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In the following we provide information about the collection of personal data when using our website. Personal data is all data that makes a personal reference to you e.g. name, address, e-mail addresses, user behaviour.
When contacting us by e-mail or using a contact form, the information you provide (your e-mail address, your name and your telephone number, if applicable) will be stored by us to answer your questions. We delete the data in this connection after the storage is no longer required, or the processing is restricted if legal storage obligations exist.
If we rely on commissioned service providers for individual functions of our offer or if we wish to use your data for advertising purposes, we will inform you in detail below about the respective processes. In doing so, we will also state the specified criteria for the storage duration.
When you visit our website and receive and send e-mails, we use the SSL (Secure Socket Layer) method in conjunction with the highest encryption level supported by your browser. We point out however that there is currently no absolutely secure encryption technology. We also use technical and organisational security measures to protect your data from unauthorised access by third parties.
You are not required to provide the aforementioned personal data. The communicated data may be required for a contract. Without the provision of the data, the communication, conclusion of a contract or the execution of a contract may not be possible.
Transmission of the data relevant in the respective individual case takes place, on the basis of legal regulations or a contractual agreement, to public authorities, if legal regulations apply with priority, to external service providers or other contractors and to other external bodies, if you have given your consent (legal basis: Art. 6 (1) (a) GDPR), or transmission is required to pro-tect our legitimate interests and your interests, which require the protection of personal data, do not prevail (Art. 6 (1) (f) GDPR). There is no intention to transfer your data to a recipient in a third country (not an EU/EEA Member State) or an international organisation.
The data will be deleted as soon as it is no longer necessary for the purpose for which it was collected. For provided personal data, this is the case when the respective conversation with you is ended. The conversation is ended when it can be inferred from the circumstances that the relevant facts have been finally clarified. Insofar as the disclosed data is subject to the tax and commercial storage requirements, it is stored for the duration of the retention obligations of ten years and then deleted, unless you have consented to an additional storage or the further processing of data is required for assertion, exercise or defence of legal claims. The legal basis for the processing of personal data for the purpose of fulfilling the statutory archiving and reten-tion obligations is Art. 6 (1) (c) GDPR.
We recruit specialists and executives on behalf of our clients and, if necessary, also carry out parts of the application process for the respective client (e.g. examination of the application documents, holding of interviews, selection of the candidates proposed to the client).
We collect your personal data as an applicant if you provide it to us by post, e-mail or tele-phone for job advertisements and unsolicited applications. In this case, we process the information provided in the application. This includes, in particular, name, date of birth, contact details, interests, qualification data as well as educational and professional history. In addition, in this case, we also collect other personal data from publicly available sources, in particular the social networks XING and LinkedIn. The personal data collected about you will only be used for the purpose of carrying out the application process (legal basis: Art. 6 (1) (b) or (f) GDPR, § 26 BDSG).
You are not required to provide the aforementioned personal data. The data provided may be required for future contract conclusion after completion of the application process. With-out the provision of the data, the communication, the application process or the conclusion of a contract may not be possible.
– To protect our legitimate interests or the legitimate interests of our client (legal basis: Art. 6 (1) (f) GDPR).
In the latter case, your personal data will be stored for a longer period of time only insofar as your interests or fundamental rights and fundamental freedoms, which require the protection of personal data, do not prevail. If the continued processing of your data is based on a purpose other than the one for which the personal data was collected, we will comply with Art. 6 (4) GDPR and inform you of this change in purpose pursuant to Art. 13 (3) GDPR.
Subject to your consent, we will include your application documents (including the personal data contained therein) in our database and notify you of job advertisements from our clients, which may be of interest to you on the basis of your application profile (legal basis: Art. 6 (1) (a) GDPR, § 26 BDSG).
Our website uses common so-called web fonts, which are provided by Google for the uniform representation of fonts. When you call up a page, your browser loads the required web fonts into your browser cache to display texts and fonts correctly. To do this, the browser you use must connect to Google’s servers. As a result, Google learns that our website has been accessed via your IP address. The use of Google Web Fonts is in the interest of a consistent and attractive presentation of our online services. This constitutes a legitimate interest within the meaning of Art. 6 (1) (f) GDPR. If your browser does not support web fonts, a default font will be used by your computer.
If you have given your consent to the processing of your data, you can revoke this consent at any time. Such revocation will affect the admissibility of the processing of your personal data af-ter your revocation.
Insofar as we base the processing of your personal data on a balance of interests, you may object to the processing. This is the case if, in particular, the processing is not required to fulfil a contract with you, which we describe in each case in the following description of functions. In the event of such an objection, we ask you to explain the reasons why we should not process your personal data as we have done. In the event that you have justified objection, we will ex-amine the situation and will either discontinue or adapt the data processing or point out to you our compelling legitimate reasons on the basis of which we may continue the processing.
You can inform us under the following contact details of your revocation and/or opposition: Grützmacher & Engler GmbH & Co KG, Falkenried 29, 20251 Hamburg, mail@gruetzmacher-engler.de.
(2) You also have the right to appeal to a data protection authority about our processing of your data.

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D.C. Law Library - § 26–1152.11. Failure to timely send disclosure notice.
↪ § 26–1152.11. Failure to timely send disclosure notice.
§ 26–1152.10. Charges in bad faith.
§ 26–1152.12. Prepayment premium, fee or charge.
§ 26–1152.11. Failure to timely send disclosure notice.
(a) In making a covered loan, a lender shall send to the borrower a Red Flag Warning Disclosure Notice.
(b) This notice shall be received by the borrower at least 3 business days prior to closing of the loan.
(c) If the loan is originated with the assistance of a mortgage broker, the mortgage broker shall provide the Red Flag Warning Disclosure Notice.
(d) Only one Red Flag Warning Disclosure Notice must be provided to each borrower.
(e) The Mayor shall promulgate, by regulation, the Red Flag Warning Disclosure Notice and instructions for completing, executing, and sending the disclosure notice. The Mayor may revise the disclosure notice or instructions at any time not less than 90 days in advance of the publication in the District of Columbia Register. After the publication of a revised disclosure notice or revised instructions, either the existing or revised instructions may be followed and either the existing or revised disclosure notice shall be accepted until the advance publication period expires.
This section is referenced in § 26-1151.01 and § 26-1153.01.
For temporary (90 day) addition of section, see § 211 of Home Loan Protection Emergency Act of 2002 (D.C. Act 14-295, March 1, 2002, 49 DCR 2534).


The Court of Appeals’ decision in in Cemex Construction Materials South, LLC v. Falcone Bros. & Assoc., Inc., 237 Ariz. 236 (App. 2015), which is the subject of this post from May 2015, will cease being good law on August 6, 2016. The case was legislatively overruled by HB 2268, which was signed into law by Governor Ducey on May 12, 2016 and will become effective on August 6, 2016. My post on the effects of HB 2268 and its overruling of the Cemex decision can be found here.
It has been a longstanding construction industry practice to mail preliminary twenty-day notices on both private and public projects via first class mail with a certificate of mailing as a cost saving measure. This is done on private projects because the section of Arizona’s mechanic’s lien statutes requiring twenty-day notices —A.R.S. § 33-992.01 — expressly provides that they “may be given by mailing notice by first class mail sent with a certificate of mailing, registered or certified mail, postage prepaid in all cases.” First class mail is, obviously, the least expensive of the three alternatives. Twenty-day notices have also been mailed in the same fashion on public projects because the Little Miller Act section requiring them (in certain instances) incorporates by reference a significant portion of A.R.S. § 33-992.01.
The recent Arizona Court of Appeals decision in Cemex v. Falcone Bros. & Assocs., Inc. upends this longstanding practice. In Cemex, the Court ruled that preliminary twenty-day notices being served under Arizona’s Little Miller Act must be sent by certified or registered mail.
In Cemex, a material supplier furnished construction material to a subcontractor on a City of Tucson pubic works project. The supplier alleged that it had not been paid for the furnished materials, and sued the general contractor and its surety to recover against the posted Little Miller Act payment bond. In connection with its claim, the supplier asserted that it had served four preliminary twenty-day notices upon the general contractor pursuant to A.R.S. § 34-223(A), by mailing each notice via first class mail, postage prepaid, with a certificate of mailing. The general contractor, however, claimed that it did not receive any of the four alleged twenty-day notices.
The general contractor moved for summary judgment, claiming that the supplier’s bond claim was barred because: (1) the general contractor did not receive the twenty-day notices; and (2) even if it had, the notices were statutorily deficient insofar as they were sent by first class, rather than by registered or certified mail as provided for in last sentence of§ 34-223(A). The supplier maintained that the four notices it sent via first class mail satisfied its statutory requirements. The trial court ultimately agreed with the supplier, and entered judgment in the supplier’s favor for damages, pre-judgment interest, costs, and attorneys’ fees. The general contractor appealed.
On appeal, the general contractor argued that the subject preliminary twenty-day notices were inoperative because § 34-223(A) requires both Little Miller Act twenty-day notices and ninety day notices be served only by registered or certified mail. The supplier argued — consistent with industry practice — that the mailing provisions in § 34-223(A) only apply to ninety-day notices. The supplier also argued that the mailing provisions in the mechanic’s lien statute — A.R.S. § 33-992.01(F) — are implicitly incorporated into § 34-223(A), such that twenty-day notices served by first class mail with a certificate of mailing are proper.
