                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2005

Lambert v. Blaine
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4110




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4110


                            JAMES RUSSELL LAMBERT

                                          v.

         CONNER BLAINE; THE DISTRICT ATTORNEY OF THE COUNTY OF
                         CHESTER; THE ATTORNEY
                         GENERAL OF THE STATE OF
                               PENNSYLVANIA

                                               James Lambert,

                                                       Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                    No. 01-CV-5356
                    District Judge: Honorable Michael M. Baylson


                                 Argued June 9, 2005

        Before: AMBRO, VAN ANTWERPEN and TASHIMA*, Circuit Judges

                             (Opinion filed July 13, 2005)


                                      OPINION


       * Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
TASHIMA, Circuit Judge:

       James Russell Lambert appeals the district court’s denial of his petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the state trial court violated

his due process rights by admitting into evidence an unreliable eyewitness identification.

For the following reasons, we affirm the District Court’s denial of Lambert’s petition.

                            I. Factual and Procedural History

       Because we write solely for the parties, we note only those facts relevant to our

decision. On November 12, 1982, three black males entered the Coatesville Federal

Savings and Loan Bank in Coatesville, Pennsylvania. One of the three pulled out a

sawed-off, double-barrel shotgun and ordered the employees and customers in the bank to

lie down on the floor. The other two men then took $8,800 in cash from the tellers’

drawer, placed it in a bag, and all three fled the bank.

       At a pre-trial hearing, Ann Smoker, a bank teller, testified that on the day of the

robbery she was working at the first teller window, about five feet from the entrance door

to the bank. Smoker testified that she heard someone yell, “Everybody hold it right

there,” and that she looked up and saw a double-barreled, sawed-off shotgun about six

inches away from her. The man holding the gun was about a foot away from Smoker, and

Smoker looked at the man’s face for about five to ten seconds. The man then yelled,

“Everybody get on the floor.” Smoker complied. Smoker testified that she did not see

this man’s face again.

                                              2
       Wallace Strevell, the manager of the bank, also testified about the robbery at the

pre-trial hearing. Strevell said that, at the time of the robbery, he was seated at his desk,

located behind the teller counter. Strevell was on the telephone when he heard a

commotion and looked up to see a young black man about 11 feet away, approaching him

rapidly. Strevell testified that he looked directly at the man’s eyes for “maybe 15, 20

seconds.” Strevell also noticed another man at the front of the bank, with a shotgun in his

hand. The man who was approaching Strevell took Strevell by the arm, directed him

behind the teller counter and told him to lie down. Strevell did not see the man again.

       Three days after the robbery, on November 15, Smoker was shown a photo array

that included a photo of Lambert. Smoker did not identify Lambert as the man who

pointed the shotgun at her and instead identified another person. On that same day,

officers presented Strevell with the same photo array. Strevell identified Lambert’s photo

as the man who led him behind the teller’s counter. Lambert was arrested and charged

with four counts related to the incident, including robbery and conspiracy.

       On December 6, 1983, the Court of Common Pleas for Chester County held a pre-

trial hearing on Lambert’s motions to suppress in-court identification by Strevell and

Smoker. Prior to the pre-trial hearing, Smoker was again shown a photo array that

included Lambert’s photograph. Smoker did not identify his photograph. At the hearing,

however, Smoker identified Lambert, who was sitting at counsel table, as the man that

held the gun to her on the day of the robbery. Smoker explained that she was unable to



                                               3
pick Lambert out of the photo array because his eyes were closed in the photograph.

       Smoker further testified that earlier that same day, she was seated outside the

courtroom before the lunch break, when she saw Lambert come out of the courtroom,

escorted by sheriff’s deputies on either arm. Lambert was not in handcuffs or ankle

shackles. Smoker testified that she said to the person sitting with her, “That’s the person

that I remember,” and that at that moment, she felt the same way she felt on the day the

robbery occurred: “My heart was beating fast.” Smoker explained that she knew the man

exiting the courtroom was named Lambert because that was the name on the subpoena

she had received. Smoker also learned on the day of the pre-trial hearing that Lambert

was in court because Strevell had picked him out of a photo array. She also had seen

Lambert’s photograph in the newspaper and knew that he had been arrested. She said,

however, that she had identified Lambert in the courtroom based on seeing his face on the

day of the robbery.

