author: WISEMAN, Chief Judge.

text:
    R. Eddie WAYLAND, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, National Labor Relations Board, Region 5: Louis J. D’Amico, Regional Director: Mary M. Shanklin, Director, Office of Appeals, Defendants.
    No. 3-85-0553.
    United States District Court, M.D. Tennessee, Nashville Division.
    Feb. 11, 1986.

      Matthew C. Lonergan, R. Eddie Way-land, King, Ballow & Little, Nashville, Tenn., for plaintiff.
    Aileen A. Armstrong, Asst. Gen. Counsel for Special Litigation N.L.R.B., Susan T. Papadopoulos, Washington, D.C., for defendants.
   MEMORANDUM

WISEMAN, Chief Judge.

Plaintiff, Eddie Wayland, brings this action against defendants, the National Labor Relations Board (“NLRB”); Louis D’Ami-co, NLRB Region 5 Director; and Mary Shanklin, Director of the NLRB General Counsel’s Office of Appeals, seeking disclosure of certain documents pursuant to the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552. The documents plaintiff seeks relate to two closed unfair labor practice cases. Defendants contend that the materials sought are exempt from disclosure under FOIA exemptions 5, 7(A), (C), and (D). 5 U.S.C. § 552(b)(5), 7(A), (C), (D). The parties have filed cross motions for summary judgment. Jurisdiction has been conferred on this Court by 5 U.S.C. § 552(a)(4)(B).

The facts are undisputed. On January 8, 1985, plaintiff filed a request for documents contained in two unfair labor practice case files with the NLRB pursuant to the provisions of FOIA. Both cases involved charges filed by the Baltimore Newspaper Graphic Communications Union, Local 31. The union subsequently withdrew both the charges, and the cases were closed at the time plaintiff filed his request. By letter dated January 25, 1985, the NLRB Regional Director released copies of several documents, and withheld others. By letter dated March 12, 1985, the NLRB’s Regional Counsel denied plaintiff’s appeal seeking the withheld documents. On May 3, 1985, plaintiff filed the present action seeking to compel disclosure of the withheld documents. The NLRB’s Assistant General Counsel for Special Litigation subsequently released copies of a few documents found to be erroneously withheld.

Defendants have filed a “Vaughn Index-of Documents Withheld” describing each document and the applicable FOIA exemptions invoked. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). The Vaughn Index reveals that the following 25 documents have been withheld: three witness statements or affidavits given to a Board examiner in connection with the investigation of the unfair labor practice charges; one casehandling chronology recorded by the investigating Board examiner; two logs of Board investigator’s contacts; seven sets of handwritten notes by Board examiners or their supervisors concerning evidence gathered by investigation; seven documents containing summary reports and/or agenda outlines which discuss and analyze the relevant evidence acquired by investigation and recommend a particular course of action be taken by the Region; the draft and confirmation copy of a mailgram from the Board examiner to a witness; a handwritten list of questions to be addressed to a particular witness; and two letters.

The FOIA requires disclosure of requested material in the possession of a federal agency unless that material falls within one of the nine statutory exemptions structured to protect specified confidentiality and privacy interests. NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159, 165-66 (1978). These statutory exemptions are to be narrowly construed with all doubts resolved in favor of disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 361-62, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11, 21 (1976). The agency resisting disclosure bears the burden of establishing the exempt status of the requested material, 5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119, 128 (1973), and is required to present a detailed justification for nondisclosure in order to carry its burden. See Parke, Davis & Co. v. Califano, 623 F.2d 1, 7 (6th Cir.1980). The FOIA provides for de novo judicial review of an agency’s determination to withhold requested material. 5 U.S.C. § 552(a)(4)(B). Mink, 410 U.S. at 79, 93 S.Ct. at 832, 35 L.Ed.2d at 128.

Exemption 5

The NLRB claims that several of the requested documents are protected from disclosure by exemption 5. Exemption 5 permits an agency to withhold:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency

5 U.S.C. § 552(B)(5). Exemption 5 has been held to encompass recognized civil discovery privileges, FTC v. Grolier, Inc., 462 U.S. 19, 26, 103 S.Ct. 2209, 2214, 76 L.Ed.2d 387, 393 (1983), and the deliberative process, or “executive,” privilege. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29, 47-48 (1975).

A. Witness Statements

Defendants argue that the witness statements (Vaughn Index Nos. 3, 11, 12) fall within the attorney work product privilege and/or the deliberative process privilege. In NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29, 49 (1975), the Supreme Court ruled that “memoranda prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the case and his litigation strategy” constitute attorney work product which is protected from disclosure by exemption 5. The Court also explained that exemption 5 includes the deliberative process privilege which encompasses predecisional documents “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” 421 U.S. at 150, 95 S.Ct. at 1516, 44 L.Ed.2d at 47.

Most courts have held that witness statements obtained by NLRB employees are not protected from disclosure by exemption 5, either because they do not constitute “memorandums or letters,” see Poss v. NLRB, 565 F.2d 654, 659 (10th Cir.1977); Baptist Memorial Hospital v. NLRB, 92 LRRM 2645 (W.D.Tenn.1976), or because they contain purely factual, investigative material that is not inextricably interwined with deliberative material. See Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 809 (S.D.N.Y.1978); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1387 (W.D.Pa.1978); Marathon LeTourneau Co. v. NLRB, 414 F.Supp. 1074, 1080 (S.D.Miss.1976); Amerace Corp. v. NLRB, 431 F.Supp. 453, 455 (W.D.Tenn.1976).

With respect to the work product privilege, the Court concludes that the NLRB has not shown that these witness statements are other than an objective reporting of facts, and thus do not reflect the attorney’s theory of the case and his litigation strategy. Similarly, the Court concludes that the NLRB has not shown that disclosure of the witness statements would reveal the internal deliberative processes of the agency. Moreover, the Court does not consider the witness statements to be inextricably intertwined with deliberative material merely because the choice of facts reported or of questions asked necessarily reveal the reporter’s viewpoint. See Powell v. United States, 584 F.Supp. 1508, 1519 (N.D.Calif.1984). Thus, the Court concludes that even if the witness statements are considered to be “memorandums or letters,” they do not come within exemption 5.

B. Summary Reports

Defendants also argue that the summary reports qualify for the deliberative process privilege. Defendants state that these reports are prepared by an NLRB examiner for the Regional Director and contain a summary of the relevant evidence gathered during the investigation along with a recommended course of action. The Court concludes that these predeeisional documents fall within the scope of the deliberative process privilege as described in Sears. They contain recommendations and, according to defendants, serve as a basis for discussion in the course of the Regional Director’s decision whether or not to issue a complaint. Accordingly, the summary reports (Vaughn Index Nos. 7-9, 22-25) are exempt from disclosure under exemption 5.

C. Other Documents

Defendants contend that the remaining documents are so closely related to the witness statements that they should be exempt from disclosure for the same reasons they argued that the statements were exempt. With respect to the Board Examiner’s list of questions to be addressed to a specific witness and a mailgram enlisting cooperation from a witness (Vaughn Index Nos. 16, 17, 20), the Court concludes that these documents are not exempt from disclosure under exemption 5 for the same reasons that the witness statements were held to be nonexempt. The NLRB has not shown that either of these documents reflect an attorney’s theory or litigation strategy under the work product privilege, or that they reflect the deliberative processes of the agency.

The description of the remaining documents — handwritten notes, a letter, a casehandling chronology, and logs of investigator’s contacts — by the NLRB is insufficient to allow the Court to consider the applicability of exemption 5 to these documents. In this regard, the Court notes that courts considering the exempt status of notes promulgated by NLRB personnel find, depending on the content and context in which the notes were promulgated, that some notes fall within the deliberative process privilege, and others consist of purely factual accounts of witness interviews that are disclosable. See e.g., Poss v. NLRB, 565 F.2d 654, 659 (10th Cir.1977); Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 811 (S.D.N.Y.1978); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1387-88 (W.D.Pa.1978). Defendants’ description of these documents is conclusory, and fails to disclose how these documents fit into the deliberative process, “whether it is an essential element of that process or possibly a peripheral item which just ‘beefs up’ a position with cumulative materials.” Parke, Davis & Co. v. Califano, 623 F.2d 1, 6 (6th Cir.1980). The FOIA puts the burden on the agency to show that these documents qualify for exempt status. 5 U.S.C. § 552(a)(4)(B). Thus, the Court will require defendants to submit affidavits, or other materials, which contain a more detailed description of the content of these documents and how they fit into the deliberative process. Defendants are to file their submissions within ten days after entry of this Order, and plaintiff will be given ten days to respond to defendants’ submission after it has been filed. Accordingly, the Court will reserve decision on the exempt status of these documents until the parties have filed their submissions.