The Court of Appeals rejected the supplier’s argument. Specifically, the Court found that pursuant to the “plain language of § 34-223(A), it is clear that the legislature did not intend the mailing provisions of § 33-992.01(F) to apply to the notices required by § 34-223(A).” In reaching this decision, the Court noted that, while § 34-223(A) incorporates many of the subsections of § 33-992.01, subsection (F) is excluded. As a result, the Court held that the mailing provisions in § 34-223(A) apply to both twenty-day and ninety-day notices, and that Little Miller Act preliminary twenty-day notices must be served by certified or registered mail.
Given the holding in Cemex, contractors and suppliers involved in public works projects should immediately take steps to ensure that their preliminary twenty-day notices are being sent via registered or certified mail.


83 F.3d 1317 (11th Cir. 1996), 93-4634, Motorcity of Jacksonville, Ltd. By and Through Motorcity of Jacksonville, Inc. v. Southeast Bank, N.A.
Party Name: MOTORCITY OF JACKSONVILLE, LTD., a limited partnership, By and Through its general partner MOTORCITY OF JACKSONVILLE, INC., a Florida corporation, David S. Hess, Plaintiffs-Appellants, v. SOUTHEAST BANK N.A., David Feigenbaum, Defendants, Federal Deposit Insurance Corporation, as receiver for Southeast Bank, N.A., Defendant-Appellee.
Dyanne E. Feinberg, Miami, FL, for appellants.
Kipp A. Coddington, Christopher D. Cerf, Daniel E. Troy, Stephen Goldman, Washington, DC, for Motorcity & David Hess.
Julie Feigeles, Miami, FL, S. Alyssa Roberts, James Scott Watson, Washington, DC, for appellees.
Before TJOFLAT, Chief Judge, and KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.
In this decision, we consider whether the district court correctly granted a motion to dismiss in favor of appellee Federal Deposit Insurance Corporation ("FDIC") based upon the D'Oench doctrine. See D'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). For the reasons that follow, we affirm the judgment of the district court.
David S. Hess (collectively "Motorcity") 1 with the financial institution of Southeast Bank, N.A. ("Southeast"). We assume the following allegations from Motorcity's pleadings to be true for purposes of resolving the FDIC's motion to dismiss. In 1986, Motorcity and Southeast negotiated a floor plan financing agreement, under which Southeast agreed to lend Motorcity funds to purchase inventory for its used car dealership. During the negotiations, Motorcity orally informed Southeast that appellant David Hess and other Motorcity investors lacked experience in running a car dealership and planned to operate the dealership as absentee owners. Southeast orally assured Motorcity that its personnel were experienced with floor plan financing and that "the bank 'knew what it was doing.' " R2-58 Ex. 1 p 14. Of particular concern to both Southeast and Motorcity were "out-of-trust" sales, which occur whenever a dealership fails to use the proceeds from the sale of a vehicle to repay the loan designated for that vehicle. Continued unchecked, such out-of-trust sales could pose a threat to a dealership's financial viability.
Motorcity and Southeast executed a written floor plan financing agreement in June 1987. Pursuant to the floor plan financing agreement, Southeast retained the right to audit Motorcity's records. 2 Southeast hired an independent contractor to audit Motorcity on a monthly basis. Through these audits, Southeast allegedly discovered a pattern of out-of-trust sales at the dealership: rather than repaying the floor plan loans, Motorcity's managers were using the sales proceeds from vehicles to pay themselves unearned bonuses. Although Southeast or its auditor sent summary audit reports to Motorcity, the bank failed to disclose these out-of-trust sales to Motorcity.
In February 1989, Motorcity learned from its newly-hired general manager that the dealership was out-of-trust more than $400,000. Motorcity immediately notified Southeast of the situation. Southeast demanded immediate payment for the entire out-of-trust amount, but Motorcity was unable to meet the bank's demand. Southeast took possession of Motorcity's collateral, including the dealership itself and $375,000 in certificates of deposit. Motorcity repaid all of its loans to Southeast by April 1990.
Motorcity sued Southeast and one of its employees in Florida state court, alleging breach of fiduciary duty, breach of oral contract, and negligence. Less than a year later, in September 1991, the Office of the Comptroller of the Currency declared Southeast insolvent and appointed the FDIC as receiver for the failed bank. The FDIC was substituted for Southeast as defendant in the state court action, and the FDIC removed the case to federal court.
that "[t]he genesis of this action is the Southeast floor plan financing agreement, whose written provisions do not support a breach of contract claim against the FDIC. No amount of artful pleading, including further amendments to the complaint, can alter this result." R2-52-8.
Motorcity moved for a rehearing and for leave to amend its complaint to add tort claims for negligence and for breach of fiduciary duty to notify. The district court denied both motions. In its omnibus order, the court reiterated that the D'Oench doctrine barred all oral contract claims, including those claims recast as tort actions by " 'artful pleading.' " R2-67-1-2.
Motorcity appeals solely the district court's denial of its motion to file a second amended complaint to add its proposed tort claims. Our review standard for a district court's denial of a motion to amend a complaint is abuse of discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.1989). After a responsive pleading has been filed, subsequent amendments are permissible only with leave of court, which "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). This liberal policy of allowing amendments under Rule 15(a) "circumscribes the exercise of the district court's discretion; thus, unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Shipner, 868 F.2d at 407; see also Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir.1993) (holding that "a justifying reason must be apparent for denial of a motion to amend") (emphasis added).
In this case, the district court denied Motorcity's motion to amend based on the court's legal determination that Motorcity's proposed tort claims were barred by the D'Oench doctrine. The futility of a proposed amended complaint can be a justifiable reason for denying leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Moore, 989 F.2d at 1131. When a district court denies leave to amend a complaint because of futility, we review de novo. Keweenaw Bay Indian Community v. State, 11 F.3d 1341, 1348 (6th Cir.1993); see also In re Geri Zahn, Inc., 25 F.3d 1539, 1542 (11th Cir.1994) (explaining that the applicability of the D'Oench doctrine is a question of law, subject to de novo review); Freer v. Dugger, 935 F.2d 213, 216 (11th Cir.1991) ("Regarding the standard of review, conclusions of law by the district court are not binding on appellate courts and this court is free to substitute its judgment for the district court's on matters of law.") Accordingly, we review de novo the district court's determination that Motorcity's tort claims are barred by the D'Oench doctrine and its statutory counterpart, 12 U.S.C. § 1823(e)(1).
leading case itself, D'Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). In that case, the Supreme Court created a federal common law doctrine of estoppel to protect the FDIC from defenses raised by debtors based on "secret agreements" with failed banks. D'Oench involved a securities dealer who sold a bank some bonds which later became worthless. To prevent the past due bonds from appearing among the assets of the bank, the dealer executed a demand note with the bank and entered into a separate agreement with the bank that the note would not be called for payment. The FDIC later acquired the note in a purchase and assumption transaction. When the FDIC demanded payment on the note, the maker defended on the basis of the side agreement with the bank, in which the bank promised not to call the note for payment. Id. at 454, 62 S.Ct. at 678. The lower courts applied Illinois state law and held that the FDIC was entitled to recover on the note as a "holder in due course." Id. at 455, 62 S.Ct. at 678.


A.B., by and through her parents, SUSAN and Mark B., Appellant v. MONTGOMERY COUNTY INTERMEDIATE UNIT.
No. 10-2278.United States Court of Appeals, Third Circuit.Submitted Under Third Circuit LAR 34.1(a) January 11, 2011.
Opinion filed: January 27, 2011.
On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 2-07-cv-02798) District Judge: Honorable Louis H. Pollak.
Patrick J. McMonagle, Esq., Alfred V. Meitner, Jr., Esq., Blue Bell, PA, for Appellant.
Mark W. Fitzgerald, Esq., Fox Roths-child, Blue Bell, PA, Karl A. Romberger, Jr., Esq., Sweet, Stevens, Katz Williams, New Britain, PA, for Montgomery County Intermediate Unit.
Before: RENDELL, AMBRO, and FISHER, Circuit Judges.
Plaintiff-appellant A.B. appeals the District Court’s decision granting summary judgment to defendant-appellee Montgomery County Intermediate Unit (“MCIU”) on A.B.’s claim under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291.
Under the IDEA, the District Court was “obliged to conduct a modified de novo review, giving `due weight’ to the underlying administrative proceedings.” C.H. v. Cape Henlopen Sch. Dist, 606 F.3d 59, 65 (3d Cir. 2010) (internal quotation marks and citation omitted): We review the District Court’s legal conclusions de novo. Id.
(“FAPE”) to each disabled child between the ages of three and twenty-one. 20 U.S.C. § 1412(a)(1)(A). States meet that requirement by creating for each disabled student an “individualized education plan” (“IEP”), which sets out a “package of special educational and related services designed to meet the unique needs of the disabled child.” Ferren C. v. Sch. Dist. Of Phila., 612 F.3d 712, 717 (3d Cir. 2010) (internal quotation marks and citation omitted). To satisfy the IDEA, an IEP must be “`reasonably calculated’ to enable the child to receive `meaningful educational benefits’ in light of the student’s `intellectual potential.'” Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (citation omitted). Parents who believe that the implementation of a proposed IEP will not result in a FAPE for their child are entitled to an “impartial due process hearing,” presided over by a hearing officer. 20 U.S.C. § 1415(f).