       At the pre-trial hearing, Strevell also was asked if he could identify Lambert, who

was sitting at counsel table, as the man who had approached him. Strevell said, “He

certainly bears a very strong resemblance. . . . There is some doubt.” Strevell then said

that another man sitting in the back of the courtroom bore “a strong resemblance, and it’s

confusing in that he’s not seated at the defendant’s table.” Then, when asked again by

the prosecution whether Lambert, seated at defense counsel’s table, was the man who

took Strevell by the arm and led him behind the teller counter during the robbery, Strevell



                                             4
responded, “To the best of my knowledge it is. That was a year ago. . . . I have no doubt

as to my identification in the photo lineup.”

       Based on Strevell’s and Smoker’s testimony, as well as the testimony of officers,

the state court concluded that the photo array and identification procedure were not

suggestive and that an independent basis existed for identifying Lambert, based on the

witnesses’ opportunity to observe Lambert during the robbery. The court denied

Lambert’s motions to suppress his in-court identification.

       At trial, Smoker identified Lambert as the man who had stood in front of her with

a shotgun. Strevell likewise identified Lambert as the man who approached him, took

him by the arm, and led him behind the teller counter. On December 9, 1983, the jury

found Lambert guilty of robbery, recklessly endangering another person, and criminal

conspiracy.

       Lambert filed post-trial motions, asserting, among other claims, that the trial court

erred in failing to grant Lambert’s motion to suppress the photo line-up and in-court

identification. The trial court denied the motions. On September 17, 1984, the court

sentenced Lambert to a term of imprisonment of 10 to 20 years for robbery and a

consecutive term of imprisonment of 5 to 10 years for criminal conspiracy.

       Lambert then petitioned for post conviction relief in the state courts, pursuant to

the Pennsylvania Post Conviction Relief Act. The Pennsylvania Superior Court

concluded that Smoker had a reliable independent basis for her in-court identification of



                                                5
Lambert and affirmed the order of the Court of Common Pleas denying Lambert’s

petition.

       Lambert then filed his federal petition for writ of habeas corpus. The district court

rejected Lambert’s claim of unreliable eyewitness identification and denied the petition.

This timely appeal followed.

                                        II. Analysis

       Where, as here, the district court relies exclusively on the state court record and

does not hold an evidentiary hearing, the scope of our review of the district court’s

decision is plenary. Moore v. Morton, 255 F.3d 95, 103 (3d Cir. 2001).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may

not grant a petition for writ of habeas corpus as to any claim that a state court has

adjudicated on the merits unless the adjudication of the claim resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established federal

law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d);

Williams v. Price, 343 F.3d 223, 229 (3d Cir. 2003) (citing Williams v. Taylor,

529 U.S. 362, 405-07 (2000)).

A. Unreliable Identification

       An identification procedure that is unnecessarily suggestive and creates a

substantial likelihood of irreparable misidentification violates due process. Manson v.

Brathwaite, 432 U.S. 98, 106 (1977). Unnecessary suggestiveness alone, however, does


                                              6
not require the exclusion of evidence. Neil v. Biggers, 409 U.S. 188, 199 (1972). “A

‘suggestive and unnecessary identification procedure does not violate due process so long

as the identification possesses sufficient aspects of reliability,’ for reliability is the

‘linchpin in determining the admissibility of identification testimony.’” Brathwaite, 432

U.S. at 106.

       As the Supreme Court explained in Biggers, in order to determine whether the

identification was reliable even though the confrontation procedure was suggestive, a

court must apply a totality of the circumstances analysis. Biggers, 409 U.S. at 199. The

court considers factors that include: the opportunity of the witness to view the criminal at

the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior

description of the criminal, the level of certainty demonstrated by the witness at the

confrontation, and the length of time between the crime and confrontation. Id. at 199-

200.

