text:
    Charles GILMORE v. Ronald MARKS, et al.
    Civ. A. No. 84-4008.
    United States District Court, E.D. Pennsylvania.
    July 17, 1985.
    Burton A. Rose, Philadelphia, Pa., for petitioner.

      Andrew R. Rogoff, Philadelphia, Pa., for defendants.
   OPINION

JOSEPH S. LORD, III, Senior District Judge.

This is a petition for a writ of habeas corpus. Petitioner was convicted of first degree murder and robbery in 1979 after a non-jury trial before the Honorable Charles P. Mirarchi, Jr. of the Court of Common Pleas of Philadelphia. He was sentenced to a term of life imprisonment for the murder and a concurrent sentence of ten to twenty years’ imprisonment for the robbery. On direct appeal, the Supreme Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Gilmore, 496 Pa. 420, 437 A.2d 944 (1981).

Petitioner then filed a petition for writ of certiorari with the United States Supreme Court alleging that the Pennsylvania Supreme Court erred in refusing to apply the rule of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) to petitioner’s warrantless arrest. Petitioner argued that had the court applied Payton, statements he made after his arrest would have been suppressed. The Court granted the writ, vacated petitioner’s sentence, and remanded the case to the Pennsylvania Supreme Court for further consideration in light of its recent decision in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Gilmore v. Pennsylvania, 458 U.S. 1103, 102 S.Ct. 3476, 73 L.Ed.2d 1363 (1982). In the Johnson case, the Court decided to apply Payton retroactively to cases, like petitioner’s, that were still pending on direct appeal at the time Payton was decided. Johnson, supra, at 554, 102 S.Ct. at 2589. The Payton case announced the principle that “the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.” 445 U.S. at 576, 100 S.Ct. at 1375.

On remand, the Pennsylvania Supreme Court disposed of petitioner’s case with a cryptic per curiam order: “Judgments of sentence affirmed. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (harmless error).” Commonwealth v. Gilmore, 500 Pa. 319, 456 A.2d 148 (1983). Petitioner then filed the present petition arguing that the Pennsylvania Supreme Court denied him fundamental fairness when it wrongfully determined that the error was harmless. Petitioner specifically noted that while he was objecting to the Pennsylvania Supreme Court’s finding of harmlessness, he was not asking this court to address the fourth amendment issue which formed the basis of the Supreme Court’s finding of error.

In reviewing petitioner’s allegations, the magistrate to whom this matter was referred was troubled by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). That case held that collateral review of a fourth amendment issue is barred when a state court has provided a full and fair opportunity to litigate the question. The magistrate determined:

... [T]he petitioner cleverly attempts to camouflage the fourth amendment nature of his claim in a chameleon-like fashion with the hope of circumventing the deeply entrenched precedent of Stone v. Powell, 428 U.S. 465 [96 S.Ct. 3037, 49 L.Ed.2d 1067] (1976). However, a trained eye can easily detect a lizard amidst the foliage.

Report and Recommendation at 2-3. I disagree with the magistrate’s analysis. It would take a well-trained eye indeed to create a fourth amendment lizard when none existed.

The Pennsylvania Supreme Court’s one sentence disposition tells me absolutely nothing about the court’s reasoning, except that there was “harmless error.” Therefore, in order to translate the court’s utterance into a meaningful holding, it is necessary to walk through a series of logical steps:

1. The Supreme Court remanded to the Pennsylvania court with directions to reconsider its previous ruling in the light of United States v. Johnson, supra.

2. I must assume that the Pennsylvania court heeded the command of the Supreme Court. In its finding of “error”, the court implicitly found that Payton was retroactively applicable to Gilmore (Johnson), and that the arrest was illegal (Payton).

3. By characterizing the admission of the statements as “error”, the court also found them to be tainted as “the fruit of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), and concluded that the connection between the statements and the unlawful arrest was not so attenuated as to remove the taint. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Were it otherwise, their admission would not have been error. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

The Pennsylvania Supreme Court has given the Commonwealth a fair opportunity to be heard; has found the arrest illegal, and the acquisition of the statements to be violative of the fourth amendment; and has determined their admission into evidence to be error. Under Stone v. Powell, supra, I am foreclosed from re-examining that determination. I apprehend that under the equal justice philosophy of the United States, Stone is not a one-way street and its strictures apply equally to the government and to a defendant. Therefore, the determination has been made that there was a fourth amendment violation resulting in trial error. This determination, however, does not end the case. I still must determine whether the error was harmless, a question not embraced by Stone.

The Commonwealth asserts that because there is fair factual support in the record for the state court’s finding of harmlessness, this court must be bound by it. I disagree. Because a finding of harmless error is a mixed question of law and fact, rather than a pure question of fact, I am not bound to accord to the state court’s finding “the presumption of correctness” pursuant to 28 U.S.C. § 2254(d). See, e.g., Hagler v. Callahan, 764 F.2d 711 (9th Cir. 1985); Grizzell v. Wainwright, 692 F.2d 722, 725 (11th Cir.1982), cert. denied, 461 U.S. 948, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983).

The statements that the Pennsylvania Supreme Court deemed to be harmless were made by petitioner after his warrant-less arrest on the evening of July 13, 1978. He was taken to the Police Administration Building and questioned concerning the 1973 homicide of Ollie Chesson, Jr. Petitioner initially denied knowledge of the murder, but later confessed in pertinent part as follows:

Before I got there to Girard Avenue I saw a guy laying on the ground. I knew the guy. His name was Ollie, and I started going through his pockets. Mike came up while I was going through his pockets, and he started checking him too. Ollie woke up and sat up, and Mike hit him in the head with the cane. Mike was trying to get into Ollie’s back pocket, but he couldn’t get into it. He felt something in his pocket. Mike knew I had a knife on me and he asked me for it. I gave it to him and he cut him. I ran across the street and stood near the church, then Mike came across____ I got the knife back from Mike the next day — no, I don’t think it was the next day, but I got it back.

Trial transcript 2.61-62. He also explained that he thought “Mike” was going to use the knife “to cut [the victim’s] pocket out ‘cause he had felt something.” Trial transcript 2.64. After petitioner read and signed the above statement, he was granted permission to call his mother. A police officer alleged at trial that petitioner then made the following statement over the telephone:

We was robbin’ the man, and I had a knife. Big Mike knew I had a knife. He told me to give him the knife so he could slash the dude’s pockets. Then I seen him kill the dude with the knife I gave him.

Trial transcript 2.67. Both these statements were admitted at petitioner’s trial.

With the exception of the statements, the evidence linking petitioner to the robbery and murder was non-existent. A police officer testified that Mr. Chesson told him he was “robbed by two Negro males that he had been shooting dice with in Fair-mount Park earlier in the evening.” Trial transcript 1.31-32. No evidence was introduced suggesting that petitioner was one of the players. Two police officers also testified that as a result of interviews with two people regarding the death of Michael Needham, they decided to question petitioner in connection with the murder of Mr. Chesson. Trial transcript 2.20, 2.48. The two people whom the police interviewed were never produced to testify and the substance of their interviews does not appear in the trial record. Finally, police testified that petitioner was or may have been a member of the “Four Corners Gang,” a group that allegedly controlled the area in which Mr. Chesson was murdered. Trial transcript 2.24, 2.70. In sum, aside from the statements in question, the Commonwealth presented no evidence linking Gilmore to the crimes. Where the only evidence pointing to guilt consists of illegally obtained statements, it is difficult, if not impossible, to conceive of any circumstances in which the admission of such statements could be more harmful.

The petitioner took the stand in his own defense. On direct examination, petitioner stated that when he saw Mr. Chesson lying on a step in an intoxicated state, he decided to check his pockets for money. He testified:

A. Well, I went in his pocket, and Mike had walked up, and he like came and took over the whole situation.
Q. Well, explain that; what do you mean “he took over the whole situation”?
A. He like told me to get back, probably thinking I would find something before he did.
Q. All right, what happened?
A. I got back.
Q. When you say “you got back,” what do you mean?
A. I stepped away from him. I stepped back towards the curb up against a car.
Q. All right. What happened?
A. He started going through his pockets, and Ollie started waking up. He sat up, and Mike hit him with the cane he had.
Q. What happened when he hit him?
A. The guy fell back down.
Q. What happened to the cane?
A. The cane broke.
Q. What happened next?
A. He threw the piece that he had left in his hand. He threw that down, continued going through his pockets. He couldn’t get into his back pocket and he knew that I had a knife on me. So he asked me to give him the knife. I looked at him kind of surprised and shocked because like he was known for like surprises like that, you. know, hurt people and things like that. And like he asked me for the knife; and I gave him the knife after he asked me the second time, because he said he was only going to cut ■his pocket out.
When I handed him the knife, he cut him on the shoulder and his neck.

Trial transcript 2.78-2.80. Petitioner further testified that he ran across the street the minute Mike stabbed the victim and that he had handed over his knife because he was afraid of Mike. Trial transcript 2.80, 2.81-82. Petitioner was fifteen at the time the crime was committed. Trial transcript 2.76. Mike (Michael Needham) was several years older, a leader in a local gang, and described as “vicious”. Trial transcript at 2.76-78, 2.89, 2.23.