Exemption 7(A)

A. Witness Statements

The NLRB contends that several of the documents are protected from disclosure by exemption 7(A), which permits the withholding of “investigatory records compiled for law enforcement purposes” the production of which would “interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 236, 98 S.Ct. 2311, 2324, 57 L.Ed.2d 159, 175 (1978), the Supreme Court held that witness statements obtained for use in pending unfair labor practice proceedings are exempt from disclosure under 7(A), at least until completion of those proceedings. The Court reasoned that disclosure of the statements presented a risk that employers or unions may coerce or intimidate potential witnesses before they are able to testify at the hearing. 437 U.S. at 239-41, 98 S.Ct. at 2325-26, 57 L.Ed.2d at 176-78. In addition, the Court noted that potential witnesses may be reluctant to give statements to NLRB investigators absent assurances that their statements will not be disclosed until completion of the proceedings. Id.

Although the Supreme Court has not addressed this issue, most courts hold that these concerns are not applicable to witness statements contained in closed NLRB files, unless those statements are related to another specific, concrete proceeding. See Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9th Cir.1985); Poss v. NLRB, 565 F.2d 654, 657-58 (10th Cir.1977); Stroock & Stroock & Lavan v. NLRB, 106 LRRM 2553, 2554-56 (S.D.N.Y.1981); Trustees of Boston University v. NLRB, 105 LRRM 2159, 2161-62 (D.Mass.1980); Nemacolin Mines Corp. v. NLRB, 467 F.Supp. 521, 522-24 (W.D.Pa.1979); Associated Dry Goods Corp. v. NLRB, 455 F.Supp. 802, 811-13 (S.D.N.Y.1978); Joseyh Horne Co. v. NLRB, 455 F.Supp. 1383, 1386 (W.D.Pa.1978). The Court is persuaded by the reasoning of these courts and notes that the NLRB has not shown that disclosure of these statements would interfere with a specific proceeding that is currently pending. Thus, the Court concludes that the witness statements are not exempt under 7(A).

B. Other Documents

Defendants appear to argue that the Court’s decision concerning the exempt status of the witness statements is determinative of the disclosure of the remaining documents. Thus, the Court concludes that none of the requested documents are exempt from disclosure under exemption 7(A).

Exemytion 7(B)

In their Vaughn Index, defendants have listed exemption 7(B) as one of the exemptions claimed for the draft of a mail-gram enlisting further cooperation from a witness (Index No. 16). Exemption 7(B) exempts from disclosure investigatory records the production of which would “deprive a person of a right to a fair trial or an impartial adjudication.” 5 U.S.C. § 552(b)(7)(B). It appears to the Court that the listing of this exemption may have been a typographical error on the defendants’ part because they do not address the applicability of this exemption in their brief. In any event, the Court concludes that defendants have not shown that disclosure of the mailgram would deprive an individual of a fair trial or impartial adjudication. Thus, the mailgram is not exempt from disclosure under 7(B).

Exemytion 7(C)

Exemption 7(C) permits withholding of investigatory records the production of which would “constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether a particular disclosure represents an unwarranted invasion of privacy, the Court must balance the individual’s privacy interest against the public interest in disclosure. See Kiraly v. FBI, 728 F.2d 273, 277 (6th Cir.1984). Exemption 7(C) permits nondisclosure of the type of highly personal data normally found in a personnel file. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11, 27 (1976). Defendants contend that disclosure of several of the withheld documents would constitute an unwarranted invasion of personal privacy because they reveal the identity of those providing information to the agency during its investigation, those individuals’ home address and telephone numbers, various employees’ wage rates, and references to an employee’s job performance and personnel action affecting that employee. The identity of those making witness statements, their home addresses and telephone numbers are more appropriately considered under exemption 7(D).

With respect to the information concerning employee wage rates, job performance and personnel action, the Court notes that information of this type would typically be found in a personnel file, and concludes that employees have a legitimate privacy interest in this type of information. See Department of the Air Force v. Rose, supra, 425 U.S. at 377, 96 S.Ct. at 1606, 48 L.Ed.2d at 30 (results of examinations and evaluations of work performance); Associated Dry Goods Corp. v. NLRB, supra, 455 F.Supp. at 815 (employee wage rates). Although the Sixth Circuit in Akron Standard v. Donovan, 780 F.2d 568 (6th Cir.1986), required disclosure of information pertaining to an employee’s job performance, the court noted that much of that information had already been disclosed during a prior public proceeding. Akron Standard, supra, at 572. Thus, the Court does not consider the Akron Standard decision as controlling in the instant case. Plaintiff has asserted no countervailing public interest in disclosure of this information. Accordingly, the Court directs defendants to redact the portions of the withheld documents concerning this information. (Vaughn Index Nos. 11, 12, 14, 19, 20, 21).

Exemption 7(D)

Defendants argue that several of the withheld documents are exempt from disclosure under exemption 7(D), which allows information in investigatory files to be withheld if production would “disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D). In order to establish that an individual who provides information to an agency is a confidential source, the agency must show that the information was given either “under an express promise of confidentiality or in circumstances under which such an assurance could be reasonably inferred.” L & C Marine Transport, Ltd. v. United States, 740 F.2d 919, 923-24 (11th Cir.1984) (quoting Conf. Rep. No. 93-1380, 93rd Cong., 2nd Sess. 13 (1974)). The NLRB claims that the following statement appeared at the beginning of each witness statement withheld:

I have been given assurances by an agent of the National Labor Relations Board that this affidavit will be considered confidential by the United States Government and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding. • Upon the closing of this case, the affidavit may be subject to disclosure only in accordance with Agency policy.

Defendant’s Memorandum at 20-21. Based on this language, the Court concludes that the witnesses were given an express assurance of confidentiality.

With respect to witness statements contained in closed files, courts appear to be in disagreement as to whether these statements should be disclosed even if an express or implied assurance of confidentiality has been given to the witness. Those courts holding that the witness statements should be disclosed base their decision on either their view that the grant of confidentiality given by the agency carries little weight because it is routine and conditional, or that the witness had no reasonable expectation of confidentiality because he was a potential witness for the investigating agency at a later hearing. Poss v. NLRB, 565 F.2d 654, 658 (10th Cir.1977); Stroock & Stroock & Lavan v. NLRB, 106 LRRM 2553, 2557 (S.D.N.Y.1981); Trustees of Boston University v. NLRB, 105 LRRM 2159, 2164-65 (D.Mass.1980); Nemacolin Mines Corp. v. NLRB, 467 F.Supp. 521, 524-25 (W.D.Pa.1979); Joseph Horne Co. v. NLRB, 455 F.Supp. 1383, 1386-87 (W.D.Pa.1978). Other courts have rejected the so-called “potential witness” rule, noting its adverse effect on the agency’s ability to gather information. See e.g., United Technologies Corp. v. NLRB, 777 F.2d 90, 94-95 (2d Cir.1985); Borton, Inc. v. OSHA, 566 F.Supp. 1420, 1422 (E.D.La.1983); Lloyd v. Marshall, 526 F.Supp. 485, 487 (M.D.Fla.1981); T.V. Tower, Inc. v. Marshall, 444 F.Supp. 1233 (D.D.C.1978); Kaminer v. NLRB, 90 LRRM 2269 (S.D.Miss.1975).

In United Technologies Corp., supra, the Second Circuit Court of Appeals recognized the split of authority surrounding the potential witness rule and determined that it should be rejected “regardless of whether the underlying enforcement proceeding has been dismissed before the hearing, is pending or has been completed.” 777 F.2d at 95. The court based its decision on the practical realities of an agency’s law enforcement capabilities, noting, that agencies, such as the NLRB, that have no independent investigatory power must depend on the information provided by witnesses. 777 F.2d at 94. The court reasoned that the effect of a potential witness rule would be to “require an agency to choose, at the outset of its investigation, which informants it may later call to testify and which informants it will definitely not call,” and concluded that Congress did not intend to create such a dilemma for agencies. 777 F.2d at 95 n. 6. Thus, the court held that the term “confidential source” includes a witness who is promised or reasonably expects confidentiality “unless and until the agency needs to call him as a witness at trial.” 777 F.2d at 94.

The Court finds the reasoning of the UTC court in rejecting the potential witness rule to be persuasive. The terms of the express promise of confidentiality given by the NLRB to the witnesses in the instant case provide that the source can expect confidentiality unless the affidavit is produced in a later proceeding. The Court believes it is entirely reasonable for a witness to expect, based on this assurance, that his identity will remain confidential if either a later hearing is never held, or the hearing is held and the affidavit of this particular witness is not produced.

