dissenting.
Hard cases make bad law. The sad facts of this case have led the majority to ignore completely the command of Rule 52(a), Federal Rules of Civil Procedure, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The majority opinion is nothing more than a retrial of the case at the appellate level, giving little or no regard to the opportunity of the trial court to “judge of the credibility of the witnesses.” The opinion draws inferences which are the opposite of those drawn by the trial judge from the same evidence, and this a federal appellate court may not do.
I would affirm the judgment of the district court.