Whether petitioner’s testimony was itself inculpatory is immaterial. It suffered from the same infirmity that infected the statements. In Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), Mr. Justice Holmes said:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.

Id. at 392, 40 S.Ct. at 183.

In Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), the Court applied Justice Holmes’ reasoning in a case strikingly similar to the present one. The defendant was convicted of murder after a jury trial in the United States District Court for the District of Columbia. At the trial, three confessions allegedly made by the defendant while in police custody were admitted in evidence. The defendant, on the advice of counsel, then took the witness stand and testified to his own version of the events leading to the victim’s death, which testimony placed the defendant, shotgun in hand, at the scene of the killing. The confessions were held to have been illegally obtained. On re-trial, the defendant’s trial testimony was admitted into evidence. In reversing the conviction, the Court said at pages 222-23:

Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor.
----The question is not whether the petitioner made a knowing decision to testify, buy why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.

The Court concluded at pages 224-26:

The remaining question is whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of his illegally obtained confessions____ But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used____ Having “released the spring” by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.
---- Only after his confessions had been admitted in evidence did he take the stand. It thus appears that, but for the use of his confessions, the petitioner might not have testified at all. But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admissions so damaging would have been made if the prosecutor had not already spread the petitioner’s confessions before the jury. That is an inference the Government has not dispelled.
It has not been demonstrated, therefore, that the petitioner’s testimony was obtained “by means sufficiently distinguishable” from the underlying illegality “to be purged of the primary taint.”

All of the above factors dispel any notion that the statements were harmless beyond a reasonable doubt as required by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This conclusion is underlined by the trial judge’s own heavy reliance on the statements in his opinion supporting the verdict. For example, the judge stated:

Whether MICHAEL NEEDHAM was involved initially or joined after the defendant commenced his theft is not material. What is essential is that they acted together. When MICHAEL NEEDHAM struck OLLIE CHESSON, JR. over the head, defendant continued searching the victim’s pockets.

Opinion at 4 (September 9, 1980). This version of the crime can only arise from petitioner’s confession and is in direct conflict with petitioner’s trial testimony. Similarly, the judge later stated that “both actors continued in their thievery” after Mike hit the victim over the head. Opinion at 5. In addition, the judge asserted: “When MICHAEL NEEDHAM stabbed CHESSON more than fifty times with defendant’s knife, defendant not only continued with his participation of the robbery/murder, he retrieved and later sold his knife.” Opinion at 4. This rendition of the facts ignores the petitioner’s trial testimony that he left the scene of the crime as soon as the first wound was inflicted. Moreover, the trial judge’s knowledge of petitioner’s sale of the knife came from petitioner’s confession, not from the testimony at trial.

Since the admissions were not harmless and since I must accept the Pennsylvania Supreme Court’s finding of error on the fourth amendment issue, I shall grant petitioner’s writ. Actual issuance of the writ will be stayed for a period of thirty days to permit an appeal, and if an appeal is taken, for a further period until the appeal is finally decided. Unless the Commonwealth shall re-try petitioner within sixty (60) days following the issuance of the writ, the petitioner shall be released from custody. There is probable cause for appeal.


source: Caselaw Access Project

author: KERR, District Judge.

license: Public Domain

text:
    Rex A. SHEPPERD and Steve Edwards, Plaintiffs, v. BOETTCHER & COMPANY, INC., Defendant.
    No. C85-068-K.
    United States District Court, D. Wyoming.
    July 17, 1985.

      Edward J. Pluimer, Dorsey & Whitney, Minneapolis, Minn., for plaintiffs.
    William E. Murane, Holland & Hart, Denver, Colo., for defendant.
   ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

KERR, District Judge.

The above-entitled matter having come on regularly before the court on defendant’s motion to dismiss; plaintiffs appearing by and through their attorney, Edward Pluimer, and defendant appearing by and through its attorney, William E. Murane, and the court having heard the arguments of counsel and having carefully reviewed said motion and briefs filed herein, and being fully advised in the premises, FINDS:

That this matter is before the court on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and the facts alleged by the plaintiffs will be taken as true for the purpose of ruling on said motion. This court has jurisdiction pursuant to 28 U.S.C. § 1332.

Plaintiffs were customers of the Casper office of defendant, Boettcher & Company, Inc. (Boettcher). The defendant, through its agents, solicited plaintiffs’ investments in certain undivided fractional working interests in oil, gas, and mineral leases located in Louisiana and operated by Latham Exploration Co., Inc. The plaintiffs, in reliance upon Boettcher, purchased these working interests by entering into two participation agreements. Under these agreements plaintiffs received an undivided one and two-thirds percent (1 %%) working interest and were obligated to bear a proportionate share of costs and risks incurred in the drilling operations. Plaintiffs received no right of management or control over these drilling operations.

The plaintiffs allege that the working interests are “securities” and “investment contracts” within the meaning of the Wyoming Uniform Securities Act, Wyo.Stat. § 17-4-101 et seq. (1977), et seq. and the Wyoming Securities Regulations promulgated by the Secretary of State for Wyoming. Plaintiffs assert that these working interests, as securities, should have been either registered or exempted from registration prior to any offer or sale in the state of Wyoming and since the securities were not so registered or exempted, the sale to plaintiffs was unlawful. Therefore, plaintiffs claim that as a result of this unlawful sale, each lost $142,982.23 and that pursuant to the Act, they are entitled to recover these monies from the defendant.

In defendant’s motion to dismiss, Boettcher asserts that the working interests were not and are not' “securities” within the scope and definition of the Wyoming Uniform Securities Act and that, therefore, said complaint fails to state a cause of action.

Wyoming Statute § 17-4-113(a)(xi) (1977) defines “security” as:

[a]ny note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit sharing agreement; collateral trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting trust certificate; certificate of deposit for a security or, in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. ‘Security’ does not include any insurance or endowment policy or annuity contract under which an insuranee company promises to pay money either in a lump sum or periodically for life or for some other specified period.

The plaintiffs claim that under this definition, the term “investment contract” includes agreements such as those involved here, for undivided fractional working interests in oil and gas leases.

Where a party is seeking to claim a right or impose an obligation under a statute, it is necessary for the court to read the statute and determine its intent and purpose giving effect to that intent. State ex rel. Albany, etc. v. Board of Cty., 592 P.2d 1154, 1157 (Wyo.1979). Courts must first look to the plain language of the statute to determine the intention behind the legislation. State v. Stovall, 648 P.2d 543, 544 (Wyo.1982); McGuire v. McGuire, 608 P.2d 1278 (Wyo.1980). However, where the language of the statute is ambiguous, resort may be had to rules of construction. Sanches v. Sanches, 626 P.2d 61, 62 (Wyo. 1981); Matter of Adoption of Voss, 550 P.2d 481, 484 (Wyo.1976). The fundamental role of statutory construction is to divine what the legislature intended by the language used, State v. Stovall, 648 P.2d at 545, and such legislative intent can be determined from the legislative history of the statute. Rocky Mountain Oil & Gas Ass’n v. Watt, 696 F.2d 734, 745 (10th Cir.1982); State v. Stovall, 648 P.2d at 546; Saffels v. Bennett, 630 P.2d 505, 509 n. 1 (Wyo.1981); Sanches v. Sanches, 626 P.2d at 62 (Wyo.1981); Padilla v. State, 601 P.2d 189, 192 (Wyo.1979); Matter of Adoption of Voss, 550 P.2d at 484; Town of Clearmont v. State Highway Comm’n, 357 P.2d 470, 476 (Wyo.1961).

In looking at the plain language of the statute itself which defines “security,” we are confronted with a host of items which may constitute a “security” under the Wyoming Uniform Securities Act. Among these is listed the term “investment contract,” which plaintiffs claim encompasses the agreements they entered into for working interests in oil and gas leases. The court acknowledges that an “[ajmbiguity exists where a word or group of words m a statute is susceptible of more than one meaning.” State ex rel. Albany, etc. v. Board of Cty., 592 P.2d at 1156. This is assuredly the situation with the term “investment contract,” which is patently vague and ambiguous and could easily include any type or variety of agreements. This court must, therefore, look to extrinsic sources for aid in interpreting the intent of the Wyoming legislature.

The Secretary of State pursuant to the authorization bestowed in Wyo.Stat. § 17-4-124 (1977), has adopted rules and regulations to aid in implementation of the Wyoming Uniform Securities Act. Among these regulations, the Secretary has adopted a rule that defines the term “investment contract,” and provides:

Section 1. Investment Contract. An “investment contract” as used in W.S. 17-4-113 includes but is not limited to:
(a) Any investment in a common enterprise with the expectation of profit to be derived substantially through the efforts of a third party or the promoter, or
(b) Any investment by which an offeree furnishes initial value to an offeror, and a portion of this initial value is subjected to the risks of the enterprise, and the furnishing of the initial value is induced by the offeror’s promises or representations which gave rise to a reasonable understanding that a valuable benefit of some kind over and above the initial value will accrue to the offeree as a result of the operation of the enterprise, and the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise.