Moreover, the ability to grant an assurance of confidentiality is especially important to agencies such as the NLRB. As noted by the Supreme Court in NLRB v. Robbins Tire & Rubber Co., supra, 437 U.S. at 240, 98 S.Ct. at 2326, 57 L.Ed.2d at 177, witnesses, who are the principal source of information in NLRB investigations, may be reluctant to give statements to NLRB investigators absent assurances of confidentiality, for fear of employer reprisal or harassment. The Court believes that the effect of a potential witness rule would effectively eliminate the ability of the NLRB to grant meaningful assurances of confidentiality. Realistically, it is very unlikely that the NLRB will have decided before it takes an individual’s statement whether it expects to call that person to testify at a later proceeding. As a result, practically every individual who makes a statement for the NLRB will be a “potential witness.” Thus, if a potential witness rule were adopted, exemption 7(D) would lose much of its usefulness for agencies whose investigations primarily depend on the acquisition of witness statements. The Court believes that if Congress had intended such a result when it adopted exemption 7(D), it would have made those intentions clear. Absent a showing of clearly expressed Congressional intent to the contrary, the Court will not construe the statute to exempt certain agencies from receiving the full benefit of exemption 7(D).

Furthermore, although the Sixth Circuit Court of Appeals has not specifically addressed exemption 7(D) in this context, it did appear to question the viability of a potential witness rule in Akron Standard v. Donovan, 780 F.2d 568 (6th Cir.1986). In Akron Standard, the court reviewed a lower court’s decision refusing to recognize the 7(D) exemption based on the fact that the investigation had been completed, and based on what the lower court characterized as the routine and conditional nature of the confidentiality grant. Akron Standard, at 572-73. The court of appeals noted that information given by a witness under a grant of confidentiality may remain protected even after the investigative file has been closed if confidentiality has not been waived. Akron Standard, at 573. The court remanded to the district court the determination of whether statements of witnesses, whose identity had not already been revealed, could be effectively redacted to protect the identity of those witnesses. Akron Standard, at 573. To the extent that the court refused to rely on the reasoning of the lower court in disregarding the grant of confidentiality to witnesses whose identity had not already been revealed, the Court believes its disposition of the instant case is in accordance with the tenor of the Akron Standard decision. Accordingly, the Court concludes that the identity of those individuals who provided witness statements (Vaughn Index Nos. 3, 11, 12) to the NLRB fall within exemption 7(D).

In Radowich v. United States Attorney, 658 F.2d 957, 960 n. 10 (4th Cir.1981), the court stated that the protection afforded by exemption 7(D) extends to an individual’s identity and all information furnished by that individual which might disclose or point to his identity. See also Akron Standard, at 573. Defendants contend that no edited version of the witness statements can be released because the nature of the information given by the witnesses provide numerous clues to their identity. In addition, defendants claim that practically all the other documents withheld contain references which would lead to the disclosure of the witnesses’ identity. Because neither the plaintiff nor the Court have seen these documents, it is difficult to dispute the defendants’ assertion. In order to determine whether the witness statements and other documents can be redacted effectively, the Court will require defendants to submit affidavits which present a detailed explanation of the potential risk disclosure of information, contained in each document, would have on the confidentiality of these sources. These affidavits are to be filed within ten days after the entry of this Order. Plaintiff will then have ten days to respond to defendants’ submissions. Accordingly, the Court will reserve decision on whether these documents (Vaughn Index No. 1-4, 11-14, 16-21) may be redacted effectively until the parties have filed their submissions.

Finally, the Court would advise the parties that if an in camera review is requested, the Court will require the requesting party to file a brief accompanying that request which addresses the factors set forth in Ingle v. Dept. of Justice, 698 F.2d 259, 267 (6th Cir.1983), for evaluating the appropriateness of an in camera review.

In sum, the Court grants summary judgment in favor of defendants under exemption 5 for documents containing summary reports (Vaughn Index Nos. 7-9, 22-25), and under exemption 7(C) for redaction of documents containing information on employee wage rates, job performance and personnel action (Vaughn Index Nos. 11, 12, 14, 19-21). The Court will reserve judgment with respect to the exempt status of the remaining documents withheld under exemption 5 (Vaughn Index Nos. 1, 4-6, 10, 13-15, 18, 19, 21), and exemption 7(D) (Vaughn Index Nos. 1-4, 11-14, 16-21). Attorney’s Fees

Plaintiff has requested an award of attorney’s fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). The Court will reserve decision on this issue until the case has finally been resolved. At that time, the Court will require plaintiff to submit an affidavit containing information as to the amount requested and will require both parties to submit briefs addressing the standards set forth in American Commercial Barge Lines Co. v. NLRB, 758 F.2d 1109 (6th Cir.1985).


source: Caselaw Access Project

author: MILLS, District Judge:

license: Public Domain

text:
    Richard JONES, Plaintiff, v. James GREER, Warden, Neil Hartigan, Attorney General, Defendants.
    No. 83-3140.
    United States District Court, C.D. Illinois, Springfield Division.
    Feb. 12, 1986.

      Richard Jones, pro se.
    Warren J. Nickel, Asst. Atty. Gen., Chicago, Ill., for defendants.
   OPINION AND ORDER

MILLS, District Judge:

Habeas corpus.

Denied.

Jones brings this action for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his Illinois state court conviction for attempted murder, home invasion, and armed robbery, and the resulting 50-year sentence. The gravamen of Petitioner’s complaint is that improper evidentiary rulings and prosecu-torial misconduct rendered his trial fundamentally unfair. For the reasons stated below, Jones’ petition for a writ of habeas corpus is denied.

Background

On February 27, 1981, Glen Mabus was alone in his rural Carlinville home. While working in the basement, he heard someone at the door and, thinking it was his wife, went upstairs. He observed a car in the driveway which he later described as a late model, light blue or bluish-green Chevrolet. Mabus proceeded into the bedroom, where he encountered a black male armed with a handgun. The assailant took money from Mabus and asked him where he kept his guns. He told the assailant his guns were located in the basement. Mabus was then taken into the basement and forced to sit in a chair. Sometime after taking one of Mabus’ guns off the wall, the assailant shot Mabus in the face from a few feet away. Mabus survived the attack and managed to crawl up the basement stairs and call for help.

At trial, Mabus identified Jones as his attacker, and also testified that numerous items from his house were missing following the attack. A 12-person jury found Jones guilty of attempted murder, armed violence, home invasion, aggravated battery, armed robbery, burglary, and theft. The Appellate Court of Illinois affirmed Jones’ conviction of attempt, home invasion, and armed robbery, but vacated the other convictions. People v. Jones, 108 Ill.App.3d 880, 64 Ill.Dec. 346, 439 N.E.2d 1011 (4th Dist.1982). Further appeal was denied by the Illinois Supreme Court.

Evidence at Trial

Richard Jones was employed as a meat-packer at the Diamond Meat Packing Plant. On the morning of February 27, however, Jones did not ride to work with co-workers as was his usual routine. Instead, Jones later rode with a friend to the plant. There Jones met Barbara Grizzle and they decided to go drinking together in a car loaned to Jones by a co-worker. The car was a late model, blue-green Chevrolet. Ms. Grizzle testified at trial that Jones had displayed a gun to her while they were drinking together. In addition, she believed that the gun — later identified as the gun which was used in the shooting — was the same gun Jones had shown her.

After drinking for awhile, Jones and Ms. Grizzle drove back to the plant and then at about 4 p.m. left again. They drove to a point where the road curved and pulled off to the side. As they were parked by the side of the road, two men who knew Ms. Grizzle drove by. Upon seeing her in the car with Jones, they stopped, had some conversation with her, and took her with them. Among the state’s witnesses was a truck driver, Mr. MacMurdo, who testified that he remembered following the car driven by these two men, and that they pulled in to meet a green car parked along this curve. The two men themselves — Paul Taylor and Bill Jefferson — stated that they wrent past the curve and saw the black man in the green Chevrolet with Ms. Grizzle and that they turned around and drove back to the green car. All of this testimony placed Jones less than three miles from the Mabus home sometime after 4 p.m. The crime itself occurred sometime between 4:35 and 4:50 p.m., when Mr. Mabus called the police for help.

Jones was arrested outside the Diamond Meat Packing Plant by the Macoupin County Sheriff’s Department shortly after the incident. When he was arrested, several items that had been taken from the Mabus home were found in a nearby culvert. At the time of the arrest, Jones was wearing blue jeans and a blue vest. In addition to identifying Jones as the assailant, Mabus testified that his attacker wore jeans and a short blue coat that either had no sleeves or short sleeves. Detective Zirkelbach also testified that Mabus gave an identical description of his attacker immediately after the incident. Over hearsay objections, the trial court admitted Mabus’ description of the attacker given to police approximately 15 minutes after he was shot.

