text:
Rehearing Denied May 4, 1973.
Jay Goldberg, New York City, for appellant.
John H. Gross, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, John W. Nields, Jr., Asst. U. S. Atty., on the brief), for appellee.
Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
Albert Puco was convicted in April 1972 by a jury in the United States District Court for the Southern District of New York, Arnold Bauman, J., of selling narcotic drugs to an undercover federal agent in violation of 26 U.S.C. Secs. 4705(a) and 7237(b).1 Puco was sentenced on May 22, as a second time narcotics law violator, to 14 years in prison. This was Puco's third trial on two counts of conspiracy to sell narcotic drugs and sale of such drugs. At a trial in February 1970, Puco and a co-defendant, Robert Gonzalez, were convicted on each count, but their convictions were reversed because of improper prosecutorial comment. United States v. Puco, 436 F.2d 761 (2d Cir. 1971) (reversal of Gonzalez's conviction, April 16, 1971, is unreported). A superseding indictment was filed the same month, again charging conspiracy and sale of narcotics. At their second trial, in June 1971, both defendants were again found guilty on each count. On appeal Puco's conviction was once more reversed-because of use of a 21-year old conviction in cross-examining him-and his case was remanded, 453 F.2d 539; the conviction of Gonzalez was affirmed. 460 F.2d 1286. At Puco's third trial, he was acquitted of the conspiracy charge but convicted on the sale charge.2 It is from this conviction that he now appeals. For reasons set forth below, we affirm the conviction.
* The events leading to Puco's arrest began when agents of the Bureau of Narcotics and Dangerous Drugs, together with an informer, contacted Gonzalez, a suspected narcotics dealer, to discuss a possible heroin purchase. At their first meeting, in late June 1969, Gonzalez was unable to reach his "connection" by phone. The next day Gonzalez again met with the agents and described his contact as Italian and as having "a legitimate business front." During this meeting Gonzalez placed a call to his contact, known as "Al"; one of the agents sought to arrange a transaction with him, but the negotiations stalled. Four days later, the agents again met with Gonzalez. Once again, the heroin deal foundered, but another of the agents, George Ellin, reached an agreement with Gonzalez for a separate purchase of cocaine, to be supplied by Al.
On July 2, by prearrangement, Ellin met Gonzalez and they drove, at Gonzalez's direction, to White Plains Road in the Bronx. When they were near Wood Avenue and White Plains Road, Gonzalez stated that this was the block where the sale would be made and that his connection owned a store in the area and used a nearby building for drug deliveries. Later they parked across the street from the block in question, and Gonzalez pointed out one building as the place where the delivery would be made at 8:00 o'clock. The two men waited; at 8 P.M. appellant Puco left the TV repair shop that he owned on the block, carrying a "suitcase type of bag." Gonzalez then reportedly said to Ellin, "There's my man now, the individual with the bag. He carries the merchandise in the bag." Puco entered the building that Gonzalez had earlier identified, which was immediately next door to Puco's shop. Gonzalez left the car and followed Puco into the building, emerging "less than a minute" later with a brown paper bag containing one-half kilo of cocaine. On a signal from Ellin, surveilling agents closed in and arrested Gonzalez. Ellin then identified Puco as he came out of the building, still carrying his bag, and Puco was arrested as well. No money had changed hands prior to the arrest.
The most substantial arguments on appeal relate to the remarks Gonzalez allegedly made to Agent Ellin. At trial (Puco's third), Ellin described the events of the day in question, including, over defense objection, the alleged statements of Gonzalez identifying Puco as his connection. As part of the defense case, Puco's counsel sought to introduce into evidence a transcript of Gonzalez's testimony at his-and Puco's-first trial, in which Gonzalez denied that he had seen Puco at all at the time and place in question. The asserted reason for introducting this transcript was to impeach the hearsay declarant, Gonzalez. After ascertaining that the Government was willing to produce Gonzalez, who was then in jail, as a defense witness, Judge Bauman refused to allow introduction of the transcript on the ground "that Mr. Gonzalez is readily available and the best way to hear what Mr. Gonzalez has to say is to produce Mr. Gonzalez." Defense counsel declined to call Gonzalez, principally because to do so might give the prosecution an opportunity to question him about certain statements incriminating Puco that Gonzalez had purportedly made to an Assistant United States Attorney shortly after his arrest.
Appellant's most challenging argument is, in effect, an attack on the constitutionality of the standard exception to the hearsay rule for the extrajudicial declarations of a defendant's alleged coconspirator. Puco claims that the Government should have been required to call Gonzalez as a witness before allowing Agent Ellin to report Gonzalez's alleged statements and that the failure to do so deprived Puco of his sixth amendment right "to be confronted with the witnesses against him." Ellin's testimony as to what Gonzalez had said, though hearsay, was admitted as reporting statements made in furtherance of a conspiracy. See, e. g., Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953).3 That the testimony was admissible in spite of its hearsay character does not, however, end our inquiry. Although there has not been a consensus in the Supreme Court as to the scope and substance of the Confrontation Clause, the Court has clearly stated that the Clause is not merely a codification of the hearsay rule. See Dutton v. Evans, 400 U.S. 74, 81-82, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (opinion of Stewart, J.), quoting California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
Nonetheless, recent Court decisions indicate that the considerations governing the hearsay rule also animate the principles of the confrontation guarantee: Although careful to avoid placing evidentiary rules in a constitutional straitjacket, the Court has emphasized the importance of subjecting evidentiary statements to challenge by cross-examination of the declarant during at least some stage in the judicial proceedings against a defendant. Thus, in California v. Green, supra, testimony at a preliminary hearing at which counsel conducted cross-examination was held admissible at trial because of that prior cross-examination, regardless of whether the witness was available at trial, 399 U.S. at 165-66, 90 S.Ct. 1930; and the Court also held that since the witness was available for cross-examination at trial, the preliminary hearing testimony would have been admissible even if there had been no opportunity to cross-examine. Id. at 157-64. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (conviction invalid as prosecutor read to jury confession of accomplice, who invoked fifth amendment privilege and thus effectively prevented cross-examination).
The function of the cross-examination requirement is to assure that "the trier of fact has a satisfactory basis for evaluating the truth of the prior statement" introduced into evidence at trial, whether by transcript of a prior hearing or by hearsay testimony. California v. Green, supra, 399 U.S. at 161, 90 S.Ct. 1930. However, some statements are, because of their content or the circumstances in which they were uttered, obviously reliable even in the absence of cross-examination of the declarant. Thus, in Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. 210, the Court indicated that the presence of sufficient "indicia of reliability" may, in some circumstances, permit the prosecution to introduce out-of-court statements into evidence even though the declarant is available to it and the defendant has never had an opportunity to cross-examine him.4 Justice Stewart's plurality opinion in Dutton, which was joined by three other justices,5 indicates that the exact scope of this exception to the usual requirement of an opportunity to cross-examine must be worked out on a case-by-case basis, id. at 86, 91 S.Ct. 210, but the exception apparently applies at least where the statement is clearly trustworthy and is not "crucial" to the prosecution or "devastating" to the defendant.6 See United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); cf. United States v. Clayton, 450 F.2d 16, 19-20 (1st Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). While the latter standards are fairly general, it should be noted that the prosecution in Dutton apparently had a very strong case. Twenty witnesses testified against the defendant, including an eyewitness who identified him as one of the participants in the triple murder, and the plurality opinion characterized the hearsay testimony there in question as "of peripheral significance at most." 400 U.S. at 87, 91 S.Ct. 210. Although the holding in Dutton is apparently not sui generis, its scope is uncertain in view of both the facts of the case and other recent decisions. See, e. g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) (transcript of principal witness from first trial admissible at second trial as witness not available and there was adequate cross-examination at first trial); California v. Green, supra; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (transcript of preliminary hearing testimony inadmissible at trial despite availability of cross-examination at earlier hearing unless Government makes reasonable effort to produce witness at trial); see generally, Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1385 (1972).
We also cannot say on these facts that Gonzalez's statement to Ellin was "devastating" or "crucial," although ordinarily a verbal identification of a defendant might well be. Admittedly, these terms do not offer a precise standard, but we interpret them as requiring that the evidence be in some way essential, indeed central, to the prosecution's case. It is true that Ellin's testimony about what Gonzalez had said to him on July 2 was more important than was the hearsay statement quoted in Dutton. But even though evidence of Gonzalez's verbal identification of Puco was helpful to the prosecution, it came as part of a sequence of events that made the statement almost unnecessary. Given what had occurred prior to 8:00 P.M. on July 2, even if Gonzalez had said nothing to Ellin when Puco appeared, Gonzalez's immediate departure from the car and entry into the building spoke volumes. A jury could well have convicted Puco based upon prior events and what Ellin had observed of Puco's and Gonzalez's entries into the building and their respective departures from it, Gonzalez with the cocaine.