Rules of Wyoming Securities Division, ch. II, § 1 (Aug. 18, 1980).

The language of this rule is conceivably broad enough to cover the types of agreements for working interests in oil, gas, or mining leases, which are involved in the present case, and certainly deference should be afforded “[t]o the interpretation given a statute by the agency charged with its administration.” Rocky Mountain Oil and Gas Ass’n v. Watt, 696 F.2d at 745; Langdon v. Lutheran Brotherhood, 625 P.2d 209, 212 (Wyo.1981). However, it is fundamental that where the administrative interpretation and regulations are contrary to or inconsistent with the legislative intent behind the statute so as to frustrate the policy behind the statute, no deference can be given to the agency’s interpretation, and construction of the statute is ultimately for the court. Security Industry Ass’n v. Board of Governors of Fed. Reserve System, — U.S. ---, ---, 104 S.Ct. 2979, 2983, 82 L.Ed.2d 107 (1984); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981); Pueblo of Santa Ana v. Mountain States Tel., 734 F.2d 1402, 1406-1407 (10th Cir.1984); Nevada Power Co. v. Watt, 711 F.2d 913, 920 (10th Cir.1983); Langdon v. Lutheran Brotherhood, Id.; Demos v. Board of Co. Comm'rs. of Natrona Co., 571 P.2d 980 (Wyo.1977).

The court concludes that after reviewing the legislative history of the statute and Act, the regulation, to the extent it may encompass such working interests in oil, gas, and/or mining leases, is contrary to the legislative intent behind the Wyoming Uniform Securities Act. That history strongly and clearly indicates the legislature’s intent to exclude such interests from the definition of “security” under Wyo. Stat. § 17-4-113(a)(xi) (1977). Such intent has been ascertained by examining the legislative journals and reviewing the procedure of enactment. See Matter of Adoption v. Voss, 550 P.2d at 484; Western Nuclear v. Watt, 475 F.Supp. 654, 656 (D.C.Wyo.1979); rev’d 664 F.2d 234 (10th Cir.1981), cert. granted 456 U.S. 988, 102 S.Ct. 2266, 76 L.Ed.2d 400, rev’d 458 U.S. 1104, 102 S.Ct. 3480, 73 L.Ed.2d 1365 (1982).

In 1965, when the Wyoming legislature adopted the Uniform Securities Act, it did so with certain changes. In the Act and original bill, Wyoming Senate File No. 10, the section defining “security” included in its provision, the language: “[cjertificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or in general____” The Senate passed the Act as introduced, but the House Committee recommended that the Act be amended by deleting the underlined language above, concerning oil, gas, and mining interests. This amendment was approved by the joint committee and passed both the House and the Senate as amended. See Digest, Wyoming Senate and House Journals, S.F. No. 10, at 56 (1965).

This court is persuaded that the legislature’s act of specifically deleting the language relating to oil, gas, and mining interests is strongly indicative of the intent to exclude such working interests from the definition of “security” under the Act. This intent is further buttressed by the circumstances surrounding the prior legislation on securities. The Act, in effect, prior to 1965 defined “security” as: “[Sjtock certificates, shares, bonds, debentures, certificates of participation, contracts, or other instruments in the nature thereof by whatsoever name known or called.” Wyo.Stat. § 17-102 (1959).

In 1962, the Wyoming Attorney General issued an opinion which concluded that the definition in the Act above did not include

011, gas, or mining interests because no specific mention had been made of these interests within the Act and that in jurisdictions where such interests had been declared securities, the legislation in those states specifically designated these interests as securities. Op.Wyo.Att’y Gen., No. 4 at 93 (1962). Further, the Attorney General observed that in 1961 the legislature was faced with an opportunity to amend the statute to include in the definition of security the following language: “Certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such title or lease.” That proposed amendment failed to pass.

The court finds the legislative history to be consistent in excluding oil, gas, and mining working interests as securities and, therefore, finds that neither Wyo.Stat. § 17-4-113(a)(xi) (1977) nor the security regulation on investment contracts encompass working interests in oil, gas, or mining titles or leases or payments from production under such titles or leases within the definition of “security.” Therefore, the interests represented by the agreements involved in this case would not fall within the filing requirements of the Act and thus plaintiffs’ complaint fails to state a claim upon which relief can be granted.

NOW, THEREFORE, IT IS ORDERED that defendant’s motion to dismiss be, and the same is, hereby granted; it is FURTHER ORDERED that each party shall pay their own costs.

      . In lieu of the language deleted, the following was inserted: "pre-need funeral or burial contract." This language was deleted in 1973. Session Laws 1973, Ch. 69, § 1; 1975 Cumm.Supp. Wyo.Stat.


author: WARREN, District Judge.

text:
    HARLEY-DAVIDSON MOTOR COMPANY, INC., Plaintiff, v. LOCAL 209, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, and the International Union, Allied Industrial Workers of America, AFL-CIO, Defendants.
    No. 83-C-0305.
    United States District Court, E.D. Wisconsin.
    July 17, 1985.
    George D. Cunningham, Foley & Lardner, Milwaukee, Wis., for plaintiff.
    Kenneth R. Loebel, Habush, Habush & Davis, S.C., Milwaukee, Wis., for defendants.
   DECISION AND ORDER

WARREN, District Judge.

On February 28, 1983, Plaintiff, Harley-Davidson Motor Company, Inc. (“The Company”) brought an action pursuant to 29 U.S.C. § 185 (1976) seeking to vacate the arbitration award issued by Arbitrator Edward B. Krinsky on December 9, 1982. On April 14, 1985, Defendants, Local 209 and The International Union of the Allied Industrial Workers of America, AFL-CIO (“The Union”), moved the Court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Company filed a cross-motion for summary judgment on May 16, 1985. Summary judgment may be ordered if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In the present case, the Court finds that no genuine factual issues exist other than the determination of damages. For the following reasons, the Court awards summary judgment in favor of the Union and remands this case to the arbitrator to determine damages.

I. BACKGROUND

The Company and Union were parties to a collective bargaining agreement (“The Agreement”) effective July 1, 1980 through June 24, 1983. In November 1981, the Company decided to subcontract work performed by bargaining unit employees in its Parts and Accessories warehouse to non-bargaining unit employees. This decision resulted because previous attempts by the Company to modify the Agreement to reduce labor costs within the Parts and Accessories warehouse were refused by the Union. On December 23, 1981, pursuant to procedures embodied in Article X of the Agreement, the Union filed a grievance protesting this subcontracting decision. The instant case before the Court arose from this dispute.

Article X of the Agreement provides for resolving grievances through arbitration performed by an arbitrator mutually agreeable to both parties. The parties agreed to have Arbitrator Edward B. Krinksy resolve the grievance. The stipulated issue before the arbitrator was as follows:

Did the Company violate the labor contract by the actions it took relative to the performance of work in the Parts and Accessories warehouse on and after January 5, 1982? If so, what is the remedy?

Furthermore, the parties agreed to have the arbitrator decide whether the Company’s actions violated the National Labor Relations Act (“The Act”).

In a December 9, 1982 decision the arbitrator found that by subcontracting the aforementioned work, the Company violated both the Agreement and the Act. In reaching this decision, the arbitrator initially found that previous arbitration awards and various provisions within the Agreement allowed subcontracting under certain circumstances. Thus, the dispute’s resolution hinged on whether the present circumstances precluded the subcontracting.

As viewed by the arbitrator, the present circumstances’ pertinent aspects were twofold. First, the Company’s express purpose in subcontracting the bargaining unit work to employees of another company was to obtain lower wage and benefit costs and a relaxation of work rules. Second, Article I § 1(D) of the Agreement forbids subcontracting for the purpose of discrimination against the Union. Therefore, the issue, as refined by the arbitrator, was whether the Company’s subcontracting solely for economic reasons was done for the purpose of discrimination against the Union.

In resolving this issue, the arbitrator first distinguished the present case from the prior arbitration award upholding the Company’s right to subcontract. In the 1971 arbitration award, the distinguishing factors present were that the subcontract was for a short period of time, no employees were on layoff at the time of the subcontracting and business was booming. None of these factors were present in the instant case. The arbitrator distinguished the 1978 arbitration award from the present case for the reasons that there the Company’s insufficient space necessitated the subcontracting, no layoffs resulted in the bargaining unit and the employees were not adversely affected by the decision to subcontract. The arbitrator thus determined that these previous arbitration awards were not determinative of the present case.

The arbitrator proceeded to decide the instant case on its own merits. He found that the only factor compelling the present subcontracting was the Company’s desire to pay less for the work performed in the Parts and Accessories warehouse. Both the nature of the work and the Company’s ability to accomplish the work with its own workforce did not change. Relying on the National Labor Relations Board’s (“The Board”) decision in Los Angeles Marine Hardware Co., 235 NLRB 720 (1978), aff'd, 602 F.2d 1302 (9th Cir.1979), the arbitrator found that the present case’s subcontracting solely for economic reasons discriminated against the Union. The arbitrator found that the Company’s “purpose was to end its contract with the Union covering the employees it represents in the warehouse, rather than accept terms and conditions negotiated with the Union, either existing terms or mutually negotiated changes.” Arbitration Award at 43. Indeed, the arbitrator opined that if such subcontracting was not discriminatory, he would have difficulty in deciding what would constitute a discriminatory transfer of work in violation of Article I § 1(D) of the Agreement. Id. Furthermore, the arbitrator summarily found that the subcontracting violated the Act based on the Board’s decision in Los Angeles Marine, supra.