At the time of the arrest, Jones was driving a green late model Chevrolet. In addition to Mr. Mabus, several witnesses testified that they saw a bluish-green or green late model Chevrolet at the Mabus residence at approximately the time of the attack. Other witnesses testified that this car belonged to Stanley Huddleston, a coworker of Jones’. Huddleston testified that he had loaned Jones his car that day.

The day after the arrest, police found a .22 caliber colt automatic pistol in Gleason’s Pond, near the area where Jones was arrested. Police also found an empty .22 caliber shell casing in the basement of Ma-bus’ residence. A forensic scientist identified the shell casing as having been fired from the handgun found in Gleason’s Pond. Also found at the Mabus residence was a single glove. According to police, a glove apparently matching the one found in the Mabus home was laying on top of the car when Jones was arrested.

The final piece of evidence against Jones — admitted over objection — was expert testimony by a forensic scientist identifying stains on Jones’ undershirt as blood stains. It could not be conclusively determined, however, whether the blood was human or animal blood.

Jones’ theory at trial was that he had not been anywhere near the Mabus residence at the time of the incident and that he was the target of a police conspiracy. Jones testified that he was at home sleeping the afternoon of the attack, but no other witness could corroborate this fact. On cross-examination, Jones stated that he believed that most of the state witnesses were either lying or were mistaken, and that Detective Zirkelbach (the chief investigating officer) was out to get him. Apparently, Jones had previously been charged for an offense which Detective Zirkelbach had investigated, but which resulted in two hung juries. In Jones’ opinion, Detective Zirkel-bach harbored ill-will toward him, and would do anything to see him put in prison.

Jones lists five primary grounds for ha-beas relief:

1. that the trial court erroneously admitted expert testimony that stains found on Jones’ undershirt were blood stains;

2. that the trial court erred in allowing Detective Zirkelbach to remain in the courtroom throughout trial;

3. prosecutorial misconduct during cross-examination of Jones;

4. prosecutorial misconduct during closing arguments; and

5. erroneous admission of Mabus’ hearsay statement to police concerning the description of his attacker.

Standard of Review

To serve as a basis for habeas corpus relief, Jones’ charges of prosecutorial misconduct and improper evidentiary rulings must amount to a denial of a specific constitutional right or a denial of a fundamentally fair trial. U.S. ex rel. Shaw v. DeRobertis, 755 F.2d 1279, 1281, n. 1 (7th Cir.1985); U.S. ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1014 (7th Cir.1984). Improper admission of evidence may rise to the level of a due process violation only if the probative value of the evidence is greatly outweighed by prejudice to the Defendant. United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1222 (7th Cir.1974); U.S. ex rel. Bartall v. Lane, 607 F.Supp. 409 (N.D.Ill.1985). The issue facing this Court therefore differs from that previously faced by the Appellate Court of Illinois: Here, the question is not simply whether the evidentiary rulings were incorrect, but rather whether, in light of the entire record, the rulings so prejudiced Jones as to deprive him of a fair trial in violation of the Fourteenth Amendment. Bartall, 607 F.Supp. at 415 (citing Phelps v. Duckworth, 757 F.2d 811, 820 (7th Cir.1985)). In determining whether such prejudice has occurred, the strength of the prosecution’s case and the extent to which it is dependent upon the evidence erroneously admitted are relevant factors. United States ex rel. Palmer v. DeRobertis, 738 F.2d 168, 170 (7th Cir.1984).

The same analysis applies to allegations of prosecutorial misconduct. To justify relief under the Fourteenth Amendment, a habeas petitioner must show that prosecutorial misconduct so undermined his trial’s fairness as to make his conviction a deprivation of liberty without due process of law. United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir.1984). To carry this burden, he must show that it is at least likely that the misconduct complained of affected the outcome of his trial. Shaw, 755 F.2d at 1281, n. 1. As explained by this Circuit in Crist:

The focus of federal due process review is to ensure that alleged improper prose-cutorial argument does not warp the factfinding function of the jury by deflecting its attention away from consideration of the evidence presented at trial ... The essence of due process is fundamental fairness. The Constitution guarantees a fair trial, not a perfect one ... A trial is fundamentally fair if it results in a verdict reached through consideration of evidence properly admitted and which is untainted by improper influences. Thus, it is the totality of the effect of the alleged errors, not their mere presence or their number, which gives rise to, or defeats, a due process claim. [Citations omitted.]

745 F.2d at 482. Thus, with respect to Jones’ charges of prosecutorial misconduct and improper evidentiary rulings, this Court will grant relief only if petitioner has shown that (1) errors or misconduct in fact occurred, and (2) such errors or misconduct were so egregious as to make it likely that the misconduct affected the trial’s outcome or otherwise rendered Jones’ trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 647-48, 94 S.Ct. 1868, 1871, 1873-74, 40 L.Ed.2d 431 (1974).

I

Jones’ first ground for habeas relief is that the trial court erroneously allowed a forensic expert to testify that stains found on his undershirt were bloodstains. At trial, defense counsel objected to the introduction of this testimony on the basis of relevance, because the expert was unable to determine whether the blood was animal or human. Counsel argued that in light of the fact that Jones worked as a meat packer, the state was first required to show that the blood was human in order to establish the relevancy of the expert testimony. The trial court overruled the Defendant’s objection.

Under both Fed.R.Evid. 402 and Illinois law, the basic test for the admissibility of evidence is the relevance of that evidence to a material issue in the case. See People v. Currie, 84 Ill.App.3d 1056, 1061, 40 Ill. Dec. 50, 405 N.E.2d 1142 (1980). In defining relevancy, Federal Rule of Evidence 401 incorporates the twin concepts of materiality and probative value into its definition:

“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.

Similarly, the test for relevancy under Illinois law is whether the fact offered tends to prove a disputed fact or render the matter in issue more or less probable in light of logic, experience, and accepted assumptions of human behavior. Mueller v. Yellow Cab Co., 110 Ill.App.3d 504, 66 Ill.Dec. 169, 442 N.E.2d 595 (1982); People v. Gardner, 47 Ill.App.3d 529, 5 Ill.Dec. 701, 362 N.E.2d 14 (1977).

Jones argues, inter alia, that the evidence of blood on his undershirt is irrelevant to the issue of whether he shot Mr. Mabus because it rests on the unproven assumption that the stain was human blood. Jones cites People v. Newbury, 53 Ill.2d 228, 290 N.E.2d 592 (1972), for the proposition that evidence whose relevance depends entirely upon unproved assumptions must be excluded.

In Newbury, the trial court admitted into evidence a torn photograph found in Defendant’s dresser drawer as relevant to the victim’s state of mind and her feelings toward the Defendant. The Defendant objected to the admission of the torn photograph on the ground that there was no proof as to who tore it or when it was torn. The trial judge ruled, however, that the torn photograph could suggest an inference that it belonged to the victim and that she tore it; thus rendering the matter a question properly for the jury to consider.

The state supreme court reversed, stating that the “chain of inferences thus relied upon by the prosecution runs from the fact that the torn photograph was found in the victim’s room to the fact that it was she who tore it, and that she had done so shortly before her death because of ‘a disagreement between the defendant and the victim.’ ” Newbury, 53 I11.2d at 239-40, 290 N.E.2d 592. The Court held that:

The difficulty with the photograph is not its hearsay aspect, but the fact that its relevance depended upon unproved assumptions — that it was torn recently and that it was torn deliberately and by the deceased. In the absence of further proof we are of the opinion that the photograph should have been excluded.

Id.

In the case sub judice, the Illinois appellate court read Newbury as holding only that relevance cannot be established by means of inferences which have no foundation in the evidence and which amount to no more than unproved assumptions. The Court held that this case differed from Newbury in that the inference that the blood found on Jones’ T-shirt was the victim’s had some basis in the evidence. For instance, the Court noted that the testimony indicated that Jones never went to work at the meat packing plant that day, and that witnesses who had seen Jones earlier in the day did not testify to the existence of bloodstains on his clothing at those times. People v. Jones, 108 Ill.App.3d at 885, 64 Ill.Dec. 346, 439 N.E.2d 1011.

This Court agrees that the testimony concerning the bloodstains found on Jones’ clothing is relevant under the strict test for relevance set forth by Fed.R.Evid. 402 and Illinois law. Pursuant to that test, evidence of these bloodstains does to some degree advance the inquiry: it makes it at least slightly more probable that Jones was in fact the individual who shot the victim at close range.