Finally, on the peculiar facts of this case Gonzalez was "available" to the Government as a witness more in theory than in fact. At the second trial of Gonzalez and Puco, Gonzalez took the stand in his own defense. The Government confronted him with a statement made after his arrest admitting that Puco was his source of narcotics; Gonzalez denied making the statement and the trial judge refused to permit the Assistant United States Attorney to whom Gonzalez had allegedly made it to so testify. On the appeal from that second trial, Puco asserted that the denial of his motion for severance had prejudiced him because the Government, in cross-examining Gonzalez, had referred repeatedly to his post-arrest statement that Puco was his source, even though Gonzalez was then unwilling to so testify.9 Presumably, if the Government had called Gonzalez as a hostile witness in Puco's third trial, the defense would have complained vigorously-and quite possibly successfully-when Gonzalez was again confronted with his statement. See 3A J. Wigmore, Evidence Secs. 904, 905 (Chadbourn Rev.1970). Since Gonzalez was not called, the defense had the choice of leaving him out of the trial altogether or calling him as a defense witness with the possibility of impeachment.10 To this it might be said that the Government, by Ellin's testimony, injected Gonzalez's statements into the case, because Ellin could have told his story without referring to these statements of Gonzalez. But, as already shown, that evidence was clearly admissible, and in large part inferable merely from Ellin's presence at White Plains Road with Gonzalez and the accompanying events and circumstances.
Appellant also objects to the refusal of the court to permit introduction of the earlier testimony of Gonzalez after agent Ellin had quoted him. Citing a number of authorities, e. g., 3A J. Wigmore, supra, Sec. 884; 4 B. Jones, The Law of Evidence Sec. 936, at 1764 (5th ed. 1958), Puco asserts that he is entitled to use the inconsistent statements of a hearsay declarant (Gonzalez) in order to attack his credibility, and that he need not lay a foundation otherwise required for use of such statements, see, e. g., United States v. Hayutin, 398 F.2d 944, 952-953 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968), since the prosecution did not call the declarant. Although we can accept the general validity of appellant's premise, cf. Carver v. United States, 164 U.S. 694, 697-698, 17 S.Ct. 228, 41 L.Ed. 602 (1897), his conclusion that the district court erred in rejecting his claim does not follow. By use of this theory, appellant actually seeks to introduce the evidence of Gonzalez's denials of Ellin's story not primarily to discredit the reliability of Gonzalez's alleged identification of Puco, but rather to contradict and discredit Ellin's version of the events of July 2.12 Used in this manner, the prior testimony is submitted for the truth of its content and is thus hearsay, which Judge Bauman could properly exclude, even though it may have had some very marginal probative value on the credibility of Gonzalez.
Apparently in anticipation of this conclusion, appellant also cited to the court below the prior recorded testimony exception to the hearsay rule. See C. McCormick, Handbook of the Law of Evidence ch. 25 (2d ed. 1972). However, this exception has traditionally been predicated upon the unavailability of the witness. See, e. g., id. Sec. 255, at 617; Proposed Rules of Evidence, 51 F. R.D. 315, 440 (Advisory Committee's Note to Rule 804). Here the prosecution declared in open court its willingness to produce Gonzalez, but defense counsel declined. That Puco's attorney did not wish to expose such a witness to possibly damaging cross-examination does not justify introduction of Gonzalez's prior testimony under this exception to the hearsay rule.
Puco's final argument goes to the sufficiency of the evidence against him. We have already indicated that there was ample evidence for a jury to convict.
Judgment affirmed. We wish to compliment appellant's assigned counsel, Jay Goldberg, for his excellent briefs and argument.
a new test which, as a pre-condition to admitting a declaration of a co-conspirator, requires not only the usual findings that the declaration is in furtherance of a conspiracy of which the defendant was then a member, but the additional findings that the declaration is "reliable" and that it is not "crucial" to the Government's case or "devastating" to the defense.
In addition, the United States claims that the "new test" is unsupported by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and that that decision, if anything, stands for the proposition that the traditional co-conspirator rule in the federal courts should remain untouched.
We believe that the Government reads too little into Dutton and too much into the panel decision in this case. While the Court did state in Dutton that "we do not question the validity of the co-conspirator exception applied in the federal courts," id. at 80, 91 S.Ct. at 215, it did so only to make clear what the issue was before it. The analysis in Dutton, as indicated by the panel opinion in this case, requires another look at the traditional co-conspirator rule in the federal courts.1 The amicus brief filed by the Solicitor General of the United States in Dutton itself went into that question extensively. At least four circuit courts that have encountered the question since Dutton was decided have felt compelled to consider whether the Court's decision in Dutton affected the traditional co-conspirator rule, see the authorities collected in footnote 11 of the panel opinion, and two of them have gone through the same analysis as the panel opinion in this case. United States v. Adams, 446 F.2d 681, 682-84 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); United States v. Weber, 437 F.2d 327, 335-40 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). Therefore, we adhere to the position that ignoring the implications of Dutton is unwarranted and unwise.
The United States claims that as a result of the panel decision application of the co-conspirator rule in the district courts in this circuit will be unworkable. The Government suggests that from now on, because of the panel opinion, before a district judge decides that the declaration of a co-conspirator may be admitted, the judge must determine not only that the declaration is "reliable" but also that it is neither "crucial" to the Government's case nor "devastating" to the defense. The panel opinion made no such holding. In referring to the latter two criteria, we were acting out of caution-perhaps with an excess of that quality-to satisfy ourselves that the declarations of Puco's co-conspirator, Gonzalez, were properly admitted regardless of how broadly Dutton might be construed. We did not hold that Dutton had to be so expansively construed, and we do not do so now. Specifically, we did not and do not hold that a trial judge must find, before admitting a co-conspirator's declaration, that it is not "crucial" to the Government's case or "devastating" to the defense.
For future applications of Dutton to similar situations, we suggest that when a co-conspirator's out-of-court statement is sought to be offered without producing him, the trial judge must determine whether, in the circumstances of the case, that statement bears sufficient indicia of reliability to assure the trier of fact an adequate basis for evaluating the truth of the declaration in the absence of any cross-examination. That this is not an insuperable problem is indicated by the decisions cited above. Thus, in United States v. Weber, supra, Judge Adams pointed out that the co-conspirator's declarations in that case presented "the traditional hallmarks of reliability because they were uttered spontaneously" and were against his penal interest when made. 437 F.2d at 340; cf. United States v. Glasser, 443 F.2d 994, 999 (2d Cir. 1971). In most cases the determination that a declaration is in furtherance of the conspiracy-a determination that the trial judge now must make in every case for admissibility2-will decide whether sufficient indicia of reliability were present. While there may be exceptions, we do not think that they will be frequent.
Finally, we note that Puco's counsel apparently intends to petition the Supreme Court for certiorari.3 If the Government desires a further clarification of the implications of Dutton for the co-conspirator rule, it can choose to support Puco's petition in order to obtain guidance from the most reliable source for interpretation of Dutton.
The panel should grant the government's petition for rehearing to make clear that we adhere to the well established law of this Circuit concerning the admissibility of statements made by co-conspirators in furtherance of the conspiracy. Until now the generally accepted rule, not only in the Second Circuit but elsewhere, has been that where the judge is satisfied by independent evidence that the defendant was a party to a conspiracy, what another member said during the course of the conspiracy in order to carry it out is admissible against him. This time-honored rule is sound, sensible, and workable, and there is nothing in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), or in policy which should cause us to abandon or qualify it now.
The testimony at issue here concerned what Gonzalez said to Agent Ellin when they saw Puco emerge from his TV repair shop. Ellin had previously arranged with Gonzalez to purchase cocaine which Gonzalez was to secure through his contact, "Al." For this purpose Ellin met Gonzalez and they drove to White Plains Road near Wood Avenue. Gonzalez pointed out the building where the delivery would be made at 8 o'clock. He had told Ellin that his connection owned a store in the area and used a nearby building for deliveries. At 8:00 P.M. Ellin and Gonzalez saw Puco leave his TV repair shop carrying a bag. Ellin testified that at this point Gonzalez said to him: "There's my man now, the individual with the bag. He carries the merchandise in the bag." Puco then entered the building which Gonzalez had earlier pointed out. Gonzalez followed Puco into the building and came out almost immediately thereafter with a brown paper bag which contained one-half kilo of cocaine.