II. DISCUSSION

A. Review of the Arbitration Award.

The Court must first determine the degree of deference owed to Arbitrator Krinsky’s award. It is well-established that the Court will undertake only limited review of an arbitration award. United Steel Workers of America v. American Mfg. Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960). Moreover, the limited extent of such review has been recently clarified by the Seventh Circuit in Jones Dairy Farm v. Local No. P-1236, 760 F.2d 173 (7th Cir.1985). That ease held that an arbitrator’s award cannot be set aside merely because the arbitrator erroneously interpreted and applied existing law. Id. at 176. However, if the arbitrator disregarded the law and applied some private notion of equity, courts can set aside the award. Id.

B. Whether Jones Dairy Farm Controls This Case.

The Company asserts that Jones Dairy Farm does not control the present case’s resolution. This assertion is based on discussion in Jones Dairy Farm concerning the employer in that case agreeing to submit the matter at issue to arbitration, where it was arguably not required to so submit. The Seventh Circuit stated that “[b]y going forward with the arbitration without questioning the arbitrator’s authority to resolve the dispute, [the employer] consented to have him decide what ‘legal rights’ in the contracting-out clause meant.” Jones Dairy Farm, 760 F.2d at 176. Based on this and other statements in Jones Dairy Farm, the Company asserts that since the Agreement required the present matter’s submission to arbitration, it should not be bound by the arbitrator’s ruling. Essentially, the Company’s position is that Jones Dairy Farm precludes a party to an arbitration proceeding from challenging the arbitrator’s interpretation and application of law only if it erroneously conceded the arbitrator’s authority to resolve the matter.

The spurious nature of the Company’s position is apparent from its mere presentation. Why should a court give greater deference to an arbitrator’s award resulting from its unnecessary submission to arbitration than to an arbitrator’s award resulting from its correct submission to arbitration? Reconciling such a distinction strains credulity. It seems that only a purpose to punish the party who submits a matter to arbitration when it need not so submit, would justify such a distinction. However, based on a full reading of Jones Dairy Farm, it is clear that such was not the Seventh Circuit’s purpose.

In Jones Dairy Farm, the employer contended that the arbitrator lacked authority to resolve the dispute. 760 F.2d at 175. In disposing of this contention, the Court stated that the employer must abide by the arbitration award since it initially conceded the arbitrator’s authority to resolve the dispute. This ruling was extraneous to the holding that an arbitrator’s interpretation and application of law must be upheld unless the arbitrator disregards the law and bases his decision on some private notion of equity. It responded to the employer’s challenge of the arbitrator’s authority to resolve the dispute. The challenge at issue was not to the arbitrator’s interpretations of law employed in resolving the dispute.

By disposing of the case in this manner, it is unlikely that the Seventh Circuit intended to limit its holding solely to situations where a party erroneously concedes the arbitrator’s authority to resolve a matter. The Jones Dairy Farm mandate that the arbitrator’s legal interpretations are conclusive should apply to all parties who submit a matter to arbitration. This mandate should apply whether the arbitrator’s authority stems from the parties’ consent, albeit unrequired by the Agreement, or whether it stems from contractual terms to which the parties consented when they freely entered into the Agreement. The Court therefore finds that Jones Dairy Farm is applicable in the present case.

C. Application of Jones Dairy Farm.

Based on Jones Dairy Farm, it must be determined whether the arbitrator disregarded the law and applied his own private notions of equity in ruling for the Union. In his ruling, the arbitrator relied greatly on Los Angeles Marine Hardware Co., 235 NLRB 720 (1978), aff'd, 602 F.2d 1302 (9th Cir.1979). In Los Angeles Marine, the Board found anti-union discrimination in a situation where a company closed one facility and moved its operation to another to escape the bargaining unit’s high labor costs. The company and union were bound to a collective bargaining agreement at the time. Since the present case involves the Company’s subcontracting of bargaining unit work to escape high labor costs pursuant to an effective Agreement, the arbitrator’s finding that Los Angeles Marine directly applied to the present case is justifiable. Certainly this finding did not disregard the law.

The Company asserts that the arbitrator disregarded controlling precedent in his ruling. The Company first argues that American Ship Bldg. Co. v. Labor Board, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), required the arbitrator to find that the Company’s subcontracting was nondiscriminatory. American Ship involved an employer “locking out” union members during negotiations for a new labor contract when the negotiations had reached an impasse. Such action was found to be nondiscriminatory since the employer was not motivated by an anti-union purpose. The present case poses dissimilar facts justifying the arbitrator’s failure to apply American Ship. There were no negotiations for a new labor contract. Rather, there was a contract in full force which the employer sought to escape as to the Parts and Accessories warehouse employees. Moreover, American Ship did not involve subcontracting. Based on these differences the arbitrator was justified in relying on the Board’s decision in Los Angeles Marine which involved similar facts and which was subsequently affirmed by the Ninth Circuit.

The Company further argues that the arbitration award disregarded prevailing law embodied in Sears, Roebuck & Co. v. Teamsters, 683 F.2d 154 (6th Cir.1982) and University of Chicago v. NLRB, 514 F.2d 942 (7th Cir.1978). This argument could be readily dismissed pursuant to the statement in Jones Dairy Farm, supra, that “the arbitrator cannot be seriously faulted ... for refusing to be bound (as the Board itself refuses to be bound) by circuit precedent.” 760 F.2d at 177. However, examination of these cases reveals that the arbitrator’s ruling conformed with them. Sears found that “when the parties to a collective bargaining agreement have negotiated a clear, unambiguous subcontracting provision, an arbitrator lacks discretion to alter the effect of that provision by performing, sua sponte, a ‘balancing test’.” 683 F.2d at 156. The Company’s assertion that the arbitrator implicitly applied a “balancing test” is without merit. This assertion is based on pure conjecture since the arbitrator expressly disavowed basing his decision on equitable considerations. Arbitration Award at 40. His decision was based on the finding of discrimination.

Likewise, the arbitrator’s award did not disregard the Seventh Circuit’s holding in University of Chicago. That case held, inter alia, that an employer is free to transfer work out of the bargaining unit if it is not motivated by anti-union animus. 514 F.2d at 949. In the present case, the arbitrator found that the Company acted with a discriminatory purpose in its subcontracting decision. Thus, the arbitrator did not disregard University of Chicago.

III. CONCLUSION

For the reasons stated above, the Court finds that the arbitrator did not disregard the law and apply his own notions of equity. Thus, the Court upholds the arbitration award and enters summary judgment in favor of the Union. The Court remands this ease to Arbitrator Krinsky to resolve the issue of damages by determining the amounts that are owing and to whom owed pursuant to Paragraphs 4, 5 and 6 of his award.


author: STERN, District Judge.

text:
    UNITED STATES of America v. Lawrence C. FRACTION.
    Crim. No. 85-145.
    United States District Court, D. New Jersey.
    July 17, 1985.
    W. Hunt Dumont, U.S. Atty., by Jeremy D. Frey, Asst. U.S. Atty., Newark, N.J., for the U.S.

      John F. McMahon, Federal Public Defender by Richard Coughlin, Asst. Federal Public Defender, Camden, N.J., for defendant.
   OPINION

STERN, District Judge.

This matter comes before the Court on a motion to suppress by defendant Lawrence Fraction, who claims that a confession he made to Federal Bureau of Investigation Agent Henry W. White, Jr., was involuntary. An evidentiary hearing was held on June 5, 1985. For the reasons stated below, defendant’s motion is granted.

FACTS

On September 21, 1984, Agent White traveled to Rahway State Prison in New Jersey, where Mr. Fraction had recently started serving a fifteen-year state sentence, in order to question Fraction about the 1983 armed robbery of the First People’s State Bank of Woodbury, New Jersey. United States v. Fraction, Cr. No. 85-145, Tr. of June 5, 1985 at 5, 18 (D.N.J.) (henceforth cited as Tr. of June 5, 1985). Fraction was questioned in an interview room at the prison. Id. According to Agent White, as soon as he identified himself, “Mr. Fraction said something to the effect that: T was expecting you’ or ‘expecting you all.’ ” Id. at 6. White then had Fraction read his Miranda rights off “our form FD-395” and sign the waiver. Id. at 6-7. This form bearing Fraction’s signature was introduced into evidence. The last sentence reads: “I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.” Id. at 8. According to White, Fraction then stated that he was unwilling to testify against Samuel Hutchings. Id. And Fraction asked what he would get in return for cooperation. Id. at 16. Agent White testified:

At that time, I advised him that he would not have to testify against Mr. Hutchings.
I also told him that I would not be able to promise him anything in terms of help other than to notify the U.S. Attorney and a sentencing judge that he had cooperated in the matter. And that was the extent of what I could do for him.