       In Biggers, the Court enumerated and applied each of these factors, noting that the

witness had ample opportunity to view the defendant, paid a high degree of attention,

gave a detailed description of the defendant and was unequivocal in her identification. Id.

at 200. The Court noted that several months had passed between the time of the crime

and the identification, but reasoned that, weighing all the factors, there was no substantial

likelihood of misidentification and that the evidence was properly allowed to go to the

jury. Id. at 201.



                                                7
       Similarly, in Brathwaite, the Court enumerated and applied each of the Biggers

factors to determine whether an identification from a single-photograph display was

unreliable. Brathwaite, 432 U.S. at 114-16. The Court noted that the witness looked

directly at the defendant, who was in close proximity, paid a high degree of attention,

gave a detailed and accurate description of the defendant within minutes of the

transaction, and positively and unequivocally identified defendant’s photograph two days

later. Id. at 114-15. The Court concluded that, given these factors, as well as the absence

of any coercive pressure positively to identify the photograph, there was not a “very

substantial likelihood of irreparable misidentification.” Id. at 116.

       We reached the opposite conclusion in a case on direct appeal, based on facts

similar to the facts in this case, in United States v. Emanuele, 51 F.3d 1123 (3d Cir.

1995). In Emanuele, the witnesses were bank tellers who observed a robbery. Both were

unable to identify the robber from a photo array. Id. at 1126. The two witnesses were

subpoenaed by the government to testify, and, while sitting outside the courtroom, saw

the defendant being led from the courtroom in manacles by the U.S. Marshals. The two

witnesses spoke with one another, saying “it has to be him.” Id. We examined the

totality of the circumstances, applied the Biggers factors and noted that the confrontation

between the witnesses and the manacled defendant was impermissibly suggestive. Id. at

1128-30. We concluded that the witnesses’ failure to identify the defendant despite the

opportunity to observe, coupled with the impermissibly suggestive “viewing of the



                                              8
defendant in conditions reeking of criminality, bolstered by the comments of another

witness,” rendered the in-court identification unreliable. Id. at 1131.

       Here, the state court applied only one of the Biggers factors, the opportunity to

observe, in determining whether Smoker’s identification of Lambert was reliable. The

state court did not consider either Smoker’s confrontation with Lambert outside the

courtroom at the pre-trial hearing or Smoker’s failure to select Lambert’s photograph

from the photo array. As in Emanuele, Smoker’s failure to identify, on two separate

occasions, Lambert’s photograph, coupled with the somewhat suggestive confrontation

with Lambert, who was flanked by U.S. Marshals outside the courtroom prior to the pre-

trial hearing, suggests that Smoker’s in-court identification may have been unreliable.

       We are mindful, however, that this case is before us not on direct appeal, but

rather, on appeal from the denial of a habeas petition filed pursuant to 28 U.S.C. § 2254.

Applying the highly deferential standard of review established by AEDPA, we can

reverse the district court’s denial of Lambert’s petition only if the state court opinion is

contrary to, or an unreasonable application of, clearly established federal law of the

Supreme Court. 28 U.S.C. § 2254(d); Price, 343 F.3d at 229 (citing Williams v. Taylor,

529 U.S. at 405-407). Whether the state court opinion denying Lambert’s petition for

post conviction relief meets that standard is a close question. It is also one that we need

not reach, because we conclude that, even if the trial court erred in allowing Smoker’s in-

court identification, the error was harmless.



                                                9
B. Harmless Error

       In order to grant habeas relief, not only must we find that a constitutional error

occurred during trial, we must also find that the error was not harmless. Yohn v. Love,

76 F.3d 508, 522 (3d Cir. 1996). We grant habeas relief only if the constitutional trial

error “had substantial and injurious effect or influence in determining the jury’s verdict.”