The fact that the expert could not identify the blood as animal or human also does not necessarily mean that the relevance of the bloodstain rests solely on an unproven assumption. Under our legal system, which is molded by the tradition of jury trial and predominantly oral proof, a party does not offer his evidence en masse, but item by item. Thus, any single item of evidence, being but a single link in the chain of proof, need not conclusively prove the proposition for which it is offered. It is enough if the item could reasonably show that a fact is slightly more probable than it would be without the evidence. As stated by McCormick: “A brick is not a wall.” McCormick on Evidence, 3d ed. § 185, at 543 (1984).

Unlike Newbury, there was in this case other evidence which, when combined with the bloodstains found on Jones’ shirt, could reasonably lead to the conclusion that the blood was that of the victim. Under these circumstances, the fact that the bloodstains could not be positively identified as human goes to the weight that should be given such evidence by the jury. In this case, defense counsel’s cross-examination of the expert fully exposed her inability to identify the blood as human, and the jury was thus informed as to the possibility that the bloodstains did not come from a human.

Because the above evidence is relevant, it is at least prima facie admissible. In reviewing Jones’ conviction, however, the reviewing court did not consider whether the probative value of this evidence is outweighed by its costs — an argument raised by Jones throughout his appeals. Relevance alone is a threshold inquiry, since a great deal of evidence is excluded on the grounds that the risks of introducing such evidence outweigh the benefits. Such risks range all the way from inducing decision on a purely emotional basis at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Fed.R. Evid. 403 categorizes most of these costs:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Although not stated as such per se, Jones’ contention is that the probative value of the evidence of blood on his shirt is outweighed by the danger of unfair prejudice.

Prejudice in this context does not simply mean damage to the opponent’s cause. Rather, “unfair prejudice within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403 (Advisory Committee Notes).

It is arguable that in view of the degree of the evidence’s probative value, the evidence of bloodstains on Jones’ clothing has this kind of tendency. Although the fact that the blood could not be identified as human does not render the evidence irrelevant, it does substantially weaken its probative value. This fact, combined with the danger that the jury would base its decision on an emotional response, could lead to the conclusion that the danger of unfair prejudice outweighed the probative value of introducing the evidence of bloodstains.

However, even if this Court disagreed with the trial court, reversal would not be mandated even at the appellate court level. It is settled law that the standard of review of a relevancy ruling is abuse of discretion. See Currie, 84 Ill.App.3d 1056, 40 Ill.Dec. 50, 405 N.E.2d 1142; Newbury, 53 Ill.2d 228, 290 N.E.2d 592. Even assuming, ar-guendo, that this Court would find that the danger of undue prejudice outweighed the probative value of the bloodstains under the circumstances of the case, to rule otherwise would not constitute a clear abuse of discretion. As previously noted, the evidence of bloodstains on Jones’ undershirt was relevant, and any danger of undue prejudice due to the introduction of this single piece of evidence is substantially lessened by other evidence in this case, and the fact that the jury was fully informed of the possibility that the blood was not human blood.

Moreover, in this Court, the issue differs from that facing the Illinois Appellate Court: Here the question is not only whether the Court’s relevance ruling was incorrect, but also whether, in light of the entire record, it so prejudiced Jones as to deprive him of a fair trial in violation of the Fourteenth Amendment. Bibbs, 506 F.2d at 1222. Although it is arguable that the trial court’s admission of the evidence was technically incorrect, it did not so prejudice Jones as to deny him a fair trial. Numerous other items of evidence linked Jones to the attack that day (including, but not limited to, the green car in the driveway, Jones’ clothing, the gun found nearby) and provided overwhelming evidence of his guilt. It is therefore highly improbable that withholding of the evidence concerning bloodstains would have had any effect on the jury’s verdict. In the absence of at least some likelihood that the trial’s outcome was affected by this error, habeas relief must therefore be denied. Shaw, 755 F.2d at 1281 n. 1. Given the strength of the state’s case against Jones, only truly egregious errors in evidentiary rulings would pose the risk of violating Jones’ due process rights. See Palmer, 738 F.2d at 170.

No such error was present in this case.

II

Jones next claims that the trial court erred in exempting Detective Zirkelbach, the chief investigating officer, from a motion to exclude witnesses and allowing him to remain at counsel table throughout the trial. Jones argues that this prejudiced him because Zirkelbach testified at the beginning and end of the case and that this amounted to an unfair corroboration of the testimony he heard during the trial.

Under Illinois law, it is within the trial court’s discretion to permit a police officer who is a material witness to remain in the courtroom, and it is generally not reversible error to do so absent a showing of prejudice. People v. Miller, 26 I11.2d 305, 186 N.E.2d 317 (1962); People v. Toolen, 116 Ill.App.3d 632, 647, 72 Ill.Dec. 41, 451 N.E.2d 1364 (1983) (grand jury). In Miller, the defendant argued that he was prejudiced by the officer’s opportunity to hear the complaining witness testify before him. Rejecting this argument as grounds for reversal, the Court stated that “to accept this theory would be to adopt a rule allowing the exclusion of all witnesses as a matter of right and to ignore the established custom of the criminal courts.” Miller, 26 I11.2d at 307-08, 186 N.E.2d 317.

The central purpose of a motion to exclude witnesses is to ensure their credibility. Cf. U.S. ex rel. Clark v. Fike, 538 F.2d 750, 758 (7th Cir.1976) (“The rule that the prosecution cannot bring all its witnesses together prior to trial to discuss their testimony is one to ensure the credibility of the witnesses.”) In Miller, the Illinois Supreme Court held that the mere fact that a witness listened to other prosecution witnesses before testifying did not unduly impede that witness’ credibility.

While this conclusion may be subject to some doubt, the officer in this case was the first witness to testify. At least with respect to that testimony, therefore, his credibility could not have been influenced by the other witnesses. Detective Zirkelbach did again testify at the end of the trial, but that subsequent testimony could then be judged in light of its consistency with his initial testimony.

Although the validity of the state’s practice of allowing witnesses to hear other witnesses testify prior to their testimony may be open to argument, the practice clearly does not constitute the kind of extreme error that constitutes a denial of fundamental fairness. Addressing this issue in United States v. Escobedo, 430 F.2d 603 (7th Cir.1970), the Seventh Circuit held that:

It would, of course, have been better procedure for the government to have called Raebel at the beginning of the trial, so that he could not hear other witnesses’ testimony before testifying himself. But the failure to exclude witnesses is not erroneous unless there is a clear abuse of discretion ...

Id. at 608-09. As this alleged ground for error does not raise serious due process concerns, Jones’ petition must be denied on this ground.

Ill

Jones’ third and fourth ground for relief can be grouped together as alleged prose-cutorial misconduct. Three major categories of misconduct are charged: (1) the prosecutor’s argument that it does not create a reasonable doubt for the Defendant to merely take the stand and deny committing the crime, thereby improperly shifting the burden of proof; (2) the prosecutor’s improper and inflammatory references to the jurors themselves; and (3) the prosecutor’s suggestions that in order to believe the defense witnesses, the jury must find that each of the state’s witnesses was lying.

Burden of Proof

As part of his closing argument, the prosecutor argued as follows:

... All the evidence in this case points to Richard Jones. I would submit to you that there is no doubt. He denies it. You can even believe his witnesses other than himself and he’s guilty beyond all doubt. It doesn’t create a reasonable doubt to take the stand and to say, “I didn’t do it.” ...

As noted by the appellate court, a prosecutor may not remark that a defendant has the burden of creating a reasonable doubt. However, reversal is required only where prosecutorial comments are such that the presumption of innocence is destroyed and a heavier burden is placed on the defendant than that required by law. People v. Wit ted, 79 Ill.App.3d 156, 34 Ill.Dec. 393, 398 N.E.2d 68 (1979); People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432 (1966).

Here, the prosecutor was merely arguing that the state’s evidence proved Jones guilty beyond a reasonable doubt and that Jones’ own statement that he did not commit the crime should not be given enough weight to create such a doubt. Nowhere does the prosecutor attempt to convince the jury that the burden rests with the Defendant, or that it shifts to the Defendant in any manner. As this argument was proper, no due process concerns are raised.

References to the Jurors

One of the prosecutor’s final statements to the jury was an inflammatory argument intended to stimulate the juror’s own fears:

This is a tremendously serious case not only for the defendant, Richard Jones, but for the People of this County. If we’re going to be safe and secure in our homes ... I think this case requires that you return verdicts of guilty ...