A.B. is a hearing-impaired child with a cochlear implant, and MCIU created for her an IEP directing that she begin pre-school at a planned (but not yet operational) public school classroom designed for children with hearing impairments. A.B.’s parents, who wanted A.B. to attend the Clarke Pennsylvania School instead of the designated public school, unsuccessfully challenged thus decision in a due process hearing, and then appealed to the District Court. It rejected the appeal in a carefully reasoned 32-page opinion.
In our Court, A.B. primarily argues that the District Court should have rejected the hearing officer’s conclusions based on his purported bias, or at least should have permitted discovery about the potential bias. A.B.’s bias allegation is based on the fact that the hearing officer was a former coworker with MCIU counsel and a current coworker with MCIU counsel’s wife. A.B. further theorizes that the resulting bias led the hearing officer to reject the testimony of her expert witness, Jean Moog, and that this exclusion tilted the balance of the evidence away from A.B. and toward MCIU. Additionally, A.B. generally challenges the sufficiency of the IEP, and argues that it was improper for MCIU to propose that A.B. be placed in a classroom that was not operational at the time the IEP was drafted.
The District Court rejected A.B.’s argument that due process required the hearing officer, at minimum, to disclose his working relationship with MCIU counsel or counsel’s wife. Nonetheless, the Court agreed with A.B. that the hearing officer erred by discounting Moog’s testimony. However, the District Court then reviewed the entirety of the evidence, including Moog’s testimony, and concluded that A.B. and her parents had not satisfied the relevant legal standard because their evidence went primarily to whether the IEP would provide an ideal education, and not whether it was “reasonably calculated” to provide “meaningful educational benefits.” Accordingly, the District Court concluded that the hearing officer’s determination should not be disturbed.
After reviewing the parties’ briefs and relevant portions of the record, we conclude that the District Court correctly applied the relevant legal standards, and affirm for substantially the reasons stated by that Court.
 A.B. also filed suit under the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983, but does not appeal the District Court’s grant of summary judgment as to those claims.


Arthur Cary PRYOR, a/k/a Camden M. Peller, Defendant, Appellant.
Scott McLarty, Athens, Ga., for defendant, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., were on brief for appellee.
Before SELYA, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.
As a result of an amended brief, a supplemental brief, and a reply brief, defendant Arthur Cary Pryor, through counsel and individually, has presented some eleven points on appeal, including the defense of insanity. All can be readily disposed of.
Defendant was convicted of robbery of a federally insured bank in Blue Hill, Maine, by force and violence and placing a life in jeopardy, 18 U.S.C. §§ 2113(a) and (d), and possession of a sawed-off unregistered shotgun, 26 U.S.C. §§ 5845(a)(4); 5861(d) and 5871. When committing the robbery he was highly made-up, costumed and hatted to emulate "Boy George," an androgynous pop star. Afterwards he distributed largesse to his landlord and, ultimately, drove in a stretch limousine costing $900 to a Cambridge, Massachusetts, hotel, where he rented the presidential suite.
Before defendant was apprehended the government obtained warrants to search his apartment in Castine, Maine, and his Cambridge hotel room. He moved, pretrial, to suppress the fruits. The court denied, 652 F.Supp. 1353, after a lengthy evidentiary hearing, with a fully persuasive opinion. We need not repeat; there was no error. United States v. Rutkowski, 877 F.2d 139 (1st Cir.1989).
Before trial the government had performed a psychiatric examination of defendant. 18 U.S.C. § 4247(b). Defendant complains that it was delayed beyond the statutory schedule. It does not appear how he was prejudiced.
if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
Defendant did not move for a hearing; nor did the court hold one of its own accord. We are satisfied that there was no sufficient cause to spark court action. It is not determinative that defendant had had drug problems and psychiatric treatment in the past. Hernandez-Hernandez v. United States, 904 F.2d 758, 760-61 (1st Cir.1990). More to the point is the fact that the court had seen defendant vigorously, and rationally, participating in his defense at the pretrial proceedings, see Figueroa-Vasquez v. United States, 718 F.2d 511, 512 (1st Cir.1983), and had determined that he had the capacity to waive counsel and defend himself. For that hearing the court had a psychiatrist's finding that defendant was "oriented to time, place and person," and that his "judgment and insight, as well as abstract thinking appeared to be intact." The court's finding that defendant was competent to waive counsel, viz., "knowing and intelligent," Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975), more than covered ability to understand and assist properly in his defense. Cf. United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984). There was no cause for the court to hold a further hearing.
Defendant complains that at trial a witness referred to his having stolen a bed. The court immediately struck the testimony and instructed the jury to disregard it. This was a minor matter, and fully cured. United States v. Paiva, 892 F.2d 148, 160 (1st Cir.1989).
The same with respect to a witness speaking of defendant's being subjected to a disciplinary hearing as a result of a fight in jail. Here the court, in addition to instructing the jury to disregard the testimony, informed it the next day that defendant had been cleared as having acted in self-defense. (Apparently it was known that he had been in jail.) There was no prejudice.
In respect to excluded evidence, defendant complains because the court refused to admit a letter he wrote his counsel at the time of his arrest as indicating his state of mind. As to his state of mind at the time of the offense, it was hearsay. As at the time of the arrest, it was irrelevant. A proffered newspaper article was properly excluded within the court's discretion; indeed we do not see how it was admissible at all.
Next, defendant complains of the burden put upon him to prove insanity "by clear and convincing evidence." 18 U.S.C. § 17(b). The constitutionality of such a burden is settled. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); reconsideration refused in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976). Defendant would circumlocute these cases by saying his offenses require wilful knowledge, which insanity negates. There is, however, no such identity. See United States v. Cameron, 907 F.2d 1051, 1066 (11th Cir.1990); United States v. Byrd, 834 F.2d 145, 147 (8th Cir.1987). Hence defendant's contention of a conflict with the criminal burden of proof as to knowledge, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), does not exist.
Next, defendant would have it that the evidence did not support the jury's finding that he was not insane. Quite apart from the fact that he failed to move for a directed verdict at the close of the evidence, the burden being on him, this claim is specious. But even were the burden on the government, there was ample evidence that defendant knew what he was doing, and "appreciate[d] ... the wrongfulness of his act." 18 U.S.C. § 17(a).
Defendant complains that instead of merely instructing the jury that a verdict of insanity requires confinement in a mental institution until found to be sane, as requested by him, the court gave the further detail that the confinement might be for only 40 days. This addition was correct. 18 U.S.C. § 4243(c). If, instead of requesting a partial instruction defendant had asked that there be none, we might have a different question. Cf. United States v. Frank, 956 F.2d 872 (9th Cir.1992).
Defendant contends the judge should have recused himself and not have presided over the sentencing because of bias due to the fact that defendant had brought a civil suit against him. This question was purely for the court's own decision. It cannot be that an automatic recusal can be obtained by the simple act of suing the judge. See Ronwin v. State Bar of Arizona, 686 F.2d 692, 701 (9th Cir.1982), cert. denied, 461 U.S. 938, 103 S.Ct. 2110, 77 L.Ed.2d 314 (1983); cf. In re Union Leader Corp., 292 F.2d 381, 389 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961).
Defendant finally complains of the sentence. This was pre-Guidelines, and it was within statutory limits. We have no right to review except if the court failed to "individualize." United States v. Jimenez-Rivera, 842 F.2d 545, 548 (1st Cir.), cert. denied, 487 U.S. 1223, 108 S.Ct. 2882, 101 L.Ed.2d 917 (1988). It did not fail.


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2012-07-02 Assigned to WHITE, ERIC reassignment WHITE, ERIC CONFIRMATORY ASSIGNMENT Assignors: MARTIN, JOHN H.
A system and method of providing network access comprising a processor, a first network interface coupled to the processor, a second network interface coupled to the processor, a storage media accessible by the processor and a set of computer instructions stored on the storage media, executable by the processor, where the computer instructions can be executable to receive a network communication over the first network interface from a user using a user device and determine if the network communication is associated with an authenticated user. If the network communication is not associated with an authenticated user, is not destined for a server in a walled garden, and a pre-authentication interface is specified, the computer instructions can be executable to direct the user to the pre-authentication interface. The computer instructions can be further executable to direct the user to an authentication interface when the network communication is not associated with an authenticated user, is not destined for a server in the walled garden, and a pre-authentication interface is not specified.
This application claims priority under 35 U.S.C. 119(e) to U.S. Provisional Patent Application No. 60/551,705 entitled “System and Method for Double-Capture/Double-Redirect to a Different Location,” by Keith Johnston, et al., filed Mar. 10, 2004 and U.S. Provisional Patent Application No. 60/551,702 entitled “System and Method For Access Scope Control (“Walled Gardens”) For Clients of a Network Access Gateway”, by Patrick Turley, Keith Johnston and Steven D. Tonnesen, filed Mar. 10, 2004, which are both hereby fully incorporated by reference herein.
Embodiments of the present invention relate to network access control and security. More particularly, embodiments of the present invention relate to providing access control for a shared network.