Hassine v. Zimmerman, 160 F.3d 941, 950 (3d Cir. 1998) (citing Brecht v. Abrahamson,

507 U.S. 619, 623 (1993)).

       Smoker’s identification was not the only identification evidence presented to the

jury. Strevell, the bank manager, also provided an in-court identification, after having

previously selected Lambert out of a photo array a few days after the robbery. Although

there was some equivocation by Strevell at the pre-trial hearing, his equivocation was

minor and does not significantly diminish the import of Strevell’s selection of Lambert’s

photograph, three days after the robbery, from a photo array. See Emanuele, 51 F.3d at

1131 (observing that witness’s slight qualification – not being “one hundred percent sure”

– does not significantly diminish import of identification). Smoker’s testimony did not

have quite the bolstering effect that Lambert argues it had, for there was little doubt or

equivocation on Strevell’s part.

       Further, we note that Smoker and Strevell provided conflicting accounts, a fact

that weighs in favor of a finding of harmless error. While Smoker identified Lambert as

the man who approached her with a shotgun in the front of the bank, Strevell identified



                                             10
Lambert as the man who walked up to his desk, led him behind the teller’s counter, and

then stayed behind the counter during the course of the robbery. Strevell also testified

that the man with the shotgun remained at the front of bank. Thus, although it appears

that Smoker’s interaction was with one of the three robbers and Strevell’s interaction was

with another of the three, both Smoker and Strevell identified the same man, Lambert, as

the man they encountered. This inconsistency may have helped the defense, which could

have argued to the jury that, because of this inconsistency, the jury should give little

weight to the witnesses’ testimony and identification of Lambert.

       In sum, we conclude that, even if admission of Smoker’s testimony was a

constitutional trial error, the error was harmless because it did not have a substantial and

injurious effect or influence on the jury’s verdict.

C. Motion for Expanded Certificate of Appealability

       Lambert’s motion for a certificate of appealability (“COA”) was previously denied

by a motions panel of the court, except as to Lambert’s due process claim. Lambert asks

us to reconsider the prior denial and grant a COA to consider counsel’s ineffectiveness in

failing adequately to cross-examine Strevell.

       We must issue a COA if the petitioner has made “a substantial showing of the

denial of a constitutional right.” Bronshtein v. Horn, 404 F.3d 700, 720 (3d Cir. 2005)

(citing 28 U.S.C. § 2253(c)(2)). Lambert has not made any showing, substantial or

otherwise, that his trial attorney’s failure to cross-examine Strevell about his equivocation



                                              11
in identifying Lambert at the pre-trial hearing fell below the standard set forth by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Moreover, Lambert’s

trial counsel in fact did cross-examine Strevell, on re-cross, about his equivocation at the

pre-trial hearing. Because Lambert has not made a substantial showing of a denial of his

right to effective assistance of counsel, we deny Lambert’s request for a COA.

                                      III. Conclusion

       For the foregoing reasons, the September 22, 2003, order of the District Court is

affirmed.




                                             12
AMBRO, Circuit Judge, Dissenting




       Because I do not agree with my colleagues that the in-court identification in this

case was harmless, I respectfully dissent. The admission of Smoker’s testimony

produced, I believe, a “substantial and injurious effect or influence in determining the

jury’s verdict.” Hassine v. Zimmerman, 160 F.3d 941, 955 (3d Cir. 1998). I thus

consider the underlying question the majority did not need to address—whether the state

court opinion was an unreasonable application of clearly established Supreme Court

precedent, 28 U.S.C. § 2254(d), and conclude that it was. For these reasons, I would

reverse the District Court and grant Lambert a new trial.

                                              I.

       We have explained that “a constitutional trial error is not harmless if the court is in

‘grave doubt’ as to whether the error had a substantial and injurious effect or influence in

determining the jury's verdict.” Hassine, 160 F.3d at 955 (quoting O'Neal v. McAninch,

513 U.S. 432, 436 (1995)). Though the term “grave doubt” arguably connotes a more

profound degree of uncertainty, this threshold is met when, “in the judge's mind, the

matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error.” O’Neal, 513 U.S. at 435. “The crucial inquiry is the ‘impact

of the error on the minds of the jurors in the total setting.’” Hassine, 160 F.3d at 955



                                             13
(quoting Yohn v. Love, 76 F.3d 508, 523 (3d Cir. 1996)).

       My colleagues offer two reasons to support their conclusion of harmlessness.