While the quoted remarks appear to be for the sole purpose of stimulating the juror’s own fears and causing them to base their decision on an emotional response, the appellate court ruled that this was permissible comment on the evil results that could occur if the Defendant were released. See People v. Balls, 95 Ill.App.3d 70, 50 Ill.Dec. 463, 419 N.E.2d 571 (1981); People v. Van-Zile, 48 Ill.App.3d 972, 6 Ill.Dec. 747, 363 N.E.2d 429 (1977).

Remarks such as these do border on the hazy line that defines unacceptable comment. They do not, however, deprive a defendant of a fair trial where, as here, it cannot be said that there is a substantial likelihood the prosecutor’s statement changed the jury’s verdict. Shaw, 755 F.2d at 1281 n. 1.

The alleged misconduct in this case does not nearly approach the level of severity of the prosecutorial misconduct in Bartall, when in closing the prosecutor argued:

For you now to come in here and buy some cocking [sic] bull story about a ricochet, some story about an accident, some story about the gun being up like that belies common sense, it belies common sense and it says to the People of the State of Illinois, well, someone else put another one over on a jury. Let’s give him another shot, give him another shot. Maybe he’ll blow Preze away, maybe he'll blow one of your relatives away next.

In Bartall, the Court felt that these and other statements “were patently designed to ‘warp the factfinding function of the jury by deflecting its attention away from consideration of the evidence presented at trial.’ ” Bartall, 607 F.Supp. at 417 (citing Crist, 745 F.2d at 482). Despite what the Court felt were “outrageously unprofessional ... and prejudicial” remarks, the Court held that a new trial was not warranted in light of the strength of the case against Bartall. Id. at 418. (As in Bartall and Crist, the evidence of Jones’ guilt was so convincing that it cannot be said that there is a substantial likelihood the prosecutor’s comment changed the jury’s verdict.) Ergo, Bartall and Crist control the present case, and Jones’ petition must be denied on this ground.

Argument Concerning State Witnesses

The final alleged incident of misconduct involves the prosecutor’s argument to the jury that in order to believe defense witnesses, they would have to find that each of the state’s witnesses was lying. At trial, the prosecutor cross-examined Jones as to his opinion of the veracity of the state’s witnesses. With respect to almost every witness, Jones stated that he believed they were either lying or mistaken.

Generally, it is improper to tell the jury that they must find that each of the state’s witnesses was lying in order to believe the Defendant’s ease, People v. Cole, 80 Ill.App.3d 1105, 36 Ill.Dec. 351, 400 N.E.2d 931 (1980), or to question a defendant as to his opinion of the veracity of other witnesses. People v. Riley, 63 Ill. App.3d 176, 19 Ill.Dec. 874, 379 N.E.2d 746 (1978). Such cross-examination is impermissible because it invades the province of the jury, People v. Graves, 61 Ill.App.3d 732, 18 Ill.Dec. 829, 378 N.E.2d 293 (1978), and arguing that a jury must find that all the state’s witnesses are lying in order to acquit constitutes “such a misstatement of the law as to prejudice the defendant and deny him a fair trial.” Cole, 80 Ill.App.3d at 1108, 36 Ill.Dec. 351, 400 N.E.2d 931 (citing United States v. Vargas, 583 F.2d 380 (7th Cir.1978); United States v. Phillips, 527 F.2d 1021 (7th Cir.1975)).

Despite these general principles, such assertions are only improper if they lack support in the evidence. Cole, 80 Ill. App.3d at 1107, 36 Ill.Dec. 351, 400 N.E.2d 931. In this case, the allegedly improper argument and cross-examination was invited by Jones and was a necessary rebuttal to Jones’ theory of the case. Part of Jones’ theory was that he was the target of a police conspiracy, and that many of the state’s witnesses were in fact lying in furtherance of the putative conspiracy. It was therefore proper for the prosecutor to comment on these charges, and to attempt to rebutt them by arguing that it is unbelievable that all the state’s witnesses lied on the stand. Accordingly, no due process concerns are raised by this argument.

IV

Jones’ final ground for habeas relief is that the trial court erred in allowing Detective Zirkelbach to repeat the description of the attacker (given by Mabus approximately 15 minutes after the attack). Over defense objections, the trial court admitted the testimony under a hearsay exception for spontaneous declarations. Detective Zirkelbach then testified that Mabus was able to describe the essential features of the crime as well as a general description of the assailant. For instance, Zirkelbach stated that Mabus told him that the assailant was a black male, about six feet tall, and was wearing a dark blue vest, a light-colored shirt, dress-type Levi pants, and boots.

Jones argues that those statements were erroneously admitted because: (1) at least 15 minutes had elapsed between the attack and the statement itself, thereby allowing Mabus time for reflective thought; and (2) the statement was in response to police questioning.

Both Illinois law and Fed.R.Evid. 803(2) provide a hearsay exception, regardless of the availability of the declarant, for:

a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

A . cogent explanation of the basis for this exception is quoted by the Illinois Supreme Court in People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25 (1963):

“A spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances of physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled dpmination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.”

Id. at 471, 193 N.E.2d 25 (quoting Keefe v. State, 50 Ariz. 293, 72 P.2d 425 (1937) (Lockwood, J.)). Thus, the ultimate question is whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event. McCormick on Evidence, 3d ed. § 297 at 856 (1984).

Although case law holds that the length of time between the event and the statement is not alone determinative of this issue, see e.g., People v. Parisie, 5 Ill. App.3d 1009, 287 N.E.2d 310 (1972), as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. See e.g., Marshall v. Thomason, 241 S.C. 84, 127 S.E.2d 177 (1962) (statements to police officer 30 minutes after accident inadmissible).

In the present case, it was reasonable for the trial judge to conclude that Mabus did not have the time or the opportunity to engage in such reflective thought. At the time the statement was made, Ma-bus was severely injured and clearly under the stress of his attack. This fact, combined with the short amount of time between the attack and his statement, provides clear support for the trial court’s admission of this statement. Cf. McCurdy v. Greyhound Corp., 346 F.2d 224 (3d Cir.1965) (statement to police officer 15 minutes after accident admissible; testimony that declarant was still “nervous” and “shooken up” when police arrived); Hilyer v. Howat Concrete Co., Inc., 578 F.2d 422 (D.C.Cir.1978) (statement made by worker between 15 and 45 minutes after fellow worker was fatally run over by truck, with evidence indicating continuing excitement); United States v. Golden, 671 F.2d 369 (10th Cir.1982) (statement 15 minutes after assault by officer, with 120 m.p.h. chase in interval). May v. Wright, 62 Wash.2d 69, 381 P.2d 601 (1963) (statement by witness to accident involving an automobile running over a child made 20 minutes after accident admissible; officer testified declarant “seemed upset”). Further, the fact that the statement was in response to police questioning, although a relevant factor, does not in our view alter this conclusion. See Damen, 28 Ill.2d at 472, 193 N.E.2d 25 (“The fact that the officer asked complainant ‘what happened’ is, we believe, insufficient to destroy its spontaneity.”) Since the trial court’s ruling on this matter was correct, no due process concerns are raised.

Conclusions

There is no genuine issue of material fact, and no evidentiary hearing is required. 28 U.S.C. § 2254, Rule 8(a). The alleged prosecutorial misconduct and questionable evidentiary ruling herein discussed did not deprive Jones of a fair trial in violation of the Fourteenth Amendment. Since it is extremely improbable that the minimal technical errors discussed above changed the jury’s verdict or otherwise rendered Jones’ trial fundamentally unfair, Jones’ petition for a writ of habeas corpus must be denied.

Ergo, it is ORDERED that Jones’ petition for a writ of habeas corpus is DENIED.

      . As explained in Shaw, a sharply different test would apply if a trial error allegedly implicated a specific provision of the Bill of Rights. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court held that when there is a constitutional error of this type, the criminal appellant nevertheless cannot prevail if the Court is persuaded that the error was harmless beyond a reasonable doubt. The burden of proving harmlessness falls on the state, as a beneficiary of the error. Id., at 24, 87 S.Ct. at 828. By contrast, errors such as those alleged in the present case — which undermine a trial’s fairness and implicate the Fourteenth Amendment directly rather than via a Bill of Rights guaranty — will justify habeas relief only if the petitioner shows that the error likely affected the trial’s outcome. Shaw, 755 F.2d at 1281 n. 1.

      . United States v. Monahan, 633 F.2d 984, 985 (1st Cir.1980) (Rule 403 is not contravened by evidence that might show only that the defendant is guilty of the crime charged); Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980) (Rule 403 "does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case"); Ramos v. Liberty Mutual Insurance Co., 615 F.2d 334, 340 (5th Cir.1980), (‘"unfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party"); State v. Rollo, 221 Or. 428, 438, 351 P.2d 422, 427 (1960) (remarking that advocate "is entitled to hit as hard as he can above, but not below, the belt”).


author: DIANA E. MURPHY, District Judge.

text:
    CARGILL, INCORPORATED, Plaintiff, v. PRODUCTS ENGINEERING COMPANY, a/k/a Products Engineering Co., Inc., Defendant.
    Civ. No. 4-83-83.
    United States District Court, D. Minnesota, Fourth Division.
    Feb. 12, 1986.