Network access providers utilizing Access Controlled Network Sharing technology to provide user-specific provisioned access to private/public networks may also have a need to allow controlled access for unauthenticated users to a restricted collection of network destinations.
For example, a shopping mall owner may want to provide any on-site customer possessing a wireless device (such as a laptop computer, PDA, etc.) with access to the Web server for the mall, plus one or more other Web sites that are associated with the mall (e.g., the local Web server for a tenant in the mall, such as a department store or movie theater). The collection of Web servers that the mall owner will allow an anonymous user to visit is referred to as the “walled garden”.
In addition, the mall owner may intend to provide unlimited web access to customers who agree to register with the mall owner, and identify themselves (by providing credentials—typically, in the form of a user identifier and a password that were assigned at the time they registered) whenever they wish to be granted full access to the Internet. The process of verifying a customer's credentials is referred to as “authentication”.
Previous solutions would either 1) require that the network destination of the authentication service (i.e., the “captive” portal) be specified explicitly in a link on at least one of the web pages within the set of destinations that are members of the “walled garden”, or 2) require that the end-user manually enter the web address of the authentication service in the address bar of their web browser.
The invention is a software-based system and method that enhances the function of a network access controller by introducing a “Pre-Authentication Capture Destination”. In the standard Access Controlled Network Sharing solution, an unauthenticated client who attempts to access the network is re-directed to a challenge screen or “captive portal”, where they must provide their network login credentials (e.g., user name and password).
If a Pre-Authentication Capture Destination is specified, then this behavior changes. Any attempt by an unauthenticated client to access a network resource that is not in a list of allowed destinations (e.g., the list of servers that make up the “walled garden”) will result in the client being re-directed by the Network Access Controller to the Pre-Authentication Capture Destination. The unauthenticated client is then free to visit any of the servers that are included in the walled garden without authentication. Any attempt to access a web site or location that is outside of the walled garden will cause the client to be re-directed back to the Pre-Authentication Capture Destination.
At some point, the unauthenticated client may want to use network access privileges that are only available to an authenticated user. Consequently, the client must then be re-directed to an authentication URL (or “captive” portal), where they may login (or register as a new user). To accomplish this re-direction, at least one of the web sites within the walled garden can include an HTML link that references a site that is not in the walled garden and includes a special token within the “query” portion of the link's target HTTP URL (as defined in the IETF RFC-2616—“Hypertext Transfer Protocol—HTTP/1.1” and RFC-1738 “Uniform Resource Locators (URL)” specifications). This special token, referred to as the “Authentication Token”, is a unique sequence of characters that are valid for use in the query portion of a URL. When the client attempts to access the referenced site, they will be captured by the Network Access Controller. However, because of the presence of the Authentication token within the HTTP URL, the Network Access Controller will re-direct the client to the authentication screen, rather than redirecting them back to the Pre-Authentication Capture Destination.
Note that there is no requirement for any web page in the walled garden to have prior knowledge of the actual authentication screen location. Consequently, the same collection of walled garden sites may be used to service multiple Network Access controllers, where each controller may utilize a different authentication portal.
This invention enables a public/private network service provider to automatically redirect anonymous clients to a pre-defined destination within a limited set of network destinations, and provides a mechanism for accessing the authentication service without requiring that the web servers in the “walled garden” know the actual authentication URL. The automatic redirection occurs whenever the anonymous client attempts to access a network destination outside of the allowed set. The anonymous client does not have to enter the network URL of a server in the “walled garden”—instead, they just have to attempt to access any well-known URL (such as www.yahoo.com), and they will be redirected to the pre-defined destination.
FIG. 3 is a diagrammatic representation of the flow of control (decision diagram) for a network access sharing device implementing the double-capture, double-redirect method, according to one embodiment of the present invention.
The following applications are hereby fully incorporated by reference herein in their entirety: U.S. application Ser. No. 10/683,317, filed Oct. 10, 2003, entitled “SYSTEM AND METHOD FOR PROVIDING ACCESS CONTROL,” by Richard MacKinnon, Kelly Looney, and Eric White; U.S. Provisional Application No. 60/551,698, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR BEHAVIOR-BASED FIREWALL MODELING,” by Patrick Turley which converted into U.S. application Ser. No. 11/076,719, filed Mar. 10, 2005, entitled “SYSTEM AND METHOD FOR BEHAVIOR-BASED FIREWALL MODELING,” by Richard MacKinnon, Kelly Looney, and Eric White; U.S. Provisional Application No. 60/551,754, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR COMPREHENSIVE CODE GENERATION FOR SYSTEM MANAGEMENT,” by Keith Johnston which converted into U.S. application Ser. No. 11/078,223, filed Mar. 10, 2005, entitled “SYSTEM AND METHOD FOR COMPREHENSIVE CODE GENERATION FOR SYSTEM MANAGEMENT,” by Keith Johnston; U.S. Provisional Application No. 60/551,703, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR PROVIDING A CENTRALIZED DESCRIPTION/CONFIGURATION OF CLIENT DEVICES ON A NETWORK ACCESS GATEWAY,” by Patrick Turley and Keith Johnston; U.S. Provisional Application No. 60/551,702, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR ACCESS SCOPE CONTROL (“WALLED GARDENS”) FOR CLIENTS OF A NETWORK ACCESS GATEWAY,” by Patrick Turley, Keith Johnston, and Steven D. Tonnesen which converted into U.S. application Ser. No. 11/076,591, filed Mar. 10, 2005, entitled “METHOD AND SYSTEM FOR CONTROLLING NETWORK ACCESS,” by Patrick Turley, Keith Johnston, and Steven D. Tonnesen; U.S. Provisional Application No. 60/551,699, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR DYNAMIC BANDWIDTH CONTROL,” by Patrick Turley, et al.; U.S. Provisional Application No. 60/551,697, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR DETECTION OF ABERRANT NETWORK BEHAVIOR BY CLIENTS OF A NETWORK ACCESS GATEWAY,” by Steven D. Tonnesen which converted into U.S. application Ser. No. 11/076,652, filed Mar. 10, 2005, entitled “SYSTEM AND METHOD FOR DETECTION OF ABERRANT NETWORK BEHAVIOR BY CLIENTS OF A NETWORK ACCESS GATEWAY,” by Steven D. Tonnesen; U.S. Provisional Application No. 60/551,704, filed Mar. 10, 2004, entitled “SYSTEM AND METHOD FOR NETWORK MANAGEMENT XML ARCHITECTURAL ABSTRACTION,” by Keith Johnston and Mario Garcia which converted into U.S. application Ser. No. 11/076,672, filed Mar. 10, 2005, entitled “SYSTEM AND METHOD FOR NETWORK MANAGEMENT XML ARCHITECTURAL ABSTRACTION,” by Keith Johnston and Mario Garcia; and U.S. Provisional Application No. 60/660,408 filed Mar. 10, 2005, entitled “SYSTEM AND METHOD FOR PROVIDING A CENTRALIZED DESCRIPTION/CONFIGURATION OF CLIENT DEVICES ON A NETWORK ACCESS GATEWAY,” by Patrick Turley, et al.
Network access providers utilizing Access Controlled Network Sharing (as, for example, described in U.S. patent application Ser. No. 10/683,317, filed Oct. 10, 2003, entitled “System and Method for Providing Access Control”, by Richard MacKinnon, Kelly Looney, and Eric White) technology to provide user-specific provisioned access to private/public networks may also have a need to allow controlled access for unauthenticated users to a restricted collection of network destinations (this can be referred to as the “walled garden”—see U.S. Provisional Patent Application No. 60/551,702 entitled “System and Method for Access Scope Control (“Walled Gardens”) for Clients of a Network Access Gateway” by Patrick Turley, Keith Johnston and Steven D. Tonnesen, filed Mar. 10, 2004, converted into U.S. patent application Ser. No. 11/076,591, entitled “Method and System for Controlling Network Access” by Patrick Turley, Keith Johnston and Steven D. Tonnesen, filed Mar. 10, 2005).
The Pre-Authentication Capture Destination for the embodiment of FIG. 1 will be designated http://wg1.com/welcome.html.
The Authentication Capture Destination is https://auth.com/login.jsp.
As shown in the embodiment of FIG. 1, assume that an anonymous user has access to one of the Client network access devices 1. This user launches a Web browser and enters “www.yahoo.com” (an “external” URL, i.e., a destination that is not in the Walled Garden 5) in the address bar, and presses <Return>. The Network Access Controller 2 uses its internal Firewall 3 function to recognize the attempt by an unknown user to access an “external” location (represented by the Internet cloud 4 in FIG. 1), intercepts the request, and sends an HTTP redirect to the Client's browser, specifying the Pre-Authentication Capture URL “http://wg1.com/welcome.html”. The browser then automatically performs an HTTP Get to retrieve that Web page from the wg1.com server.
At this point, the anonymous user may access Web locations on any of the three servers that are in the Walled Garden 5. For this example, assume that the Web pages on the wg1.com Server 6 include links to Web pages on the wg2.com Server 7. The anonymous user would be able to click on any of these links and view the referenced pages hosted on Server 7. However, if one of these Web pages contained a link to an “external” web site, and the user clicked on that link, then the Network Access Controller 2 would again redirect the Client's browser back to the Pre-Authentication Capture URL http://wg1.com/welcome.html, hosted on Server 6.
