearing of appeals to the judges of district courts to the United States.

Pursuant to the authority granted the Supreme Court under 18 U.S.C. § 3402, the Supreme Court on 1 June 1980 issued Rules of Procedure for the Trial of Misdemeanors Before United States Magistrates (Rules of Procedure for the Trial of Misdemeanors). Rule 1 of the Rules of Procedure for the Trial of Misdemeanors, in defining the scope of the rules, provides that the “rules govern the procedure and practice for the conduct of proceedings in misdemeanor cases, including petty offenses, before United States magistrates under 18 U.S.C. § 3401, and for appeals in such cases to judges of the district courts.”

Rule 7(b) of the Rules of Procedure for the Trial of Misdemeanors states that:

An appeal from a judgment of conviction by a magistrate to a judge of the district court shall be taken within ten days after entry of the judgment. An appeal shall be taken by filing with the clerk of the district court a statement specifying the judgment from which an appeal is taken, and by serving a copy of the statement upon the United States Attorney, personally or by mail, and by filing a copy with the magistrate.

Rule 7(c) controls the composition of the record on appeal:

The record shall consist of the original papers and exhibits in the case together with any transcript, tape, or other recording of the proceedings and a certified copy of the docket entries which shall be transmitted promptly by the magistrate to the clerk of the district court. For purposes of the appeal, a copy of the record of such proceedings shall be made available at the expense of the United States to a person who establishes by affidavit that he is unable to pay or give security therefor, and the expense of such copy shall be paid by the Director of the Administrative Office of the United States Courts.

Rule 7(e) states that “the defendant shall not be entitled to a trial de novo by a judge of the district court. The scope of the appeal shall be the same as on appeal from a judgment of a district court to a court of appeals.”

Rules 1 and 7 of the Rules of Procedure for the Trial of Misdemeanors are the only provisions in those Rules that pertain to an appeal to the district court from a misdemeanor conviction in a magistrate’s court. While Rules 1 and 7 establish the scope of appeal, the composition of the record, and the procedure and time limit for perfecting an appeal, neither of these provisions specify the briefing schedule to be followed in the district court for an appeal of this type.

Fed.R.App.P. 1, which defines the types of appeals governed by the Federal Rules of Appellate Procedure, provides:

These rules govern procedure in appeals to the United States courts of appeals from the United States district courts and the United States Tax Court; in proceedings in the courts of appeals for review or enforcement of orders of administrative agencies, boards, commissions and officers of the United States; and in applications for writs or other relief which a court of appeals or judge thereof is competent to give. When these rules provide for the making of a motion or application in the district court, the procedure for making such motion or application shall be in accordance with the practice of the district court.

Because appeals to the district court from magistrates’ convictions of misdemeanor offenses are not included in the comprehensive list defining the scope of the Federal Rules of Appellate Procedure contained in Fed.R.App.P. 1, I conclude that the Federal Rules of Appellate Procedure are not intended to govern, from a procedural standpoint, appeals of this type.

Also, Fed.R.App.P. 16, the rule cited in my order of 25 January, is not an exception to the reach of Rule 1. Rule 16 is contained in Title 4 of the Federal Rules of Appellate Procedure. Title 4 is entitled “Review and Enforcement of Orders of Administrative Agencies, Boards, Commissions and Officers.” The magistrate’s court is none of these. Indeed it is not analogous to any of these.

The Local Rules for the United States District Court for the Eastern District of Virginia provide no guidance as to the procedures to be followed by the district court in hearing appeals from misdemeanor convictions. Although a part of Appendix B of the Local Rules is applicable to trials of minor offenses before magistrates, see Appendix B § 10, nothing in Appendix B or elsewhere deals with the procedures to be used when a misdemeanor conviction is appealed to a district court.

Having exhausted all other sources, I turn reluctantly to the most nearly analogous rules of procedure, being the rules of procedure for the appeal of a criminal case from a United States district court to a United States court of appeals. See, e.g., Fed.R.App.P. 3, 4(b), 8(c), 9-12. I am reluctant to use these rules as a guide since they were drawn to deal with a much more weighty and serious type of appeal — the appeal of a felony conviction. Such an appeal to a three-judge panel, when incarceration up to and including life imprisonment may hang in the balance, quite properly involves a time-consuming and relatively expensive process. Such is not only not necessary, it is clearly not desirable in the appeal of a misdemeanor conviction from a magistrate’s court. Accordingly, I cannot accept as appropriate all the steps, proceedings, time limits, and requirements involved in a felony appeal from a district court as the proper guide.

Although I now realize the error of citing Rule 16 of the Federal Rules of Appellate Procedure in the 25 January order controlling the briefing schedule in this case, the order will not be vacated. As to this case the too lengthy briefing schedule will remain in effect. To alter it would be more troublesome than helpful. However, I will henceforth set a schedule intended to reach decisions in a more expeditious and less expensive manner. Accordingly, until the federal rules or the local rules may be amended, I will require when the notice of appeal is filed with this Court, the Clerk of the District Court shall notify appellant and the' U.S. Attorney that appellant’s grounds of appeal and brief in support thereof must be filed in this Court within ten days of the filing of the notice of appeal; that the United States must file its reply brief within ten days thereafter; and that appellant must file his rebuttal within five days after service of the brief of the United States. If the Court desires oral argument, the parties will be contacted to secure a mutually agreeable time.

If it be essential to the contentions of either party on appeal that a transcript of proceedings before the magistrate be prepared in whole or in part, the party desiring the transcript must make the necessary arrangements. See Rules of Procedure for the Trial of Misdemeanors Before United States Magistrates 7(c) (procedure to be followed by indigent to secure transcript at government’s expense.) If necessary, the briefing schedule may be delayed, on motion, to provide time to prepare the transcript.

And it is so ORDERED.