      Kurtis A. Greenley and David A. Allgeyer, Lindquist & Yennum, Minneapolis, Minn., for plaintiff.
    Robert M. Austin, Austin, Roth & Associates, Minneapolis, Minn., for defendant.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff Cargill, Inc. brought this action for damages against Products Engineering Co. (PECO), alleging breach of contract (count 1), negligence (count 2), breach of expressed warranty (count 3), breach of implied warranties (counts 4 and 5) and strict liability (count 6). The dispute results from the collapse of a grain loader purchased by Cargill from PECO. The grain loader was one of four manufactured in Seattle by PECO, a Washington corporation, expressly for Cargill and delivered to Cargill, a Minnesota corporation, for use in Louisiana, where the collapse occurred. Cargill seeks damages for harm done to the grain loader itself and for economic injury caused by the grain loader’s collapse. The matter is now before the court on PECO’s motion for summary judgment. PECO claims that the theory of strict liability is inapplicable to litigation between sophisticated companies dealing at arm’s length, that plaintiff may not seek consequential damages and that plaintiff’s contract claims are barred by the statute of limitations.

Background

On a motion for summary judgment, the ■ court takes the plaintiff’s assertions of fact as true.

While constructing a grain handling and ship-loading facility at Terre Haute, Louisiana, in the early 70s, Cargill purchased four shiploaders for loading grain from conveyors onto ships. PECO, which held itself out as an expert in the design and manufacture of such equipment, solicited a contract with Cargill under which PECO designed and built the shiploaders. Cargill provided “general operating parameters,” but PECO “assumed full responsibility for the design and manufacture of the units.” PECO delivered the units from its plant in Washington and provided field engineers to supervise its erection in Louisiana. The erection was completed in November 1976. The five-story shiploader “slewed” or rotated on a large horizontal “slew bearing,” bolted to the top of the gantry deck with 36 “slew bearing bolts.”

In or before December 1977, Cargill discovered that some of these bolts were breaking or loosening. When advised of this problem, PECO recommended tightening the bolts. When the problem continued in 1978 and 1979, PECO asserted that Car-gill had maintained the shiploader poorly. Cargill took special maintenance measures, but the problem continued. In February 1979, Cargill asked PECO to send a representative to Terre Haute to investigate the problem. PECO sent a shop foreman, who concluded that the trouble resulted from maintenance problems. In January 1980, during normal operating activity, several slew bolts fractured, the back side of the slew lifted and the loader collapsed.

PECO characterizes the cause of the collapse as poor maintenance and bolt problems, but Cargill characterizes the cause as significant design and engineering defects. Cargill asserts that PECO’s structural calculations were incomplete and ignored necessary structural engineering considerations and that subsequent calculations were similarly inadequate, avoiding necessary reevaluation of the total design. Car-gill asserts that the shiploader itself was damaged and that it has suffered substantial economic injury as a result of the shi-ploader’s unavailability after the collapse. Discussion

In passing upon a motion for summary judgment, the court must view the facts in the light most favorable to the opposing party and give that party the benefit of all reasonable inferences to be drawn from the underlying facts disclosed in pleadings and affidavits. Ralph’s Distributing Co. v. AMF, Inc., 667 F.2d 670 (8th Cir.1981); Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076 (8th Cir.1980). The court may grant a motion for summary judgment only if the pleadings and affidavits show that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The opposing party may not merely rest upon the allegations or denials of the party’s pleadings, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981).

A. Tort Claims

Cargill alleges that PECO is strictly liable for harm caused by its “defective [and] unreasonably dangerous shiploader. It seeks damages in negligence and strict liability for injury to the shiploader itself and consequential damages. PECO argues that Minnesota law does not permit recovery in strict liability or negligence where large commercial parties have allocated risks by contract. Cargill seeks to distinguish the eases on which PECO relies, but argues more strenuously that Washington law, rather than Minnesota law applies to the tort claims in the instant action, and that Washington law bars neither the action in strict liability nor Cargill’s recovery of consequential damages.

While sitting in diversity, a federal court should apply the conflicts law of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The threshold inquiry then is whether the forum’s law and the law of another interested state would produce conflicting results. E.g., Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408, 412 (1973).

Under Minnesota law, “a commercial plaintiff with economic bargaining power substantially equivalent [or superior] to that of the seller” cannot seek recovery in tort for “economic loss arising only from damage to the product itself, not from ... personal injury.” S.J. Groves and Sons Co. v. Aerospatiale Helicopter Corp., 374 N.W.2d 431, 434 (Minn.1985). See also Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159 (Minn.1981) (“economic losses that arise out of commercial transactions, except those involving personal injury or damage to other property, are not recoverable under the tort theories of negligence or strict products liability.”) The court is not persuaded by Cargill’s efforts to distinguish Groves and Superwood. It is clear that Minnesota law would require this court to grant summary judgment to PECO on Cargill’s strict liability and negligence claims.

On the question of strict liability, Washington law is less clear. The Washington courts have apparently never directly addressed the availability of strict liability in litigation between large commercial entities which have allocated risk by contract. The Ninth Circuit Court of Appeals has concluded that Washington does not permit such recovery in strict liability, however. See S.A. Empressa de Viacao Aerea Rio Grandense v. Boeing Co., 641 F.2d 746, 754 (9th Cir.1981). (No conflict exists between California and Washington law; under either state’s law, strict liability does not apply between large corporate enterprises which have allocated risks by contract.) In the absence of any Washington state cases expressly or implicitly holding to the contrary, and in light of the Ninth Circuit’s superior experience with Washington law, this court concludes that Washington law would not permit Cargill to recover from PECO in strict liability. Accordingly, there is no conflict of law on this issue, and PECO is entitled to summary judgment.

It does appear, however, that there is a conflict between Washington and Minnesota law concerning whether Cargill may recover consequential damages for negligence. The Washington Supreme Court has held that an injured purchaser is not barred from seeking damages for solely economic loss in a tort action. Berg v. General Motors Co., 87 Wash.2d 584, 555 P.2d 818 (1976). Berg is not entirely on point because it did not involve any contractual effort to limit damages. Nonetheless, it appears that the court should consider the five “choice-influencing considerations” set out in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408, 412 (1973).

Milkovich adopted a five point methodology from Professor Leflar’s influential article, Choice Influencing Considerations in Conflicts Law, 41 N.Y.U. L.Rev. 267 (1966). In Milkovich and in later cases, however, the Minnesota Court has stressed that only the last two of these considerations, the advancement of the forum’s governmental interests and the application of the better rule of law, are relevant in tort cases. Milkovich, 203 N.W.2d at 412. See also Bigelow v. Halleran, 313 N.W.2d 10, 12 (Minn.1981); Schwartz v. Consolidated Freightways Corp., 300 Minn. 487, 221 N.W.2d 665, 668 (1974).

Cargill correctly argues that the interests of the forum are not always furthered by the application of the forum’s law. See, e.g., Bigelow v. Halloran, 313 N.W.2d 10 (Minn.1981). Cargill’s assertion that Minnesota has no interest in foreclosing its recovery of economic damages in tort is another matter, however. The Minnesota Supreme Court has repeatedly expressed its concern that the principles and purposes of tort law and contract law remain distinct. Unlimited tort liability in commercial transactions would have the effect of preempting contract law and circumventing legislative intent. S.J. Groves, 374 N.W.2d at 433 (citing Superwood, 311 N.W.2d at 162). It is the strong policy of Minnesota that a large commercial entity such as Cargill should not be heard to “ask[ ] the law to accord [it] a better bargain that [it] purchased.” S.J. Groves, 374 N.W.2d at 434 (citations omitted). Minnesota has an interest in ensuring that Minnesota corporations are held to the rule that economic loss can be recovered upon bargained-for contract provisions but not tort law. Advancement of the forum’s governmental interests favors Minnesota law.

