opinion: UNITED STATES of America ex rel. Joseph Jude OLIVER, H-8374, Appellant, v. COMMONWEALTH OF PENNSYLVANIA.
  No. 71-1744.
  United States Court of Appeals, Third Circuit.
  Submitted Oct. 20, 1972.
  Decided Nov. 7, 1972.
  Joseph Jude Oliver, for appellant.
  Robert L. Van Hoove, Grant E. Wesner, Reading, Pa., for appellee.
  Before STALEY, GIBBONS and JAMES ROSEN, Circuit Judges.
  OPINION OF THE COURT
  PER CURIAM:
  This is an appeal from an order of the district court, 321 F.Supp. 192, denying a petition for a writ of habeas corpus on the state court record without an evidentiary hearing. The petitioner makes three contentions:
  1. That the police made so suggestive a use of photographs shown to the victims on the day following the incident that the testimony of the victims must be suppressed. The state court concluded that there was no such suggestive use as to taint the in-court identification by the victims. The district court reviewed the state court record and came to the same conclusion. We agree. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
  2. That there was a police station confrontation with the victim witnesses in the absence of counsel. This occurred prior to the time the petitioner was charged. Thus he had no absolute right to have counsel present. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The prosecution made no affirmative use of the station house identification, and the district court concluded on the basis of the state court record that the in-court identification had a basis independent of the police station confrontation. We agree. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
  3. That a momentary absence from the courtroom by the trial, judge for the purpose of examining a legal authority prejudiced the petitioner because in that moment the prosecutor erased some material from a police offense report which the court had ordered furnished to the defendant. The state court, and the district court on the basis of the state court record, found this contention to be meritless. We agree. See Haith v. United States, 342 F.2d 158 (3d Cir. 1965) (per curiam).
  The state court proceedings adequately developed the facts and that court’s factual determinations are fairly supported by the record. 28 U.S.C. § 2254(d). The judgment of the district court will be affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama