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Plainly, outrageously unjust criminal convictions ignored or evaded by judges.
In New York State. If there’s a guilty plea.
Oh, my. We don’t know how this one got by us – and, it seems, everyone else – for so long.
Years ago (and yes, we increasingly find ourselves using that phrase) we ran through a little case law about “actual innocence” and federal habeas corpus and whatnot. We were forced to point out that there is no such thing as a “free standing” claim to federal habeas relief based on “actual innocence”.
Which is fine, we suppose, since outside of death penalty cases federal habeas relief has ceased to exist. Or maybe it’s better to say “inconsequential” rather than “fine”, because we don’t like that state of the law. We think innocence should always matter.
In support of this conclusion the Court of Appeals (New York Court of Appeals, that is – a state high court, not one of those federal appeals courts) borrows from federal habeas corpus law, citing Schlup v. Delo and Tollett v. Henderson, SCOTUS cases with which we have more than a passing familiarity. The bottom line in the federal system is that actual innocence does not, by itself, form a constitutional basis to vacate a conviction but may form the basis to pierce a procedural bar to habeas relief (such as the draconian statute of limitations the Congress imposed with the AEDPA in 1996) of which there are several thousand.
We jest. There are barely 100.
So what does New York say about “actual innocence”? Bear in mind that the State’s high court can make its own rules about whether actual innocence matters and how much. It is not bound by federal court procedures, and while it is not free to find that there is a federal constitutional right to relief based on “actual innocence” it has the last word on whether the New York State constitution might be a little more generous to criminal defendants who are innocent even if they pleaded guilty.
Right off the bat, it’s a bad sign when the majority opinion cites all those SCOTUS federal habeas cases. And the majority, by the way, includes the Court of Appeals’ Chief Judge (prosecutor type from beginning to end) whereas the dissent (there are two) are apparently bleeding heart Ivy League types.
We might have more to say about this case later. In the meantime, it is worth noting that, just like the federal habeas cases, the opinion stresses that the factual admissions underlying a guilty plea must have preclusive effect on a later claim of actual innocence. Also like the federal habeas cases, they do not anticipate the impact of such “reasoning” (we put the word in quotes because otherwise we intellectually gag on writing it) on an “Alford plea“, where there are no factual admissions and the defendant asserts innocence. We should think this would make a difference in the reasoning.
Then again, we should think innocence would matter in the first place.
Must the prosecutor correct false testimony when defense counsel already knows the truth?
or when he refers to “Napue and its successors” in another red herring question, or when he refers to the “Napue-Giglio rule”, he is committing the error of conflating Mooney cases with Brady cases. And we say “error” because it’s not an arguable point. Chronology, not capable of dispute and entirely independent of the matters actually under dispute, demonstrates this absolutely.
Napue was 1959. Brady was 1963. Napue cannot possibly be a Brady case. Not to mention (again) that the whole Mooney line – that is, Mooney, Pyle, Alcorta and Napue – are cited in Miller v. Pate in 1967, making Miller the last Mooney case.
And Miller doesn’t cite Brady.
That is, Miller proves, beyond all rational questioning, that the Brady line of cases and the Mooney line of cases are distinct, even if related, because it post-dates Brady and doesn’t cite it even though it cites all the previous Mooney cases.
Giglio was 1972. Giglio cites Napue due to the factual similarity involving the withholding of impeachment evidence, and the impeachment evidence being a deal having been made with a prosecution witness. But that doesn’t make Giglio one of Napue’s “successors”. In fact, Napue was one of Mooney’s successors, and has no “progeny” of its own.
We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).
Emphasis, as we say, supplied. You see, the proper distinction between the Mooney line of cases and the Brady line is that good or bad faith is irrelevant in the latter, but the very essence of the former. On that particular point the two lines of cases could not be further apart. That is, that particular point is the very thing that distinguishes them. And you don’t have to take our word for it (see pp. 47-49).
So, it’s not as if the Giglio court was really confused about the difference between Mooney and Brady, they just expressed themselves poorly in the first paragraph of the opinion. After reading the rest of the opinion, no person of reasonable intelligence could maintain in good faith that Giglio was anything other than…a Brady case.
But if you graft Brady onto Napue – which is a Mooney case – then you graft Brady’s limitations onto Napue as well, and of course by extension to Mooney also. Then you have limited Mooney by stealth. And that’s what Judge Easterbrook is trying to do in Long v. Pfister, and what Justice Rehnquist tried to do in Bracy and Albright, and what the nation’s prosecutors (as a group, not every single one of them, of course) have been trying to do for decades. This effort has produced such lamentable results as Albright v. Oliver, a plurality opinion from a fractured SCOTUS where Justice Rehnquist basically sneaks his Mooney limiting agenda into a footnote.
And here’s what limiting Mooney means: the government can lie and cheat to get a criminal conviction and it doesn’t violate due process.
We do not believe such a result is tolerable in a free society. And we don’t know how any sane person could disagree. But even if some miscreant prosecutors, police and judges (repeat ourselves?) do disagree – believing perhaps that a little bit of lying and cheating is acceptable if it doesn’t affect the outcome, or some such – they should argue the point honestly and straightforwardly, taking the position that they think Mooney and its progeny were wrongly decided.
But then their honesty is the whole point in issue, isn’t it?
So, continuing our analysis from the last post.
Judge Easterbrook, the author of the majority opinion, was one of the early darlings of the Federalist Society, and by all accounts he’s “brilliant”.
We have to question that. Seriously. He may have been a smart boy at one time, but undergraduate work at the Kremlin on the Crum must have dulled his wits considerably.
And making matters worse he, like so many federal appeals court judges, has never tried a case. And this is another situation where that matters. Very much.
But let’s look closely at the facts presenting the issue. Long is identified as the perp by a total of four witnesses. Two recant prior to trial and never re-recant. Irby recants but then re-recants and then at trial, called by the prosecution, falsely denies ever having recanted, and the prosecution knew that this testimony was false.
If you can follow all that.
The prosecution never admitted that her witness had lied and never corrected it, although it appears that the lies were amply rebutted.
• Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?
• Must the prosecutor correct false testimony when defense counsel already knows the truth?
• Does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?
• Does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?
The dissent points out that Napue itself substantially answers these questions, but the real issue here is: where do these questions come from? Why are they questions at all?
Is it really coercion when the gun isn’t actually loaded?
If it is, is the coercion cured when the cop apologizes?
The cases forbidding the admission of coerced confessions haven’t spoken to these questions, so they haven’t been clearly resolved by the SCOTUS and so habeas relief must be denied.
The point being, any idiot can come up with stupid subsidiary “questions” that undercut any proposition of any kind. This is limited only by the how dimwitted the imagination and how strong the desire to evade the result the proposition requires. With Judge Easterbrook, we think “very” and “very” about covers both of those.
Long is an en banc opinion, decided October 20th, and reaching the opposite result from the three judge panel that decided the case earlier. All of this is quite rare and enhances the likeliood of SCOTUS review. The loser has 90 days from October 20th to file a cert petition. That would seem likely to occur, since Kirkland & Ellis has taken up Paysun Long’s plight.
Well, we like the issue. But we don’t like the vehicle. And while we haven’t read the briefs – though we may do that soon, too – we don’t like the way the argument goes.
Napue, like all of the Mooney cases with the possible exception of Miller v. Pate,* is about deliberate government lying and cheating. Not lying and cheating by a government witness in and of itself but rather the government’s participation in the lying and cheating and then “obtaining a conviction” thereby. It’s a clear cut due process violation, and that’s one of those very few “bright-line” rules. Or at least it has been.
Judges like Easterbrook have been trying to blur that line for a long time. Sometimes, as Easterbrook is doing here, it’s by generating artificial questions that the SCOTUS hasn’t addressed (because they don’t occur to normal and intelligent people in the first place) and pretending there’s some sort of room to get around the rule. Other times, they’ve had to misrepresent the law, like Justice Rehnquist did in Bracy and Albright. But one of the main tactics has been to conflate Mooney cases and Brady cases.
We have to confront Judge Easterbrook’s and Justice Rehnquist’s – let’s face it – agenda driven falsifications and dissembling directly. We must clarify and restore the law, not move to a less pernicious confusion about it and hope for the best. The Mooney line of cases, including Napue, has never been qualified or limited, and that’s very much unlike the Brady line of cases. Giglio is one of the latter, and Napue is one of the former.
We don’t think Long will address the Mooney-Brady distinction, and for that reason it’s not likely to clarify much even if the SCOTUS takes it up.
Which we hope it doesn’t. Ugh.
*We are probably all by ourselves on this, but nevertheless, we think Miller extends the principle of Mooney to situations and results that are too absurd or stupid to tolerate in a rational system of justice. Kind of like Judge Easterbrook’s en banc opinion under review here!
This case may not be one of the few that gets Supreme Court review (“cert grant”) this term. But it’s a good bet.
Why? It’s a capital (death penalty) case. The SCOTUS likes capital cases because they seem to believe that criminal matters are generally not worthy of their attention unless someone is going to die if they don’t take a look.
We’d like to say we are kidding about that. But we’re not.
Second, although the Petitioner is not the government – and that, dear readers, is the only contrary indicator to a cert grant here – he is represented by one of the bestest firms, Sidley Austin. Third, SCOTUS requested the record, rescheduled the case once and has now “relisted” it three times. These are all unambiguous indicators of SCOTUS interest, and are strongly associated with cert grants.
Oh, one more contrary indicator, though: no amicus briefs.
On that last point, we think it’s particularly telling here. Why?
Here’s the issue, about which there is disagreement in the federal circuit courts of appeal and the state supreme courts: when a person convicted at trial raises an “ineffective assistance of counsel” claim in a collateral proceeding but does not produce his allegedly ineffective trial counsel as a witness, does that result in a conclusive presumption that there was a legitimate strategic reason for counsel’s alleged deficiencies and therefore no claim for ineffective assistance?
And here’s the nature of the dysfunction: who cares? The courts that hold ‘yes’ are evidently reasoning that there must be a legit strategic reason, otherwise counsel would have an obligation to his client to say he didn’t have one, and thus the only basis for not doing so would be that he can’t say that because it would be perjury (We assume these courts don’t apply the conclusive presumption rule where the trial counsel is dead or unavailable).
The courts that hold ‘no’ – the far, far better rule in our view, not that that matters – would rather let the prisoner make his case however he can, with or without the participation of his trial counsel. Before they deny relief anyway.
The overwhelming majority of claims for post conviction relief, that is – north of 99% – are denied. Those few that are granted will often have an ineffective assistance of counsel claim involved, but how often will the conclusive presumption rule determine the outcome? Practically never. You’re talking about a handful of cases per decade, nationwide. If that. You could make a good argument that this particular fine point will never make a difference in any case.
The SCOTUS and its echo chamber have completely lost touch with reality. The problems in our criminal justice system are much more basic and fundamental than Mr. Reeves’ problem, but his case is receiving serious consideration for reasons that are both, and at once, absurdly esoteric and dismally shallow.
Reeves, in other words, is a SCOTUS case that is entirely the product of an irrelevant discussion taking place among death penalty abolitionists and the SCOTUS echo chamber. These discussions have become so insular that the checklist criteria for selecting cases “worthy” of SCOTUS review have supplanted the more basic consideration of whether the case genuinely has a wide enough significance to warrant a plenary SCOTUS review that is granted only about 1% of the time.
Put another way, this is the nearly complete triumph of form over substance.
This could only happen in the law. If it happened in computer manufacturing the computers wouldn’t work. If it happened in bridge building the bridges would fall down.
Update: Denied. Apparently the majority may have agreed that this issue is too seldom presented, to say nothing of dispositive. Not that we’re happy about it. As Justice Sotomayor points out in dissent, this means Mr. Reeves faces execution. And frankly, the procedural history seems to indicate that the whole thing was deliberately constructed by death penalty abolitionists to throw a wrench into the death penalty machinery; that is, if you read the dissent, the defense lawyers at trial made a motion to get the funding for a neuropsychologist, the motion was denied but then granted later on a reconsideration motion. Then the defense did not produce the much fought over expert at the sentencing hearing. Another possibility, of course, is that they didn’t trust the trial judge or the jury to accept the mitigating evidence under any circumstances and figured having the issue for an appeal was a better shot than trusting the trial judge and jury, and it looks like they were probably right about that: three relists at the SCOTUS means they came close.
We at LoS have often wondered, in our more or less idle moments (we don’t really have any idle moments, but never mind that point for now), how crimes can be prosecuted before courts by a member of the executive branch of the government – a “District Attorney” (see People v. Leahy, 72 NY2d 510 at 513) – who is also, and simultaneously, a member of the judicial branch of the government.
Ugh. This is one of those thoughts that has a sort of unassailable logical validity but which will never get a serious hearing in a system dominated by political science majors. That is, the idea has unimaginably large implications, but however airtight the reasoning it is only an argument, and arguments are cheap, so we are told.
It is one thing to ignore the separation of powers problem posed by District Attorneys ab initio. It is considerably worse, in view of the separation of powers doctrine as a check – however feeble – upon the abuse of power, to allow attorneys whose dominant experience in the profession is prosecuting people for crimes to also gain a foothold in the judicial branch that (supposedly) impartially adjudicates those prosecutions.
And of course, the foothold has long since been a fait d’accompli that in recent decades has metastasized into a stranglehold: that is, former prosecutors completely dominate the judicial branch. This is probably only our opinion, but we think this state of affairs is a deceptively large factor in wrongful convictions, not to say the power-toadying practical reality of our “justice” system.
So This Is The Argument?
Seems Greenfield has been reading over here again. On the sly, of course.
You’ve got the Brady Mooney thing and we’ve extensively chronicled how prosecutors have mangled it all up (just one example) but we have also wondered aloud – in this as in so many other aspects of the criminal justice system – whither the criminal defense bar?
Turns out they are backing up the prosecutors. Or at least some of them are.
Not just Brady, but the narrow and rarely used Mooney brand of intentional concealment. The reason no one uses Mooney is that it’s nearly impossible to prove, and even if you do, judges almost never adopt it. It’s one thing to say that exculpatory evidence has not been disclosed, and another to lay blame on a prosecutor for intentional, malevolent concealment. That’s a step too far, and the surest way to seize defeat from the jaws of victory.
“No one uses Mooney”? It’s not true – Mooney is still cited in court opinions with some frequency – but ponder that phrasing for a while. Is Mooney just a tool, a lesser used weapon in the criminal defense lawyer’s arsenal in his campaign to game the system to win, every single time?
No. Mooney is the law, and it has been since 1935, “use” it or not.
Besides, what is being advocated here? That if you have a Mooney problem you should ignore it, since it is the “surest way to seize defeat from the jaws of victory”? Victory would be assured if you “subsumed” Mooney into Brady? And that’s because Brady is always followed by prosecutors and judges whereas Mooney is not?
Is Greenfield serious? You uncover a Mooney situation and it’s one of those rare cases where you can prove it and you’re supposed to let it go? A prosecutor abuses his office in the worst way he can – against your client, so it’s your responsibility to correct – and you should bury your proof, look the other way and argue something else, because it’s a “bridge too far” and the judge won’t like it?
Put another way, the argument here is that you should match the prosecutors abuse of his office with a corresponding abuse of your own.
Any lawyer who would do that has no right to complain about any atrocity the system dishes out. The “bridge too far” is obviously the prosecutor’s conduct, not the defense lawyer fulfilling his obligation to ferret it out and obtain relief for his client, not to mention protecting the whole system from an unspeakable corruption.
It’s a really lousy argument, Scott. We realize you’re desperate to find some basis to disagree with us on this subject, but some things are just true, or just, or unarguable. Willful blindness for ego’s sake isn’t going to change anything, and it certainly isn’t going to help anything.
You sound as if you’ve been overloaded to the point of head explosion. Tough nuggies. This is reality, and it’s messy. Tolerance for ambiguity is one of the foremost qualities needed to practice criminal law. Not everyone has it.
It would be almost axiomatic: by nature, the criminal defense position would have to be more sensitive to nuances and ambiguities. The prosecution narrative is always blunt: the defendant is a no-good criminal scumbag. The defense doesn’t assume the burden of the reverse narrative – that the defendant is a great civic hero.
But once again there’s more than a little irony going on. A tolerance for ambiguity should not become perverted into commitment to ambiguity, a slavish devotion to ambiguity as an overarching principle of action and a framework for understanding anything, no matter what the evidence is. Dare we say it, that winds up being – well – an unambiguous fealty to the principle of ambiguity. It’s oxymoronic.
SHG has been explaining himself well the last few days. We’re grateful, albeit somewhat frustrated and maybe a bit saddened: he stubbornly clings to a failed and rapidly receding professional self concept that has ill-served him, his clients, the profession and the justice system itself. He’s unreflective about that, and about the possibility that his dominance of a tiny corner of the internet, a part of the “blawgosphere” – has stagnated, aged and withered just as he and his self-concept have. One’s a metaphor for the other, maybe.