What Gonzalez said to Ellin about Puco was the statement of a co-conspirator made during the course of the conpiracy and in furtherance of it. As such it was admissible under the traditional co-conspirator hearsay exception which has been the law of this Circuit from time immemorial. Out of a host of cases, some before and some after Dutton v. Evans, supra, it suffices to cite United States v. Renda, 56 F.2d 601 (2d Cir. 1932); United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); and United States v. Projansky, 465 F.2d 123 (2d Cir. 1972). Nothing in the plurality opinion of Mr. Justice Stewart in Dutton v. Evans, supra, undermined this long standing doctrine. The statement at issue in Dutton was not made during the course of the conspiracy but after the conspiracy was at an end, while one of the conspirators was in prison. This evidence would not have been admissible in a federal prosecution, but was permitted in a Georgia state court murder trial under a Georgia rule which allowed proof of statements made during the concealment phase of the conspiracy.
"Appellee does not challenge and we do not question the validity of the coconspirator exception applied in the federal courts"
and he went on, at page 81, 91 S.Ct. at page 215 to define that exception as being one "that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators . . . if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than the concealment of the criminal enterprise." If the Court had meant to upset a doctrine that had prevailed in the federal courts for years with specific Supreme Court approval, e. g., Wong Sun v. United States, 371 U.S. 471, 490-91, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), it would not have left the matter to inference.
Despite the fact that the statement admitted against Evans did not fall within the well-recognized federal hearsay exception, the Court proceeded to analyze the Georgia rule in the context of the Sixth Amendment. Finding that the statement was not "crucial" or "devastating" and that there were sufficient "indicia of reliability," the Court concluded that the use of the evidence did not violate the Sixth Amendment and that it was therefore admissible. Thus, nothing in Dutton v. Evans, supra, cast doubt on the settled federal rule.
I see no reason for casting doubt upon the rule regarding the admission of co-conspirator's statements. Before the declaration of a co-conspirator can be admitted, the judge must be satisfied "by a fair preponderance of the evidence independent of the hearsay utterances," see United States v. Geaney, supra, 417 F.2d at 1120, that the conspiracy existed and that the defendant was a member; and the statement itself must have been made in the course of the conspiracy and in furtherance of it. These requirements protect against the use of unreliable evidence, since the circumstances in which the statement is made-prior to detection and for the purpose of implementing the illegal scheme of which the defendant has been shown to be a part-tend to assure the reliability of the declarant and the accuracy of the statement. To the contrary, the statements received by the Georgia court in Dutton were made after the conspiracy had ended and were therefore subject to a host of reliability problems, including the possibility of improper motive or bias on the part of the declarant.
As regards statements within the traditional co-conspirator rule, it is of no moment in determining admissibility that these may be "crucial" or "devastating." Prejudice and relevance are inseparable in such cases, and if the statement is made during the course and in furtherance of the conspiracy, its obvious relevance must carry the day.
Whenever a criminal offense has been carried out by more than one person, and this is charged in a large percentage of federal criminal prosecutions, statements made by those who are the leaders, or by their confederates, in an effort to carry it out, are necessarily the heart of the offense. When taken together with the other evidence in the case, these statements, without any further proof, necessarily constitute reliable evidence of the kind which judge and jury are well equipped to evaluate. There is no logical reason to impede unnecessarily the use of this evidence as the panel opinion seeks to do.
It may be that panels of the Third and Ninth Circuits have regarded Dutton as a justification for changing the law in their respective circuits, see United States v. Weber, 437 F.2d 327, 335-40 (3rd Cir. 1970) cert. denied 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971) and United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971), although in both cases, as here, the decision was in the government's favor and it was thus precluded from seeking certiorari. But a contrary result was reached by the First Circuit in United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), where the defendant's petition for certiorari was denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). I think my colleagues are unjustified in unsettling the law of this Circuit without positive en banc approval of a majority of the active judges of the Circuit. The fact that only Chief Judge Friendly and Judges Hays and Timbers voted to en banc this case by no means implies that a majority of the active judges approve the panel opinion; I know from experience how difficult it is to persuade a majority of the active judges of a busy court to agree to en banc consideration where they believe the panel has reached the right result simply because they disagree with the opinion. In my view the panel committed serious error in an opinion, which should now be corrected.
I note that the panel has since filed a supplemental opinion on petition for rehearing. Although the panel has retreated somewhat from its original position, it has not gone nearly far enough. While the deletion of the "crucial" or "devastating" test is most welcome-although hard to understand if Dutton were really applicable-the panel still takes the position that the district judge must determine if a declaration by one of the co-conspirators in furtherance of the conspiracy sought to be admitted against a defendant presents "sufficient indica of reliability"-without offering any guidance as to what indicia will suffice. The supplemental opinion states that the determination that a declaration is in furtherance of the conspiracy will generally supply the needed "indicia of reliability." However, since the majority would give the defendant a chance to question this, it seems clear that, as a practical matter, the necessity of ascertaining whether statements made by co-conspirators during the course of the conspiracy are "reliable" will needlessly delay the trial of many federal cases. If trial judges should follow the lead of the dicta of the panel in this matter-and I hope they will not-they must either hold a pre-trial hearing, or, more likely suspend the taking of evidence before the jury in order to go into this collateral question.1 It now takes at least twice as long to try the average criminal case as it did ten years ago due in large part to the fact that before or during trial, hearings may now be required to determine the legality and admissibility of a search and seizure, a confession, or an identification. To this list my panel colleagues now would add a further test for statements by co-conspirators. Rather than further complicating and lengthening criminal conspiracy trials in this manner, I submit there is every reason for keeping the trial procedures as simple as possible, and for adhering to long accepted principles unless and until the Supreme Court should clearly instruct otherwise.
"The objection to Ellin's testimony regarding what Gonzalez said to him about Puco when they saw Puco emerge from his TV repair shop carrying a bag and then enter the building next door is entirely without merit. Gonzalez's statement was the statement of a conspirator made in the course of the conspiracy to further the success of the conspiracy. Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] is not in point. That case did not involve a statement made in the course of the conspiracy and in furtherance of it. In Dutton the Georgia state court had admitted a statement made by a co-conspirator after he had been committed to prison and arraigned on a charge of committing the same murders with which the defendant was charged. Thus the need for showing additional characteritics of reliability which Mr. Justice Stewart's opinion considered needed to save the conviction in that case are not required here."
ORDER DENYING REHEARING AND REHEARING EN BANC.
Chief Judge FRIENDLY dissents in an opinion in which Circuit Judge HAYS and TIMBERS concur.
Circuit Judge MANSFIELD also dissents.
Like former Chief Judge Lumbard, I find it impossible to understand how two members of a panel can modify a rule of evidence applied by this Circuit in scores of decisions, approved by all the commentators, see, e.g., 4 Wigmore, Evidence Sec. 1079 (Chadbourn Rev. 1972); McCormick, Evidence Sec. 267, at 645-46 (Cleary ed. 1972); ALI, Model Code of Evidence, Rule 508(b); Commissioners' Uniform Rules of Evidence 63(9)(b); Proposed Federal Rules of Evidence, Rule 801(d)(2), recognized by the Supreme Court in cases as old as United States v. Gooding, 12 Wheat. (25 U.S.) 460, 469-470, 6 L.Ed. 693 (1827), and as recent as Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and expressly preserved by the very decision, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), now claimed to have qualified it.
The expression by the panel majority, unreviewable at the instance of the government since the decision was in its favor, is bound to create chaos in the administration of criminal justice in this circuit. Some judges may decide to disregard it. Others will attempt to apply it, although I am at a loss to know how they can since the panel supplies no guidelines as to what additional "indicia of reliability" will suffice. In some cases where a judge who regards himself as bound by the panel's expression finds insufficient indicia, exclusion will result in an acquittal, unjustified under the long-standing rule of law, from which the government will be unable to appeal. In others, where the declaration has been admitted and the defendant convicted, panels of this court will be obliged to face the question a majority of the active judges seek to avoid today. There will be many months of uncertainty before the law in this circuit can be put back where the Supreme Court meant to leave it, as it ultimately will be either by this court or by higher authority. I cannot think of a case more clearly demanding en banc consideration.
Both provisions were repealed, effective May 1, 1971, by the Comprehensive Drug Abuse Prevention and Control Act Sec. 1101 (b)(3)(A), (4)(A), 84 Stat. 1292. (The equivalent provisions are now found at 21 U.S.C. Secs. 828(a), 841(a)(1), (b)(1) (A).) However, under Sec. 1103(a) of the new Act, the repealed sections are still applicable to "[p]rosecutions for any violation of law occurring prior to the effective date of section 1101 . . . . "
Q. But, sir, you were sitting in the car with Agent Ellin, were you not?
Q. Before you came out of the car to go into 1382 White Plains Road, sir?
Q. Now, according to the testimony of Agent Ellin, you said, when the man came by, "That's my man," or "That's the man," or words to that effect?
Q. Did you see Mr. Puco around there at that point?
A. I didn't see Mr. Puco at all.
Q. I see. Now, you were asked before, and I wish to ask you here, you drove up to 1380 White Plains Road, is that correct, sir?
Q. You mean the other, the agent drove, right?
Q. And at that time, when you got there, did you at that time tell the agent that this was where your connection was?
Q. What did you tell the agent at that time?
A. I told him that they have told me that the package was to be picked up at 8:00 o'clock on that hallway, and that's all I said to him.

matches:
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
sui generis
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.


text:
COMMONWEALTH vs. HENRY L. TAGLIERI.
COMPLAINTS received and sworn to in the District Court of Chelsea on August 2, 1974.
On appeal to the Superior Court a motion to suppress evidence was heard by DeGuglielmo, J., a Municipal Court judge sitting under statutory authority, and the cases were heard by him.
Margaret Hayman for the defendant.
WILKINS, J. We granted further appellate review in this case to consider whether there was sufficient information contained in an affidavit in support of a search warrant to constitute probable cause. The Appeals Court held that there was not. Commonwealth v. Taglieri, 6 Mass. App. Ct. 934 (1978). We agree.
We summarize the affidavit. A State police officer, who had experience in gathering information concerning gambling and organized crime, by affidavit presented certain facts on personal knowledge. In May, 1974, pursuant to court order, an electronic interceptor of telephone calls had been authorized concerning two telephones at an address in East Boston. In late May and in the first part of June, 1974, State police officers intercepted and recorded various telephone conversations made to and from the telephones at the East Boston address. The substance of these conversations showed that several individuals were using these telephones to conduct an illegal gambling operation. The police officer was able to identify who these individuals were. Each had been convicted of gambling violations.
the caller from East Boston. More than two weeks later, at approximately 1:51 P.M. on June 13, 1974, the same individual called the Revere number from the East Boston address, spoke to a man named "Henry," and told "Henry" the results of the first race at Suffolk Downs race track. Based on this information and his personal knowledge, the police officer represented that there was probable cause to believe that certain gaming materials and devices could be found in the Revere house. A judge of the Superior Court issued a warrant to search the Revere premises.
On August 1, 1974, the police entered and searched the Revere premises. They seized various items, including papers with notations indicating number pool play and horse bets. The defendant was charged with the use of a telephone for the purpose of accepting or placing wagers and with being present in a place with betting apparatus. The defendant was convicted in a District Court and appealed to the Superior Court. He filed a motion to suppress the evidence, which was denied. He was then convicted in a jury waived trial in the Superior Court and given concurrent sentences to a house of correction. A Justice of the Appeals Court granted a stay of execution pending appeal.
result should not turn on who the magistrate is or how much special knowledge he may have. We would accept only inferences which an experienced magistrate could draw as a common sense conclusion from the information set forth in the affidavit. See 1 W. R. LaFave, Search and Seizure 463 (1978). Although some courts have sometimes spoken broadly of the deference to be accorded the expertise of an issuing magistrate, a close examination of the cases reveals no willingness to defer to inferences which do not follow as a matter of common sense from the affidavit. See, e.g., United States v. Berry, 463 F.2d 1278, 1285 (D.C. Cir. 1972). Although weight should be given to the judgment and experience of a judge or magistrate who issued a warrant, with the result that its issuance will be upheld if there was a reasonable basis for finding probable cause (Rosencranz v. United States, 356 F.2d 310, 314 [1st Cir. 1966]), the affidavit "must set forth the basis for the magistrate's inferences with enough precision" for the determination to be scrutinized at a subsequent hearing on a motion to suppress or on appeal from a decision on a motion to suppress (id. at 317).
We agree with the Commonwealth that weight must be given to the special experience of a law enforcement officer who has executed an affidavit. For example, where such an officer states that he has drawn inferences from facts which an inexperienced person might not draw from those facts, the magistrate may rely on those inferences. Consequently, if a seemingly minor fact has particular significance to an expert, not apparent from common knowledge and experience, because of the method by which criminal operations are conducted, the affidavit should disclose its significance. See 1 W.R. LaFave, Search and Seizure 463 (1978).
and placed two bets, and (2), fifteen days later, a person at the Revere address received the results of a horse race. These two facts do not constitute probable cause to believe that gaming operations were conducted at the Revere address, even when coupled with the fact that the telephone calls were made by a convicted gambler from premises where it reasonably appeared gaming operations were conducted.
We agree with the determination of the Appeals Court that the two telephone conversations referred to in the affidavit in support of the search warrant were the only specific facts on which probable cause concerning the Revere premises could have been based and that those conversations, coupled with any inferences which might reasonably be drawn from the circumstances, did not "establish a probability that the premises sought to be searched contained equipment for registering bets or conducting other gaming operations." Commonwealth v. Taglieri, 6 Mass. App. Ct. 934 (1978).
Judgments of the Superior Court reversed.
[Note 1] In one form of more socially acceptable risk taking, this process of lay-off bets would be called reinsurance.
[Note 2] No argument based on inferences concerning the nature of the gambling operations was made at the hearing on the motion to suppress or in the Commonwealth's brief on appeal. The claim first was advanced in the Commonwealth's application for further appellate review. If these inferences were so apparent to experienced observers, it is surprising that the Commonwealth did not argue them at the earliest stages of this case.
[Note 3] The Commonwealth argues that the issuing judge had information from other affidavits submitted simultaneously in support of other warrant requests which justified a finding of probable cause in this case. If there were affidavits submitted in support of other applications for search warrants, they should have been incorporated by reference or attached to the affidavit, or at least presented at the time of the hearing on the motion to suppress. See Commonwealth v. Saville, 353 Mass. 458 , 460 (1968); United States v. Nolan, 413 F.2d 850, 853 (6th Cir. 1969). They do not appear in the record before us.

matches: v. v. v. v. v. v.


text:
Civil Appeals Nos. 1394 of 1999 etc., heard on 13th September, 2007.
(On appeal from the judgment dated 2.3.1999 passed by the Federal Service Tribunal, Islamabad in S.A. No.809-R of 1998).
—-Even if declaration of law is prospective, it will apply to the cases in which the law is declared.
—-S.2-A—Constitution of Pakistan (1973), Arts.240, 260 & 212—Abatement of proceedings before Service Tribunal–Scope and extent—Law laid down in the judgment of Supreme Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 reiterated/recapitulated—Said judgment was rendered by the Supreme Court while cases filed by the employees and the employers were before it either at the leave stage or appeal stage—Transactions past and closed were saved—Cases pending before the Supreme Court could not be said to be past and closed transactions—Judgment in Muhammad Mubeen-us-Salam applied only to the proceedings in relation to the cases which were pending before the Supreme Court (either at appeal stage or at leave granting stage) and therefore., the cases in which judgments of the Service Tribunal were never assailed before. the Supreme Court had attained finality—Section 2-A, Service Tribunals Act, 1973 was ultra wires of Arts.240 & 260 of the Constitution and unless services of an employee were governed by statutory rules he had no right to invoke jurisdiction of the Service Tribunal—Contention that judgments rendered by Service Tribunal (implemented or not) should be maintained would be totally destructive of the law declared in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602—If abatement was applied only to the petitions or appeals of the _employers pending before Supreme Court, it would amount to validating the judgments/orders of the Service Tribunal without even examining them—Proceedings initiated before the Service Tribunal from their very inception stood abated—Direction for abatement by Supreme Court in Muhammad Mubeen-us-Salam’s case was not under S.6, Service Tribunals Act, 1973; basis, of the direction was that in cases where services of an employee were not governed by statutory rules he could not invoke S.2-A of the Service Tribunals Act, 1973 and as a corollary to and as a matter of course in such cases the Service Tribunal had no jurisdiction and after such finding, it could not possibly be said that only the matters pending before the Supreme Court, would abate leaving the judgments of Service Tribunal intact—In fact, nullifying the proceedings taken before the Service Tribunal was not only the plain intention of the Supreme Court but was also spelt out by the directions given in Muhammad Mubeen-us-Salam’s case—View in the Supreme Court judgment in the case of State Life Insurance Corporation of Pakistan 2007 SCMR 1400 was inconsistent with the concept of abatement as contemplated by the judgment in Muhammad Mubeen-us-Salam’s case.
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; C.P. No.552 of 2007 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.
State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad 5hanwari and others 2007 SCMR 1400, held, inconsistent with Muhammad Mubeen-us-Salam’s case PLD 2006 SC 602.
—-Definition—Concept of abatement is not capable of exact definition.
—-S. 2-A—Constitution of Pakistan (1973), Arts.240, 260 & 212—Abatement of proceedings—Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified—Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies—Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before the Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation—Cases in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v. .Federation of Pakistan PLD 2006 SC 602—Supreme court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing on the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench.
Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 ref.
Abdul Hafeez Pirzada, Khalid Anwar, Raja Muhammad Akram, Waseem Sajjad, Syed Iftikhar Hussain Gillani, Shahid Hamid, Abdul Karim Khan Kundi and Muhammad Akram Sh. , Senior Advocates Supreme Court for Appellants.
Syed Asif Shah, Sh. Riaz-ul-Haq, Abdur Rehman Siddiqui, Afzal Siddiqui, Mian Mehmood Hussain, Ch. Khalid Farooq, Mehmood A. Sh., Mirza Hafeez-ur-Rehman, Sh. Altaaf Ilahi, Zulfiqar Khalid Maluka, Dr. Babar Awan, Advocates Supreme Court for Appellants.
Mehr Khan Malik and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.
Abrar Ahmad Khan Alamgir, Muhammad Javed Iqbal, Muhammad Naeem Igbal, Muhammad Aslam Khan, Sh. Manzoor Hussain Shah, Abdul Majeed Siddiqui, Dildar Muhammad Awan, Shaukat Masood Zafar, Ghulam Samdani Hashmi, Rana Muhammad Khalil, Ghulam Abbas Membn, Munawar Ahmad, ,Syed-ur-Rehman, Abdul Qayum Chaudhry, Muhammad Sabir, Muhammad Aslam Nadeem, Muhammad Ilyas, Abdul Sattar, Muhammad Akram Aftab, Muhammad Naseem Asif, Muhammad Rafiq, Muhammad Nawaz Jappa, Gulzar Ahmad Soomro, Ghulam Hussain, Shams-ul-Islam, Manzoor Elahi, Rahat-e-Alam, Muhammad Jalil, Sadiq Ali, Nazeer Khan, Humayun Irfan, Malik Asghar Ali, Abdul Ghafoor, Iftikhar Ahmad Jogezai, Abdul Qayyum Khan, Muhammad Yasin Rashid, Mamlook Hussain, Faryad Ali and Sahibzada, (Appellants in person).
Abid Hussain Minto, Hafiz S.A. Rehman, Khawaja Muhammad Farooq, Senior Advocates Supreme Court for Employers/Department.
Ghorsi Muhammad Din Ch. , Muhammad Jaffer Hashmi, Mian Qamar-uz-Zaman, Raja Muhammad Ibrahim Satti, Saleem Baig, Sh. Anwar-ul-Haq, Jehanzeb Khan Bharwana, Riaz Muhammad Qureshi, Hashmat Ali Habib, Mian Abdullah, Javed Altaf, Manzoor Ahmad Rana, Muhammad Bashir Kayani and Syed Asif Shah, Advocates Supreme Court for Employers/Department.
Dates of Hearing: 12/13th September, 2007.
“(1) Section 2-A of the STA, 1973 is; partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1) (b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2 (1) (b) of the CSA, 1973.
“(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212 (3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending .before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered .by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a. period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
3. Since no specific order was passed in the listed cases; these were heard on 12th and 13th September, 2007. While examining these matters, we find that cases at serial Nos.89 to 1914, mentioned in the later part of the judgment involve the employees whose services are not governed by statutory rules but” the cases at serial Nos. 1 to 88 and 1915 to 2162 require further hearing on the question whether service of the employees in those cases was or was not governed by Statutory Rules.
4. Syed Iftikhar Hussain Gillani, Advocate submits that the employees had succeeded before the learned Federal Service Tribunal after protracted litigation and, therefore, it was a fit case for applying de fecto doctrine to save .and protect the judgments delivered by the learned Federal Service Tribunal in favour of the employees particularly in the cases in which their judgments had been implemented. Reliance was placed on a two members’ judgment of this Court in C.P. No. 552 of 2007 decided on 13-7-2007. He next submits that according to-the settled principles, declaration of law by the superior courts is prospective.
Reliance was placed on Mehram Ali and others v. Federation’ of Pakistan and others PLD 1998 SC 1445. He, however contended that instead of directing employees to have recourse to an appropriate forum it should be the employer who should be directed to avail remedy against the judgment of the Federal Service Tribunal in favour of the employees.
He maintained that the direction of this Court in Para 109 (b) of the judgment in Mubeen-us-Salam’s case regarding abatement ‘of the proceedings was interpreted by a three member Bench of this Court in State Life Insurance Corporation of Pakistan through Chairman v. Raz .Muhammad Shanwari and others 2007 SCMR 1400 which should be followed according to which the proceedings pending before this Court alone stood abated keeping intact the judgments of the learned Federal Service Tribunal in favour of the employees.
5. Mr. Munir Ahmad Paracha, Advocate supported maintenance of the judgments of the learned Federal Service Tribunal. According to him the legislature could confer jurisdiction on the learned Service Tribunal to hear appeals of any category of the employees.
6. Mr. Khalid Anwar, Advocate, appearing for the State Bank of Pakistan, submitted that the cases not covered by Section 2-A stand abated which include the proceedings and judgments of the learned Federal Service Tribunal.
7. Mr. Abid Hussain Minto, Advocate appearing for the Pakistan State Oil supported abatement of the proceedings and submitted that the employees concerned had correctly understood the judgment of this Court by filing suits for damages before the civil court. which were pending. Besides… the learned counsel. mentioned above, M/s Shahid Hamid Khan, M. Igbal Bhutta, Naraindas Matians, Jaffar Hashmi, Asif ,Shah, Din .Muhammad Gorsi, Mr. Ibrahim Satti, Mr. Abdul Ghaffar Chaudhry, Hafiz S.A. Rehman, Javed Altaf, Mian Mehmood Hussain, Mr. M. Bilal, Mr. Afzal Siddiqui, Advocates and Malik Mehar Khan and Mr. Mehmood Ahmad, Advocate-on-Record appeared to either support or oppose abatement of these cases.
8. We have considered the submissions. Even if declaration of law is prospective it will apply to the cases in which the law- is declared. The judgment was rendered while cases filed by the employees and the employers were before this Court either at the leave stage or at appeal stage. The transactions past and closed were saved. However, the cases which were pending before this Court could not be said to be past and closed transactions. The conclusion, inter alia, of this Court was that section 2-A was ultra vires of Articles 240 and 260 of the Constitution and unless services of an employee were governed by statutory rules he had no right to invoke jurisdiction of the learned Federal Service Tribunal. To concede to the prayer that judgments rendered by the learned Service Tribunal (implemented or not) should be maintained will be totally destructive of the law declared in the said judgment. If abatement is applied only to the petitions or appeals of the employers pending before this Court, it will amount to’ validating the judgments/orders of the Federal Service .Tribunal without even examining them. In fact, while directing abatement in para. 109 of the judgment in Mubeen-us-Salam this Court was absolutely clear that the proceedings initiated before the learned Federal Service Tribunal from the very inception stood abated.
9. We will like to observe that concept of abatement is not capable of exact definition. It may be noted that our direction for abatement of the cases was not under Section 6 of the Service Tribunals Act, 1973. The basis of the direction was our conclusion flowing from the determination made by this Court that in cases services of an employee were not governed by statutory rules he could not invoke Section 2-A and as a corollary it follows as a matter of course that in such cases the Service Tribunal had no jurisdiction. After such a finding, it could not possibly be said that only the matters pending before this Court will abate leaving the judgments of the Service Tribunal intact.