Id. at 8.

Fraction proceeded to tell the story of the bank robbery, and the interview concluded after about one-half hour. Id. at 9. Agent White specifically denied making any promises relating to the sentence or treatment Fraction might get. Id. at 10. Finally, the Assistant U.S. Attorney introduced into evidence Mr. Fraction’s “three-page rap sheet” showing “an extensive criminal history of both felony convictions and numerous arrests.” Id. at 11.

Mr. Fraction’s version of the meeting is very different. He denied saying he was expecting Agent White or someone from his office. Id. at 19, 24. According to Mr. Fraction, Agent White initiated the interview by saying, “Well, I’m sure you know why I’m here,” and Fraction answered by denying any such knowledge. Agent White proceeded to report that he knew a lot about Fraction, and he knew that Fraction was involved in the March, 1983 bank robbery. Id. Fraction testified that he denied knowledge of the bank robbery and that he never indicated willingness to give a statement about the bank robbery. Id.

Mr. Fraction testified that Agent White intimated that it would “be better for me to go ahead and cooperate now, you know; that it would look better for me and possibly help me in my sentencing.” Id. at 20. Agent White proceeded to mention a “tentative parole date of something in ‘87,” of which Fraction was unaware. Id. Fraction confirmed that Agent White mentioned reporting cooperation to the U.S. Attorney and the judge, but Fraction claimed that White went on to say that “by my cooperating that I probably would receive a lenient sentence or a concurrent term.” Id. Fraction said he signed the Miranda waiver only because of the representations made by White. Id. at 21, 23.

It is undisputed that the meeting was not witnessed, and that Agent White made no written or taped record of the interview.

DISCUSSION

With due allowance for the frailty of human memory, the Court finds no reason to disbelieve Agent White’s version of what was said at his meeting with Mr. Fraction. The Court finds no reason to believe that Agent White explicitly offered or discussed a light sentence or a concurrent sentence in order to induce Mr. Fraction to incriminate himself. Under the circumstances of this case, however, the Court finds little difference between such explicit promises of leniency and what Agent White himself acknowledges he did promise Mr. Fraction: That Fraction’s cooperation would be brought to the attention of the prosecutor and the sentencing judge.

In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975), the Court held that Miranda warnings are merely evidence, not proof, that a defendant knowingly and voluntarily waived the constitutional privilege against self-incrimination. The test for voluntariness has been variously phrased. In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Court asked whether defendant’s statements were “the product of his free and rational choice.” Id. at 401, 98 S.Ct. at 2418 (quoting Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 77 (1968)). In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), the Court asked, “Is the confession a product of an essentially free and unconstrained choice by its maker? ... [or has] his will been overborne, and his capacity for self-determination critically impairedf?].” Id. at 602, 81 S.Ct. at 1879. In Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957), the Court’s inquiry focused on whether the circumstances deprived the defendant of “the power of resistance.” Id. at 198, 77 S.Ct. at 285.

In the usual situation, the question is whether the confession was induced by force, threats or fear, but there is no doubt that promises of leniency may also render a confession involuntary. See Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (per curiam); Brady v. United States, 397 U.S. 742, 753-54, 90 S.Ct. 1463, 1471-72, 25 L.Ed.2d 747 (1970) (dealing with analogous area of guilty pleas); Shotwell Manufacturing Company v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357 (1963). In Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), the Court went considerably further than to say that such promises may render a confession involuntary:

[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence____

Id. at 542-43, 18 S.Ct. at 186-87 (emphasis added). The government urges us to believe that this standard is not the law today. The fact is, however, that Bram has never been overruled. See United States v. Sibley, 535 F.Supp. 208, 211 (E.D.Pa.), aff'd, 692 F.2d 750 (3d Cir.1982). The Supreme Court has continued to cite this specific passage from Bram with approval. United States v. Raddatz, 447 U.S. 667, 671, 100 S.Ct. 2406, 2410, 65 L.Ed.2d 424 (1980); Hutto, 429 U.S. at 30, 97 S.Ct. at 203; United States v. Mandujano, 425 U.S. 564, 586 n. 3, 96 S.Ct. 1768, 1781 n. 3, 48 L.Ed.2d 212 (1976) (Brennan, J., concurring); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973).

The cases cited by the government do not suggest that Bram is overruled. They merely reject “wooden” application of Bram. See United States v. Reynolds, 532 F.2d 1150, 1158-59 (7th Cir. 1976); Sibley, 535 F.Supp. at 211-12. We agree that a “wooden” or literal application of Bram is inappropriate. No bright line standard exists for determining the'voluntariness of a confession. That determination must be made on the facts of each case, and “requires more than a mere color matching of cases.” Mincey v. Arizona, 437 U.S. 385, 401, 98 S.Ct. 2408, 2418, 57 L.Ed.2d 290 (1978) (quoting Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948 (1961)). Whether a waiver of fifth amendment rights has occurred voluntarily must be determined in consideration of the “totality of the circumstances.” Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957); see also North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979). Any number of factors have figured large in these determinations. See Mincey, 437 U.S. at 398, 98 S.Ct. at 2416 (defendant in pain from gunshot wound); id. at 409, 98 S.Ct. at 2422 (“relentless” questioning); Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966) (low intelligence of accused); Spano v. New York, 360 U.S. 315, 318-19, 79 S.Ct. 1202, 1204, 3 L.Ed.2d 1265 (1959) (police use of trickery to gain accused’s sympathy for interrogator); Crooker v. California, 357 U.S. 433, 438, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958) (age and education of accused); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) (psychiatrist used to subtly elicit confession).

The United States has brought to this Court’s attention a number of decisions by Courts of Appeals outside the Third Circuit, holding that a promise to bring cooperation to the attention of the prosecutor was insufficient to render a confession involuntary. In all of these cases, however, the accused was at liberty when he was arrested and then questioned. United States v. Hart, 619 F.2d 325, 326 (4th Cir. 1980); United States v. Fera, 616 F.2d 590, 593 (1st Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980); United States v. Posey, 611 F.2d 1389, 1390 (5th Cir.1980); United States v. Curtis, 562 F.2d 1153, 1154 (9th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978); United States v. Springer, 460 F.2d 1344, 1346 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v. Glasgow, 451 F.2d 557, 558 (9th Cir.1971); United States v. Frazier, 434 F.2d 994, 995 (5th Cir.1970); United States v. Cone, 354 F.2d 119, 121 (2d Cir.1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1958, 16 L.Ed.2d 1026 (1966).

Mr. Fraction, by contrast, was incarcerated in a maximum security penitentiary. He was in the first year of a fifteen-year sentence for another offense. We find this to be an important distinction from the cases cited in the government’s excellent brief. The Sibley decision, which the government cites in support of its view that Bram has been limited, was itself limited as follows: “... [Sjeveral circuit courts have questioned the complete applicability of Bram to non-custodial questioning.” 535 F.Supp. at 211 (emphasis added). We do not go so far as to hold that a custodial setting will always require a court to apply literally the Bram ban on confessions “obtained by any direct or implied promises, however slight.” 168 U.S. at 542-43, 18 S.Ct. at 186-87. But we agree with the suggestion in Sibley that a custodial setting is highly relevant to determining how literally Bram should be read.

There is another unusual factor present here. Unlike most of the cases cited by the government, Agent White promised to bring any cooperation to the attention of the sentencing judge, as well as the U.S. Attorney. Whereas a pledge to bring cooperation to the attention of the prosecutor might be construed as nothing more than “a proper and accurate statement of fact,” Cone, 354 F.2d at 122, Agent White's suggestion that he would bring any cooperation to the attention of the sentencing judge is a different matter. First, such an assurance makes the suggestion of leniency far more palpable. Secondly, a direct communication between an FBI agent and a sentencing judge would be highly unusual. Perhaps Agent White had in mind the possibility that Fraction’s cooperation would be reported to the sentencing judge by the U.S. Attorney or by the Probation Department in the Pre-Sentence Report. If so, however, Agent White promised that which he could not necessarily deliver.

In assessing the impact both of Agent White’s remarks and of Mr. Fraction’s incarceration, it is important to remember that, as the Fourth Circuit put it, “[t]he perspective from which the statements must be viewed is that of the defendant, not the prosecutor’s.” Grades v. Boles, 398 F.2d 409, 412 (4th Cir.1968). See also United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, 516 (E.D.N.Y.1967) (Weinstein, J., ruling that “[i]f, at the time he pled guilty, the defendant believed that a coercive promise or threat had been made by either the court or the prosecutor, though in fact no such promise or threat had been made, and his plea was induced by this belief, it is an involuntary and void plea.”); United States ex rel. Casserino v. Denno, 259 F.Supp. 784, 790 (S.D.N.Y.1966) (Weinfeld, J., holding confession inadmissible where accused “reasonably understood” it as part of a bargain for leniency).