He has exhausted his shtick, methinks. The gritty, gutsy trench lawyer, the lazy and self-entitled youth that aren’t sufficiently in the SHG mold, and maybe a dozen or so other tired themes have run their course. It isn’t a weariness that has come out of nowhere, of its own accord. SHG brings it with him, in more ways than one.

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MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al., Defendants, Appellees.
As Amended June 27, 1989.
Scott A. Lathrop, P.C., for plaintiff, appellant.
Estelle D. Franklin, Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Washington, D.C., Associate Gen. Counsel, and Lorraine C. Davis, Asst. Gen. Counsel, on brief for the E.E.O.C., amicus curiae.
Robert E. Sullivan with whom Judith A. Malone, Margaret Wood Hassan and Palmer & Dodge, Boston, Mass., were on brief, for defendants, appellees.
Before BOWNES and BREYER, Circuit Judges, and GRAY,* Senior District Judge.
Plaintiff-appellant, William B. Smith, appeals a jury verdict finding that defendants-appellees, Massachusetts Institute of Technology and MIT Lincoln Laboratory, did not violate the Age Discrimination In Employment Act, 29 U.S.C. Secs. 621-634, by giving him disproportionately low salary increases and subsequently terminating his employment. Plaintiff raises three issues on appeal: erroneous jury instructions; the district court's refusal to strike certain evidence ; and the court's exclusion of certain evidence.
Defendant claims that plaintiff waived his right to object to the jury instructions by not following the strictures of Fed.R.Civ.P. 51. We agree. We first deal with the waiver question.
Fed.R.Civ.P. 51 provides in pertinent part: "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."
Because the facts bearing on the rule are somewhat unusual, we state them in detail. The trial took 16 days. On the 16th day, February 11, 1988, the court instructed the jury. Counsel for the plaintiff objected to one part of the instructions. Defense counsel agreed that the objection was well taken and the court gave an additional instruction, correcting its previous mistake. No further objections were taken. The jury began deliberations at 12:35 p.m.
After the jury retired for deliberations, plaintiff's counsel informed the court that he would be out of state all of the following week. He requested that judgment not be entered until February 22, so he would have time after he returned to file any motions that might be necessary. Defense counsel did not object and the court granted the request. February 11, the day the case went to the jury, was a Thursday.
Counsel would ordinarily be here but because I released them to go back to their offices and so forth, I thought it would take up a considerable amount of time to wait for them to return. And they have agreed that I can instruct you provided I understand the question clearly. Okay. And it is a matter of record what I say, so they're satisfied with this process.
I suggest to you that in addition to proving that he, Mr. Smith, was discriminated against on the basis of his age, Mr. Smith must prove that the alleged discrimination was purposeful or intentional. Mr. Smith must also prove that age was the motivating or determinative factor in MIT's decision to give him lower than expected salary increases or to discharge him in the sense that but for MIT's discrimination he would not have received lower than expected salary increases or have been discharged. Mr. Smith need not establish that the age was the sole or only factor causing MIT to act but that age was the motivating or determinative factor.
Since counsel were not present, no objections to any of the supplementary instructions were taken.
The jury failed to return a verdict on the following day, Friday, February 12.
I have a jury question. It is the latest question referenced to me and it is now marked juror question No. 5, and filed this day February 16th. I have called counsel, and counsel representing defendant is present. Counsel representing plaintiff is unavailable. But my understanding is that he chooses not to be here, and again I must continue without his presence. That's a fair statement.
The court in instructing the jury stated, inter alia: "Mr. Smith need not establish that the age was the sole or only factor causing MIT to act but that age was a motivating determinative factor." No verdict was returned on February 16.
On February 17, a problem arose when one of the jurors indicated that the jury was hopelessly deadlocked and he had to return to work within a few days. Defense counsel was present, having been notified by the court that there was a jury problem. The court noted, "I have notified the other office but counsel for the plaintiff is not available." The court discussed the problem on the record. Before the jury came in, it expressly asked defense counsel to sit in the spectator section, "because I don't want to emphasize his [counsel for plaintiff] absence." No supplementary instructions were given. No verdict was returned on February 17.
The plaintiff Mr. Smith must prove that age was the motivating or determinative factor in MIT's decision to give him lower than expected salary increases or to discharge him in the sense that but for MIT's discrimination he would not have received lower than expected salary increases or had been discharged.
On February 18, 1988, the trial court gave the jury instruction in question, which was in response to Jury Question No. 6. Prior to giving the jury instruction, the trial court had a telephone conference with counsel, which lasted on the order of one half hour, as to their objections and comments. Counsel for Smith strongly opposed any instruction based on Loeb v. Textron, 600 F.2d 1003 (1st Cir.1976). Despite hearing this objection, the trial court indicated that it would give such an instruction. And it gave such an instruction.
No mention is made by plaintiff of the other two supplementary instructions similar to the one given on February 18.
A trial court's statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it.
This admonition was repeated in Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 76 (1st Cir.1984). Although the court made no record reference to the telephone conversation, we accept counsel's representation that there was one and as to what was said. But regardless of any assurances the court may have implied as to saving objections to the proposed instruction,1 it had no authority to allow counsel to deviate from or circumvent the rule.
Even if plaintiff's requested instruction had been proper, counsel failed to raise that objection again subsequent to the actual charge. According to a long line of precedents in this circuit, such an omission constitutes waiver of the objection pursuant to Federal Rule of Civil Procecure 51. See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975); United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir.1972); Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.1972); Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681 (10th Cir.1966) (Aldrich, J., sitting by designation); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955).
Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (footnote omitted), cert. denied, --- U.S. ----, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). The reason for "firm adherence to Rule 51 is to give the trial court an 'opportunity to correct any errors before it is too late.' " Kelley v. Schlumberger Technology Corp., 849 F.2d 41, 44 (1st Cir.1988) (quoting Brown v. Freedman Baking Co., 810 F.2d 6, 9 (1st Cir.1987)).
The failure of plaintiff's counsel to be present when the third set of supplementary instructions was given to the jury constituted a waiver of any objections to the instructions. And the waiver could not be cured by telephonic objection to the proposed instruction beforehand. Supplementary instructions in response to jury questions may be just as important as the initial charge, if not more so. It is the duty of counsel to be either in the courtroom during jury deliberations or available on short notice, in the event a problem arises. A jury case is not over until the verdict is finally returned. If supplementary instructions become necessary and counsel is not present, this constitutes a waiver of any objections to the supplemental instruction. Lawyers cannot be compelled to be present during jury deliberations but if they choose to neglect their duty, they take their chances on what is said and done by the court in their absence.
There is a "plain error" exception for failure to follow Rule 51, but its application is restricted:.
However, the plain error rule "should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966). We have adopted the standard for plain error in the Rule 51 context expressed by professors Wright and Miller: " 'If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity or public reputation of judicial proceedings.' " Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976) (quoting 9 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 2558, at 675 (1971)).
Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d at 809. We have read carefully the entire charge and all the supplemental instructions. Considering the instructions as a whole, as we must, we find that the instruction to which plaintiff assigns error did not result in "a clear miscarriage of justice" nor has it "seriously affected the fairness, integrity, or public reputation of judicial proceedings." In fact, we are not sure that the instruction was error at all.
Plaintiff claims that he was not furnished with the data base that formed the core of the testimony of defendant's expert, Dr. Herbert Weisberg. Defendants did file a proposed list of exhibits which included Dr. Weisberg's report and related charts, on which plaintiff relied in preparing for cross-examination of the expert. Plaintiff alleges that Dr. Weisberg testified on the basis of a statistical analysis and charts that were not part of his report. According to plaintiff, defendant Lincoln Laboratory furnished Dr. Weisberg with a complete data base on employee terminations but did not provide this information to plaintiff, although he had asked for all such information during discovery. It is plaintiff's contention that the failure of defendant Lincoln Laboratory to apprise him that Dr. Weisberg would testify mainly about the statistical relationship between age and involuntary terminations violated Fed.R.Civ.P. 26(e)(1)(B) and that it was error for the court to refuse to strike Weisberg's testimony.
that the underlying data from which Mr. Weisberg made the calculations was either available to Mr. Marx [plaintiff's expert] or was not made available pursuant to the rulings on discovery, the positions taken on discovery.
Finally, Mr. Weisberg has been held out as being available for depositions throughout the whole process, and his deposition was never taken.
There was further discussion and argument between opposing counsel. Plaintiff's counsel insisted that he did not know that the data on which defendant's expert relied was different from the data furnished plaintiff during discovery until he elicited that information from Weisberg on cross-examination.