When the user clicks on this link, the Network Access Controller 2 intercepts the request. However, instead of redirecting the Client's browser to the Pre-Authentication Capture URL, the Network Access Controller 2 recognizes the presence of the token, and redirects the browser to the Authentication URL http://auth.com/login.jsp, hosted on the “auth.com” Server 8.
At this point, the user is presented with a Login page, and enters a username/password. Assuming that these credentials are valid, the “auth.com” Server 8 sends an “authorize” command to the Network Access Controller 2. This command instructs the Network Access Controller 2 to allow “external” access for the authenticated user.
As shown in FIG. 2, the Client now has access to the Internet 4 (“External Network”). If the user now entered “www.yahoo.com” in the Web browser's address bar, the Network Access Controller 2 would no longer intercept this request, and the welcome page from the Yahoo web site would be displayed.
Note that in one embodiment, this “external” access is only granted to the authenticated user. An anonymous user on a different Client would still be restricted to the Walled Garden 5.
One embodiment of the decision logic (and associated flow) that can be executed by the Network Access Controller 2 is depicted in FIG. 3. The Network Access Controller continuously monitors for network access from network access client devices 1 on its first network interface at step 18.
When a network packet is received (step 19), the Network Access Controller 2 determines if the packet is being sent by an authenticated client (step 20).
If the packet is from an authenticated client, then the Network Access Controller 2 allows the packet to pass through and be routed to its target destination (“Yes” decision fork).
If the packet is from an unauthenticated client, then the Network Access Controller 2 determines if the destination of the packet is one of the servers within the Walled Garden 5 (step 21).
If the packet is from an unauthenticated client and the destination is a server in the Walled Garden 5, then the Network Access Controller 2 allows the packet to pass through and be routed to its target server (“Yes” decision fork).
If the packet is from an unauthenticated client and the destination is not a server in the Walled Garden 5, then the Network Access Controller 2 determines if a Pre-Authentication URL has been specified (step 22).
If the packet is from an unauthenticated client, the destination is not a server in the Walled Garden 5, and a Pre-Authentication URL has not been specified, then the Network Access Controller directs the client to the Authentication URL (step 24).
If the packet is from an unauthenticated client, the destination is not a server in the Walled Garden 5, and a Pre-Authentication URL has been specified, then the Network Access Controller 2 determines if the packet contains the Authentication Token (step 23).
If the packet is from an unauthenticated client, the destination is not a server in the Walled Garden 5, a Pre-Authentication URL has been specified, and the packet does not contain the Authentication Token, then the Network Access Controller 2 directs the client to the Pre-Authentication URL (step 25).
If the packet is from an unauthenticated client, the destination is not a server in the Walled Garden 5, a Pre-Authentication URL has been specified, and the packet contains the Authentication Token, then the Network Access Controller 2 directs the client to the Authentication URL (step 24).
direct the client to the pre-authentication URL if the authentication token is not present.
2. The system of claim 1, wherein the computer instructions are further operable to grant access for an unauthenticated client to any destination server within the walled garden.
3. The system of claim 2, wherein the computer instructions are further operable to redirect an unauthenticated client to the pre-authentication URL destination, when such destination has been specified.
send a redirect request to the device to redirect a web browser to the authentication interface.
send a reply to the device according to the network protocol directing the user to the authentication interface.
6. The system of claim 5, wherein the network protocol is one of HTTP, SMTP, POP, telnet, UDP or FTP.
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Kaplan Johnson Abate & Bird's attorneys have extensive experience handling complex appellate and constitutional litigation in federal and state courts around the country. We have handled a wide range of complex issues, including high-stakes business, class action and constitutional litigation.
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Before: NOONAN and HAWKINS, Circuit Judges, and MERHIGE,*** District Judge.
The district court properly denied Marvin Earl McCoy's motion for reconsideration and/or amendment of the court's earlier order denying his motion for a new trial. McCoy claims that after his trial proceedings, he discovered new evidence that the government had violated his rights under Brady by concealing records of payments to the informant who testified against McCoy, evidence of corruption within the task force conducting his investigation, and evidence of improper and unauthorized storage of narcotics and other evidence.
Denial of a new trial based on a Brady violation is reviewed de novo. United States v. Steinberg, 99 F.3d 1486, 1489 (9th Cir. 1996). The prosecution in a criminal case must disclose to the defendant "evidence which is both favorable to the accused and 'material to either guilt or to punishment.' " United States v. Bagley, 473 U.S. 667, 674 (1985) (quoting Brady v. Maryland, 373 83, 87 (1963)). Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. See id. at 676. However, a new trial is not automatically required whenever "a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict." Id. at 677 (internal quotation marks and citation omitted). Rather, constitutional error requiring a new trial occurs only if the evidence withheld is material. See id. at 678.
The government did not violate its obligations under Brady. The government provided McCoy with ample impeachment material regarding Tredwell, the informant who testified against McCoy. The assistant United States Attorney prosecuting McCoy provided McCoy with much background information on Tredwell, including, inter alia, his work history as an informant, his basic compensation as an informant for the strike force, how he became an informant, and the cases in which he had previously testified. In a letter dated September 28, 1992, the government provided Defendant detailed information about the total payments made to Tredwell, including the salary, the per-transaction fees, the vehicle expenses, the nightclub money, the relocation payments, and the post-investigative support payments Tredwell had received. The government also made Tredwell available to defense counsel for a pretrial interview during which counsel had the opportunity to ask Tredwell questions. Furthermore, McCoy's counsel was very effective at trial in developing the issues of Tredwell's compensation, past criminal acts, and other matters which cast doubt on Tredwell's credibility. Both McCoy's counsel and the trial judge explicitly cautioned the jury with respect to Tredwell's credibility as a witness.
We also agree with the district court's finding that evidence of isolated misconduct by Trooper Lynn and Sergeant Gourley, two members of the task force that conducted McCoy's investigation, was not material. Therefore, the government's failure to disclose evidence thereof was not a Brady violation. Neither Lynn nor Gourley was actively involved in the Tredwell investigation, had direct contact with Tredwell during the investigation, or testified in McCoy's trial. When the misconduct of these team members was discovered, Lynn resigned, and Gourley was discharged. Evidence about the Lynn/Gourley misconduct would not have affected the jury's determination of Tredwell's credibility nor that of other government witnesses, and was therefore not material for Brady purposes.
Neither were McCoy's rights under Brady violated by the government's failure to disclose information about other isolated instances of misconduct that occurred within the task force conducting McCoy's investigation. Although there is evidence that some task force investigators inappropriately used blank informant payment vouchers and also improperly stored narcotics and other evidence, none of the allegations of wrongdoing in the task force involved officers who participated in the Tredwell investigation which led to McCoy's conviction. There is no evidence that agents ever had Tredwell sign any blank vouchers, or that evidence used against McCoy was improperly stored.
Suppressed evidence must be considered collectively, as opposed to item-by-item. See Kyles v. Whitely, 514 U.S. 419, 436 (1995). Viewing the undisclosed evidence collectively, we conclude that no Brady violation occurred during McCoy's prosecution. There is not a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different ... a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682.
The district court's denial of McCoy's motion for an evidentiary hearing regarding his Brady claim was also proper. The decision whether to hold an evidentiary hearing under Fed. R. Crim. P. 33 is within the discretion of the trial court. See United States v. Nace, 561 F.2d 763, 772 (9th Cir. 1977). The district court's decision regarding whether to conduct an evidentiary hearing is reviewed by this Court for an abuse of discretion. See United States v. Ortland, 109 F.3d 529, 543 (9th Cir.), cert. denied, 118 S. Ct. 141 (1997).
Defendant's motion for new trial raised many issues and included numerous exhibits. The government's response to Defendant's allegations included sworn affidavits from the four agents who were involved in the investigation. Though disputing some of the statements in the affidavits, McCoy never submitted any affidavits, declarations, or other evidence to support either his underlying claims or his request for an evidentiary hearing, despite the district judge's clear frustration at McCoy's failure. to do so. The district court found that the issues raised in McCoy's motion were "exhaustively briefed by the parties" and could be considered without a full evidentiary hearing. The court further held that McCoy had "failed to raise genuine issues of material fact requiring an evidentiary hearing."
We find that the district court did not abuse its discretion in denying Defendant's request for an evidentiary hearing. An evidentiary hearing is not required "where there [is] nothing to be gained by such a hearing." United States v. Scott, 521 F.2d 1188, 1196 (9th Cir. 1975), cert. denied, 424 U.S. 955 (1976). The district court's conclusion that an evidentiary hearing was not necessary to determine the issues before it was entirely reasonable and within the province of its discretion. See, e.g, United States v. Colacurcio, 499 F.2d 1401, 1406 n. 7 (9th Cir. 1974) (new trial motions "are ordinarily decided solely upon affidavits"); United States v. Slocum, 708 F.2d 587, 600 (11th Cir. 1983) (where the defendants failed to even file an affidavit by the one person whose information came closest to requiring a new trial, the district court "did not abuse its discretion in denying the motion without an evidentiary hearing").
Based on the foregoing, we affirm the district court's denial of Defendant's motion for a new trial because all of the evidence that McCoy claims the government withheld in violation of Brady was either given to him before trial, introduced as evidence during trial and subjected to direct and cross-examination, or not "material" for Brady purposes.