A pledge to bring cooperation to the attention of the sentencing judge might seem a small promise. Under the circumstances of this case, however, we find the promise meant a great deal to Fraction. Fraction asked White what he would get in exchange for cooperating. Tr. of June 5, 1985 at 16. White answered that he would notify the U.S. Attorney and the sentencing judge of the cooperation. Id. at 8. Only then did Fraction confess. Id. at 9. It is clear to this Court, after hearing the testimony, that Fraction thought he was making a deal whereby he would get a more sympathetic climate at sentencing in exchange for agreeing to confess to White. The Assistant U.S. Attorney acknowledged that Fraction thought he was getting an assurance that “things would happen in the way he anticipated.” Id. at 39-40. The Assistant conceded his inability to supply another interpretation:

THE COURT: ...
I believe ... when both of them spoke ... they were speaking in a code. And the code says: Talk and we’ll make it easier for you.
That’s what the words mean. I defy you to give me another meaning to them. Would you like to?
MR. FREY: No, judge.

Id. at 40.

The plain truth is that the words the agent spoke were calculated to induce Fraction to waive his right to be silent by implying that he would get a break from the judge. An interrogating agent has no business invoking the spectre of a sentencing judge in order to induce a suspect to waive his right to silence.

      . This opinion is filed pursuant to Rule 28 of the General Rules of the United States District Court for the District of New Jersey, and augments an oral opinion given from the bench.

      . Nor was the accused incarcerated at the time of questioning in three other cases not discussed by the government. United States v. Packer, 730 F.2d 1151, 1154 (8th Cir.1984); United States v. Vera, 701 F.2d 1349, 1353-54 (11th Cir.1983); United States v. Jacks, 634 F.2d 390, 392 (8th Cir.1980).

      . In four of the circuit cases, the defendant was merely told that cooperation would be brought to the attention of the U.S. Attorney. Fera, 616 F.2d at 594; Curtis, 562 F.2d at 1154; Frazier, 434 F.2d at 995-95; Cone, 354 F.2d at 122. In one case, the accused was also told that cooperation might affect the amount of his bond.
        Hart, 619 F.2d at 326. In three cases, the accused was told that cooperation would be brought to the attention of the U.S. Attorney and "the court." Posey, 611 F.2d at 1390; Springer, 460 F.2d at 1347; Glasgow, 451 F.2d at 558. In one case, the accused was told that cooperation would be brought to the attention of "the court.” Jacks, 634 F.2d at 393. In two cases the accused was told that cooperation would be made known to "the appropriate authority.” Packer, 730 F.2d at 1158; Vera, 701 F.2d at 1364.


author: LEISURE, District Judge:

text:
    Ruth RUBINFELD, Plaintiff, v. BAHAMA CRUISE LINE, INC., Defendant.
    No. 83 Civ. 2265 (PKL).
    United States District Court, S.D. New York.
    July 17, 1985.
    Gary A. Zucker, Brooklyn, N.Y., for plaintiff.
    Michael D. Martocci, New York City, for defendant.
   OPINION AND ORDER

LEISURE, District Judge:

Ruth Rubinfeld (“Rubinfeld”) brought this action against Bahama Cruise Line, Inc. (“Bahama”) for injuries sustained when Rubinfeld allegedly fell from the gangway of Bahama’s ship. Rubinfeld is a New York resident. Bahama is incorporated under the laws of the Cayman Islands and has offices in New York City, Tampa and Miami. While Bahama admits that the Court has jurisdiction in admiralty under 28 U.S.C. § 1333, Bahama contests Rubinfeld’s assertion that jurisdiction also may be based on diversity under 28 U.S.C. § 1332. This action is before me on Bahama’s motion to strike plaintiff’s jury demand. Since an action based on admiralty under § 1333 normally does not give rise to the right to a jury trial, this action must also be based on diversity for a jury trial to occur. See Fed.R.Civ.P. 9(h) and 38(e). For the reasons presented below, defendant’s motion is granted.

Rubinfeld asserts that diversity exists by virtue of Rubinfeld being a citizen of New York and Bahama being a citizen of the Cayman Islands. Bahama contends that (1) its principal place of business is in New York and, therefore, (2) it is a citizen of New York for diversity purposes. Rubinfeld contests both these assertions.

The applicability of § 1332(c) to alien corporations is an unsettled question in this Circuit. Traditionally, an alien corporation was a citizen only of the country of its incorporation. In 1958, Congress amended § 1332 to create dual citizenship for a corporation by deeming it a citizen of the State where it has its principal place of business. Congress did not specify whether this provision applies only to domestic corporations or to alien corporations as well. Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 32 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982).

Initially, courts presumed that the 1958 amendment did not alter the citizenship status of alien corporations. See 1 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore’s Federal Practice 110.75[3] (2d ed. 1985). In the leading case so finding, Eisenberg v. Commercial Union Assurance Co., 189 F.Supp. 500, 502 (S.D.N.Y.1960), Judge Dimock relied on statutory construction of § 1332(c) to find that the capitalization of State, together with the clause referring to the State of its incorporation, indicated that this provision only applies to domestic corporations. Courts in this District initially followed this determination. E.g., Tsakonites v. Transpacific Carriers Corp., 246 F.Supp. 634 (S.D.N.Y.1965), aff'd, 368 F.2d 426 (2d Cir. 1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 434 (1967); Chemical Transportation Corp. v. Metropolitan Petroleum Corp., 246 F.Supp. 563 (S.D.N.Y.1964); Mazzella v. Pan Oceanica A/S Panama, 232 F.Supp. 29 (S.D.N.Y.1964).

The leading district court case in reaching the opposite conclusion, that § 1332(c) applies to alien corporations, is Southeast Guaranty Trust Co. v. Rodman & Renshaw, Inc., 358 F.Supp. 1001 (N.D.Ill.1973). The court rejected the Eisenberg construction on the ground that the interpretation did not necessarily follow from the language of the statute. Id. at 1007. Moreover, the court found that the purposes of the 1958 amendment, to eliminate federal court jurisdiction over local disputes involving a corporation with its principal place of business in the state of its adversary’s citizenship, would be served by applying § 1332(c) to alien corporations. Id. at 1007.

The Second Circuit briefly commented on this question in dictum as follows:

[Ajlien corporations organized under the laws of another country ... are probably deemed to be citizens exclusively of [the foreign country] for diversity purposes [citations omitted] ... While the opposite argument has been adopted by the American Law Institute ..., which has received support from learned authority, H. Friendly [citation omitted], the proposal is in the form of a suggested statutory amendment, indicating that the argument is better addressed to Congress than to the courts.

Clarkson Co. v. Shaheen, 544 F.2d 624, 628 n. 5 (2d Cir.1976). Subsequently, the Fifth Circuit, the only Circuit to decide this issue, found that § 1332(c) applies to alien corporations. Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31 (5th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). After noting that neither the statutory language or the legislative history indicated whether § 1332(c) applies to alien corporations, the Jerguson court discussed the relevant case law, including the Second Circuit comment. The court explained that Congress intended, in adopting § 1332(c), “to eradicate a perceived abuse engendered by the citizenship by incorporation rule,” whereby a local institution could avoid state court by resorting to the legal fiction that it was a citizen only where it chose to be incorporated, not where it conducted its business. Id. at 32-33. With this purpose in mind, the court found no reason to treat a corporation organized in a foreign country differently from a corporation organized in a foreign state. Id. at 35.

Prior to the Fifth Circuit decision, the Southeast Guaranty interpretation had a mixed reception in this District. In Bergen Shipping Co. v. Japan Marine Services, Ltd., 386 F.Supp. 430 (S.D.N.Y.1974), Judge Conner accepted the new rule and further concluded that the Court had diversity jurisdiction over a suit between two alien corporations when one corporation had its principal place of business in New York. The Second Circuit rejected an assertion similar to the second prong of his holding in a subsequent case by stating, “We need not reach the issue of whether or not 28 U.S.C. § 1332(c) applies to alien corporations, however, because it is enough in this case to hold that, even assuming dual citizenship, the fact that alien parties were present bn both sides would destroy complete diversity.” Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir.1980). Furthermore, Judge Conner, in Bergen Shipping, stated that the diversity issue was not determinative of the jurisdictional question since the suit could also be based on admiralty. 386 F.Supp. at 433-434.

Another case cited as following the Southeast Guaranty interpretation is Arab International Bank & Trust Co. v. National Westminster Bank Ltd., 463 F.Supp. 1145 (S.D.N.Y.1979), although the Court’s acceptance of the new rule is not absolute. Judge Sand “assume[d] for the purposes of this decision that § 1332(c) applies to alien corporations” and recognized that this is the “trend of recent decisions.” Id. at 1147. Yet, Judge Sand noted that whichever interpretation he applied, on the facts of the case before him, the result was the same. Id. at 1147-48.

Judge Carter declined to apply §■ 1332(c) to an alien corporation in Salomon Englander y Cia Ltda v. Israel Discount Bank, 494 F.Supp. 914 (S.D.N.Y.1980). Judge Carter discussed the differing interpretations and concluded, after citing the Second Circuit dictum in Clarkson, that the traditional rule should be followed until Congress addressed the problem. Id. at 917-18.