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to ... (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony.
In Johnson v. H.K. Webster, Inc., 775 F.2d 1 (1st Cir.1985), we faced a similar issue and discussed the scope and purpose of the rule at length. We noted that the purpose of the rule was to alleviate "the heavy burden placed on a cross-examiner confronted by an opponent's expert whose testimony had just been revealed for the first time in open court." Id. at 7. We pointed out that the rule was designed to give the cross-examiner advance preparation and thus promote effective cross-examination, and that to make the rule effective, the Advisory Committee Note calls for sanctions by the court including exclusion of evidence, granting a continuance or other suitable action. We emphasized that the rule should not be read mechanically, but construed in light of its purpose to narrow the issues and eliminate surprise. Id.
Our review of the pertinent case law led us to conclude that "the emphasis in evaluating the decision to admit testimony over a Rule 26(e) objection entails careful balancing. Trial and appellate courts should look to the conduct of the trial, the importance of the evidence to its proponent, and the ability of the defendant to formulate a response." Id. at 8. Noting that one of the sanctions is granting a continuance, we stated: "Courts have looked with disfavor upon parties who claim surprise and prejudice but who do not ask for a recess so they may attempt to counter the opponent testimony." Id. (citations omitted). In Laaperi v. Sears, Roebuck & Co., Inc., 787 F.2d 726, 733 (1st Cir.1986), we followed the teachings of Johnson and held that the trial court did not abuse its discretion in refusing to strike the testimony of an expert.
We have examined carefully the direct and cross-examination of defendant's expert, Dr. Weisberg, giving special attention to the cross-examination. Several things stand out. One, the cross-examination of Weisberg was comprehensive and thorough. It is obvious that plaintiff's counsel was well prepared. Two, the data about which plaintiff complains did not result in an abrupt volte-face in the expert's testimony. This is not the situation of a new or alternate theory being offered for the first time at trial. In fact, when asked by plaintiff's counsel what impact the data would have on one of the chief exhibits (Exhibit 70), the expert replied that he did not know, specifically but, "[i]n general terms I would expect it to have a small impact." Three, the direct and cross-examination reveals that the data at issue was not the main basis for the expert's conclusions. It merely added to the statistical picture and made it more complete. And finally and most importantly, plaintiff's counsel did not ask for a recess or continuance so that he could examine the undisclosed data. Indeed, no objection was made at the time the disclosure was elicited. The failure to object, of course, runs afoul of the timely objection rule.2 The motion to strike was not made until after the evidence was closed.
Considering all of the circumstances, we cannot find that the trial court abused its discretion in refusing to strike the expert's testimony.
The final issue is whether the district court erred in excluding three reports contained in the investigation file of the Equal Employment Opportunity Commission (EEOC). After plaintiff filed a charge of age discrimination with the EEOC, the agency began an investigation of defendant Lincoln Laboratory. Equal Opportunity Specialist, John J. Martin, was the assigned investigator. Martin made three reports to his supervisor, Richard W. Trucchi. The reports are dated January 15, June 25 and December 19, 1980, and total twenty pages. The reports are critical of Lincoln Laboratory's treatment of its older employees. The January 15 report contains statements of 12 former employees to the effect that age was a factor leading to their termination or the main reason for it. This eight-page report concludes as follows: "It appears that there is a reasonable basis for concluding that the Respondent [Lincoln Laboratory] maintains policies and practices that discriminates [sic] against employees on the basis of their age in violation of the ADEA." The four-page June 25 report recommends that a questionnaire be sent to those persons terminated in 1978 and 1979 who were in the protected age group. The final eight-page report focused on Lincoln Laboratory's treatment of plaintiff. The report ends with a recommendation for "a finding that MIT Lincoln Laboratory violated the ADEA in retaliating against Mr. Smith."
On December 31, 1980, Martin's supervisor, Trucchi, wrote a letter to the MIT director of personnel advising him that as a result of the EEOC's investigation, "certain practices of [Lincoln Laboratory] are believed to be in violation of the Age Discrimination Act of 1967, as amended."
It is EEOC policy that this type of internal memoranda are not disclosable to anyone under any circumstances. As far as I know, it has never been EEOC policy to release such documents. I do not know why they were released in this case. Such memoranda do not constitute any official findings by the EEOC.
... (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
The most recent United States Supreme Court case touching on the matter is Beech Aircraft Corp. v. Rainey, --- U.S. ----, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The Court held that "factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(c)." Id. 109 S.Ct. at 446. It pointed out that "a trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof--whether narrow 'factual' statements or broader 'conclusions'--that she determines to be untrustworthy.11" Id. 109 S.Ct. at 448-49. Footnote 11 refers to the Advisory Committee's proposed standard for determining trustworthiness.
There are two cases from this court bearing directly on the issue. In Hilton v. Wyman-Gordon, Co., 624 F.2d 379, 383 (1st Cir.1980), we stated: "Moreover, as this case makes abundantly clear, while EEOC findings in general may be significant evidence, their probative force in individual cases varies considerably and is left to the determination of the trial court." In Blizard v. Fielding, 572 F.2d 13, 16 (1st Cir.1978), we stated: "While recognizing that findings by the EEOC are entitled to great deference by the district court, we cannot say that a court is obliged to refer to those findings in its opinion."
We interject here that the reports by Martin were not findings by the EEOC. The only official finding of the agency was the statement in Trucchi's letter to the personnel director of MIT that certain practices of the defendants were believed to be in violation of the ADEA.
Generally, the courts of appeals are in agreement that it is not error to exclude the investigator file of the EEOC in order to insure a fair and independent determination of the facts by the court. As one court has noted, the EEOC file is a "mish-mash of self-serving and hearsay statements and records; ... justice requires that the testimony of the witnesses be given in open court, under oath, and subject to cross examination." Gillin v. Federal Paper Board Co., 479 F.2d 97, 99 (2d Cir.1973) (quoting the district court's opinion, 52 F.R.D. 383, 385 (D.Conn.1970)).
A rule of per se admissibility of the investigative file would clearly undercut the district court's function as independent fact-finder. The better approach is to permit the district court to determine, on a case-by-case basis, what, if any, EEOC investigator materials should be admitted at trial.
Id. at 154 (footnote omitted). In Moore v. Devine, 767 F.2d 1541 (11th Cir.1985), modified on other grounds, 780 F.2d 1559 (11th Cir.1986), a case involving alleged racial discrimination, the court cited with approval our holdings in Blizard v. Fielding and Hilton v. Wyman-Gordon, Co. The Fifth Circuit held, in an alleged racial discrimination case, "that the trial court's decision to exclude testimony by the EEOC investigator as to his evaluation of facts already in evidence was not an abuse of discretion." Dickerson v. Metropolitan Dade County, 659 F.2d 574, 579 (5th Cir.1981). And in a jury case under Title VII, the Fourth Circuit affirmed the refusal of the district court to admit the EEOC records into evidence, stating that even in cases where the records may be admitted, "the admission of such records is discretionary with the District Court." Cox v. Babcock and Wilcox Company, 471 F.2d 13, 15 (4th Cir.1972). We have found no cases, and counsel has cited none, mandating the admission of the EEOC investigative reports.
We know from an examination of the record that the district court gave careful consideration to the question of the admissibility of the EEOC investigative reports. We cannot say that it abused its discretion in excluding them.
Affirmed. Costs awarded to appellee.
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.

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text:
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH BURY, Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, William T. Harter and Gustavo Gomez, Deputy Attorneys General, for Plaintiff and Respondent.
Michael D. Bradbury, District Attorney (Ventura), and Kevin G. Denoce, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
At 1:40 a.m. on February 10, 1994, California Highway Patrol Officer David Hall was on patrol with his partner Officer Pedro Leon on highway 101 when they noticed an automobile traveling in the left-hand lane at 45 miles per hour. The vehicle then was driven across three lanes and onto a ramp exiting the freeway. The officers followed the vehicle. A check of its license plate revealed the automobile's registration had expired. Also, the driver, appellant, was not wearing his seat belt. The officers stopped the vehicle.
Officer Leon walked up to the right side of the car where an extremely intoxicated passenger was sitting. The interior of the car smelled of alcohol. Leon told appellant he was suspected of drunk driving and asked him for his driver's license and automobile registration. After appearing to look for his license, appellant told Leon he did not have it with him. Appellant looked dazed and did not respond when Leon next asked him for his name. When Leon asked a second time, appellant replied his name was "Lance." Leon then asked twice for appellant's last name, and appellant eventually said "James." When Leon asked appellant for his middle name, appellant said "James" and then "Bury."