First, they stress that “Smoker’s testimony did not have quite the bolstering effect that

Lambert argues it had, for there was little doubt or equivocation on Strevell’s part [in his

identification testimony].” To begin, I find in the record evidence of both equivocation

and doubt by Strevell. For example, immediately following the robbery Strevell “was not

able to tell anyone what [the] individual was wearing” and was unable to describe his hair

or certain facial features. Similarly, he testified in a pre-trial hearing that another man in

the courtroom bore a “very strong resemblance” to Lambert and that he had “some doubt”

about his in-court identification.

       Moreover, the strength of Strevell’s testimony does not change the fact that the

jury in this case convicted Lambert almost exclusively on the basis of the two

identification witnesses. “[I]t is ‘inappropriate to ask whether there was sufficient

evidence to support the result, apart from the phase of the trial affected by the error.’” Id.

(quoting Yohn, 76 F.3d at 523). We are properly concerned only with the potential effect

of the error on the minds of the jurors in the total setting. In this case, because Smoker

was one of only two witnesses who offered direct evidence of Lambert's involvement in

the crime, it seems clear to me that her testimony influenced the jury significantly. Thus I

cannot agree with my colleagues’ conclusion that her testimony had no substantial and

injurious effect or influence in the determination of the verdict.



                                              14
       My colleagues also note that “Smoker and Strevell provided conflicting accounts,

a fact that weighs in favor of a finding of harmless error.” In my estimation, the

corroborative, prejudicial effect of the witnesses’ testimony overwhelmingly outweighs

any potential doubt that might have been caused by inconsistencies in the details they

described. Put simply, it is much more significant that the witnesses both identified

Lambert as a perpetrator of the crime than it is that they differed on his precise role. Both

witnesses put Lambert in the bank. To this end, each witness’s testimony corroborated

and bolstered the other’s and the jury’s verdict should be seen as the product of their

cumulative effect.

                                              II.

       By failing to consider the totality of the circumstances as required by Supreme

Court precedent and offering only a cursory, wholly unconvincing analysis of the

reliability issue presented, the state court unreasonably applied Supreme Court precedent.

The Supreme Court has explained that, when assessing reliability, the “central question”

is “whether under the ‘totality of the circumstances’” the identification gave rise to a

“substantial risk of misidentification.” Neil v. Biggers, 409 U.S. 188, 199 (1972)

(quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)). To measure the totality of the

circumstances, we evaluate at least five factors that may contribute to the risk of

misidentification: “[1] the witness’ original opportunity to observe a defendant and [2] the

degree of attention during that observation; [3] the accuracy of the initial description; [4]



                                              15
the witness’ degree of certainty when viewing a defendant or his image; and [5] the

length of time between the crime and the identification procedure.” United States v.

Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1996) (citing Biggers, 409 U.S. at 199-200;

Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Gov’t of Virgin Is. v. Riley, 973 F.2d

224, 228 (3d Cir. 1992); Reese v. Fulcomer, 946 F.2d 247, 258 (3d Cir. 1991); United

States v. Dowling, 855 F.2d 114, 117 (3d Cir. 1988), aff'd, 493 U.S. 342 (1990)). The

Supreme Court has routinely applied these five factors and has left no doubt that a

consideration of the totality of the circumstances (if not precisely these five factors) is

mandated.

       In Emanuele, we stressed the importance of analyzing all of the Biggers factors in

order to determine the reliability of an identification.1 We noted, for example, that “the

sincerity or truthfulness of the witness must be considered along with the other Biggers

factors in order to determine whether the risk of misidentification still exists,

notwithstanding a witness’ testimony to the contrary.” Emanuele, 51 F.3d at 1129

(emphasis added). Ultimately we concluded that “[t]he trial court failed to consider the



   1
     My colleagues rightly note that Emanuele was a case of direct, not habeas, review. It
remains relevant, however, to our analysis of governing Supreme Court precedent. As we
have explained, “[i]n determining whether a state decision is an unreasonable application
of Supreme Court precedent, this [C]ourt has taken the view that ‘decisions of federal
courts below the level of the United States Supreme Court may be helpful to us in
ascertaining the reasonableness of state courts’ application of clearly established United
States Supreme Court precedent.’” Fischetti v. Johnson, 384 F.3d 140, 149 (3d Cir. 2004)
(quoting Marshall v. Hendricks, 307 F.3d 36, 51 (3d Cir. 2002)).