In light of the division in the case law of this District and noting that the cases that squarely addressed the issue did so prior to the Fifth Circuit determination, I am inclined to follow the Fifth Circuit holding in Jerguson. The reasoning of the Jerguson court, that there is no logical basis for distinguishing domestic and foreign corporations in effectuating the purpose of § 1332(c), is compelling. I therefore find that § 1332(c) applies to alien corporations and Bahama is a citizen for diversity purposes of the state of its principal place of business. Accordingly, defendant’s motion is granted.

In the event that I find that § 1332(c) applies to alien corporations, Rubinfeld has requested the opportunity to conduct additional discovery to determine whether Bahama’s principal place of business is indeed in New York. Bahama has stated that nearly all of Bahama’s business is conducted out of its New York City office, where its President, Treasurer/Financial Controller, and Claims Manager are located. Rubinfeld asserts that since Bahama has two offices in Florida, in Tampa and Miami, Florida may be its principal place of business. It appears to the Court from the papers already submitted that Bahama’s principal place of business is in New York. However, I agree to stay the effect of this order for ninety days to permit Rubinfeld to conduct additional discovery and allow the parties to submit additional papers in this regard.

SO ORDERED.

      . Section 1332(a)(2) establishes diversity jurisdiction for actions between "citizens of a State and citizens or subjects of a foreign state."

      . Section 1332(c) provides that "a corporation shall be deemed a citizen of any State by which it is incorporated and of the State where it has its principal place of business."

      . Other cases in this District where the issue has arisen since Southeast Guaranty include: De Wit v. K.L.M. Royal Dutch Airlines, N.V., 570 F.Supp. 613, 616 n. 5 (S.D.N.Y.1983) (finding it unnecessary to resolve the question for the purposes of the case); Oppenheimer Reinsurance Co. v. Alexander & Alexander, Inc., 79 Civ. 2151 (S.D.N.Y. December 27, 1979) cited in Salomon Englander y Cia Ltda, 494 F.Supp. at 917, (cited for following Southeast Guaranty, but this unreported decision is presently unavailable); Jerro v. Home Lines, Inc., 377 F.Supp. 670 (S.D.N.Y.1974) (applying § 1332(c) to an alien corporation without mentioning this disputed question).


author: WILLIAM C. CONNER, District Judge.

text:
    Felipe GARCIA, Petitioner, v. WARDEN, DANNEMORA CORRECTIONAL FACILITY, Respondent.
    No. 81 Civ. 3534 (WCC).
    United States District Court, S.D. New York.
    July 18, 1985.

      J. Jeffrey Weisenfeld, New York City, for petitioner.
    Robert M. Morgenthau, Dist. Atty., for New York County, New York City, for respondent; Norman Barclay, Carol Ethridge Gette, Asst. Dist. Attys., New York City, of counsel.

      . Although petitioner names the "Warden" of "Dannemora Correctional Facility" as the respondent in this action, the appropriate respondent is Eugene LeFevre, Superintendent of Clinton Correctional Facility. Clinton Correctional Facility is located in Dannemora, New York.

   OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

Petitioner Felipe Garcia (“Garcia”) was tried and convicted of four counts of second degree murder by a jury sitting in New York Supreme Court, New York County. On May 23, 1978, he was sentenced to four concurrent indeterminate prison terms of twenty years to life. Garcia appealed, and on February 3, 1981, the Appellate Division of the New York Supreme Court unanimously affirmed his conviction without opinion. People v. Garcia, 80 A.D.2d 753, 436 N.Y.S.2d 906 (1st Dept.1981). The New York Court of Appeals subsequently denied him leave to appeal.

In June of 1981, Garcia petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argued that he had been deprived of due process in that: (1) no reasonable jury could have convicted him based on the evidence presented at trial; (2) the trial judge impermissibly intruded into the court proceedings and thereby deprived him of a fair trial; and (3) the jury charge on intent impermissibly shifted the burden of proof to the defense, contrary to the United States Supreme Court’s ruling in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In an Opinion and Order dated October 9, 1981, I ruled that petitioner had failed to exhaust his state remedies with respect to the first and second claims because he had failed to present them to the state appellate courts in constitutional terms. I also found that his failure to object to the jury charge at trial barred him from raising his third claim in this Court. I therefore dismissed the petition.

Shortly after I issued my Opinion and Order, the Court of Appeals for the Second Circuit ruled that where a defendant has failed specifically to frame his claims in federal constitutional terms on direct appeal, his state remedies will nonetheless be deemed exhausted if he relied in his argument on state cases employing a constitutional analysis. Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc) After the decision in Daye was announced, Garcia was granted a certificate of probable cause to appeal from the order dismissing his petition. He subsequently filed an appeal challenging this Court’s rulings with respect to exhaustion of his first and second claims, and on the basis of the new authority, the Court of Appeals found that petitioner had effectively exhausted his state remedies on the insufficiency and interference claims. Accordingly, the court remanded these two issues for further consideration.

The parties have once again addressed the sufficiency of the evidence adduced at Garcia’s trial and the prejudice allegedly resulting from intrusions by the trial judge. For the reasons below, I reject petitioner’s arguments, and once again conclude that the petition must be dismissed.

I. Sufficiency of the Evidence

A defendant challenging the sufficiency of the evidence adduced at his state criminal trial is entitled to habeas corpus relief in federal court only if the court finds that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). The federal court does not perform its own independent evaluation of the evidence; rather, it must view the record in the light most favorable to the prosecution. Id. at 319, 99 S.Ct. at 2789. Under this standard, Garcia’s insufficiency argument is clearly without merit.

During Garcia’s trial, the People of the State of New York (“the People”) introduced the following evidence in their direct case: On the morning of February 13, 1977, Collins Monden and Phillip Moulton-Peddie were shot and killed in the small vestibule of an apartment building on 147th Street in Harlem. Both victims were shot with a .38 caliber revolver, and jewelry worth $4,000 was taken from Monden.

The vestibule was located just inside the front door of the building, and was separated from the main lobby by a locked door. The superintendent testified that no one could leave or enter the building except through the front door and the vestibule.

Sonia Tarleton, a friend of Monden’s, testified that on the night of the murders, she, Monden and Moulton-Peddie had met at a nightclub and decided to buy cocaine. Monden approached Garcia — who was wearing a black suit and a white shirt with an open collar — about a possible purchase. Tarleton, Monden, Moulton-Peddie, Garcia, and Garcia’s girlfriend then left the club together, and went to 147th Street. Tarleton testified that she sat in Monden’s car, directly across the street from the building where the murders occurred, while the others walked up the block to make a phone call. Soon thereafter, they returned and entered the building through the front door. Tarleton testified that from this point forward she kept a constant watch on the front door of the apartment building.

Tarleton testified that she saw Garcia’s girlfriend leave the building and walk away. Two minutes later, Garcia emerged, met his girlfriend (who by this time was moving back toward the building), and walked away with her. Tarleton next saw a woman step out the front door of the building and attract the attention of a man passing on the street. At this point Tarleton left her car and entered the vestibule, where she discovered the bodies. She testified that she had not seen anyone enter the building other than Garcia, Garcia’s girlfriend, and the two victims. Her car windows had been closed, and she had heard no gunshots.

Two tenants of the building, Marie Lyons and Florence Carrington, testified that they did hear gunshots. Lyons heard two shots, went to her window, and saw a man wearing a dark suit with an open shirt collar leaving the building. Carrington heard the shots, raced downstairs, and discovered the bodies of the victims in the vestibule. She notified the superintendent, then returned to the lobby, went through the vestibule and out the front door in order to summon help. She flagged a passerby, told him to notify the police, then went to Lyons’s apartment, where she learned that Lyons had already called the police. Police arrived shortly thereafter and found the bodies.

Garcia was subsequently arrested and charged with both murders. On April 1, 1977, he gave a New York City Police Department detective a sworn account of his whereabouts on February 13th, and at trial, the prosecution read into the record stenotyped notes of that statement. Garcia did not deny being in the vestibule with the victims, but his account of the events included a fifth person, one Raymond Ventura. Garcia said that he was about to sell drugs to Monden and Moulten-Peddie when Ventura entered the vestibule, told Garcia there would be no transaction, and ordered Garcia and his girlfriend to leave. Garcia maintained that he complied with Ventura’s order and was about forty-five feet from the building when he heard two gunshots. He kept walking. Garcia said that he saw Ventura two days later, and at that time Ventura admitted murdering the two men.

After the People rested, the defense adduced the following evidence: An individual named Marino Jimenez testified that he had overheard a conversation between Garcia and Ventura in a nightclub washroom, during which Ventura admitted the murders. Jimenez also testified that Ventura told Garcia he had killed Monden and Moulton-Peddie because they owed him money. According to Jimenez, neither Garcia nor Ventura appeared to be aware of his presence during this conversation. Jimenez testified that he came forward with this information upon learning Garcia was to be tried for the two murders, one month before the trial was scheduled to begin.

The prosecution vigorously cross-examined Jimenez in hopes of establishing that his story of Ventura’s restroom confession was a total fabrication. It established that Jimenez was a confidential informant for the New York City Police Department at the time he overheard the alleged conversation, but that he did not immediately report this conversation to the police, as he might have been expected to do. Moreover, when later arrested for an unrelated offense, he did not attempt to trade on this information as he had done on a previous occasion. The prosecution also established that five months prior to Garcia’s trial, Jimenez and Garcia had been confined together and had engaged in conversation. Jimenez admitted that they talked about Ventura, but denied that they talked about Garcia’s case. The defense also called Ventura, who testified under a limited testimonial immunity that he was never inside the vestibule on the morning of the murders. At the conclusion of Ventura’s testimony, the defense rested.