Officer Leon then told appellant to get out of the car. Appellant dragged his feet on the sidewalk.
Leon instructed appellant to perform some field sobriety tests. The sidewalk was flat and illuminated by a street light. Appellant failed the first test to keep his feet close together, close his eyes, tilt his head back-he started to fall backwards, and to estimate how many seconds had passed-he said 30 seconds when 15 seconds had passed. He next failed to stand on one foot and count from 1,001 to 1,030-he lost his balance three times and could only count three numbers; on the fourth try he counted seven numbers, then put his foot down and indicated he was done. Appellant next could not walk heel to toe in a straight line for nine steps, turn around and walk another nine steps-he left spaces between his heel and toe and only walked nine steps one way.
Following appellant's failure to correctly perform these physical and verbal coordination tests, Officer Leon decided to conduct a PAS test on appellant with an "Alco-Sensor III" (Alco-Sensor) machine. After checking the machine's calibration, Leon told appellant the test was optional and if he [41 Cal. App. 4th 1200] was arrested he would be required to take a blood, breath or urine test. fn. 2 Appellant voluntarily blew into the machine's mouthpiece. The digital display showed a reading of .174. Leon rechecked the machine's calibration, and after several minutes obtained another breath sample from appellant. The second reading was .179.
Appellant was arrested for driving under the influence of alcohol.
[1b] Appellant's reliance on the Kelly/Frye test to exclude his PAS test evidence is without merit.  This test requires the proponent of the application of a new scientific technique to establish (1) the technique has gained general acceptance in its field; (2) testimony regarding the technique and its application is offered by a properly qualified expert; and (3) correct scientific procedures have been used in the particular case. (People v. Morris (1991) 53 Cal. 3d 152, 206 [279 Cal. Rptr. 720, 807 P.2d 949].) [1c] The trial court found the technique used here was not a new scientific procedure that would trigger a Kelly/Frye hearing. We agree.
Appellant specifically refers to the "fuel cell" device in the Alco-Sensor machine as being a new scientific development. The trial court found that [41 Cal. App. 4th 1202] neither the Alco-Sensor itself nor its fuel cell was scientifically new. Appellant presented no evidence to contradict these findings.
Even if his particular theory is correct, it is unavailing. A PAS device is characterized by the purpose of its use rather than the nature of the device itself. (72 Ops.Cal.Atty.Gen., supra, at p. 227.) "Conceivably, any breath testing device could be used ... if the necessary equipment and personnel to operate it are made available to the peace officer before an arrest is made." (Ibid.) Many types of breath-testing devices exist; by 1989, there were 56 approved PAS devices. (72 Ops.Cal.Atty.Gen., supra, at pp. 227-228.) Appellant's theory of requiring each new breath-testing device or mechanism to be subject to a Kelly/Frye analysis would lead to unnecessary and unduly burdensome litigation.
To properly contest the foundational requirements for the admission of the PAS evidence, appellant should have questioned whether the testing apparatus was in working order, whether the test was properly administered, and whether the operator was competent and qualified. (People v. Sangani (1994) 22 Cal. App. 4th 1120, 1137 [28 Cal. Rptr. 2d 158].) This appellant failed to do.
Section 23157, subdivision (h), provides: "A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 may be used only after the officer evaluates the totality of the circumstances, including the person's performance on the field sobriety tests and under both of the following conditions: [¶] (1) If a person refuses to take field sobriety tests or is incapable of taking the tests, the preliminary alcohol screening test may be used as a further investigative tool, unless the person refuses to take the preliminary alcohol screening test. [¶] (2) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol. The person's obligation to submit to a blood, breath, or urine test, as required by this section [subdivision (a)(1)-the implied consent law], for the purpose of determining the alcohol or drug content of that person's blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test."
[5a] Here, there is no dispute that Officer Leon fulfilled section 23157, subdivision (h)(2) by advising appellant that (1) the PAS test did not satisfy the obligation to submit to chemical testing, and (2) appellant had a right to refuse to take the PAS test.
Appellant argues Officer Leon did not comply with section 23157, subdivision (h)(1), since appellant did not refuse to take the field coordination tests nor was he "incapable" of taking the tests as instructed by Officer Leon. He claims the PAS test should not have been given in the first place. Respondent argues the officer complied with subdivision (h)(1) by conducting the PAS test only after evaluating the totality of the circumstances, including appellant's performance on the coordination tests.
What exactly a police officer is required to do to employ a PAS test is not precisely defined by section 23157, subdivision (h). In fact, the statute is [41 Cal. App. 4th 1204] ambiguous and contradictory, and should be clarified by the Legislature. The introductory portion of subdivision (h) provides that a PAS test "may be used only after the officer evaluates the totality of the circumstances, including the person's performance on the field sobriety tests...." (Italics added.) Yet thereafter, the statute states that, as a "condition" to using a PAS test, the driver either has refused to take field sobriety tests "or is incapable of taking the tests." (Subd. (h)(1), italics added.) These provisions are contradictory and illogical; an officer cannot evaluate a person's "performance" on a field coordination test if that person is "incapable of taking" such test, nor, conversely, can a person's incapacity to take a test provide an officer with any basis to assess the driver's "performance" of such test.
We believe that interpreting section 23157, subdivision (h) to authorize a PAS test only if the suspect is too intoxicated to even attempt performing a coordination test would achieve absurd results by unnecessarily limiting an officer's discretion to use a PAS test "as a further investigative tool." (Subd. (h)(1).)  A PAS test "is simply another form of field sobriety testing[;] ... [it is] no more intrusive than to ask [a suspect] to walk a straight line or perform other physical and verbal coordination tests." (72 Ops.Cal.Atty.Gen., supra, at p. 234.) [5b] We therefore hold the statute does not require, as a condition precedent to police use of PAS devices, that suspects must be incapable of performing field sobriety or coordination tests, as opposed to merely being incapable of performing coordination tests correctly or successfully. Officer Leon substantially complied with subdivision (h) by (1) conducting the PAS test "only after" evaluating the entire circumstances, including appellant's performance on the field sobriety tests (subd. (h)); (2) obtaining appellant's consent to the PAS test (subd. (h)(1), (2)), and (3) advising appellant that his submission to the PAS test did not satisfy the chemical testing requirement of the implied consent law (subd. (h)(2)).
[7b] Section 23157, subdivision (h) was enacted for two purposes.
The second purpose of section 23157, subdivision (h) was to "limit the use of a [PAS] test by a peace officer, as specified ...." (Stats. 1992, ch. 1242.) This purpose is embodied in the language of subdivision (h)(1) that, in evaluating the totality of the circumstances to establish reasonable cause to arrest, a police officer may use a PAS test under the "condition" that "a person refuses to take field sobriety tests or is incapable of taking the tests, ... unless the person refuses to take the [PAS] test."
The foregoing purposes establish that section 23157, subdivision (h) was enacted to aid the prosecution of driving under the influence cases and not to exclude the admissibility of PAS evidence. PAS evidence may be relevant, not only to establish cause to arrest, but as tending to prove the essential [41 Cal. App. 4th 1206] element of the offense of drunk driving-the accused's intoxication. (72 Ops.Cal.Atty.Gen., supra, at p. 241; People v. Daan (1984) 161 Cal. App. 3d 22, 27 [207 Cal. Rptr. 228].) Here, the jury was properly instructed according to CALJIC No. 12.61 that it could infer appellant was intoxicated if a chemical analysis of his blood, breath or urine showed a BAL of at least .08 percent. fn. 8 The only evidence of chemical analysis taken of appellant's BAL was the results of the PAS test administered by Officer Leon. These results were relevant to establish the issue of appellant's intoxication.
Our holding that the PAS evidence was admissible on the issue of appellant's guilt is further supported by the statutory scheme of which section 23157, subdivision (h), is a part. This article generally defines substantive offenses and is not related to evidentiary rules or rules of criminal procedure.
Moreover, included within this article is section 23157.5 which provides that, because breath-testing equipment does not retain any sample of the breath, a person shall be advised before or after taking a breath test under the implied consent law that no breath sample will be retained and the person can provide in addition a blood or urine sample to be retained that may subsequently be analyzed for alcoholic content and used for criminal prosecution. (Subds. (a), (b), (c).) The statute goes on to provide that "[n]o failure [41 Cal. App. 4th 1207] or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcoholic content of the blood of the person arrested." (Subd. (d).) Another statute, section 23155, subdivision (c), states regarding the presumptions affecting the burden of proof from a chemical analysis of a person's blood, breath or urine: "This section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense." The foregoing statutes assure the admissibility of any properly obtained evidence of blood-alcohol content. This should include PAS evidence.