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THE PEOPLE, Plaintiff and Respondent, v. GEORGE FULTON ROLLINS, Defendant and Appellant.
Howard E. Beckler, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and George J. Roth, Deputy Attorney General, for Plaintiff and Respondent.
The present appeal requires us to determine once again fn. 1 which cases are to be governed in this state by the principles set forth in Escobedo v. Illinois (1964) 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758], and to decide for the first time fn. 2 which cases, among those governed by Escobedo, should also be subject to the more detailed guidelines enunciated in Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974].
The trial in this case began on May 13, 1963. Defendant, George Fulton Rollins, and his codefendants, Willie Slater and John Palmer, were charged with two counts of armed robbery. All three defendants waived the right to a jury trial, and the trial court found each defendant guilty on both counts. The court further found that Slater and Palmer committed the robberies while armed with a deadly weapon but that Rollins was not personally armed. On June 7, 1963, the court entered the judgment which defendant Rollins challenges in this appeal, convicting him on two counts of first degree robbery. (Pen. Code, §§ 211, 211a.) On June 20, 1963, the court imposed concurrent sentences and committed Rollins to the California Youth Authority for the term prescribed by law.
On June 22, 1964, the United States Supreme Court decided Escobedo v. Illinois, supra, 378 U.S. 478; on June 13, 1966, while this appeal was still pending, the United States Supreme [65 Cal. 2d 683] Court filed its decision in Miranda v. Arizona, supra, 384 U.S. 436. In this setting, we must first decide what law governs; we must then apply that law to the judgment here on review.
Under Johnson v. New Jersey (1966) 384 U.S. 719 [16 L. Ed. 2d 882, 86 S. Ct. 1772], the states are not bound to apply either Escobedo or Miranda to trials commencing prior to the dates when those decisions were rendered. Under our ruling in In re Lopez (1965) 62 Cal. 2d 368 [42 Cal. Rptr. 188, 398 P.2d 380], however, the principles established in Escobedo v. Illinois, supra, 378 U.S. 478, and People v. Dorado (1965) 62 Cal. 2d 338 [42 Cal. Rptr. 169, 398 P.2d 361], are applicable to the instant case since the judgment of conviction was not final before June 22, 1964, the date of the Escobedo decision.
We have decided that we should follow Johnson insofar as that decision limited the operation of Miranda in this state to trials beginning after June 13, 1966. In accordance with this determination of the governing law, we have here applied Escobedo and Dorado but not Miranda; we have concluded that the conviction of the defendant Rollins cannot stand.
The two robberies here involved took place in service stations in Los Angeles. James Carter, an attendant at the U-Save-On service station, testified at the trial that at 12:50 on the morning of January 28, 1963, two men whom he identified as codefendants Slater and Palmer walked into the station and held him up at gunpoint. They took bills, change, a coin tray, and cigarettes, and then ran off.
Arthur Hammond, an attendant at the Jet 777 service station, testified that at 1:30 on the same morning Slater and Palmer came into the station and held him up at gunpoint. They took bills, change, cigarettes, a coin changer of the type used by a bus driver, and Hammond's wallet.
Officer Helvin of the Los Angeles Police Department testified that he and his partner, Officer Matlock, while on patrol early in the morning of January 28, observed the driver of a black Chevrolet look at their police car and then suddenly make a right turn. The officers followed the Chevrolet for several blocks at speeds up to 60 miles an hour. At one point during the chase the officers noticed an arm extending from the right window of the car. The Chevrolet ran through two stop signs; shortly thereafter the officers stopped the vehicle and asked the driver, defendant Rollins, to step out. Slater and Palmer were also in the car.
Officer Helvin handcuffed Rollins, placed him under arrest, [65 Cal. 2d 684] and put him in the patrol car. Suspecting that the vehicle might have been stolen, the officer reached for the registration slip. While doing so, he noticed under the front seat a coin changer of the type used by bus drivers. At approximately this time Officer Helvin heard a report over his police radio about the holdup at the Jet 777 station and learned that a coin changer was among the items taken. He then questioned defendant regarding the coin changer found in the car and as to the robbery; defendant denied any knowledge of either. Defendant said that on his return from Compton, at a point near the Jet 777 station, he had picked up Slater and Palmer, whom he had not previously known.
The officers then retraced the route over which they had pursued defendant; at different points along the route they found Hammond's wallet, a .22 caliber revolver, and a .38 caliber revolver.
Sergeant Chiquet testified that, during the morning of January 29, he and three other officers questioned defendant at the police station. Defendant stated that Slater and Palmer had come to his house about 12:30 on the morning of January 28 and had asked that he drive them somewhere. He said that he had driven them to a point near the Jet 777 station and that they had left him there with the car but had returned several minutes later. Defendant again denied knowledge of any robberies.
At the police station in the afternoon of January 29, Sergeant Chiquet and the three other officers again questioned defendant, this time together with Slater and Palmer. Sergeant Chiquet testified that, at some point during this tape-recorded interrogation, defendant Rollins admitted that he was acquainted with defendants Palmer and Slater and finally confessed, stating that he had driven the car in the service station robberies.
Defendant denied any knowledge of the robberies. He admitted that he had told the police that he drove the car involved in the robberies, but he testified that he had made this statement only because he had previously been physically abused by the police. Slater and Palmer also took the stand. Slater denied any participation in the robberies; Palmer admitted that he had participated, but testified that defendant was in no way involved.
We share the conclusion of the United States Supreme Court that Miranda should not extend to trials which began before June 13, 1966. The purposes of Miranda point to purely prospective application; collateral relief remains available on proper showing to sift out confessions which were not truly voluntary; retroactive application, requiring retrials in countless cases, would needlessly burden the administration of justice.
Moreover, the application of Miranda to trials beginning before June 13, 1966, would necessarily entail the reversal of some convictions in cases which came to trial after Escobedo and Dorado, and which complied fully with the rules announced in those decisions. The application of Miranda to reverse such convictions would upset the justifiable reliance of those who sought scrupulously to follow the rulings of this court and of the United States Supreme Court.
Although we must respect the reliance evoked by Escobedo and Dorado in cases tried during the period between those decisions and the decision in Miranda, we find little force in the reliance argument as applied to trials which took place before Escobedo was decided on June 22, 1964, since pre-Escobedo law did not encourage the sort of reliance which the Escobedo and Dorado decisions clearly invited.
We note, finally, that this matter is not one of first impression in California; we do not write upon a clean slate, since we have already applied Escobedo to reverse convictions in numerous cases which went to trial before June 22, 1964. fn. 8 [65 Cal. 2d 689] Thus we cannot say here, as could the United States Supreme Court in Johnson v. New Jersey, supra, 384 U.S. 719, 832, that "the possibility of applying [Escobedo] only prospectively is yet an open issue."
The situation which faces us now is analogous to that which confronted the United States Supreme Court when it decided Linkletter v. Walker, supra, 381 U.S. 618, and again when it decided Tehan v. Shott, supra, 382 U.S. 406. In those cases, the court was required to decide whether to limit Mapp v. Ohio (1961) 367 U.S. 643 [6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933], and Griffin v. California (1965) 380 U.S. 609 [14 L. Ed. 2d 106, 85 S. Ct. 1229], to prospective operation only; the court decided to apply Mapp and Griffin not only prospectively, to trials commencing after the Mapp and Griffin decisions, but also retroactively, to trials which had begun, but had not yet led to final convictions, prior to those decisions.
Similarly, since we have already applied Escobedo and Dorado to reverse numerous convictions obtained in pre- Escobedo trials, we cannot suddenly reject their application to the few remaining defendants whose cases now pose Escobedo and Dorado issues, and whose convictions were pending on direct review when Escobedo was decided; we cannot abandon principles so clearly embodied in precedent and so firmly established in practice.
Nor will our continued application of Escobedo and Dorado to such defendants impose a major burden on the administration of criminal justice. The vast majority of cases in California which had not become final prior to June 22, 1964, have by this time been disposed of on appeal in accordance with the teaching of Escobedo and Dorado. Accordingly, we need not invite the anomalies and the manifest injustice which the rejection of Lopez, at the virtual end of its natural life, would entail. fn. 11  Thus, while following Johnson in limiting Miranda to trials which began after June 13, 1966, we adhere to Lopez in applying Escobedo and Dorado to the instant case and to all other cases which had not become final before June 22, 1964.
Having thus determined the applicable law, we set forth our reasons for concluding that the judgment of conviction rests upon a confession violative of Escobedo and Dorado and therefore cannot stand. We note parenthetically that the Attorney General does not seriously dispute the proposition [65 Cal. 2d 692] that, if Escobedo and Dorado are to be applied in the instant case, defendant's conviction must be reversed.
 Here defendant admitted his guilt only after he had been in custody for over 34 hours following his arrest. The record discloses that the police arrested Rollins for robbery; that several officers questioned him, once at the scene of the arrest, and twice at the police station; that he initially denied any involvement in the robberies; but that, in the course of the third interrogation, he finally confessed.
Traynor, C. J., McComb, J., Burke, J., Sullivan, J., and Roth, J. pro. tem., fn. * concurred.