10. In fact, nullifying the proceedings taken before the Service Tribunal was not only the plain intention of this Court but was also spelt out by the directions in clauses (c) and (d) of para. 109 of Mubeen-us-Salam. We say with utmost respect to the learned Judges who decided the case of State Life Insurance Corporation of Pakistan supra that it is .inconsistent with the concept of .abatement as contemplated by the judgment of the nine members Bench in Mubeen-us-Salam supra.
11. As far as the judgment of two members Bench of this Court is concerned, basis thereof was firstly that judgment of the Federal Service Tribunal in the earlier round had never been assailed and; secondly, the Staff Service Rules, 1973 of the National Bank of Pakistan were statutory.
12. We will like to reiterate here that whatever was said by this Court in the judgment in Mubeen-us-Salam supra applied only to the proceedings in relation to the cases which were pending before this Court. (either at appeal stage or at leave granting stage) and, therefore, the cases in which judgments of the learned Federal Service Tribunal were never assailed before this Court have attained finality.
13. We have noticed another grievance of Syed Iftikhar Hussain Gillani that some of the employees, successful before the Service Tribunal, had misunderstood the judgment of this Court and had not recoursed to remedies available to them in law. Therefore, any interpretation contrary to the one made by this Court in the case of State Life Insurance Corporation of Pakistan supra will seriously prejudice the employees. We are inclined to extend time in such cases.
(a) The cases noted at serial Nos. 89 to 1914 stand abated with the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies.
(b) The judgments of the learned Federal Service Tribunal rendered on the basis of Section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court have attained finality-and shall be implemented by the concerned organizations without dragging the employees into further litigation.
(c) The cases in which the services of the employees were governed by statutory rules are not hit by Mubeen-us-Salam’s case.
15. As a result thereof cases mentioned below from serial Nos. 89 to 1914 stand abated while the cases at serial Nos.1 to 88 and 1915 to 2162. shall be fixed for further hearing and disposal before appropriate Bench.

matches: v. v. v. v. v. v. v. v. v.


Cal Biz Lit: Witness Statements: Work Product or Not?
Witness Statements: Work Product or Not?
California's attorney word product doctrine is codified in Code of Civil Procedure § 2018.030, and has both absolute and qualified components. There is absolute protection against discovery for a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories," meaning that such writings are not discoverable under any circumstances. Other work product (which is not defined) "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."
(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.
(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.
This chapter is intended to be a restatement of existing law relating to protection of work product. It is not intended to expand or reduce the extent to which work product is discoverable under existing law in any action.
Fine. And as a result, for as long as I've been a lawyer, trial courts, appellate courts and lawyers have been struggling with, and coming up with different answers to, what seems like a straightforward questions that out to have a bright line answers: Are witness statements work product? Are they discoverable?
And yesterday, in Coito v. Superior Court of Stanislaus County (March 4, 2010) ___ Cal.App.4th ___ (F057690) the Fifth Appellate District muddied the waters some more.
More confusion after the jump.
So, until yesterday, we had a line of cases that said this: Work product protection extends only to "derivative" material, which is material "created by or derived from an attorney‘s work on behalf of a client that reflects the attorney‘s evaluation or interpretation of the law or the facts involved." (2 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 8:235, p. 8C-69.) Thus, verbatim statements, tape recordings, etc. were "evidentiary," not "derivative," and hence not protected by the work product doctrine. The leading case espousing this view was, and is, Kadelbach v. Amaral (1973) 31 Cal.App.3d 814.
On the other hand, in 1996, we had the case of Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, which held that because the attorney's impressions and theories invariably affected who he or she chose to interview or statementize and what was asked, statements taken by an attorney or at his or her direction were always going to be privileged. Going even further, the Nacht & Lewis court held that Judicial Counsel Form Interrogatory No. 12.3 ("Have you . . . obtained a . . . statement. . . ? If so, for each statement state: (a) the name . . . of the individual from whom the statement was obtained . . . .") violated the work product doctrine.
Now recall that under Auto Equity Sales v. Superior Court (1962) 57 Cal.2nd 450, when appellate courts are in dispute over a point like this, every trial and appellate court in the state can go either way. And so for fourteen years, this dispute has created an opening for trial and appellate courts to pick sides and for litigants to treat the issue like a brand new one every time it comes up.
First, the absolute work product privilege is not applicable to a recorded witness statement merely because it was recorded by an attorney or his agent. Rather, the absolute privilege applies, if at all, to the attorney‘s "impressions, conclusions, opinions, or legal research or theories" (Code Civ. Proc., § 2018.030, subd. (a)2), and matters inextricably intertwined therewith.
Second, where an attorney (or the attorney‘s agent), in the course of preparing or investigating a client‘s case, interviews a percipient witness therein and records what that witness said, the recording constitutes qualified work product of the attorney. While such a recording is protected by the qualified privilege, it is still potentially discoverable depending on a moving party‘s showing of need under section 2018.030, subdivision (b).
Third, where a party objects to form interrogatory No. 12.3 based on the qualified work product privilege, the objection should be overruled where, as here, the objecting party failed to make a foundational showing that a response would actually disclose matters protected by the work product privilege (e.g., significant tactical information about the case).
Dissenting and concurring opinion, slip op. p. 1.
Our Supremes almost never grant hearings on discovery matters. They should do so in this one and resolve the issue, as Justice Kane suggested: "To date, our Supreme Court has not weighed in on this subject. It should do so. Clarifying the scope of the work product privilege in this context is important for legal practitioners and in propria persona litigants." Id., slip op. p. 2.


Plaintiff-Appellants Linda Lou Eckert and Tuxie Eugene Ballard III appeal the district court's December 17, 1999 Order granting summary judgment to Defendant-Appellees. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.
Areas of factual dispute are noted below, although the underlying facts are construed in favor of the non-movant Appellants for the purposes of this appeal. On October 4, 1994 in Silverthorne, Colorado police officers responded to a 911 call from Tuxie Ballard ("Ballard"), the father of Plaintiff-Appellant Tuxie Eugene Ballard III ("Tuxie"). Ballard claimed he had been assaulted by Plaintiff-Appellant Linda Eckert ("Eckert"), the woman with whom he lived. Defendants Mark Silas ("Silas") and Eric Stremel ("Stremel"), officers of the Silverthorne Police Deparment ("SPD"), arrived at the residence to find Ballard in the front yard, holding a cordless telephone and bleeding from the mouth. Ballard told the officers he had been hit by Eckert, and did not strike back because he had been charged with domestic assault on two previous occasions.
Stremel interviewed Eckert, who claimed Ballard had hit her, then called the police before she could. Stremel noticed a wound on Eckert's hand and asked her if she hit Ballard. Eckert said she did not know Ballard was injured, but suggested it might have been the result of Eckert trying to defend herself. Eckert showed Stremel injuries allegedly caused in earlier fights with Ballard, including red marks on her arms. Eckert told the officers of guns and drugs in the house, which she claimed belonged to Ballard. Officers confiscated marijuana, a water pipe, a 9mm pistol and a sawed-off shotgun.
Appellants contend Ballard caused his own injuries by striking himself in the face with a rock before police arrived. According to Appellants, young Tuxie witnessed his father hitting himself with the rock, but Officers Silas and Stremel allegedly ignored the child's attempts to show them the bloody rock. The officers photographed Ballard's mouth and Eckert's hands.
Silas and Stremel arrested Eckert for misdemeanor harassment, leaving Tuxie with Ballard. A victim's advocate, Kim O'Brien, spoke with Ballard and Tuxie to determine if they needed any assistance. Tuxie indicated he was willing to stay with his father. Eckert posted $1000.00 bond, and was released later that day. She was escorted back to her home by SPD officers. Eckert alleges the officers prevented her from removing personal property from the house. Eckert then went to a domestic violence safehouse.
On October 5, 1994, Eckert met with Kim O'Brien, and Assistant District Attorney Todd Barson ("Barson"). Eckert alleges that after she attempted to tell her version of events, Barson told her that charges would be dropped if Eckert arranged to leave the state. The district attorney suggested Eckert return to the house with a SPD officer for the purpose of collecting evidence of Ballard's drug activity. She was re-arrested at her home by other SPD officers because her original bond had been revoked.
Eckert subsequently provided copies of a previous protective order from Texas, a copy of an indictment against Ballard from a previous domestic assault in Texas, and other information suggesting Ballard had committed violent acts on previous occasions. According to Eckert, Silverthorne Police Chief Morrison and Police Sergeant Palacios discounted her version of events, refused to arrest Ballard, and tried to convince her to plead guilty to the pending domestic violence charge.