Finally, a comparison of section 23157, subdivision (h), to the zero tolerance law pursuant to section 23136, indicates that, had the Legislature intended subdivision (h) to operate as a rule of evidence, it would have said so. Under section 23136, the Legislature has specifically mandated use of the PAS test to enforce the statute. (Coniglio v. Department of Motor Vehicles, supra, 39 Cal.App.4th at p. 677.) In contrast, subdivision (h) does not mandate the use of PAS tests for investigative uses. We think this silence weighs heavily in favor of the admissibility of PAS test evidence subject to a trial court's Evidence Code section 352 discretion.
FN 1. All statutory citations refer to the Vehicle Code unless otherwise stated.
FN 2. Officer Leon testified at the trial: "I told [appellant] that the [PAS] test ... was voluntary. It was optional. He didn't have to do it. I told him it was not required, and just made that clear. [¶] I then told him if he did do it for me, he would need to do it twice. In other words, blow two samples, and I would show him the results the second time. I told him it was not the implied consent test. And if he was to be arrested he would be required to take either a test of his blood, breath or urine, which does happen when someone is [suspected of] driving under the influence. [¶] And I made this clear that the breath sample that he would give me does not count as one of the implied consent tests."
FN 4. People v. Kelly (1976) 17 Cal. 3d 24, 30 [130 Cal. Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014 [54 App.D.C. 46, 34 A.L.R. 145].
FN 5. Appellant raised no objection of the express ground of hearsay. He made an untimely objection on constitutional grounds after the presentation of the evidence, arguing that Ventura County's alleged failure to use the Alco-Sensor's printout capacity violated his right to due process.
FN 6. Appellant relies on Nick v. Department of Motor Vehicles (1993) 12 Cal. App. 4th 1407, 1418, footnote 6 [16 Cal. Rptr. 2d 305], which concludes that PAS tests designed to establish blood-alcohol levels are not performed on equipment licensed for this purpose and therefore have no foundation for admission. We disagree. The undisputed evidence here was that the Alco-Sensor machine used by Officer Leon was a fully licensed PAS device.
FN 7. We disagree with Coniglio's suggestion that title 17 does not apply to any PAS device used by law enforcement. (39 Cal.App.4th at pp. 677-681.) This goes beyond the subject matter of the Coniglio case-the mandatory statutory requirement of using PAS devices to enforce the zero tolerance law.
FN 8. The instruction read: "If the evidence establishes beyond a reasonable doubt that at the time of a chemical analysis of the defendant's blood, breath or urine there was 0.08 percent or more by weight of alcohol in the defendant's blood, you may but are not required to infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense."

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Held: The conviction is affirmed, because this Court cannot say as a matter of law that the District Court's finding of fact was erroneous. Pp. 328 U. S. 593 -594.
2. The gasoline ration coupons never became the private property of the holder, but remained at all times the property of the Government, and subject to inspection and recall by it. P. 328 U. S. 588 .
3. In the law of searches and seizures, a distinction is made between private papers or documents and public property in the custody of a citizen. Wilson v. United States, 221 U. S. 361 . Pp. 328 U. S. 589 -591.
4. Whatever may be the limits of inspection under the regulations, law enforcement is not so impotent as to require officers who have the right to inspect a place of business to stand mute when clear evidence of criminal activity is known to them. Amos v. United States, 255 U. S. 313 , distinguished. Pp. 328 U. S. 592 -593.
5. Where officers seek to inspect public documents at the place of business where they are required to be kept, permissible limits of persuasion are not so narrow as where private papers are sought, since the demand is one of right. P. 328 U. S. 593 .
Petitioner was convicted of unlawful possession of gasoline ration coupons in violation of § 2(a) of the Act of June 28, 1940, as amended by the Act of May 31, 1941, and by § 301 of the Second War Powers Act of March 27, 1942. The Circuit Court of Appeals affirmed. 151 F.2d 140. This Court granted certiorari. 326 U.S. 711. Affirmed, p. 328 U. S. 594 .
violation of the rule of Weeks v. United States, 232 U. S. 383 ; United States v. Lefkowitz, 285 U. S. 452 ; and related cases. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.
The law of searches and seizures as revealed in the decisions of this Court is the product of the interplay of these two constitutional provisions. Boyd v. United States, 116 U. S. 616 . It reflects a dual purpose -- protection of the privacy of the individual, his right to be let alone; protection of the individual against compulsory production of evidence to be used against him. Boyd v. United States, supra; Weeks v. United States, supra. And see Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 .
The distinction is between property to which the government is entitled to possession and the property to which it is not. [ Footnote 11 ] See 8 Wigmore on Evidence, 3d Ed., § 2259c.
They appeared on the premises during business hours. They had ocular evidence that a misdemeanor had been committed, a crime to which petitioner was an aider or abetter, [ Footnote 12 ] since, according to the attendant, she made the illegal sales pursuant to petitioner's instructions. Since sales were being made without receipt of coupons from customers, it was fair to assume (unless, as was at no time suggested, the business was being liquidated) that petitioner somewhere had a supply of coupons adequate to replenish his storage tanks. The inspection which was made was an inspection of the tanks attached to the pumps. And the search was of the office adjacent to the pumps -- the place where petitioner transacted his business. Moreover, the officers demanded the coupons on the basis that they were property of the government, and that petitioner was merely the custodian of them. And there was no general, exploratory search. Only the contraband coupons were demanded; only coupons were taken.
"No person shall have in his possession any gasoline deposit certificate, folder, or any coupon book, inventory or other coupon (whether or not such book was issued as a ration book and whether or not such coupon was issued as a ration or as a part of a ration book) or other evidence, or any identifying folder, except the person, or the agent of the person, to whom such book, coupon, certificate or folder was issued or by whom it was acquired in accordance with the provisions of Ration Book [ sic ] No. 5C."
Gouled v. United States, 255 U. S. 298 , 255 U. S. 310 .
to the premises in order to make a search there was, as a matter of law, "implied coercion." Inasmuch "as conduct under duress involves a choice," the Fourth Amendment is hardly to be nullified by finding every submission short of overpowering force "voluntary." See Union Pac. R. Co. v. Public Serv. Comm'n, 248 U. S. 67 , 248 U. S. 70 .
Of course, there is an important difference in the constitutional protection afforded their possessors between papers exclusively private and documents having public aspects. Cf. Weeks v. United States, 232 U. S. 383 , 232 U. S. 393 -394; Gouled v. United States, 255 U. S. 298 , 255 U. S. 308 -309. But the essence of the difference is that, under appropriate circumstances, wholly private papers are not even subject to testimonial compulsion, whereas other papers, once they have been legally obtained, are available as evidence. Had the coupons in controversy been secured by a proper search, they could be used against the defendant at the trial. But their character does not eliminate the restrictions of the Fourth Amendment and subject the person in possession of such documents, against his protest, to searches and seizures otherwise unwarranted.
The Court's opinion has only its own reasoning to support it. Nothing that this Court has ever decided or sanctioned gives it strength. Wilson v. United States, 221 U. S. 361 , invoked by the Court, was a very different story. That case was concerned with the difference between the amenability of a corporation to testimonial compulsion and the immunity of an individual, under relevant circumstances, to be free from the duty to give testimony. The core of the Government's claim here is the right to seize documents in the absence of judicial process. The difference between demanding documents without legal process and seizing them on the basis of such process is the difference between the protection of civil liberties and their invasion. The difference is the essence of the Fourth Amendment.
10 Adams, Works, 247-248; for a description of Otis' speech in Paxton's Case, see 2 id. 523. So basic to liberty is the protection against governmental search and seizure that every State in the Union [ Footnote 2/3 ] has this as a constitutional safeguard.
In the course of its decisions, with a deviation promptly retraced, this Court has likewise reflected the broad purpose of the Fourth Amendment. The historic reach of the Amendment and the duty to observe it was expounded for the Court by Mr. Justice Bradley in Boyd v. United States, 116 U. S. 616 , "a case that will be remembered as long as civil liberty lives in the United States."
Brandeis, J., in Olmstead v. United States, 277 U. S. 438 , 277 U. S. 471 , at 277 U. S. 474 . The Amendment has not been read in a niggardly spirit, or with the outlook of a narrow-minded lawyer.