Availability of tort remedies for economic injuries is an issue on which reasonable states may differ. Compare, e.g., Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965) (available in strict liability) and its progeny with Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965) (not available in strict liability), and its more abundant progeny. In Berg v. General Motors Corp., 87 Wash.2d 584, 555 P.2d 818 (1976), the Washington Supreme Court expressly rejected various arguments for denying tort recovery for economic injury, although it did not squarely consider the arguments on which Minnesota based Superwood and S.J. Groves. With all due respect, this court finds that Minnesota law is the better law as it pertains to large commercial entities dealing at arms length with each other, able to negotiate allocation of risk. While the particular failure of the shiploader now at issue may not have been foreseeable, there is no question that both parties could have foreseen the possibility of major problems with a huge and complex device specifically designed and built by PECO for Cargill and with no track record. Cargill should not now have recourse to tort law to obtain a better bargain than the one it negotiated. Application of the better law also favors Minnesota law in this instance.

Under Minnesota law, Cargill is not entitled to recovery in tort for damages to the subject property or for consequential damages. These are the only damages sought in the complaint for negligence. Accordingly, PECO is entitled to summary judgment, and count 2 should be dismissed.

B. Contractual Limitation of Liability

Addendum A to the contract between Cargill and PECO includes the following warranty language:

GUARANTEE:
The Manufacturer guarantees that the equipment covered by this Proposal will be free from defects in material or workmanship and will be capable of safely and properly handling the rated loads at the speeds specified herein, when properly installed on a suitable run way or foundation under the supervision of one of our experienced field engineers.
The Manufacturer will furnish free of charge F.O.B. point of manufacture, replacements for any parts of such equipment which prove defective within one year from date it was first placed in service, such service to begin within 90 days after delivery of the equipment at the site of erection. The Manufacturer will in no event be liable for any contingent or consequential damages or charges resulting from defects in or failure of such parts, or from any use made of the equipment quoted herein.
Further, the guarantees made herein are conditioned upon proper use, maintenance and operation of the equipment and exclude ordinary wear and negligence on the part of the owner or operator. Before replacing free of charge any parts claimed defective, we may request that such parts be submitted for our inspection, F.O.B. shops where manufactured.

PECO argues that the limitation in the contractual warranty effectively bars any recovery of consequential damages, and that such limitation is permitted under Minn.Stat. § 336.2-719. Cargill does not dispute that § 336.2-719 permits limitations of damages, but argues that PECO’s purported limitation fails on two alternative grounds. First, the Addendum limits liability for damages “resulting from defects in or failure of ... parts [of the grain-loader]”, while the defects Cargill alleges arise from “improper design, failure to warn of improper design, and from the unavailability of the equipment to load ships.” The court need not pass on this point, however, because Cargill’s second argument presents an issue of fact which cannot be decided at this stage in the litigation. Cargill argues that even if the language of Addendum A were sufficient to limit damages, the limitation would be ineffective because the warranty would fail of its essential purpose.

Under Minn.Stat. § 336.2-719(1), parties to a contract may limit or alter the measure of damages recoverable. Such limitation may be found unenforceable, however, where “circumstances cause an exclusive or limited remedy to fail of its essential purpose.” Minn.Stat. § 236.2-719(2). Under such circumstances, § 336.-2-719(2) provides that the parties have recourse to the usual UCC remedies. Whether the circumstances cause the remedy to fail in its essential purpose turns on the particular facts of the case. See, e.g., Soo Line Railroad Co. v. Fruehauf Co., 547 F.2d 1365, 1370-1373 (8th Cir.1977); Northern States Power v. International Telephone and Telegraph Corp., 550 F.Supp. 108, 113 (D.Minn.1982). Accordingly, defendant’s motion to dismiss plaintiffs contract claims insofar as they seek consequential damages must be denied.

C. Statutes of Limitations

Finally, PECO asserts that Cargill’s contract claims are barred by Minnesota’s four year statute of limitations. Minn.Stat. § 336.2-725(2) provides that a cause of action under the UCC “accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when the tender of delivery is made.” PECO asserts that the goods were delivered and in operation in 1976 and that the statute of limitations therefore ran long before the commencement of this litigation.

Cargill argues that its claims for breach of contract were timely filed under two theories: First, PECO not only breached the original 1973 contract, but also a February 1979 contract which was primarily a contract for services and therefore covered by the six year statute of limitation of Minn.Stat. § 541.05. PECO has not contested the existence of a February 1979 contract or Cargill’s characterization of that contract as one for services. Accordingly, it would be inappropriate to bar Car-gill’s action in contract for any damages arising from the 1979 contract.

Cargill’s argument that none of its contract claims are time-barred must fail, however. Cargill argues that Minnesota recognizes that causes of action for breach of contract accrue at the time when an action can be commenced and that an action could not have been commenced until the collapse of the loader. It is well-settled that a “cause of action for breach of contract accrues immediately on a breach, though actual damages resulting therefrom do not occur until afterwards.” E.g., Ba-chertz v. Hayes Lucas Lumber Co., 201 Minn. 171, 275 N.W. 694, 697 (1937). Moreover, § 336.2-725 itself provides that the action accrues at the time of the breach “regardless of the aggrieved party’s lack of knowledge of the breach.” The statute of limitations has run for any contract claims arising from Cargill and PECO’s original contract.

Cargill also provides two arguments for the proposition that its claims for breach of warranty are not barred. First, the statute of limitations for Cargill’s warranty claims is tolled by the doctrine of equitable estop-pel because Cargill reasonably relied on PECO’s misrepresentation that there were no design flaws. Second, there is an exception to the rule that breaches of warranty accrue upon tender of delivery: “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Minn.Stat. § 336.2-725.

The defense of equitable estoppel turns on questions of fact. See, e.g., Northern Petrochemical v. U.S. Fire Insurance Co., 277 N.W.2d 408, 410 (Minn.1979). On the basis of the papers submitted by counsel, the court cannot say that there is no material issue of fact for trial, and summary judgment is therefore improper on this point. Because the court has determined that defendant is not entitled to summary judgment on the warranty claims, it is unnecessary to reach plaintiff’s alternative argument on those claims.

ORDER

Accordingly, based upon the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. Defendant’s motion for summary judgment on count 6, alleging strict liability, is granted, and count 6 is dismissed.

2. Defendant’s motion for summary judgment on plaintiff’s claim for consequential damages is granted as to count 2 (negligence), and count 2 is dismissed. Defendant’s motion for summary judgment on plaintiffs claim for consequential damages is denied in all other respects.

3. Defendant’s motion to dismiss plaintiff’s contract and warranty claims on the basis of the statute of limitations is granted insofar as it relates to the contract claims arising from the purchase of the shiploader, but is denied in all other respects.

      . Cargill filed identical complaints in this court and in the Western District of Washington. PECO sought an order dismissing the Minnesota action and allowing the Washington action to proceed, or in the alternative, for a change of venue. The court denied this motion in an order dated December 14, 1983. The Washington action has since been dismissed.

      . The parties apparently agree that Minnesota law applies to the contract claims.

      . Cargill seeks recovery for damages to the loader and resulting economic loss, not for "personal injury or damage to other property.” Accordingly, no part of Cargill's negligence claim is cognizable under Minnesota law. See also American Home Assurance Co. v. Major Tool and Machine, Inc., 767 F.2d 446 (8th Cir.1985) (interpreting “personal injury or damage to other property"); Society of Fine Arts v. Parker-Klein Associates Architects, Inc., 354 N.W.2d 816 (Minn.1984) (same).

        .See also Berg v. General Motors Co., 87 Wash.2d 584, 555 P.2d 818, 823 (1976) (“‘personal or property damage’ as a limitation only inheres in strict liability.”) (dicta).

      . Plaintiff relies on Hague v. Allstate Insurance Co., 289 N.W.2d 43, 48 (Minn. 1979), aff’d, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981), to argue that all five factors are relevant to cases involving both tort and contract issues. In Hague, the contested question concerned uninsured motorist coverage, and the court noted "the peculiar hybrid nature of the problems involved in automobile liability insurance cases.” Id. In the instant case, the only conflicts issues relate to pure negligence questions. (The court has already determined that there is no conflict of laws on strict liability and it is undisputed that Minnesota law governs the contract issues.)
      Even if the court were to consider the other three factors, at least two would favor the defendant’s position. Maintenance of interstate order involves whether the forum has sufficient contacts with the facts in issue. As plaintiff successfully asserted in arguing an earlier motion in this case, there are quite significant contacts with Minnesota. The third Milkovich factor, simplification of the judicial task, strongly favors applying Minnesota law. In most situations, this consideration is of no importance— federal courts are quite capable of applying the law of the various states. Federal courts are properly reluctant to decide unsettled questions of state law, however, even when the law at issue is the law of the forum and the trial court has had extensive experience with it. In this case the law of Minnesota is quite clear, while the law of Washington is not.

      . The fact that the contract provides that Minnesota law governs contract disputes is evidence that Cargill, a Minnesota corporation, was far from powerless in its dealings with PECO, a Washington corporation.