Tuxie lived with Ballard for the next three months. Charges against Linda Eckert were dismissed for lack of evidence on December 20, 1994. Eckert claims Ballard continued to harass and threaten her and Tuxie. Eckert alleges Ballard broke a windshield and mirror on one truck owned by Eckert, destroyed the engine on another, and was stealing Eckert's personal property from her office and a storage locker. Eckert reported these incidents to Officer Silas, who instructed her to submit her complaints in writing. After submitting her complaints, Eckert claims District Attorney Barson instructed the police not to act on them, because he believed Eckert and Ballard were married and in the process of obtaining a divorce.
Eckert obtained a Temporary Restraining Order against Ballard on January 25, 1995, and a permanent injunction on February 6, 1995. Appellants contend the SPD refused to act on Eckert's complaints, even after a judge's ruling that she and Ballard were not legally married. Eckert and Tuxie have since left Summit County, Colorado.
Eckert contends she was wrongfully taken into custody, and this was the result of discriminatory treatment of women by the SPD in domestic violence situations. She further alleges that the police failed to adequately respond to her later complaints of threats, harassment, and property damage committed by Ballard.
Eckert brought claims under 28 U.S.C. § 1983 and Colorado state law for failure to train, unlawful seizure of Eckert, deprivation of freedom of intimate association, deprivation of liberty and property, and equal protection. The district court granted Defendants' motion for summary judgment finding no constitutional violation. The court determined there was no reckless conduct on the part of the SPD, and that the officers had probable cause to effectuate an arrest. The district court noted that Eckert could not have been denied intimate association by the Defendants because the bond conditions initially preventing her from seeing her son were set by a county judge, not the police department. The district court also held no "special relationship" was created when Eckert was taken into custody, and refused to consider statistical evidence of domestic violence arrests provided by Eckert to support her equal protection claim. Because the district court held no constitutional violation occurred, it did not address the contention that the SPD failed to train its officers. Common law claims for negligence, negligence per se and outrageous conduct were rejected as time-barred. The Plaintiff-Appellants have appealed on the grounds of equal protection, substantive due process and the failure to train.
The standard for reviewing issuance of summary judgment is de novo, and identical to that applied by the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). "We view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party." Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1161 (10th Cir. 2000).
Appellants argue the district court failed in its analysis of their equal protection claims. First, according to Appellants, the district court erred in granting summary judgment on Appellants' claim that Eckert's arrest constituted an equal protection violation, and the failure of the SPD to act in response to Eckert's subsequent complaints constituted a pattern of discriminatory conduct likewise prohibited under the equal protection clause. Second, Appellants contend the district court erred in rejecting statistical evidence proffered by Eckert to show a pattern of discriminatory treatment of domestic violence victims by the SPD.
The Fourteenth Amendment provides no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, §1. There is no general constitutional right to police protection, but if the state provides police protection it is prohibited from irrational discrimination in providing such protection. Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir. 1988). To comport with the Equal Protection Clause, the law cannot be administered "with an evil eye and an unequal hand." Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886).
To maintain an equal protection claim, a plaintiff has the burden of showing discriminatory intent, and although "[t]he discriminatory purpose need not be the only purpose,  it must be a motivating factor in the decision."
to survive summary judgment, the plaintiff must go beyond her pleadings and show that she has evidence of specific facts that demonstrate that it is the policy or custom of the defendants to provide less police protection to victims of domestic assault than to other assault victims. She(1) must also provide evidence that discrimination was a motivating factor for the defendants and that she was injured by operation of the policy or custom.
Watson, 857 F.2d at 694.
Colo. Rev. Stat. 18-6-803.6 (2).
Appellants contend the arrest of Eckert was erroneous considering the circumstances at the time of the officers' arrival: Ballard admitted to prior arrests for domestic violence; Eckert claimed Ballard had injured her earlier that morning and on previous occasions; restraining orders had been issued against Ballard on prior occasions; and Eckert claimed to have acted in self-defense. The officers' failure to arrest Ballard worked to deny Eckert and her son the equal protection afforded by the Colorado mandatory arrest statute, according to Appellants.
Colorado law does not assign any particular weight or hierarchy to the factors to be considered by arresting officers. "Probable cause to arrest exists when officers have knowledge of facts that would warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." United States v. Bruce, 78 F.3d 1506, 1508 (10th Cir. 1996) (citation and quotation omitted). Despite the evidence cited by Appellants, Officers Stremel, Silas and Sergeant Palacios were justified in believing Eckert had assaulted Ballard. Colorado law mandates action in domestic violence situations, and such action was taken. Appellants cannot support an equal protection claim that Defendants customarily discriminate against domestic violence victims as a class based on the events of October 4, 1994.
Eckert argues Appellees were required to act on her complaints, and their failure to do so worked to deprive her of equal protection. Eckert points the state statute which, in addition to physical force and threats, defines domestic violence as "any other crime against a person or against property . . . when used as a method of coercion, control, punishment, intimidation or revenge." Colo. Rev. Stat. § 18-6-800.3(1). In such cases, under the statute "[w]hen a peace officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in section 18-6-800.3(1), has been committed, the officer shall, without undue delay, arrest the person suspected of its commission." Colo. Rev. Stat. § 18-6-803.6 (1). The Colorado mandatory arrest law applies with equal force to such crimes, according to Appellants, and therefore the SPD's failure to arrest Ballard based on Eckert's complaints was an unconstitutional deprivation.
Similarly, Appellants contend the SPD was constitutionally compelled to arrest Ballard based on Eckert's claims that he violated the temporary restraining order she obtained on January 25, 1995, and the permanent restraining order she received on February 6, 1995. "A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that (I) The restrained person has violated or attempted to violate any provision of a restraining order." Colo. Rev. Stat. § 18-6-803.5 (3)(b).
Both of these mandatory arrest provisions require as a prerequisite that an officer establish probable cause. Appellants' cursory assertions to the contrary, examination of the circumstances reveals the decision not to arrest Ballard was well within the officers' discretion. Part of an officer's assessment of the totality of circumstances in a probable cause determination is the credibility of witnesses. Cf. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259 (10th Cir. 1998). Eckert's allegations, by themselves, were insufficient to mandate an arrest, and based on previous events and an assessment of Eckert's veracity, the SPD officers decided probable cause was not present. See Losinski v. County of Trempealeau, 946 F.2d 544, 553 (7th Cir. 1991) (holding Wisconsin mandatory arrest law did not remove officer's discretion in first determining probable cause). The SPD's assessment was ratified by the district attorney's decision not to pursue charges against Ballard.
Appellants' statistical evidence was rejected as unreliable by the district court. According to the lower court, the 1994 adoption of a mandatory arrest rule in domestic violence cases rendered O'Dell's statistics unreliable. The court also noted O'Dell's findings had not been tested for reliability and would not be admissible, ostensibly pursuant to Fed. R. Evid. 702. The relevancy of evidence is generally a determination committed to the discretion of the trial court. United States v. Flanagan, 34 F.3d 949, 952 (10th Cir. 1994).
This Court has allowed the use of statistical evidence to oppose summary judgment where plaintiffs allege unequal police protection for victims of domestic violence. Watson, 857 F.2d at 695. Such a use of statistical evidence has also been noted with approval by other circuits. See Hynson By and Through Hynson v. City of Chester, 864 F.2d 1026, 1031 (3rd Cir. 1988); Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000); Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994).
. Our decision in Watson itself recognized that "statistics may be so defective as to be inadmissible as irrelevant." Watson, 857 F.2d at 695; see also Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 n. 9 (10th Cir. 1999); Cf. McCleskey v. Kemp, 481 U.S. 279, 297 (1987) (rejecting statistical evidence of disparate application of the death penalty). "Statistical evidence offered by a party must 'cross a threshold of reliability before it can establish even a prima facie case of disparate (treatment).'" Martinez v. Wyoming Dept. of Family Servs., 218 F.3d 1133, 1138 (10th Cir. 2000) (citation and quotation omitted) (discussing statistical evidence in the context of a Title VII claim).
The district court held the adoption of Colorado's mandatory arrest law in 1994 compromised the integrity of O'Dell's domestic violence statistics, and we are inclined to agree. In Watson, comparisons of arrest rates were used to establish a question of material fact regarding police treatment of domestic violence victims. Watson, 857 F.2d at 695. We rejected the contention of the defendants that the variable of probable cause from case to case invalidated the arrest statistics. Id. To the contrary, we held the statistics offered in Watson retained some merit, since "the determination of whether or not probable cause exists and the decision to arrest may present essentially the same issue. So, the failure to account for probable cause does not necessarily undermine the probative value of the statistics." Id.