"Time and again, this Court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no 'search' or 'seizure' when a defendant is required to produce a document in the orderly process of a court's procedure. 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U. S. 385 . Literally, there is no 'search' or 'seizure' when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United States, 255 U. S. 298 , that evidence so obtained could not be used. No court which looked at the words of the amendment, rather than at its underlying purpose, would hold, as this Court did in Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 , that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction.
The language is: 'No person . . . shall be compelled in any criminal case to be a witness against himself.' Yet we have held not only that the protection of the amendment extends to a witness before a grand jury, although he has not been charged with crime ( Counselman v. Hitchcock, 142 U. S. 547 , 142 U. S. 562 , 142 U. S. 586 ), but that:"
" Counselman v. Hitchcock, supra, p. 142 U. S. 562 ."
Olmstead v. United States, 277 U. S. 438 , 277 U. S. 471 , at 277 U. S. 476 -478.
And so we are finally brought to the question whether the seizure of documents which could not possibly have been justified as the result of a search under a warrant, since no such warrant could have been authorized by law, can be justified as a search and seizure without a warrant. Such justification must have some historic foundation, otherwise it is clearly out of the bounds of the Fourth Amendment. The court below evidently struggled in reaching its conclusion because of some decisions here which it naturally found "not entirely harmonious." Its chief reliance was language in Marron v. United States, 275 U. S. 192 . A short answer would be that the sting of the Marron case was taken by two later cases. Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S. 358 , and United States v. Lefkowitz, 285 U. S. 452 , 285 U. S. 465 . But a closer analysis is called for.
arrest was early settled in our law. [ Footnote 2/4 ] 1 Bishop, New Criminal Procedure, 4th Ed., 1895, §§ 210 et seq.
the arrest takes place. Another factor enters. This language is sometimes used in cases involving the seizure of items properly subject to seizure because in open view at the time of arrest. [ Footnote 2/8 ] But this last confusion is due to a failure to distinguish between the appropriate scope of a search on arrest and the very different problem as to the right of seizure where no search is in question."
It is important to keep clear the distinction between prohibited searches, on the one hand, and improper seizures, on the other. See Mr. Justice Miller in Boyd v. United States, 116 U. S. 616 , 116 U. S. 638 , 116 U. S. 641 . Thus, it is unconstitutional to seize a person's private papers, though the search in which they were recovered was perfectly proper, e.g., Gouled v. United States, 255 U. S. 298 . It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure, e.g., Amos v. United States, 255 U. S. 313 ; Byars v. United States, 273 U. S. 28 ; Taylor v. United States, 286 U. S. 1 . And a search may be improper because of the object it seeks to uncover, e.g., Weeks v. United States, 232 U. S. 383 , 232 U. S. 393 -394, or because its scope extends beyond the constitutional bounds, e.g., Agnello v. United States, 269 U. S. 20 .
In view of the jealousy with which this Court has applied the protection of the Fourth Amendment even where the search purported to take place under a proper warrant and there was the safeguard of judicial process in addition to the expressed judgment of the enforcement officials, see e.g., Grau v. United States, 287 U. S. 124 ; Sgro v. United States, 287 U. S. 206 , it was not to be expected that this Court should sanction searches on arrest that can be justified as reasonable only if securing evidence for purposes of the trial is the test of reasonableness for purposes of the Fourth Amendment. Such a view presupposes that the Fourth Amendment is absolute, and makes of the particularity of requirement for search warrants a mocking redundancy.
A few words only need be said about the cases on which the Government relies. Most of them deal with the amenability of documents to production upon legal process. Wilson v. United States, 221 U. S. 361 ; Bowles v. Insel, 148 F.2d 91; Cudmore v. Bowles, 79 U.S.App.D.C. 255, 145 F.2d 697; Rodgers v. United States, 138 F.2d 992; Fleming v. Montgomery Ward & Co., 114 F.2d 384. In the others, consent was given to inspect the papers in accordance with the provisions of the governing statute. Bowles v. Beatrice Creamery Co., 146 F.2d 774; Bowles v. Glick Bros. Lumber Co., 146 F.2d 566; In re Sana Laboratories, 115 F.2d 717 (subsequent to the inspection, there was a wrongful taking; the court admitted the evidence procured as a result of the inspection, but barred the documents from evidence); C. M. Spring Drug Co. v. United States, 12 F.2d 852; United States v. Kempe, 59 F.Supp. 905; Bowles v. Stitzinger, 59 F.Supp. 94; Bowles v. Curtiss Candy Co., 55 F.Supp. 527; United States v. Sherry, 294 F. 684 (here, the documents were taken with the consent of the custodian). In A. Guckenheimer & Bros. Co. v. United States, 3 F.2d 786, however, the situation bears some resemblance to the present case. There, the Circuit Court of Appeals attributed the consent of the custodian, following continual refusal, to the command of the statute. While there was no indication, as evidenced by the opinion, that the documents were secured through fear of force, the inspection afforded was probably not voluntary. Insofar as there is support in that case for a search that transgressed the Fourth Amendment, the observations are mere dicta, since no timely objection was filed.
62 L.Q.Rev. at 4. It is to be noted that Carroll v. United States, 267 U. S. 132 , 267 U. S. 157 , assumes the federal law of arrest to be the same as that of the English.
on scope); Act of June 15, 1935, 49 Stat. 378, 381 (no limitation on scope); Act of August 27, 1935, 49 Stat. 872, 874, 875 ( see Act of June 15, 1917, supra ); Act of April 5, 1938, 52 Stat. 198, 199 (any place in District of Columbia); Act of February 10, 1939, 53 Stat. 1, 436 (no limitation on scope); Act of June 28, 1940, 54 Stat. 670, 671 (no limitation on scope); Act of July 1, 1943, 57 Stat. 301, 304 (no limitation on scope); Act of February 26, 1944, 58 Stat. 100, 102 (any person, vessel, or place).
fraud on revenue committed or being committed); Act of June 28, 1940, 54 Stat. 670, 671 ( see Act of June 15, 1917, supra ); Act of July 1, 1943, 57 Stat. 301, 304 (proper oath or affirmation, showing probable cause of violation of Alaskan game laws, before U.S. judge or commissioner); Act of February 26, 1944, 58 Stat. 100, 102 (oath or affirmation before U.S. judge or commissioner, showing probable cause of violation of statute).
* Congress has passed numerous statutes authorizing inspection of defined premises and seizures without warrants. These are all very particularized acts, relating mostly to the inspection of vessels and vehicles and the seizure of various types of contraband goods. Most of this legislation comes within the exceptions historically recognized at the time of the adoption of the Fourth Amendment as to recapture of stolen goods and search of vehicles and vessels because of their fugitive nature. In such a mass of legislation, it would not be surprising if some of the specific acts fell afoul of the considerations which invalidated the legislation in the Boyd case, 116 U. S. 616 . What is significant about this legislation is the recognition by Congress of the necessity for specific Congressional authorization even for the search of vessels and other moving vehicles and the seizures of goods technically contraband.


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UNIVERSAL ROBINA CORPORATION AND LANCE Y. GOKONGWEI, Petitioners, v. WILFREDO Z. CASTILLO, Respondent.
Whether a validly dismissed employee is entitled to separation pay is the meat of this controversy.
The instant petition for review assails the Decision1 and Resolution2 of the Court of Appeals dated 20 July 2009 and 17 September 2009, respectively, in CA-G.R. SP. No. 105604.
Respondent Wilfredo Z. Castillo (Castillo) was hired by petitioner Universal Robina Corporation (URC) as a truck salesman on 23 March 1983 with a monthly salary of P4,000.00. He rose from the ranks and became a Regional Sales Manager, until his dismissal on 12 January 2006.
As Regional Sales Manager, respondent was responsible for planning, monitoring, leading and controlling all activities affecting smooth sales operation. He is particularly in charge of the operational and administrative functions encompassing the formulation of sales forecast, selling expense, budget preparation and control, sales analysis, formulation and review of policies and procedures affecting the sales force and service provided to customers, including representation in keeping and maintaining key accounts of the company. He is likewise tasked to transact, sign and represent the company in all its dealings with key accounts or customers subject however to his selling expense budget duly approved by URC Management. Consequently, he is obliged to give an account of all his dealings or transactions with all his customers to URC.3 His area of responsibility covered some parts of Laguna, including Liana’s Supermart (Liana) in San Pablo City, Laguna.
On 19 August 2005, URC’s Credit and Collection Department (CCD) Analyst in Silangan, Laguna Branch noted an outright deduction in the amount of P72,000.00 tagged as Gift Certificate (GC) per Original Receipt No. 625462 dated 18 August 2005. The CCD Analyst found the issuance of GCs as unusual. This finding prompted URC’s Corporate Internal Audit (CIA) to conduct a routine audit of the unresolved accounts of Liana’s account receivables.