                                              16
‘totality of the circumstances,’ such as . . . the inability of the witness to recognize

defendant in a photospread despite a sufficient opportunity to observe the robber at close

range. The court thus failed to apply the correct legal standard.” Id. (emphasis added).

       In this case, the Superior Court’s failure to take into account the totality of the

circumstances—notwithstanding its claim that it did so—was an objectively unreasonable

application of Supreme Court precedent. The Superior Court considered only one of the

five Biggers factors in concluding that Smoker’s in-court identification was reliable.

Commonwealth v. Lambert, No. 1073 EDA 1999 (Pa. Super. Ct. Mar. 24, 2000)

(unpublished mem. opinion). It based its conclusion that the challenged in-court

identification was reliable solely on its belief that Smoker’s initial observation of Lambert

was extremely reliable because it was “at close range in the throes of a situation where

Lambert’s actions commanded her entire attention.” Lambert, No. 1073 EDA 1999.

According to the Superior Court, Lambert’s actions “commanded [Smoker’s] entire

attention” because she viewed him from the end of the barrel of a shotgun he allegedly

pointed at her face. In effect, the Court concluded that because Smoker had a shotgun 1.5

feet from her face, her initial observation was so reliable as to overcome any evidence of

unreliability. Id. Unlike the Supreme Court in Braithwaite and Biggers, the Superior

Court reached this conclusion without discussing the evidence of unreliability.




                                               17
       And evidence of unreliability was pervasive.2 The Superior Court ignored all of

the following—the brevity of the encounter (approximately five seconds), Smoker’s

positive identification of another individual in a photo array, her failure to identify

Lambert in a subsequent photo array, the lapse of thirteen months between her testimony

and the crime, her exposure to a photograph of Lambert in an article in the newspaper

identifying him as the only suspect, Smoker’s knowledge that her boss would be

testifying against Lambert, and the suggestive confrontation Smoker experienced outside

the courtroom when Lambert passed by her escorted by uniformed officers on three

occasions.

       The majority accurately characterizes the highly deferential standard that governs



   2
     In my estimation, the evidence of unreliability in this case far outweighs the evidence
we found so compelling in Emanuele. There we concluded that Lorraine Woessner’s
eyewitness identification of the defendant, Joseph Emanuele, was unconstitutionally
unreliable. Woessner allegedly viewed Emanuele for several minutes in a bank lobby
while a robbery was in progress. In this case, Smoker viewed Lambert for approximately
five seconds, her face 1.5 feet from the end of the barrel of a shotgun. In an initial photo
array shortly after the robbery, Woessner was unable positively to identify a suspect.
Smoker positively identified another individual in her first photo array. In Emanuele,
there was no second photo array, while in this case Smoker failed to identify Lambert a
second time. There is evidence in this case, unlike in Emanuele, that, before successfully
identifying Lambert for the first time, Smoker saw Lambert’s photograph in a newspaper,
was aware that he was the only suspect, and further knew that her boss would be
testifying against Lambert. Finally, as in Emanuele, Smoker was confronted by Lambert
in the courthouse lobby. Unlike Woessner’s single exposure to Emanuele, however,
Smoker saw Lambert (escorted by uniformed, armed guards) not once, but on three
occasions, before entering the courtroom to identify him for the first time. In short, if the
reliability of Woessner’s identification testimony in Emanuele was “bad,” the reliability
of Smoker’s identification testimony was “very bad.”

                                              18
our habeas analysis. This deference is not without its limits, however. In my view, this

case presents an instance where a state court clearly failed to apply governing Supreme

Court precedent with any diligence or rigor. The Superior Court simply made no effort to

apply the Biggers factors or otherwise consider the totality of the circumstances as it was

obliged to do.

                                       *   *      *    *   *

       In this context, I respectfully dissent.




                                                  19