Here, the disputed statistical evidence is of dubious value, since the arresting officer's discretion has been statutorily altered in cases occurring after July 1994. We need not speculate on what specific effects this difference might have on the final arrest statistics. Whereas we held the Watson statistics could not be undermined to the extent they were all equally subject to the arresting officers' probable cause determination, equating arrests made under two different calculi of police decisionmaking fundamentally undercuts the soundness of Appellants' numbers. The district court also noted that its concerns regarding O'Dell's statistics were not assuaged by the absence of testing.
While a "custom and policy of not providing assistance to victims of abuse by spouses in the same manner as other victims of assault deprived her of the equal protection of laws guaranteed by the fourteenth amendment," Watson, 857 F.2d at 694, such was not the case here. The SPD responded to Eckert's call, and while she may believe they arrested the wrong person, that is insufficient to support Appellants' contentions. Furthermore, Appellants' argument is predicated on the belief that women are always the victims of domestic violence. An equal protection claim, without more, cannot rest on such a spurious premise.
Appellants argue that the acts and omissions of the Appellees violated constitutional protections of substantive due process. Generally, the Due Process clause of the Constitution does not impose an affirmative duty on government personnel to aid citizens. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196 (1989). However, there are two recognized exceptions to this rule: First, where a governmental actor creates the danger to which a citizen is exposed; and second, where a special custodial relationship is created between state and citizen. Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1260 (10th Cir. 1998) Appellants assert claims under both of these theories.
Appellants first claim they were denied substantive due process because they were exposed to a danger created by Silverthorne officials. Appellants allege the Defendants recklessly endangered Eckert and her son by failing to arrest Ballard or investigate Eckert's later complaints. Under this theory of due process, a state actor who creates a substantial risk and then fails to protect a citizen against that risk "is as much an active tortfeasor as if [they] had thrown him into a snake pit." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (quoted in Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995)).
(1) the charged state entity and the charged individual actors created the danger or increased plaintiff's vulnerability to the danger in some way; (2) plaintiff was a member of a limited and specifically definable group; (3) defendants' conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, is conscious shocking.
Armijo, 159 F.3d at 1262-63. With regard to the first factor, Appellants obviously do not contend the SPD created Ballard's menace. But neither can they show that the Appellees' acts or failure to act increased the vulnerability of Eckert or her son.
Construing all inferences in Appellants' favor, Ballard plainly presented a threat, but Appellees' reaction to that threat does not implicate substantive due process. "The danger creation theory  focuses on the affirmative actions of the state in placing the plaintiff in harm's way. Plaintiffs cannot rely on Defendants failure to intervene." Currier v. Doran, 242 F.3d 905, 919 (10th Cir. 2001). There is no indication that the acts of the Appellees in any way magnified Appellants' exposure to harm.
Likewise, Appellants have not shown Appellees Morrison, Palacios, Silas or Stremel acted recklessly. For a claim of recklessness to be cognizable under § 1983, the state actor must manifest either "(1) an intent to harm; or (2) an intent to place a person unreasonably at risk of harm." Uhlrig, 64 F.3d at 573. The Due Process clause does not immunize citizens "against incorrect or ill-advised [government] decisions." Seamons v. Snow, 84 F.3d 1226, 1236 (10th Cir. 1996) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)).
The first type of recklessness conforms to the outlines of traditional intentional torts, while the second type is defined as "when a state actor 'was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.'" Uhlrig, 64 F.3d at 574 (quoting Medina v. City and Cty. of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992). Appellants claim the district court did not apply the proper standard on summary judgment, but they fail to make even a minimal showing of intentional action on the part of the Appellees.
Similarly, Appellants do not meet the requirement that government action must be "conscience-shocking" to support a danger creation claim. In weighing whether action truly shocks the conscience, the Court considers "(1) the general need for restraint; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policy decisions impacting public safety." Currier v. Doran, 242 F.3d at 920. These factors counsel that application of danger creation as a basis for § 1983 claims is reserved for exceptional circumstances. "Even knowingly permitting unreasonable risks to continue does not necessarily rise to the level of conscience shocking." DeAnzona v. City and County of Denver, 222 F.3d 1229, 1235 (10th Cir. 2000).
Based on the factors established in Uhlrig and Armijo, the district court was correct to reject Appellants' due process claim under a danger creation theory.
Appellants also contend they were deprived of due process because of a special relationship created when Eckert was taken into custody. "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is the 'deprivation of liberty' triggering the protections of the Due Process Clause." DeShaney, 489 U.S. at 200. Such restraint must be involuntary to create an affirmative duty to protect. Liebson v. New Mexico Corrections Dept., 73 F.3d 274, 276 (10th Cir. 1996).
In Appellants' case, however, there is no indication that she or her son were subjected to private violence during the time she was incarcerated. Moreover, Appellants have not convincingly shown how police interfered with Eckert's ability to protect herself, her son or her property after her release.
Interference with an individual's ability to fend for themselves is the cornerstone to the special relationship exception to DeShaney. See DeShaney, 489 U.S. at 201. In DeShaney, a case involving the duty of social workers to abused children, the Supreme Court denied that a special relationship created an affirmative duty for social services officials once they had returned the boy to his family: "That the State once took temporary custody . . . does not alter the analysis, for when it returned [Joshua DeShaney] to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter." Id. Likewise, any special relationship between Appellants and SPD ended on October 5, 1994 when Eckert was released from police custody.
Because Eckert's arrest was deemed proper, the court below never reached the issue of Appellants' claim that the SPD failed to train its officers. Such a failure by authorities can provide the basis for a § 1983 claim. "Where a superior's failure to train amounts to deliberate indifference to the rights of persons with whom his subordinates come into contact, the inadequacy of training may serve as the basis for § 1983 liability." Currier v. Doran, 242 F.3d at 923 (quoting Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1240 (10th Cir. 1999)). For a cognizable § 1983 claim, a plaintiff must go beyond allegations that officer training is merely deficient. "A supervisor or municipality may be held liable where there is essentially a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable." Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).
In their brief, Appellants correctly note that failure to train claims may be based on both equal protection and due process violations. See Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir. 1998) (equal protection); Sutton, 173 F. 3d at 1240 (due process). However, as the above discussion indicates, Appellants have not made valid claims of actionable violations under either clause. The determination of whether a municipal policy is characterized by deliberate indifference is usually for a jury to decide. See Lee v. City of Los Angeles, 250 F.3d 668, 682 (9th Cir. 2001). But a jury determination is unnecessary where a plaintiff has not linked the failure to train to an injury of constitutional proportions. City of Canton v. Harris, 489 U.S. 378, 390 (1989).
In sum, we hold that the summary judgment of the district court was proper and should not be set aside. Therefore, the district court's Memorandum and Order are AFFIRMED.
2. The Honorable Clarence A. Brimmer, United States District Judge for the District of Wyoming, sitting by designation.
1. In Watson, we recognized that equal protection claims arising from domestic violence situations may implicate a plaintiff's membership in two different classes: victims of domestic violence and women. Watson, 857 F.2d at 696. Although women are the victims in a vast majority of domestic violence cases, the two classes are not necessarily coterminous since it is also possible for a man to be a victim of domestic violence. See Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir. 1994). In Watson, we restored the plaintiff's claim of discriminatory treatment based on her status as a victim of domestic violence, but rejected her claim of discriminatory treatment based on her gender. Watson, 857 F.2d at 696. Although Appellants here suggest SPD's enforcement customs may disproportionately affect women, they have not sufficiently alleged invidious gender-based discrimination for the purpose of this appeal.
2. Appellants stop short of arguing that the mandatory arrest law requires officers always to arrest men rather than women in domestic violence situations. Of course, such a statute would not survive even the most lenient equal protection analysis.
3. Appellants disingenuously cite the district court opinion on remand in Hynson, 731 F.Supp. 1240-41 (E.D.Pa. 1990), for the proposition that "statistics alone pass muster and withstand summary judgment." (Appellant's Br. at 22.) Such was not the Third Circuit's holding in Hynson, 864 F.2d at 1030-31, nor is it the rule applied by this Court. The existence of a discriminatory police custom or policy requires consideration of "all of the plaintiff's evidence." Watson, 857 F.2d at 696.