Per Ms. Prezy Manansala, Liana’s San Pablo Branch Manager, URC agreed to sponsor their “Back to School Promo”.
She showed us their copy of the Account Development Agreement x x x signed by URC Salesman and Ms. Manansala as proof that there was indeed an agreed promotional activity.
Liana’s issued GCs worth P72,000.00 to RSM Castillo. Issuance of Liana’s GCs was covered by Charge Sales Invoice Nos. 2189 and 2190 dated June 25, 2005. As claimed by Ms. Manansala, this issuance of GC is part of the promo activity.
[4.] Ms. Manansala informed us that the “Back to School Raffle Promo” was cancelled. x x x.
[5.] We showed her photocopies of Charged Invoices [N]os. 2189 and 2190 x x x. Ms. Manansala confirmed that RSM Castillo is the one who signed on the received x x x portion of the documents we showed.
[6.] Copies of the Charged Invoice [N]os. 2189 and 2190 were marked/stamped paid as these charges were already deducted from their payment to URC.
The “cut case” display was only implemented in June 2005.
According to Liana’s San Pablo Branch Manager, URC through RSM Wilfredo Castillo received Gift Certificates worth P72,000.00 from Liana’s.
[8.] On September 29, 2005, Liana’s HO officer confirmed that P72,000.00 worth of Gift Certificates were issued per Charged Invoice Nos. 2189 and 2190 dated June 25, 2005.
The CIA suspected that respondent might have committed an act of fraud against the company and Liana’s for his personal gain.
The raffle draw portion of the promotion, however, was cancelled by Liana’s due to cost implications and difficulty in obtaining permits. In lieu of the raffle draw, additional cut case display for 3 categories (snacks, beverages and foods), together with 15% sales increment, was offered by Liana’s. By virtue of said revisions, Liana’s charged and deducted P72,000.00 from URC’s collectibles which correspond to the monthly rentals of the cut case display.8 Respondent denied accepting any gift certificate.
You entered into an agreement with Liana’s Supermarket for the use of cut-case displays for the period from June 1, 2005 to August 31, 2005, inclusive, coinciding with the inclusive period of the implementation of the Account Development Agreement (ADA No. WZC-05-046), and admitted that you did not have any authority to enter into such contract.
You signed two (2) blank Charge Invoices of Liana’s Supermarket to warrant the payment of the rentals for three (3) cut-case displays during the said period with the use thereof as basis for deducting the amount of PHP 72,000.00 from the account of the Company, without the authority to do so.
Respondent repeatedly denied that he signed two (2) blank Charge invoices intended for GCs. He also admitted that only two (2) cut-cases should have been charged and he assumed liability for the undue payment of one (1) cut-case display.
Clarification inquiries were likewise held on 8 December 2005.
W[ith] deep regret, we hereby inform you that, after DUE PROCESS, you were found guilty of acts inimical to the interest of the Company and for breach of trust & confidence.
You signed two (2) blank Charge Invoices of Liana’s Supermarket. You failed to satisfactorily explain your failure to exercise the slightest degree of prudence required of your position as SENIOR MANAGER, when you signed the “blank” Charge Invoices despite full knowledge that the same will be used to cause the deduction of the subject amount from the account of URC.
You authorized the changes in ADA despite of the fact that you have no authority to enter into any short term or long term contract for the rental of cut-case displays and shelf spaces.
On the other hand, URC countered that respondent was dismissed for a just and valid cause.
3) To pay complainant an amount equivalent to ten (10%) percent of the total judgment award, as and for attorney’s fees.
The Labor Arbiter ruled that respondent was asked to explain on charges which are different from the charges for which he was dismissed. The Labor Arbiter also held that URC failed to substantiate the charges against respondent.
On appeal, the National Labor Relations Commission (NLRC) found the appeal meritorious and reversed the decision of the labor arbiter. According to the NLRC, URC had more than sufficient proof that respondent violated its trust. Respondent sought reconsideration of the reversal, but his motion for reconsideration was denied.
In fine, this Court finds just cause for petitioner Castillo’s dismissal.
Petitioner nonetheless pleads for compassion, citing the fact that he honorably served the company for about twenty-three (23) years and this is his only and first offense.
Mindful of the Court’s duty to accord compassion to the working man in light of the social justice mandate in our Constitution, this Court deems proper an award of separation pay to petitioner Castillo as a form of equitable relief.
URC moved for partial reconsideration but the Court of Appeals denied the motion.
Before this Court, URC raises the lone argument that respondent is not entitled to separation pay in accordance with prevailing law and jurisprudence.14 Citing case law, URC contends that if an employee’s act or violation of the company’s code constitutes serious misconduct or is reflective of lack of moral character, then the employer is not required to give the dismissed employee financial assistance or separation. URC maintains that respondent’s acts of signing blank Charge Invoices without any authority and receiving P72,000.00 worth of GCs for his personal benefit clearly constitute serious misconduct which preclude an award for separation pay.
In his Comment, respondent stresses that based on the tenor of the termination letter, he was never dismissed on the ground of gross misconduct. Respondent concedes that at most, he may have committed simple negligence. He reiterates that he did not commit any act constituting serious misconduct nor does it reflect any deterioration in his moral character.
Why and when separation pay may be awarded or denied, has been the subject of many cases. We pick out the rulings pertinent to the case at hand.
The leading case of Philippine Long Distance Telephone Co. v. NLRC15 enunciated the ruling that separation pay “as a measure of social justice” is allowed in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character.16 The case of Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. NLRC17 expanded the doctrine laid down in PLDT by adding dismissals other than those under Art. 282 of the Labor Code, like willful disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a crime against the employer or his family which would preclude award of separation pay.
x x x The principal charge against petitioner Castillo was hinged upon “unauthorized arrangements” which he allegedly entered into. Petitioner Castillo’s unauthorized dealing with respect to the changes in the Account Development Agreement is exactly the offending cause of the host of infractions he committed, i.e., his neglect in signing the blank charge invoices and his improper receipt of gift certificates for his personal gain. These acts taken together constitute a breach of the trust and confidence reposed on petitioner Castillo by private respondent URC. x x x.
Indeed, petitioner Castillo’s acts of receiving the gift certificates and signing the blank invoices are closely intertwined and inextricably connected with each other. In other words, petitioner Castillo’s acquisition of the gift certificates could not have been facilitated without him signing the blank invoices. Such signing was a ruse to cover up his receipt of the gift certificates. Oddly enough, petitioner Castillo readily admitted to signing receipt on Charge Invoices Nos. 2189 and 2190 covering the gift certificates in the amounts of P60,000.00 and P12,000.00, respectively, but made the qualification that the same were in blank when he signed on them. Such claim was obviously to create the impression that he was really not aware of any gift certificates and that whatever misstep he committed was merely brought about by his good faith.
Nonetheless, the evidence on record negates petitioner Castillo’s claim of good faith and furnishes sufficient basis for the breach of trust and loss of confidence reposed on him by private respondent URC. Petitioner Castillo’s receipt of the gift certificates is categorically confirmed by Peter Sy, the Vice President of Marketing of Liana’s Supermarket. This piece of evidence, coming from a disinterested party, speaks eloquently of petitioner Castillo’s perfidy. Such an affirmative statement coupled with petitioner Castillo’s signatures on the charge invoices convincingly established the fact that he indeed received the P72,000.00 worth of gift certificates.
In this case before us, respondent did not appeal the decision of the Court of Appeals. He is deemed to have accepted the findings and conclusion of the appellate court pertaining to the validity of his dismissal.
In Bank of the Philippine Islands v. NLRC and Arambulo,21 we ruled that an employee who has been dismissed for a just cause under Article 282 of the Labor Code is not entitled to separation pay. The complainant therein was likewise dismissed on the ground of loss of trust and confidence. Applying that rule to the instant case, we here hold that respondent is not entitled to separation pay.
WHEREFORE, the petition is GRANTED. The 20 July 2009 Decision and 17 September 2009 Resolution of the Court of Appeals in CA-G.R. SP. No. 105604 is REVERSED and SET ASIDE. The Resolution dated 31 March 2008 of the National Labor Relations Commission REINSTATED.
Carpio, (Chairperson), Del Castillo, Mendoza,* and Perlas-Bernabe, JJ., concur.
21 G.R. No. 179801, 18 June 2010, 621 SCRA 283, 293.

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