In support of his challenge to the sufficiency of the evidence, petitioner now argues that his account of events surrounding the murders is undeniably accurate. According to petitioner, inconsistencies in Tarleton’s testimony conclusively demonstrate that she was an inattentive witness, and that she therefore failed to see Ventura enter and exit the building. Petitioner argues further that no reasonable jury could have failed to credit Jimenez’s testimony. I find these arguments wholly meritless.

Petitioner asserts that Tarleton focused only on the comings and goings of Garcia, Garcia's girlfriend, and the two victims, and that this preoccupation prevented her from observing Ventura’s movements at the murder scene. In support of this argument, petitioner highlights conflicts in Tarleton’s testimony. He cites Tarleton’s statement that she saw Garcia and his girlfriend flee the murder scene together, and compares it with Lyons’s testimony that after she heard the shots, she saw a man leave the building alone. He also points to Carrington’s testimony that the stranger she flagged down in the street never left the front of the building, and contrasts it with Tarleton’s statement that the stranger left briefly and returned with police assistance. According to petitioner, these inconsistencies thoroughly undermine Tarleton’s testimony, and devastate the prosecution’s case against Garcia.

I have carefully reviewed the evidence and it is obvious to me that Tarleton’s testimony is not materially inconsistent with either Lyons’s testimony or Carrington’s testimony. Lyons could have seen Garcia immediately after the shots were fired, just as he walked out the door and before he met his girlfriend on the street. It is also quite possible that while Carrington rushed from the front of the building to Lyons’s apartment, the stranger she had stopped left momentarily, found a policeman, and quickly returned to the murder scene without Carrington having realized he was gone. The apparent inconsistencies noted by petitioner may reflect only the different perspectives from which the witnesses viewed the critical events, and certainly do not lead inescapably to the conclusion that Tarleton was inattentive. Tarleton testified that she carefully watched the building. Even if she had been distracted briefly, it seems to me highly unlikely she would have overlooked both Ventura’s entrance into the building and his exit. Apparently the jury reached a similar conclusion.

Petitioner’s second argument, that no reasonable jury could have found Garcia guilty beyond a reasonable doubt after hearing Jimenez’s testimony, is also without merit. Jimenez’s credibility was substantially impeached on cross-examination, first by evidence of his prior criminal record, and second, by his admitted failure to try to capitalize on his purported knowledge during criminal proceedings against him. Moreover, evidence of Jimenez’s conversation with Garcia five months prior to the trial added to the possibility that he fabricated his account at Garcia’s behest. When all the evidence is viewed in the light most favorable to the prosecution, it is obvious that the jury could properly have rejected Jimenez’s testimony in its entirety.

I have reviewed the summations given by both trial counsel, and I am satisfied that the issues raised here were placed squarely before the jury for its consideration. Tr. at 1826-1838, 1909-1915. The jury obviously rejected petitioner’s view of Tarleton’s reliability and Jimenez’s credibility, and I conclude that there was ample evidence upon which it could rationally do so. Accordingly, I reject the argument that the evidence was insufficient to prove Garcia guilty beyond a reasonable doubt.

Judicial Intrusion

Petitioner’s second argument is that the trial judge impermissibly intruded into the trial process by making faces to express his disbelief of defense witnesses, taking control of the questioning, interrogating defense witnesses in such a sarcastic tone as to “destroy” their testimony, and marshalling the evidence in a manner which bolstered the People’s case and left the jury “with the clear impression that the court felt Garcia was guilty.” Pet.Mem. at 8. According to petitioner, this excessive and biased intrusion deprived him of a fair and impartial trial.

Petitioner raised precisely this argument on his direct appeal, and the People responded that he was procedurally barred from raising the claim because he had failed to interpose a contemporaneous objection as required under New York Criminal Procedure Law § 470.05(2). The People argued, alternatively, that the claim should be denied on its merits. The Appellate Division subsequently affirmed Garcia’s conviction without opinion, and under the law of this circuit, the Court is to presume that the state appellate court relied on the procedural grounds rather than reaching the merits. See, e.g., Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.1982).

It is well-settled that where a state court has refused to consider the merits of a claim because of a procedural default on the part of the defendant, federal habeas corpus review is unavailable absent a showing of both cause for the default and “actual prejudice” arising from the error. Wainwright v. Sykes, 433 U.S. 72, 84-91, 97 S.Ct. 2497, 2505-2509, 53 L.Ed.2d 594 (1972). Despite respondent’s thorough discussion of the Wainwright cause and prejudice standard in his memorandum of law, petitioner has declined specifically to address these arguments in either his memorandum-in-ehief or his reply memorandum. Under the circumstances, it hardly seems appropriate for the Court to scour the record in search of some justification for petitioner’s default, or to construct an “actual prejudice” argument for him. I therefore note below only a few factors which lead me to conclude that Garcia would be unable to make the requisite showing, and that his petition should be denied.

There is no denying that the judge was quite actively involved in Garcia’s trial. Nonetheless, judicial intervention is not forbidden and, at times, it is necessary to an orderly and efficient presentation of the evidence. For this reason, it is important that defense counsel object when he or she perceives that the judge has overstepped the bounds of propriety. Defense counsel in this case was by no means oblivious to that obligation. Early in the trial, he mentioned that he had done appellate work and therefore fully understood the importance of making a record for review. Thereafter, he did raise numerous objections; in fact, on several isolated occasions he objected to leading questions put to the witnesses by the judge, and once he objected to a face the judge had made. At no time did he suggest, however, that the judge had embarked on a course which was “excessive” or “biased,” and which conveyed his belief that petitioner was guilty. On at least one occasion, counsel even encouraged the judge to become involved in the examination of a defense witness. In light of these factors, I can only conclude that if counsel had thought there was reason to object to the judge’s general course of conduct, he would have done so without hesitation.

I am thoroughly unpersuaded by petitioner’s argument that he was not aware he had to object to the general course of the judge’s conduct, as opposed to specific questions or comments, in order to preserve his constitutional claim. He relies on the fact that his trial occurred before the New York Court of Appeals issued its memorandum opinion in People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399, 438 N.E.2d 1114 (1982), holding that by directing objections only to specific questions interposed by the trial judge, the defendant had failed to preserve his claim that excessive judicial intrusion deprived him of a fair trial. In Garcia’s case, as in Charleston, defense counsel simply could not. have assumed that by objecting to specific questions or comments, he was apprising the judge of the real nature of the allegedly prejudicial conduct. Moreover, as the United States Supreme Court has indicated:

[T]he Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim. Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.

Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982) (citation omitted).

To the extent that petitioner hopes to establish cause for his default by pointing to the appellate “track record” of this particular judge — a record which includes numerous rebukes and reversals for precisely the sort of conduct complained of here — and arguing therefrom that the judge needed no warning, the reasoning is not persuasive. If the trial judge has a long history of prejudicial behavior, that should increase, rather than diminish, the need for registering objection at any early indication that the pattern might be repeated.

I note, finally, that petitioner would be hard pressed to demonstrate sufficient actual prejudice to meet the Wainwright v. Sykes standard. Trial counsel did object, at one point, to a facial expression he observed the judge make. The judge denied making a face, and offered to poll the jury to see whether they had perceived such an expression. Counsel declined to take advantage of this offer and never suggested that the judge give any cautionary instruction instead. From this I can only conclude that counsel did not consider the conduct especially prejudicial. With respect to the interrogation of witnesses by the Court, the following instruction was given to the jury at the close of the trial:

The fact that I pose questions to a witness does not indicate that I have any opinion with regard to the facts in this case, nor does it indicate that I have any opinion with regard to the unbelievability or lack of believability to that which the witness has testified. I ask those questions in order to clarify and enlighten the issues in this case for you.

Tr. at 1941.

For all of the foregoing reasons, I conclude that petitioner has demonstrated neither cause nor prejudice sufficient to excuse his procedural default, as he must under Wainwright v. Sykes. Accordingly, the petition is dismissed.

SO ORDERED.

      . The court in Daye reasoned that the cases cited to the state appellate courts gave them a fair opportunity to pass upon the federal claims, and thus provided the effective equivalent of exhaustion of state remedies. Daye, 696 F.2d at 195.

      . Garcia was charged with and convicted of two counts of intentional murder and two counts of felony murder.

      . Immediately prior to Ventura’s testimony, the following colloquy occurred:
      The Court: What is your application?
      Defense Counsel: That I anticipate that this is going to be a recalcitrant witness, a hostile witness, and I would ask for some leeway in questioning, and also, actually, the Court’s aid regarding eliciting his testimony.
      The Court: You want me to participate and intrude in the questioning in order to get information?
      Defense Counsel: If you see it is getting difficult.
      The Court: I will be happy to assist you in that regard.
      Tr. at 1704-05.