I concur in the reversal of the judgment, and in the determination that under state law and policy the holdings in Escobedo v. Illinois, 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758], and People v. Dorado, 62 Cal. 2d 338 [42 Cal. Rptr. 169, 398 P.2d 361], are partially retroactive and apply to cases that were not final on June 22, 1964, the date on which Escobedo was decided. I dissent, however, from the holding that the rules announced in Miranda v. Arizona, 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974], under state law and policy, do not apply to pending appeals but only apply prospectively to cases tried after June 13, 1966, the date on which Miranda was decided. These two holdings are illogical, inconsistent, needlessly raise, without deciding, equal protection of the laws problems, and grant to some applicants while denying to others similarly situated basic constitutional rights.
In reaching the result that Miranda should only apply prospectively the majority follow Johnson v. New Jersey, 384 U.S. 719 [16 L. Ed. 2d 882, 86 S. Ct. 1772], decided on June 20, 1966, in which the United States Supreme Court held that insofar as federal courts are concerned, Miranda only applied prospectively. In the same opinion the United States Supreme Court also held that, so far as federal law is concerned, the rules announced in Escobedo also had prospective operation only. But in Johnson v. New Jersey, supra, as the majority here points out, the United States Supreme Court, at some length, expressly pointed out that these federal rules were not binding on the states, and that the states were free to adopt other and different rules of retroactivity. That concession was undoubtedly specially noted because before Miranda a few [65 Cal. 2d 694] states, including California, had held that Escobedo was retroactive to the extent of applying to pending appeals (In re Lopez, 62 Cal. 2d 368 [42 Cal. Rptr. 188, 398 P.2d 380]), and the United States Supreme Court wanted to assure those states that they could constitutionally adopt the same rule as to Miranda. This amounts to an open invitation to apply the same rules to Miranda as the states had applied to Escobedo. In my opinion we should accept that invitation. The majority repudiate it.
Whether we should or should not adopt the rules of retroactivity announced in Johnson v. New Jersey is now a matter of state policy--should we adopt the retroactivity rules of Johnson or the rules announced in Lopez? However we decide that question, it is submitted that the same rules should be adopted as to both Escobedo and Miranda, inasmuch as both deal with similar rights of freedom from self-incrimination and to counsel guaranteed by the federal and state Constitutions, and it is further submitted that the most compelling arguments are to the effect that we should adopt the rule of Lopez.
In determining whether or not to adopt, as a matter of state law and policy, the rules of retroactivity of Johnson v. New Jersey, we should examine the results and effects of that doctrine. It cannot be denied that the doctrine that rules announced in criminal cases involving fundamental constitutional rights shall operate prospectively is new and novel. I know of no precedent in our long judicial history where such a doctrine was even hinted at, far less decided. Certainly there is no California authority that supports any such doctrine. Such a doctrine, hinting as it does at legislative rather than judicial action, is completely foreign to our California law. Under our state law, prospective operation of judicial decisions has heretofore been limited to a very few civil cases and then only in most unusual cases. In most of the cases where the prospective operation rule has been adopted some element of estoppel was present. Thus to apply the doctrine to a criminal case involving constitutional rights is out of line with our state law. The United States Supreme Court acted well within its rule making powers when it made such a new and startling rule applicable to the federal courts. But, as already pointed out the states are under no compulsion to adopt such a doctrine, and some, like California, have been invited by the United States Supreme Court not to do so. Under such circumstances California should not blindly follow Johnson v. New Jersey as to the prospective operation [65 Cal. 2d 695] of Miranda, and certainly should not do so after holding Escobedo applies to pending appeals. California should adopt a rule more in conformity with California law.
In considering what the state policy should be, we also have the right to consider the apparently conflicting and certainly anomalous holdings in Miranda and in Johnson v. New Jersey. In Miranda, and two of the cases decided along with it, the court reversed three convictions where the errors occurred before Miranda was decided. fn. 1 This necessarily constituted a determination that as to these three cases the rules announced in Miranda applied to pending appeals. This was on June 13, 1966. On June 20th the United States Supreme Court held the rules announced in Miranda should only apply after June 13, 1966, and dismissed many petitions for certiorari presenting the same problems as Miranda. Thus, if your name was Miranda, and your conviction had been secured by violation of rights set forth in Miranda, you were entitled to a reversal, but if your name was Johnson, or as in the instant case, Rollins, and your conviction was secured by methods condemned in Miranda, and you were tried at the same time or after Miranda was tried, but before June 13, 1966, your judgment must be affirmed. Although the instant case does not involve the death penalty, the same rules would be applicable there. Therefore a defendant in a murder case tried at the same time or after Miranda but before June 13, 1966, whose conviction rests on a confession secured in violation of Miranda, must die, but Miranda, under similar circumstances, would live. This presents, under the federal rule, an interesting and difficult equal protection of the laws problem. Although this is primarily the concern of the federal courts, we are entitled to consider, and should do so, those anomalies in determining whether we, as a matter of state policy, should adopt a rule that permits such inconsistencies.
There is another basic fundamental fallacy in the majority opinion. It adopts one rule of retroactivity as to Escobedo and another as to Miranda. The majority decide, and I agree, to adopt the rule of the Lopez case as a matter of state law, although when written we thought we were following federal law. But then the majority hold that Miranda applies only prospectively. The majority is right in adopting the rule of [65 Cal. 2d 696] Lopez as to Escobedo. According to Dorado and Lopez, the rules announced in Escobedo were adopted in an attempt to preserve and protect Fifth and Sixth Amendment rights. The only criticism that can be made of the rule adopted in Lopez is that it did not go far enough--perhaps we should have held that the rule of retroactivity of Gideon v. Wainwright, 372 U.S. 335 [9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733], was applicable. Certainly, strong arguments can be made for such a conclusion. But we decided, because of the impact on the administration of justice, to limit Escobedo to pending appeals, and to adopt a more conservative approach and gave to Escobedo only partial retroactivity. The view was later adopted by the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618 [14 L. Ed. 2d 601, 85 S. Ct. 1731], and Tehan v. Shott, 382 U.S. 406 [15 L. Ed. 2d 453, 86 S. Ct. 459]. These cases tell us that constitutional rights, in certain cases, need only be applied to pending appeals. Unless we are compelled to do so we should not now hold that a violation of constitutional rights only adversely affects a defendant who is tried after June 13, 1966, and certainly, even if permitted to adopt such a rule, we should not do so when we have held correctly that Escobedo applies to pending appeals. Both deal with the same constitutional rights guaranteed by the Fifth and Sixth Amendments. Both deal with the same type of invasion of these rights--custodial interrogations with the warnings required. Consistency, logic, and the equal protection clause dictate that insofar as retroactivity is concerned Escobedo and Miranda be treated alike. Every argument of expediency made in the Johnson case and in the majority opinion applies to both legal situations. The argument of expediency made by the majority is totally without merit. This court in Lopez made Escobedo partially retroactive and the administration of justice managed to survive. The application of Escobedo to pending appeals resulted in many reversals and had a great impact on the police. Indisputably if Miranda were made applicable to pending appeals, reversals and hardships to the police would result. But these are false factors. The burdening of the administration of criminal justice is a price we must pay to enforce our Bill of Rights, and a price we should pay without hesitation. The powers of government, and that includes the police, are limited by the Bill of Rights. When such rights are invaded we must repulse such invasion and protect such rights even at the expense of inconvenience. Courts in the past have not hesitated to reverse [65 Cal. 2d 697] convictions when constitutional rights have been invaded. We should do likewise.
The United States Supreme Court was at least being logical and consistent when it saw there were no basic differences in the rights involved in Escobedo and Miranda and held that the same rule as to retroactivity had to apply to both cases. The majority are illogical and inconsistent, and raise equal protection problems not discussed by them, when they hold one rule applies to Escobedo and another to Miranda. Logic and consistency may not always be attainable in the legal processes, but that does not mean that they should be disregarded, as they are in the majority opinion. When there is a logical and consistent solution to a problem, and an illogical and inconsistent one, the logical and consistent is to be preferred. We hold that Escobedo applies to pending appeals. Logically and consistently we should apply the same rule to Miranda. This, the majority does not do. As already indicated this raises a difficult question of equal protection that the majority do not discuss or even recognize.
The rights involved in Escobedo and Miranda--the right to counsel and the right not to incriminate oneself--are fundamental rights. The right to counsel has been declared to be essential to our system of ordered liberty. (Palko v. Connecticut, 302 U.S. 319, 324-325 [82 L.Ed 288, 58 S. Ct. 149].) Just recently the United States Supreme Court in Spevack v. Klein (Jan. 16, 1967) 385 U.S. 511 [17 L. Ed. 2d 576, 87 S. Ct. 625], quoted with approval from Boyd v. United States, 116 U.S. 616, 635 [29 L. Ed. 746, 6 S. Ct. 524], where in discussing Fifth Amendment rights, the court stated, "It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Also in the Spevack case, supra, at page 516, the court in referring to the Fifth Amendment rights stated: "We find no room in the privilege against self-incrimination for classifications of people so as to deny it to some and extend it to others." This is precisely what the majority have done.
For these reasons while I concur in the reversal and in the holding that under state law and policy Escobedo should apply to pending appeals, I dissent from the holding that under state policy and law Miranda should only have prospective application. As a matter of state policy I think that Miranda, too, should have limited retroactivity.
FN 1. As we point out in greater detail hereinafter, the matter is not one of first impression in California.
FN 2. This question has not previously been presented by any of our cases.
FN 3. See Mishkin, The Supreme Court, 1964 Term--Foreword: The High Court, The Great Writ, and the Due Process of Time and Law (1965) 79 Harv.L.Rev. 56, 95-101.
FN 5. See, generally, Developments in the Law, Confessions, (1966) 79 Harv.L.Rev. 935, 954-984; cf. Crooker v. California (1958) 357 U.S. 433 [2 L. Ed. 2d 1448, 78 S. Ct. 1287]; Cicenia v. Lagay (1958) 357 U.S. 504 [2 L. Ed. 2d 1523, 78 S. Ct. 1297].
FN 6. See Graham, What is "Custodial Interrogation"?: California's Anticipatory Application of Miranda v. Arizona (1966) 14 U.C.L.A. L.Rev. 58, 89 and fn. 173.
FN 7. See footnote 3, supra.
Entirely apart from its complexity, the Gannites-McParlin solution to the problem of retroactivity has little to commend it. Even under the rule set forth by the United States Supreme Court in Johnson, the fact that a suspect was arrested or interrogated before a given date is immaterial: Until the trial has begun, it is not unduly burdensome to require the prosecution to forego the use of evidence which fails to meet current constitutional standards.
FN 8. See, e.g., People v. Treloar (1966) 64 Cal. 2d 141 [49 Cal. Rptr. 100, 410 P.2d 620]; People v. Brooks (1966) 64 Cal. 2d 130 [48 Cal. Rptr. 879, 410 P.2d 383]; People v. Buchanan (1966) 63 Cal. 2d 880 [48 Cal. Rptr. 733, 409 P.2d 957]; People v. Ketchel (1966) 63 Cal. 2d 859 [48 Cal. Rptr. 614, 409 P.2d 694]; People v. Smith (1966) 63 Cal. 2d 779 [48 Cal. Rptr. 382, 409 P.2d 222]; People v. Chaney (1965) 63 Cal. 2d 767 [48 Cal. Rptr. 188, 408 P.2d 964]; People v. Gilbert (1965) 63 Cal. 2d 690 [47 Cal. Rptr. 909, 408 P.2d 365]; In re Varnum (1965) 63 Cal. 2d 629 [47 Cal. Rptr. 769, 408 P.2d 97]; People v. Grubb (1965) 63 Cal. 2d 614 [47 Cal. Rptr. 772, 408 P.2d 100]; People v. Marbury (1965) 63 Cal. 2d 574 [47 Cal. Rptr. 491, 407 P.2d 667]; People v. Arguello (1965) 63 Cal. 2d 566 [47 Cal. Rptr. 485, 407 P.2d 661]; People v. Green (1965) 63 Cal. 2d 561 [47 Cal. Rptr. 477, 407 P.2d 653]; People v. Faris (1965) 63 Cal. 2d 541 [47 Cal. Rptr. 370, 407 P.2d 282]; People v. Aranda (1965) 63 Cal. 2d 518 [47 Cal. Rptr. 353, 407 P.2d 265]; People v. Furnish (1965) 63 Cal. 2d 511 [47 Cal. Rptr. 387, 407 P.2d 299]; People v. Stockman (1965) 63 Cal. 2d 494 [47 Cal. Rptr. 365, 407 P.2d 277]; People v. Luker (1965) 63 Cal. 2d 464 [47 Cal. Rptr. 209, 407 P.2d 9]; People v. Polk (1965) 63 Cal. 2d 443 [47 Cal. Rptr. 1, 406 P.2d 641]; People v. Price (1965) 63 Cal. 2d 370 [46 Cal. Rptr. 775, 406 P.2d 55]; People v. Anderson (1965) 63 Cal. 2d 351 [46 Cal. Rptr. 763, 406 P.2d 43]; People v. Roberts (1965) 63 Cal. 2d 84 [45 Cal. Rptr. 155, 403 P.2d 411]; People v. Holford (1965) 63 Cal. 2d 74 [45 Cal. Rptr. 167, 403 P.2d 423]; People v. Clark (1965) 62 Cal. 2d 870 [44 Cal. Rptr. 784, 402 P.2d 856]; People v. Forbs (1965) 62 Cal. 2d 847 [44 Cal. Rptr. 753, 402 P.2d 825]; People v. Bostick (1965) 62 Cal. 2d 820 [44 Cal. Rptr. 649, 402 P.2d 529]; People v. Davis (1965) 62 Cal. 2d 791 [44 Cal. Rptr. 454, 402 P.2d 142]; People v. Bilderbach (1965) 62 Cal. 2d 757 [44 Cal. Rptr. 313, 401 P.2d 921]; People v. Sears (1965) 62 Cal. 2d 737 [44 Cal. Rptr. 330, 401 P.2d 938]; People v. Schader (1965) 62 Cal. 2d 716 [44 Cal. Rptr. 193, 401 P.2d 665]; People v. Lilliock (1965) 62 Cal. 2d 618 [43 Cal. Rptr. 699, 401 P.2d 4]; People v. Stewart (1965) 62 Cal. 2d 571 [433 Cal. Rptr. 201, 400 P.2d 97], affd. sub nom. Miranda v. Arizona, supra, 384 U.S. 436, 497-499; People v. Modesto (1965) 62 Cal. 2d 436 [42 Cal. Rptr. 417, 398 P.2d 753]; People v. Dorado, supra, 62 Cal. 2d 338; People v. Sharer (1964) 61 Cal. 2d 869 [40 Cal. Rptr. 851, 395 P.2d 899].
Likewise, in Shott, the court noted that there was no "question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced." (Tehan v. Shott, supra, 382 U.S. 406, 409 fn. 3.) At that point, the Shott opinion cited O'Connor v. Ohio (1965) 382 U.S. 286 [15 L. Ed. 2d 337, 86 S. Ct. 445] (per curiam), a case in which the court had vacated a judgment of the Supreme Court of Ohio and had "remanded ... for further proceedings in light of Griffin v. California, 380 U.S. 609 [14 L. Ed. 2d 106, 85 S. Ct. 1229]."
FN 10. The court sought to distinguish the situation before it in Johnson by noting that, "apart from the application of the holdings in Escobedo and Miranda to the parties before the Court in those cases, the possibility of applying the decisions only prospectively is yet an open issue." (Johnson v. New Jersey, supra, 384 U.S. 719, 732.) The court's failure to explain the seeming inconsistency between its affirmance of the convictions in Johnson and its reversal of the convictions in Escobedo and in Miranda has evoked predictable criticism from the commentators (see, e.g., The Supreme Court, 1965 Term (1966) 80 Harv.L.Rev. 91, 140-141), but the supposed inconsistency was more apparent than real, since Johnson, like Linkletter and Shott, arose on collateral attack, whereas Escobedo and Miranda, like Mapp and Griffin, arose on direct appeal. Since the convictions involved in Johnson had become final long before either Escobedo or Miranda had been decided, the result in Johnson would have been the same under either a trial- date cutoff or a final-judgment cutoff.
The same cannot be said, however, of the numerous denials of certiorari announced on the day Johnson was decided, since many of the certiorari petitions denied on June 20, 1966, involved cases tried before the decisions in Escobedo or Miranda but still pending on direct review when those decisions were rendered. In cases such as these, the court admittedly applied a trial-date cutoff which it had not applied either in Escobedo or in Miranda. The resulting inconsistency inheres in any attempt to apply a new rule to the parties in the particular case in which it is announced, while otherwise limiting it to purely prospective operation.
Although this technique has been criticized as productive of "intolerable inequality" (Mishkin, op. cit. supra, 79 Harv.L.Rev. 56, 61 fn. 23; see also Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio (1962) 110 U.Pa.L.Rev. 650, 675- 676), it might well reflect a justifiable fear that refusing to apply new rules to the cases in which they are established could dangerously limit the incentive to appeal. Moreover, such a refusal might be thought to conflict with the "case or controversy" requirement of article III of the federal Constitution. (See Note, Prospective Overruling and Retroactive Application in the Federal Courts (1962) 71 Yale L.J. 907, 933; contra, see Johnson v. New Jersey, supra, 384 U.S. 719, 733; Linkletter v. Walker, supra, 381 U.S. 618, 619-622 & fn. 3; but see Mishkin, op. cit. supra, 79 Harv.L.Rev. 56, 59 fn. 13.) If a purely prospective decision is ruled out for reasons such as these, the technique followed by the court in Escobedo, Miranda, and Johnson may represent a satisfactory alternative to the disturbing prospect of reversing all convictions still pending on appeal even when little more than doctrinal consistency counsels such a result, and even when concern for official reliance renders it inadvisable.
Whatever considerations may have led the United States Supreme Court to dispose of the matter as it did, our approach to the problem avoids the difficulties of purely prospective decision-making, preserves the advantages of consistency, and recognizes the importance of respecting official reliance: We apply Miranda in no case tried before that decision was rendered, and we continue to follow Escobedo in the few remaining cases which were pending on direct review when that decision was announced.
FN 1. The fourth case decided along with Miranda was People v. Stewart, a California case (62 Cal. 2d 571 [43 Cal. Rptr. 201, 400 P.2d 97]). Among other things, the United States Supreme Court affirmed our decision where we had applied the Lopez rule.

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