author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Phillip Kent PALMER, Joseph Philip Silverman, Ernest Smith, Freddie Daniel Milton, Edward Earl Dillingham and Wayne Franklin Dean, Defendants-Appellants.
    No. 73-1717.
    United States Court of Appeals, Fifth Circuit.
    Oct. 2, 1974.

      Michael N. Mantegna, Atlanta, Ga. (Court-appointed), for Palmer.
    Gaines C. Granade, Atlanta, Ga., for Silverman.
    Hugh Nations, Atlanta, Ga. (Court-appointed), for Smith and Milton.
    William R. Gignilliat, III, Atlanta, Ga. (Court-appointed), for Dillingham.
    John C. Pennington, Atlanta, Ga. (Court-appointed), for Dean.
    Eugene A. Medori, Jr., Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   GEE, Circuit Judge:

The six appellants were found guilty by a jury under various counts of a fifteen-count indictment for their respective roles in an interstate automobile theft ring. Each comes to us with several points on appeal, none of which requires reversal. Indeed, after considering all contentions we have concluded that our opinion on only one point of law raised by one appellant would have precedential value.

Appellant Dillingham’s right to a speedy trial

Edward Earl Dillingham was convicted on all fifteen counts. The evidence shows that he was instrumental in organizing the conspiracy, in promoting the thefts of the ears, and in effectuating their subsequent sale — principally through his crucial role in obtaining fraudulent title documents.

Dillingham was arrested on April 6, 1970, on a warrant charging a violation of the Dyer Act. On May 28, 1970, he was released on a $1,500 bond. He was indicted along with fifteen other defendants on February 9, 1972, by a federal grant jury in the Northern District of Georgia. He was arraigned on October 20, 1972, brought to trial on January 22, 1973, and found guilty by a jury verdict on February 2, 1973.

1. Post-arrest pre-indictment delay.

Dillingham’s most serious complaint is that the 22-month delay between his initial arrest, from which he was released on bond, and his indictment violated his Sixth Amendment right to speedy trial and his Fifth Amendment right to due process.

He argues that the delay should be evaluated according to the ad hoc standard discussed by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Our reply must be the same as in United States v. Smith, 487 F.2d 175 (5th Cir. 1973):

The contention of appellant is that approximately three and one half years elapsed between the time he came to be in federal custody and the time he was indicted for the above-mentioned offenses and such pre-in-dictment delay is in violation of his constitutional right to a speedy trial. Although appellant urges upon this court the test espoused by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1973), we find that test not to be applicable in this case. Here we are faced with a pre-indictment delay which, according to the Supreme Court, is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), Hoskins v. Wainwright (5 Cir. 1973), 485 F.2d 1186. Therefore, the only question facing this court is whether actual prejudice did occur.

487 F.2d at 177.

We most recently ruled on the subject of post-arrest pre-indictment delay in United States v. Zane, 489 F.2d 269 (5th Cir. 1973). There Chief Judge Brown preserved the distinction which we made in United States v. Smith between the broad Barker v. Wingo test applicable to post-indictment delay and the more narrow United States v. Marion test applicable to pre-indictment delay. As stated by Judge Brown:

While post-arrest pre-indictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a Sixth Amendment violation in this situation.

489 F.2d at 270.

Therefore, in applying the Sixth Amendment to a post-arrest preindictment situation, our attention is focused on “actual prejudice” — and only peripherally on such factors as length of and reason for the delay. Also, in order for the Sixth Amendment protection to apply there need not be a finding that the prosecutorial delay was intentionally employed to disadvantage the defense. We have interpreted the Supreme Court’s language in Marion, 404 U.S. at 324, 92 S.Ct. 455, to mean that the Fifth Amendment is concerned with intent. See United States v. Zane, 489 F.2d at 270. But, since here no contention or indication of prosecutorial intent to prejudice exists, we have no occasion to apply the Fifth Amendment beyond its overlap with the Sixth.

Subsequent to trial, a hearing was held on Dillingham’s motion to dismiss his indictment at which he was given the opportunity to show that the delay caused him substantial actual prejudice. This he was unable to do to the satisfaction of the trial court; and, upon reviewing the transcript of the hearing, we agree with that decision.

We do not review the evidence with a narrow concept of what constitutes “actual prejudice.” Certainly, as pointed out in United States v. Smith, 487 F.2d 175, 177 (5th Cir. 1973), the term includes impairment of the defendant’s capacity to prepare a defense — because, for example, of failure of memories or loss of records or disappearance of witnesses. But, perhaps even more importantly, the term encompasses what we label personal prejudice as distinguished from prejudice to the defense. The adversities which follow an arrest were of uppermost concern to the Supreme Court in Marion.

Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

404 U.S. at 320, 92 S.Ct. at 463.

Therefore, in our review of the record we have weighed Dillingham’s evidence of personal hardship along with that of damage to his defense in determining whether “substantial actual prejudice” was shown. We conclude that it was not.

Dillingham offered two witnesses, Mr. William Rogers and Mrs. Barbara Bennett, who were employees of Frank Vego Ford during the time he worked there and while he was making out-of-state runs for the stolen cars and obtaining title documents for them. They were called to prove the existence, but loss following Dillingham’s arrest, of records from Vego Ford which he viewed as exculpatory: (1) Attendance records which would have reflected his presence on the job on days the government charged he was off on conspiratorial business, and (2) some indication of his power of attorney to obtain titles for cars sold by his employer.

At the outset, we note that Vego Ford went out of business in February or March of 1970 and Dillingham was arrested in April of 1970. Therefore, any records which vanished with shut-down of business were probably unavailable either before or soon after his arrest. Our only indication of their whereabouts comes from Mrs. Bennett’s testimony that they were “in storage” as far as she knew. Dillingham offered no testimony that he tried to locate these records at any time and gave no indication that such efforts would have stood more chance of success before indictment than after.

Mr. Rogers was new ear sales manager during part of the time that Dilling-ham was a new car salesman. When called as Dillingham’s first witness, he testified that he left Vego Ford in October of 1969. According to the prosecution, the only times Dillingham’s conspiratorial business took him out of town were in December of 1969 and January of 1970. Also, the first theft did not occur until October 26, 1969. Thus Mr. Rogers was definitely not present on the days Dillingham was allegedly absent from work and was quite possibly not working at Vego Ford when the first overt act took place. Therefore, he made a poor witness to testify about Dillingham’s presence on the job. Moreover, Rogers’ testimony was essentially that Vego Ford’s role-keeping and time records would not conclusively show that a particular car salesman was physically present at Vego Ford during the course of any particular day.

Mrs. Bennett, Dillingham’s second witness, was office manager in charge of bookkeeping at Vego Ford during the relevant period of his employment. She testified that Dillingham did not have authority from Vego Ford, in the form of power of attorney, to pick up titles from the State of Georgia. She added that new car titles were mailed out, and that if Dillingham ever picked up a title to a used car it was done as a private favor to a customer and not for Vego Ford. This testimony hardly substantiates Dillingham’s assertion that records reflecting his power of attorney existed and were lost during the period of delay. Also, it is not at all clear how evidence that he had such powers of attorney as he claimed would have refuted the government’s charge that he obtained fraudulent title documents for stolen cars.

Indeed, the trial court observed at the close of the hearing: (1) That there was no showing that if such records existed they would have been available to Dillingham if he had tried to obtain them at the earliest possible opportunity; (2) that there was no showing that Dillingham made any effort at any time to secure such records as might help his case; (3) that any attendance records showing Dillingham’s presence in the Atlanta vicinity would be compatible with his guilt; (4) that the State had no record of the claimed general power of attorney as it would have had it been in existence; and (5) that any power of attorney from Vego Ford would have been consistent with the finding that Dillingham participated in securing fraudulent titles for stolen vehicles. Since we are in complete agreement with these findings, we cannot say that the delay to any substantial degree prejudiced Dillingham’s defense.

Turning to the area of personal prejudice, Dillingham argued that he underwent severe personal hardships while living under the “Sword of Damocles.” He testified in his own behalf that his reputation was so damaged by his arrest that he was unable to keep a job, that the pendency of these federal charges caused his wife to file for divorce and him to be separated from his children, and that his health, friendships, and credit rating suffered. However, the trial court’s express finding that Dil-lingham’s uncorroborated testimony concerning these personal hardships was not credible causes us to take a skeptical view. Dillingham admitted an Army court martial and a recent conviction for larceny which, if known to prospective employers or business associates, would have hindered his ability to earn a living. Also, he testified that State charges growing out of the car theft ring contributed to his difficulty in holding a job. Thus, the pending Federal charges were merely cumulative to his otherwise bad record. We, therefore, conclude that any increased strain on this man’s life which followed his arrest on these Federal charges does not rise to the level of substantial actual prejudice.

2. Post-indictment pre-trial delay.

Dillingham also complains that the government denied his Sixth Amendment right to speedy trial in failing to arraign him until over eight months after his indictment and in not bringing him to trial for three more months. This posi-indictment delay we evaluate according to the ad hoc approach required by Barker v. Wingo, guided by the four basic factors therein identified: (1) The length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defense. We also keep in mind such considerations as the gravity of the offense, the likelihood of repetition, the number and complexity of legal and factual issues involved, the availability of evidence, and all other relevant circumstances. See United States v. Perez, 489 F.2d 51 (5th Cir. 1973); United States v. Dyson, 469 F.2d 735, 739 (5th Cir. 1972).

Dillingham was indicted on February 9, 1972. He testified that he had no notice of his indictment until September 18, 1972, when he was arrested on a bench warrant in Columbia, South Carolina. He was arraigned on October 20, 1972. On October 30, 1972, he filed his first motion to dismiss the indictment on grounds of denial of speedy trial because of the 22-month pre-indictment delay. On December 7, 1972, the district court denied the motion without prejudice to his right to move for acquittal at trial. He was brought to trial on January 22, 1973, and was convicted on February 2, 1973.

Prosecution witnesses testified that the lapse of over seven months between Dillingham’s indictment and arrest was caused by their inability to locate him owing to his moving about without leaving a forwarding address or keeping even his relatives advised of his whereabouts. He was finally tracked down at work through his Social Security number. Dillingham’s testimony gives no indication that he or his attorney made any efforts to stay in touch with Federal authorities. He did testify, however, that, as far as he knew, the government made no attempt to notify his attorney of his indictment. In this context, we believe that part of the blame for this delay must be attributed to the same bureaucratic unwieldiness which caused the pre-indictment delay. However, we also give credence to the district court’s conclusion that the complexities of the case necessarily showed down the prose-cutorial functions. Sifting these explanations, we are not entirely satisfied that the government moved as rapidly as it could have following the indictment; but, under these circumstances, a clear showing of substantial prejudice would be required to tip the scales in Dilling-ham’s favor.

We do not find serious fault with Dillingham’s failure to assert his right to speedy trial until notified of his indictment. But the motion which he filed following his arraignment referred only to pre-indictment delay. Even so, trial followed within three months of his arraignment and motion. This three-month period we consider to be so short as to necessitate no discussion of the unavoidable personal inconveniences which occurred then.

Therefore, the crucial factor again becomes the prejudice suffered by Dil-lingham while, unbeknownst to him, he was under indictment. Neither the transcript of the trial nor that of the post-trial hearing reveals any more substantial prejudice suffered during this post-indictment period than during the previous 22-month pre-indictment period. Indeed, it appears as an uninterrupted period in which Dillingham shifted about, tried to earn a living burdened by an already bad record, but made no efforts to locate exculpatory evidence. Under all these circumstances, we conclude that Dillingham’s right to speedy trial was not violated by either the pre or post indictment delay.

As indicated at the outset of this opinion, we affirm the convictions of all appellants on all counts.

Affirmed.

      . In violation of the Dyer Act, 18 U.S.C. §§ 2312 and 2313, as well as the general federal conspiracy statute, 18 U.S.C. § 371.

      . We, therefore, affirm under Local Rule 21 as to the rest. See N.L.R.B. v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5th Cir. 1970).

      . Because we conclude that the discretion given the District Court by Federal Rule of Criminal Procedure 48(b) to dismiss an indictment if there is unnecessary prosecutor-ial delay does not compel dismissal if constitutional requirements are satisfied, we need not treat separately his contention that the court below erred in not exercising its Rule 48(b) power.

      . Whether the Fifth Amendment due process protection applies to pre-arrest pre-indict-' ment delay only if the substantial actual prejudice is caused by prosecutorial delay intentionally employed we are not called upon to decide. We do hold that the delay need not have been intentional in order for it to offend the Sixth Amendment in a post-arrest pre-indictment situation. Also, whether a showing that the delay was intentional could tip the Sixth Amendment scales in a pre-in-dictment situation, as it can in a Barker v. Wingo post-indictment situation, we need not decide — since every indication is that this delay was bureaucratic, not intentional, and Dillingham does not claim otherwise.

      . The only possible remedy when a defendant has been denied a speedy trial. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

      . Detriments which may also befall the prosecution and which emphasize society’s interest in speedy trial for the accused. See Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Dickey v. Florida, 398 U.S. 30, 42, 90 S.Ct. 1564, 26 B.Ed.2d 26 (1970) (Brennan, J., concurring) .

      . With his indictment, lie was sufficiently X>ut on notice of the advisability of locating any such exculpatory documents.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge: SIMPSON, Circuit Judge

license: Public Domain

text:
    STATE OF ALABAMA and Alabama Air Pollution Control Commission ex rel. William J. Baxley, Attorney General, Plaintiffs-Appellants, v. Lynn SEEBER, General Manager of Tennessee Valley Authority, et al., Defendants-Appellees.
    No. 73-2766.
    United States Court of Appeals, Fifth Circuit.
    Oct. 14, 1974.

      Simpson, Circuit Judge, dissented and filed opinion.

      William J. Baxley, Atty. Gen., Myron H. Thompson, Asst. Atty. Gen., Henry
    H. Caddell, Asst. Atty. Gen., Chief, Environmental Protection Div., Montgomery, Ala., for plaintiffs-appellants.
    Philip K. Maxwell, Asst. Atty. Gen., Austin, Tex., amicus curiae for State of Texas.
    David C. Short, David D. Beals, Asst. Attys. Gen., Frankfort, Ky., amicus curiae for Com. of Kentucky.
    Jan E. Chatten, Deputy Atty. Gen., Los Angeles, Cal., amicus curiae for State of California.
    Wyman G. Sherrer, U. S. Atty., Charles Stewart, Wm. D. Mallard, Asst. U. S. Attys., Birmingham, Ala., Kent Frizzell, Asst. Atty. Gen., Martin Green, Chief, Pollution Control Sec., James R. Walpole, Atty., Land and Natural Resources Div., Dept, of Justice, Washington, D. C., Robert H. Marquis, Gen.
    Counsel, Herbert S. Sanger, Jr., Associate Gen. Counsel, Beauchamp E. Brogan, Asst. Gen. Counsel, Justin M. Schwamm, Atty., Tenn. Val. Authority, Knoxville, Tenn., Wallace H. Johnson, Jacques B. Gelin, Larry G. Gutterridge, Attys., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
   GODBOLD, Circuit Judge:

Plaintiffs appeal from a summary judgment denying declaratory and in-junctive relief and holding that 42 U.S. C. § 1857f, § 118 of the Clean Air Act Amendments of 1970 (the Act), does not require defendants to comply with a state requirement, previously approved by the Environmental Protection Agency, that a written permit be obtained for the operation of equipment causing air pollution. Plaintiffs are the State of Alabama and the Alabama Air Pollution Control Commission (the Commission). Defendants are the Tennessee Valley Authority and various TVA officials (hereinafter “TVA”), and various officers and agencies of the United States Army (hereinafter “the Army”).

Rule 1.12 of the Commission, provisions of which are set out in the margin, requires obtaining from that body a written permit for the operation of any equipment the use of which may cause an increase in air pollution. This rule is a part of the implementation plan for the control of air pollution formulated by Alabama and approved by the Administrator of EPA in accordance with § 110 of the Act [42 U.S.C. § 1857c-5], See 37 Fed.Reg. 10847-10848 (1972). Defendants have supplied information concerning their emissions of air pollutants to the Commission and have taken steps to abate those emissions, but they refuse to apply for permits in the belief that the Act does not subject them to the Rule 1.12 permit requirement. We must interpret the Act, and particularly § 118, in order to determine whether that refusal is justified. We conclude that it is not. In doing so we reach a result contrary to decisions of the Sixth Circuit, Kentucky v. Ruckelshaus, 497 F.2d 1172 (CA6, 1974), and the District Court for the Central District of California, California v. Stastny, 382 F.Supp. 222 (C.D.Cal.1972), appeal docketed, No. 72-2905, CA9, Nov. 6, 1972. The Stastny decision states a conclusion without explication of the supporting analysis. Our reasons for reaching a conclusion different from the Sixth Circuit appear below.

I. Interpretation of § 118

Section 118 of the Act [42 U.S. C. § 1857f] provides:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air .pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements. The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so, except that no exemption may be granted from section 1857c — 6 of this title, and an exemption from section 1857c — 7 of this title may be granted only in accordance with section 1857c — 7(c) of this title. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together' with his reason for granting each such exemption.

The phrase “shall comply with . State . . . requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements” effectively conveys a Congressional intent that federal facilities are to be treated equally with private facilities in the scheme of control established by the Act. Recognizing that in particular instances such treatment might prove inconsistent with the national interest, the section provides for executive exemption from any requirement.

The scheme of the Act as a whole also supports the conclusion that federal facilities are subject to the Alabama permit requirement. With respect to existing stationary sources of air pollution the Act places the primary responsibility for setting and enforcing emission standards or limitations on the states. EPA, pursuant to § 109 of' the Act [42 U.S.C. § 1857c-4] establishes primary and secondary ambient air quality standards, and the states, pursuant to § 110 [42 U.S.C. § 1857c-5] establish, subject to approval by EPA, implementation plans geared to meeting the air quality standards. Such implementation plans include, inter alia, “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance” of the air quality standards, provisions “for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality,” and “necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan.” § 110(a)(2)(B), (C) & (F). The Alabama permit requirement is a part of the Alabama implementation plan previously approved in accordance with the provisions of § 110. Indeed, as inspection of the rule itself indicates, it is not only a part of the implementation plan but appears to be the central mechanism by which the Alabama plan provides for the gathering of information and the enforcement of emission limitations necessary to achieve air quality standards.

Sections 111, 112, and 114 [42 U.S.C. §§ 1857C-6, 1857C-7, and 1857c-9] of the Act explicitly exempt certain federal facilities from state authority to enforce requirements established by EPA pursuant to those sections. Those sections deal with specialized emission standards for new sources and hazardous pollutants and with recordkeeping, inspection and monitoring requirements established directly by EPA. In view of these explicit exemptions for federal facilities, particularly the exemptions in §§ 111 and 112, which like § 110 establish control schemes for certain classes of air pollution sources, the absence of any such exemption in § 110 suggests that the provisions of implementation plans adopted and approved pursuant to that section, including provisions for state enforcement of emission ' limitations through permit systems, are applicable to federal facilities.

The general scheme that emerges from the Act as a whole appears to be that responsibility and authority for enforcement with respect to federal facilities are granted to the states for sources with respect to which state implementation plans establish the criteria for enforcement, and is granted to EPA in those instances (i. e., new sources and hazardous pollutants) where EPA establishes the criteria. The scheme is a reasonable one. Because of variations in air quality between states and regions the emissions criteria established under state plans may vary considerably, thus making enforcement by EPA against scattered federal facilities administratively difficult. The new source and hazardous pollutant criteria established by EPA, however, are not tied to air quality standards and may, therefore, vary little or not at all by area, making EPA enforcement against federal facilities more convenient.

The Congressional purpose in enacting §118 supports our reading of the Act. The legislative history indicates that Congressional displeasure with the performance of federal facilities under the then existing provisions of the Air Quality Act of 1967 prompted the enactment of § 118. In hearings on the Clean Air Amendments of 1970, the Senate Public Works Committee found “many incidents of flagrant violation of air and water pollution standards by Federal facilities; ” S.Rep.No. 91-1196, 91st Cong., 2d Sess., at 23 (1970). Additionally the Committee noted,

Federal agencies have been notoriously laggard in abating pollution and in requesting appropriations to develop control measures. .

Id. at 37. See also, H.Rept. No. 91-1146, 91st Cong., 2d Sess., in 1970 U.S. Code Cong. & Admin.News at 5360. Section 111 of the prior Act relied primarily on voluntary compliance by federal facilities. In strengthening the Act by replacing that section with present § 118 Congress sought to depart from the policy of voluntary compliance and make emission limitations enforceable against federal facilities. With respect to existing sources the Act places upon the states primary responsibility for establishing and enforcing emission limitations, and Alabama, like many other states, relies on a permit system as its method of enforcement as well as a method of generating information concerning emissions. To deny the applicability to federal facilities of that permit requirement would be tantamount to a return to the Congressionally-rejected policy of voluntary compliance by federal facilities. Moreover a holding that § 118 does not embrace permit systems would represent a retreat from the provisions of prior § 111. That section allowed the Secretary of HEW to establish classes of. pollution sources for which federal facilities could be required to obtain a permit from the Secretary. Since §118 does not distinguish between federal and state requirements, holding state permit systems outside the scope of § 118 would imply the same conclusion with respect to any federal permit system. The result would be that the Administrator of EPA (who assumed responsibility for air pollution control activities when EPA was established) could not under the stronger § 118 do what the Secretary of HEW was explicitly entitled to do under the prior § 111.

Defendants seek to avoid the impact of § 118 by engrafting upon it a substantive procedural overlay. They argue that the phrase “requirements respecting control and abatement of air pollution” means only requirements such as emission standards and limitations, which they label “substantive,” and does not include mechanisms, e. g., permit systems, for enforcing these requirements. Having affixed these new labels, defendants would have us infer that while federal agencies must, and will, comply with the “substantive,” it was not intended that they be bound by the “procedural,” a term which in defendants’, construct is sub-silentio pejorative, impliedly denigrating the Congres-sionally-mandated mechanisms of enforcement to a status of less dignity and import. This recharacterization of the statutory scheme is a semantical red herring. It draws no sustenance from the Act itself. No such limitation is apparent from the words of § 118. Moreover the language of § 116 [42 U.S.C. § 1857d-l] is inconsistent with defendants’ reading of “requirements.” There Congress used words identical to the § 118 “requirements” phrase.

Except as otherwise provided . nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution ....

The “or” in § 116 is clearly disjunctive. Therefore,' contrary to the position of the defendants, “requirements” must include more than emission standards or limitations. Finally if § 118 did not extend to enforcement mechanisms, it would be difficult to understand why Congress explicitly afforded exemptions from state enforcement in §§ 111 and 112. Both sections provide that if the Administrator finds a state-developed procedure for implementing and enforcing the emission standards and limitations developed by EPA under those sections adequate, “he shall delegate to such State any authority he has under this chapter to implement and enforce such standards” except with respect to federal facilities. If § 118 did not include enforcement mechanisms, there would be no need for these exemptions.

In Kentucky v. Ruekelshaus, supra, the Sixth Circuit picked up the defendants’ substantive-procedural recharacter-ization and held that § 118 is limited to “substantive” requirements, a category from which it excluded permit systems. As we read its opinion, that court’s conclusions rest on these factors: the ability of states to sue federal facilities under § 304 [42 U.S.C. § 1857h-2] of the Act; statements contained in the legislative history; and the lack of support in Executive Orders for the contention that § 118 includes “procedural” permit requirements. With deference, we find these factors unconvincing. The inference from § 304 is discussed infra at Part III; the legislative history is discussed below in this section of our opinion; and Executive Order No. 11752 is discussed infra at Part IV.

Defendants’ principal attempt to justify their position, and one of the factors relied on by the Sixth Circuit in its decision, consists of what seems to us a strained reading of the Act’s legislative history. They rely on the brief summary of § 118 contained in the Conference Report, H.Rep.No. 91-1783, 91st Cong., 2d Sess., at 48 (1970), U.S.Code Cong. & Admin.New, p. 5381, which reads, “The House bill and the Senate amendment declared that Federal departments and agencies should comply with applicable standards of air quality and emissions.” Taken in isolation this statement would seem to suggest that “requirements” means emission limitations, but other factors lead us to assign it little weight. In response to the problem of inadequate compliance by federal facilities with air pollution control measures the House of Representatives passed H.R. 17255 requiring that federal facilities “comply with applicable Federal, State, interstate, and local emission standards and with the purposes of this Act . . . .” The bill passed by the Senate, S. 4358, however, stated that federal facilities “shall comply with the requirements of this Act in the same manner as any person must so comply . . . . ” As reported by the Conference and as enacted in Public Law 91-604, the final provision requires that federal facilities “comply with Federal, State, interstate and local requirements' respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.” The change from “emission standards” in H.R. 17255 to “requirements” in the final version supports the more inclusive view of § 118. Given the change in language from “emission standards” in the House bill to “requirements” in the final version, the apparent attempt to put federal facilities on the same footing as any other person, the lack of any apparent limitation in the language of § 118 itself or any discussion of such a limitation anywhere in the legislative history, and the scheme of the Act as a whole, we be lieve that the Conference Report statement is more accurately read as a statement of the ultimate goal of the provision rather than as a road map of how to get there. No one disputes that the goal of § 118 is to assure compliance by federal facilities with air quality and emission standards. The question is rather whether Congress intended that the enforcement mechanisms of federally approved state implementation plans, in this case permit systems, would be used as a method of achieving this goal. And with regard to this question the legislative history, except to the extent that it reveals the Congressional purpose discussed earlier, is ambiguous. Confronted with this ambiguity, we rely on the words of § 118, the scheme of the Act as a whole, and what we discern to be the Congressional purpose, as the best guides to interpreting the section.

Finally defendants suggest that allowing states to subject federal facilities to the procedural requirements contained in state implementation plans would be unduly burdensome. This argument is substantially undermined by the defendants’ contention that even absent subjection to the permit requirement they are bound to, and will, comply with substantive emission limitations, compliance schedules, information gathering and monitoring requirements. Some burden may remain, but under the scheme enacted by Congress determination of whether that burden is undue, and relief if it is, is a matter for executive rather than judicial decision. Section 118 itself authorizes the President to exempt federal facilities from any state requirement “if he determines it to be in the paramount interest of the United States to do so.”

II. The Supremacy Clause

The TVA defendants do not claim sovereign immunity from suit but do claim that TVA, as an “agency and instrumentality of the federal government,” is exempted from state regulation by the Supremacy Clause, Art. VI, clause 2 of the United States Constitution. The Army similarly invokes the clause. On the strength of this argument, the Sixth Circuit recently held in Kentucky v. Ruckelshaus, supra, that Kentucky cannot compel TVA’s compliance with a Kentucky air pollution control permit system. That holding was premised on the Sixth Circuit’s conclusion that § 118 was limited to “substantive” requirements and thus did not authorize subjecting federal facilities to the Kentucky permit requirements. Absent the § 118 authorization, the Supremacy Clause barred state enforcement of the requirement. Given the premise, we would not disagree with the conclusion. It is on the proper interpretation of § 118 that we part company with the Sixth Circuit. For the reasons explicated in Part I supra, we believe that § 118 does embrace the Alabama permit requirement. Having reached this conclusion, the Supremacy Clause is inapplicable because Congress has authorized subjecting federal facilities to the state regulation involved. “It lies within Congressional power to authorize regulation ... by the state of federal instrumentalities.” Mayo v. United States, 319 U.S. 441, 446, 63 S.Ct. 1137, 1140, 87 L.Ed. 1504, 1508 (1948). Section 118 adequately meets the requirement that Congress “affirmatively declare its instrumentalities or property subject to [state] regulation. . . Id. at 448, 63 S.Ct. at 1141, 87 L.Ed. at 1509. Cf. Baltimore National Bank v. State Tax Commission, 297 U.S. 209, 56 S.Ct. 417, 80 L.Ed. 586 (1936). Moreover, it is at least arguable that the regulation involved here is as much federal regulation as state. The Alabama permit requirement was included in an implementation plan approved by EPA under § 110 of the Act. The Act gives EPA power to enforce any implementation plan requirements, § 113, and also provides for citizen suits in federal courts to enforce at least some such requirements, § 304. Neither of these provisions is consistent with the view that the components of approved implementation plans are exclusively state regulations.

III. Sovereign Immunity

Distinct from the Supremacy Clause issue, the Army defendants argue that as against them this action is barred by the sovereign immunity of the United States from suit. Our determination of the meaning of § 118 also forecloses this contention. That section states that federal facilities “shall comply” with state “requirements respecting control and abatement of air pollution,” a phrase which we interpret to include the Alabama permit requirement. This statement occurs in the context of an Act which relies in the first instance on state enforcement of such requirements after their approval by EPA. Little or no inference is required to' conclude that § 118 embodies a waiver of sovereign immunity with respect to federal facilities. A contrary result would render largely meaningless our conclusion as to the scope of § 118 and herald a return to the policy of voluntary compliance which Congress sought to change by enacting that section.

The defendants contend in an argument accepted by the Sixth Circuit that § 304 authorizes suits against the United States for violation of an “emission standard or limitation,” as therein defined, or an order with respect thereto; that it does not authorize suits for failure to comply with permit requirements; and that, therefore, we should infer that Congress did not consent to suits against federal facilities regarding permit requirements. The argument is unconvincing. Even assuming that a state is technically a “person” entitled to sue under § 304, see Kentucky v. Ruckel-shaus, supra, and that § 304 does not authorize suits for violation of permit requirements, it does not follow that § 118 does not authorize such suits. The “Citizens Suits” heading of § 304, the fact that § 304(d) provides for awarding attorney fees, and the legislative history of the section demonstrate that the congressional focus in enacting that provision was on suits by private parties. Consequently, we believe that § 304 cannot be properly read as implying anything about the ability of states to sue under § 118.

IV. Executive Order No. 11752

Alabama initially sought to rely on language contained in Executive Order No. 11507, 35 Fed.Reg. 2573 (1970), note following 42 U.S.C.A. § 4331 (1973), as an alternative basis for requiring federal facilities to comply with the state permit requirement. That Order has since been superseded by Executive Order No. 11752, 38 Fed.Reg. 34793 (1973), note following 42 U.S.C.A. § 4331 (Supp.1974), which includes the following statement:

Section 1. Policy. It is the purpose of this order to assure that the Federal Government, in the design, construction, management, operation, and maintenance of its facilities, shall provide leadership in the nationwide effort to protect and enhance the quality of our air, water, and land resources through compliance with applicable standards for the prevention, control, and abatement of environmental pollution in full cooperation with State and local governments. Compliance by Federal facilities with Federal, State, interstate, and local substantive standards and substantive limitations, to the same extent that any person is subject to such standards and limitations, will accomplish the objective of providing Federal leadership and cooperation in the prevention of environmental pollution. In light of the principle of Federal supremacy embodied in the Constitution, this order is not intended, nor should it be interpreted, to require Federal facilities to comply with State or local administrative procedures with respect to pollution abatement and control.

The new Executive Order will not support the plaintiffs’ argument. But it does not foreclose the argument based on § 118. While the Order seeks to further “the purpose and policies of the Clean Air Act,” it does not purport to be an authoritative administrative interpretation of that section but is instead an independent order based on the executive authority of the President over federal employees and facilities. It cannot, of course, modify an Act of Congress, nor does it appear to be an exercise of the authority granted the President under § 118 to exempt federal facilities from certain requirements. Exercise of that authority contemplates a case by ease determination that the exemption is “in the paramount interest of the United States.” It does not authorize a blanket exemption of all federal facilities from specified requirements, and we do not construe Executive Order 11752 as an attempt to provide such an exemption.

The judgment of the District Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

SIMPSON, Circuit Judge

(dissenting) :

With deference, I dissent. I would affirm the district court on the authority of the Sixth Circuit decision, Commonwealth of Kentucky ex rel. Hancock v. Ruckelshaus, Administrator, etc., et al., 6 Cir. 1974, 497 F.2d 1172, affirming Commonwealth of Kentucky ex rel. Hancock v. Fri, W.D.Ky.1973, 362 F.Supp. 360.

Without a clearer expression than I discern either in Section 118 [Title 42, U.S.C. § 1857f] or in the Act’s inconclusive legislative history, I am unwilling to attribute to Congress an implied consent for the several states to apply state permit requirements to facilities operated within their borders by agencies and instrumentalities of the federal government, here specifically the Department of the Army and The Tennessee Valley Authority. Speculation and conjecture, however persuasively set forth, should not override the Supremacy Clause, Art. VI, Clause 2, of the United States Constitution.

      . In the District Court the defendants also included officials of the Environmental Protection Agency. The District Court dismissed the complaint as to them, and plaintiffs do not appeal therefrom.

      . 1.12 Permits.
      1.12.1 Permits Required.
      (a) Permit to Construct. Any person building, erecting, altering or replacing any article, machine, equipment or other contrivance, the use of which may cause the issuance of or an increase in the issuance of air contaminants or the use of which may eliminate or reduce or control the issuance of air contaminants, shall first obtain authorization for such construction from the Director in the form of a Permit to Construct. A Permit to Construct shall remain in effect until the permit to operate the equipment for which the application was filed is granted or denied or the application is canceled.
      (b) Permit to Operate.
      (1) Before any article, machine, equipment or other contrivance described in paragraph (a) may be operated or used, a written permit shall be obtained from the Director. ATo permit to operate shall be granted for any article, machine, equipment or contrivance described in paragraph (a), constructed or installed without authorization as required by paragraph (a), until the information required as presented to the Director and such article, machine, equipment or contrivance is altered, if necessary, and made to conform to the standards established by the Commission.
      (2) Any article, machine, equipment or other contrivance described in paragraph (a) which is presently operating (or which is not presently operating but which is capable of being operated) without a Permit to Operate, may continue to operate (or may restart) only if its owner or operator obtains a Permit to Operate prior to a date to be set by the Director (or prior to restarting).
      (3) The Director shall have the authority to decide cases where an article, machine, equipment, or other contrivance is not clearly subject to nor exempt from the application of this Part. In addition, the Director may rule that a particular article, machine, equipment or other contrivance is subject to the application of this Part even though it is exempt from the system according to Sections 1.12.1 and 1.12.2 of this Part. The o'perator or builder of such an article, a machine, equipment or other contrivance may appeal the Director’s classification to the Commission, which shall overrule the Director only if it is shown that he acted arbitrarily and contrary to the purposes of the Act. * * * * *
      (b) The Director shall deny a permit if the applicant does not present, in writing, a plan whereby the emission of air contaminants by every article, machine, equipment, or other contrivance described in the permit application, will be reduced during periods of an Air Pollution Alert, Air Pollution Warning, and Air Pollution Emergency in accordance with the provisions of Chapter 2.
      (c) Before a Permit to Construct or Permit to Operate is granted, the Director may require the applicant to provide and maintain such facilities as are necessary for sampling and testing purposes in order to secure information that will disclose the nature, extent, quantity or degree of air contaminants discharged into the atmosphere from the article, machine, equipment or other contrivance described in the Permit to Construct or Permit to Operate. In the event of such a requirement, the Director shall notify the applicant in writing of the required size, number and location of the sampling platform; the access to the sampling platform; and the utilities for operating the sampling and testing equipment.
      (d) The Director may also require the applicant to install, use and maintain such monitoring equipment or methods; sample such emissions in accordance with such methods, at such locations, intervals and procedures as may be specified; and provide such information as the Director may require.
      1.12.7 Provision of Sampling and Testing Facilities. A person operating or using any article, machine, equipment or other contrivance for which these rules and regulations require a permit shall provide and maintain such sampling and testing facilities as specified in the Permit to Construct or Permit to Operate.
      1.12.8 Standards for Granting Applications.
      (a) The Director shall deny a permit except as provided by Section 1.12.9, if the applicant does not show that every article, machine, equipment or other contrivance, the use of which may cause the issuance of air contaminants, is so designed, controlled, or equipped with such air pollution control equipment, that it may be expected to operate without emitting or without causing to be emitted air contaminants in violation of these rules and regulations. * * * * *
      (h) In granting any Permit to Operate, the Director may allow, as a condition of such permit, for the intermittent discharge of air contaminants, during startup, shut down, rate change or load change, in excess of the limitations specified in these rules and regulations where he finds that because of the nature of the source there is no practicable alternative.
      1.12.9 Conditional Permit.
      (a) The Director may issue a Permit to Construct or a Permit to Operate subject to conditions which will bring the operation of any article, machine, equipment or other contrivance within the standards of Section 1.12.8, in which case the conditions shall be specified in writing. Commencing work under such a Permit to Construct or a Permit to Operate shall be deemed acceptance of all the conditions specified. The Director shall issue a Permit to Construct or a Permit to Operate with revised conditions upon receipt of a new application, if the applicant demonstrates that the article, machine, equipment or other contrivance can operate within the standards of Section 1.12.8 under the revised conditions.
      (b) A Conditional Permit may allow an article, machine, equipment or other contrivance to be operated in violation of the conditions of Section 1.12.8 if one of the conditions of the permit is a definite schedule by which the article, machine, equipment, or contrivance may attain the conditions of Section 1.12.8 and be granted a Permit to Operate, and if the schedule provides for attaining the conditions of Section 1.12.8 at the earliest possible date and is approved by the Director. A Conditional Permit will be revoked if the applicant does not submit progress reports to the Director according to the schedule established by the Conditional Permit. The Director may further revoke the Conditional Permit if the progress reports do not show satisfactory progress as specified by the terms of the Conditional Permit or if the progress reports are found to be inaccurate. ******
      1.12.11 Denial of Application. In the event of denial of a Permit to Construct or Permit to Operate, the Director shall notify the applicant in writing of the reason therefor. Service of this notification may be made in person or by mail, and such service may be proved by written ac-knowledgement of the persons served or affidavit of the person making the service. The Director shall not accept a further application unless the applicant has complied with the objections specified by the Director as its reasons for denial of the Permit to Construct or the Permit to Operate.
      1.12.12 Appeals. Within 10 days after notice by the Director of denial or conditional approval of a Permit to Construct or Permit to Operate, the applicant may petition the Commission, in writing, for a review. The Commission may sustain or reverse the action of the Director; such order may be made subject to specified conditions.
      1.12.13 The holder of a Permit under this Part shall comply with, conditions contained in such Permit as well as all applicable provisions of these rules and regulations except where violations are specifically allowed in accordance with a Conditional Permit issued under Section 1.12.-9.

      . We are left to guess at the District Court’s reasons for its order granting summary judgment since it gave none. See Steed v. Central of Ga. Ry. Co., 477 F.2d 1303, 1305 (CA5, 1973), as to the desirability of the court’s stating its grounds though not required by Rule 56 to do so. Especially is that true in a case of such national importance as this. Amici curiae filing briefs in this court include the states of California, Kentucky, Maine, New York, Ohio and Texas.

      . Section 111 [42 U.S.C. § 1857c-6] provides for establishment by the Administrator of EPA of emission standards for new sources of air pollution. Subdivision (c) (1) of the section provides:
      “Each State may develop and submit to the Administrator a procedure for implementing and enforcing standards of performance for new sources located in such State. If the Administrator finds the State procedure is adequate, he shall delegate to such State any authority he has under this chapter to implement and enforce such standards (except with respect to new sources owned or operated by the United States).”
      Section 112 [42 U.S.C. § 1857c-7] provides for EPA establishment of emission standards for hazardous air pollutants not covered by ambient air quality standards. In language parallel to that contained in § 111(c)(1), subsection (d)(1) of § 112 provides for delegation of implementation and enforcement authority to the states “except with respect to stationary sources owned or operated by the United States.”

        Section 114 [42 U.S.C. § 1857c-9] provides «in part:
      “§ 1857c — 9. Recordkeeping, inspections, monitoring, and entry — Authority of Administrator or authorized representative “(a) For the purpose (i) of developing or assisting in the development of any implementation jilan under section 1857c — 5 or section 1857c — 6(d) of this title, any standard of performance under section 1857c — 6 of this title, or any emission standard under section 1857c — 7 of this title, (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (iii) carrying out section 1857h — 1 of this title
      (1) the Administrator may require the owner or operator of any emission source to (A) establish and maintain such records, (B) make such reports, (C) install, use, and maintain such monitoring equipment or methods, (D) sample such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (E) provide such other information as he may reasonably require; and
      12) the Administrator or his authorized representative, upon presentation of his credentials—
      (A) shall have a right of entry to, upon, or through any premises in which an emission source is located or in which any records required to be maintained under paragraph (1) of this section are located, and
      (B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which the owner or operator of such source is required to sample under paragraph (1).

        Enforcement procedure Jiy State; delegation of authority of Administrator to State; power of Administrator unaffected

      “(b)(1) Each State may develop and submit to the Administrator a procedure for carrying out this section in such State. If the Administrator finds the State procedure is adequate, he may delegate to such State any authority he has to carry out this section (except with respect to new sources owned or operated by the United States).”

      . Defendants argue that the state could seek to enforce its emission limitations by resort to court actions under the “citizens suits” provision, § 304 [42 U.S.C. § 1857h-2] of the Act. Irrespective of the merits of this suggestion, we believe that § 304 provides little guidance to determining the Congressional purpose in enacting § 118. Our reasons are discussed in Part III infra.

      . This approach necessarily leads them to de-emphasize the remainder of the phrase, which reads “to the same extent that any person is subject to such requirements.”

      . The Sixth Circuit also noted the “lack of support” for plaintiffs’ interpretation of § 118 in Executive Order No. 11507. That Order was promulgated in February 1970, while the Olean Air Act Amendments were not approved until December 31, 1970.

      . Other bits and pieces of legislative history are similarly inconclusive. Some statements resemble the Conference Report statement quoted in the text. See Library of Congress for the Senate Comm, on Public Works, 93d Cong., 2d Sess., A Legislative History of the Clean Air Amendments of 1970 (Comm. Print 1974) at 423 (S.Rep.No.91-1196, supra, at 23: “This section requires that Federal facilities meet the emission standards necessary to achieve ambient air quality standards as well as those established in other sections of Title I.”) ; 894 (H.Rep.No. 91-1146, supra: “The legislation directs Federal agencies ... to comply with applicable Federal, State, interstate, and local emission standards.”) ; 904-905 (H.Rep. No. 91-1146, supra: statement paralleling that cited at 894.). Other statements appear to imply that § 118 should be given an expansive interpretation. See Id. at 131 (Sen. Muskie’s Summary of the Conference Agreement: “The agreement requires Federal facilities to control air pollution.”) ; 459 (S.Rep.No.91-1196, supra, at 59: “This section directs that all Federal agencies shall comply with the requirements of the Act just as a nonfederal agency or individual must do in the administration of any real property or facility and in the conduct of any activity.”).

      . Except that he may not grant an exemption “due to lack of appropriation” unless the appropriation was requested by the President and denied by the Congress.

      . Thus, § 101(a)(3) declares “the prevention and control of air pollution at its source is the primary responsibility of States and local governments . . . and § 110 (a) (2) (F) (i) requires state implementation plans to contain “assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan.”

      . See, e. g., A Legislative History of the Clean Air Amendments of 1970, note 8, supra, at 127 (Remarks of Sen. Muskie on the Conference Report: “The bill extended the concept of public participation to the enforcement process.”) ; 205-206 (Conference Report); 436-439 (Senate Report).

      . TVA contends that EPA has officially interpreted § 118 as not requiring federal facilities to comply with state permit requirements. TVA refers us to a 1972 letter to it from the Regional Administrator of EPA and a 1973 memorandum to federal departments and agencies from the Administrator. These documents indicate an EPA position that federal facilities need not obtain permits, a fact which we have duly noted in reaching our decision, but because they offer no reasoning to support that position they provide slight guidance. The 1973 memorandum, moreover, contains the following statement :
      “[I]f a State’s compliance schedule process is based on a permit system, I would ask that your facilities provide the State with the required information on its registration form. I believe the form should be signed to verify the data, but with an appropriate disclaimer to make it clear that the facility is not applying for a permit. (If you have instructed your facilities' to apply for a State permit, the disclaimer would, of course, be unnecessary.) As you know, there are several court cases now underway to determine the legality of State permits for Federal facilities. I believe that while the courts resolve this issue the Federal government should proceed with great urgency to ensure that every source in violation of air quality standards and emission limitations is covered by an approved compliance schedule and that resources and funds are mar-shalled in order to adhere to these schedules.”
      The parenthetical statement seems to imply that EPA does not oppose in princii)le requiring state permits for federal facilities, and the reference to cases under way appears to indicate an attitude of deferring to the courts on the proper interpretation of § 118.

      . The Executive Order itself appears to recognize the necessity for a case by case determination. Section 5 thereof delegates to tlie heads of federal agencies and the Administrator of EPA the power to “identify facilities or uses thereof” which are exempted from air quality standards and emission limitations effective under the Clean Air Act and applicable under Section 4 of the Executive Order. Exercise of this power of exemption with respect to a facility would render moot any state permit requirement with respect to that facility since the necessity for a permit derives from the emission limitation requirement.

      . See also People of State of California v. Captain Stastny, C.O. of Long Beach Naval Air Station, C.D.Cal.1972, 4 ERC 1447, presently pending on appeal to tlie Ninth Circuit, appeal docketed November 6, 1972, No. 72-2905.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl Hunter SMITH a/k/a “Smitty”, and Elmer Louis Posick, Defendants-Appellants.
    No. 73-2158.
    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1974.

      Richard M. Gale, Miami, Fla., for Smith.
    Maynard A. Gross, S. Miami, Fla., for Posick.
    Robert W. Rust, U. S. Atty., J. Daniel Ennis, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Appellants Carl Hunter Smith, a/k/a “Smitty”, and Elmer Louis Posick were jointly indicted and convicted on two counts of receiving, concealing, storing, bartering, and selling seven diesel engines, and conspiring to do so knowing the engines were stolen in violation of 18 U.S.C.A. §§ 2315 and 371 . On appeal Smith and Posick argue two grounds for reversal: (i) there was insufficient evidence to support their convictions, and (ii) the District Judge committed plain error in his charge to the jury.

As to both appellants we find, without considering any trial court error, that there was sufficient evidence to sustain their convictions on both counts. We also find that the Court’s charge was indeed erroneous. The evidence against Appellant Smith, however, although substantial enough to support a guilty verdict standing alone, is not so overwhelming that a significantly erroneous jury charge could not have seriously prejudiced the verdict. We conclude therefore that this was plain error requiring reversal as to him. Although the evidence against Appellant Posick was very substantial so that there is not much likelihood that the instruction error induced the verdict of guilt, we find it unsatisfactory to condemn the charge, allow one to be retried because of it, while holding other to the verdict which impliedly responded to the Court’s charge. We therefore reverse and remand as to each.

On November 25, 1972, several persons furtively stole from the Inger-soll-Rand Company in Clarksville, West Virginia, eight new diesel engines having a total cost value to Ingersoll-Rand of approximately $38,000 or about $4,640 per engine. The theft was not discovered nor the police notified until two days later after a stock inventory had been taken.

The next event that took place occurred on November 28, 1972, three days after the theft, in Hallendale, -Florida at the Terrace Paint & Body Shop. Appellant Smith, owner of the Shop, was asked by his friend and employee, Appellant Posick for a short-term loan of $8,500 with which to purchase some diesel engines. Posick stated that he already possessed $5,500 but that he needed the additional $8,500 to complete the transaction. Appellant Smith had on two other occasions loaned his friend Posick moderate sums of money for various reasons both personal and business and had always been repaid promptly. In addition, Appellant Smith was a man of some means operating a $300,000 a year business, and a loan of $8,500 to someone he knew and trusted was not excessive.

Approximately three weeks after the theft, a second conversation took place in Hallendale, Florida, between Kenneth Jones and his employer, Leo Giuliano owner of a boat shop. Jones asked Giu-liano if he would be interested in purchasing a diesel engine for a 32-foot boat Jones knew Giuliano was eonstruct-ing, or if Giuliano knew someone interested in buying seven diesel engines for a total purchase price of $19,500. Although the price was right, Giuliano had no use for the engines but suggested Jones contact a friend of his, Mr. Herbert Vandervan, a General Motors dealer in diesel engines. After being contacted and quoted the asking price, Mr. Van-dervan was indeed interested and a meeting was arranged for the following day.

When Vandervan arrived at the meeting the following day, present were not only Jones and Giuliano but also Appellant Posick. When asked to see the engines, Smith and Appellant Posick took Mr. Vandervan to a storage yard for damaged cars and exhibited one of the engines being kept in a U-haul trailer. Vandervan asked for and received the engine’s serial number in order to floor-plan the sale. Several days later, when attempting to arrange a buy-back agreement with General Motors, Vandervan was told that an engine bearing the serial number in question had been stolen. Vandervan was then contacted by FBI agents and told to say nothing concerning his knowledge of the stolen nature of the engine.

On December 20, 1972, FBI Special Agent Walton entered the fray posing as an acquaintance of Mr. Vandervan and a wealthy South American buyer of diesel engines. After being introduced to Jones and engaging in some preliminary negotiations, it was agreed that Jones would deliver seven of the diesel engines to Agent Walton that afternoon for a total price of $22,000. That afternoon, however, Agent Walton was informed by Jones through Giuliano that the deal was off because he was being followed by what he suspected were federal agents.

In an apparent attempt to obtain more information as to why the sale was can-celled, Giuliano attempted to telephone Appellant Posick at the Terrace Paint & Body Shop. Jones had previously given Giuliano the Shop’s telephone number through which Giuliano was told he could reach Appellant Posick. Being unable to locate Appellant Posick by telephone, he then drove to the Shop in an effort to talk with him in person. Pos-ick was not to be found. Giuliano did, however, find Appellant Smith who reiterated that Jones had been followed by several agents in telephone company vehicles and that the sale was cancelled. Appellant Smith also stated that he had a friend in the local police department who would trace license plate numbers for him which is how he knew federal agents using telephone company vehicles had been following Jones.

• The next morning after talking with Agent Walton (in his undercover capacity) who indicated he still wished to consummate the sale, Giuliano again telephoned the Terrace Paint & Body Shop. He told Appellant Smith that Agent Walton was still interested in the sale and Appellant Smith gave Giuliano a telephone number through which Agent Walton was to contact Appellant Smith for further negotiations. Appellant Smith also stated that the engines were his and he could do with them as he liked.

On December 22, 1972, Agent Walton dialed the telephone number given him by Giuliano and made contact with Appellant Smith. Smith told Agent Walton he was the owner of the engines, that Agent Walton should deal directly with him, and that he could furnish Agent Walton with the proper transfer papers. It was arranged that the transaction should be consummated on December 26.

On December 26, Agent Walton met Appellants Smith and Posick at .the Terrace Paint & Body Shop and was told they would have to proceed to a separate location to view the engines. During their conversation, Agent Walton inquired of Appellants Smith and Posick if there was any area in the country where the engines should not be sold. Appellant Smith replied that they should not be sold “up North”. Appellant Po-sick and Agent Walton then departed for the location of the engines in separate cars, Appellant Posick stopping to pick up Jones on the way. The stolen engines were located approximately eight miles from the Shop in a King Rental Truck that had been leased by Jones. The property where the truck had been parked was owned by a friend of Appellants Smith and Posick who had given Appellant Smith permission to use the lot for storing what Appellant Smith represented would be an empty pick-up truck. Soon after Appellant Posick, Jones, and Agent Walton arrived to inspect the engines, federal agents moved in and made their arrests. Found on Appellant Posick at the time of his arrest was a piece of paper upon which was written the name “Slim, W. Va

Sufficiency Of Evidence

The appellants first assert that there was insufficient evidence presented by the Government under the substantive count to prove that the appellants knew the engines were stolen, and, under the conspiracy count, to prove the appellants knew the engines had been stolen from interstate commerce.

In reviewing sufficiency of the evidence, we must, of course, examine the evidence, taking a view most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. Moreover, since much of the evidence presented supporting the guilty verdicts was circumstantial, the inferences reasonably to be drawn by the jury from such evidence must be consistent with guilt as well as inconsistent with every reasonable hypothesis of innocence. Montoya v. United States, 5 Cir., 1968, 402 F.2d 847.

With these considerations in mind, we think that there was more than ample evidence to prove Appellant Posick had the requisite guilty knowledge as to the substantive count of the offense. In Appellant Posick’s case, his claim of insufficiency of the evidence to prove such knowledge could be rejected simply on the basis of the long established rule that:

Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence.

Wilson v. United States, 1896, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090, 1095; see Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L. Ed.2d 380; United States v. Sellers, 5 Cir., 1973, 483 F.2d 37, petition for cert. filed, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1973); United States v. Gordon, 5 Cir., 1970, 421 F.2d 1068, cert. denied, 1970, 398 U.S. 927, 90 S.Ct. 1816, 26 L.Ed.2d 89; Hale v. United States, 5 Cir., 1969, 410 F.2d 147, cert. denied, 1969, 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179.

It was undisputed at trial that Appellant Posick exercised actual if not constructive possession over the stolen engines less than three weeks after their theft. Moreover, Appellant Posick was directly involved in selling the engines for a little over half their retail value, a strong indication by itself that in the eyes of the jury he knew or recklessly closed his eyes to the fact that the engines were stolen. Such evidence, when added to the surreptitious negotiations of which he was an undisputed part and his proven knowledge that the original deal had been cancelled because a fellow co-conspirator had been followed by federal agents, is certainly sufficient to warrant the jury finding beyond a reasonable doubt that Appellant Posick had the requisite guilty knowledge. The fact that Mr. Vandervan was willingly given the serial numbers to all the engines by Jones with Appellant Posick’s tacit consent does not alter our perspective. Although this could be an action taken by men with nothing to hide, it is also possible that Jones and Appellant Posick thought the theft in West Virginia was too far removed from their dealings in Florida, or that the theft had not been discovered or reported as of that date, or that Vandervan’s suspicions would be put to rest by such an audacious action. This one piece of evidence, from which the jury was entitled to draw any reasonable inference, does not by itself in our opinion create any reasonable doubt as to Appellant Pos-ick’s guilty state of mind.

The evidence presented against Smith, although not nearly as overwhelming or convincing, is in our opinion still sufficient to sustain a finding of knowledge that the engines had been stolen. To rebut the inference of recent unexplained possession of stolen goods as evidence of guilt, Appellant Smith offered the explanation that the reason the engines were in his possession was because of his $8,500 investment which he was attempting to protect by negotiating a sale of the engines. The jury, of course, was entitled to give this explanation whatever credibility it felt it merited. Simply because Appellant Smith attempted to explain why he was in recent possession of the stolen engines after the theft does not necessarily overcome the permissible inference of guilty knowledge.

There still remains the virtually uncontested evidence in the record that Appellant Smith attempted to sell the engines to a federal agent at nearly a 50% discount, surreptitiously stored the engines on property of a friend while pretending to store an empty truck, and had another friend cheek police records to determine whether the persons following his confederate (Jones) were federal agents. Additionally, the jury could certainly have attributed guilty knowledge to Appellant Smith from his remark to Agent Walton that he should not sell the engines “up North”. The jury well may have believed that Appellant Smith, knowing the engines had been stolen in West Virginia, wanted to prevent them from being resold in that area.

Likewise, the appellants’ claims of insufficiency of the evidence to prove that they knew the engines were stolen in interstate commerce under the conspiracy count must fall. In the first place, we do not agree with the appellants that actual knowledge under a conspiracy count must be proved. This Court has on many occasions rejected such a contention stating that to be guilty of a conspiracy to receive stolen property one need only “reasonably anticipate that the property might be embezzled or stolen while in the course of interstate transportation . . . .” Also, “ [Tjhere may be an implied understanding that the property could be embezzled or stolen from any source that might prove convenient or accessible, and that would include an interstate shipment.” Clark v. United States, 5 Cir., 1954, 213 F.2d 63, 65; see United States v. Iacovetti, 5 Cir., 1972, 466 F.2d 1147, cert. denied, 1973, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270; United States v. McGann, 5 Cir., 1970, 431 F.2d 1104, cert. denied sub nom., Pruitt v. United States, 1971, 401 U.S. 919, 91 S. Ct. 904, 27 L.Ed.2d 821.

We are convinced under these standards that the same evidence which has proved sufficient to sustain a jury-finding as to guilty knowledge with respect to the substantive count will serve to sustain a finding that the appellants knew the engines were likely to have been stolen in interstate commerce under the conspiracy count. In Appellant Posick's case, there was additional evidence tending to confirm a finding of guilty knowledge of the interstate nature of the theft in the form of the slip of paper found on him after his arrest upon which were written the words “Slim, W. Fa.” (emphasis added).

The Court’s Charge

A more serious problem, however, is presented by the appellant’s contention that the Court’s charge was so erroneous as to have constituted plain error under Fed.R.Crim.P. 52.

The portion of the charge now attacked is as follows:

The word “stolen” means any wrongful or dishonest taking whereby a person obtains property belonging to another without or beyond any permission given, with the intent to deprive the owner of the rights and benefits of the ownership. It is not necessary that the taking of the diesel engines be unlawful. Even if the possession is lawfully acquired the engines must be deemed “stolen” if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the engines to his own use.

The charge is clearly incorrect for several reasons. One reason is that the jury could infer from the erroneous charge that the appellants were charged with being involved in the actual theft, an inference that would be clearly impermissible where the appellants were in fact charged with receiving stolen property. Another reason is that the erroneous charge could permit a jury to find that the appellants might be guilty of the offenses even if they lawfully acquired the engines with no knowledge whatsoever that they had been stolen. This would be a more dangerous inference and one which would potentially destroy the possibility of a fair trial.

The essential question of us, of course, is whether this contested part of the charge is so erroneous that when considered in the totality of the charge as a whole and the evidence presented against each appellant, the error is so great as to result in the likelihood of a grave miscarriage of justice. Bearden v. United States, 5 Cir., 1968, 403 F.2d 782, cert. denied, 1969, 393 U.S. 1111, 89 S.Ct. 920, 21 L.Ed.2d 809. Logically it is impossible to justify the charge on the possibility that it was not harmful. It simply referred to a distinctly different situation or crime. It permitted the jury to conclude that each must be found guilty even though, on the hypothesis posed, in the charge the initial innocent possession somehow became unlawful when they decided to convert the engines to their own use. This did away with the need for knowingly possessing with knowledge of their stolen character. The charge could have made a finder an interstate possessor merely by deciding to put the thing to his own use.

There were no technical slips-of-the-tongue. The charge just changed everything. Neither appellant was tried finally on the theories permitted. Such a trial is manifestly unfair and a condition which we must remedy by new trial. Reversed and remanded.

      . Kenneth Jones, a/k/a Ken Yolarro, and Leo Giuliano were also indicted along with appellants on identical counts. Kenneth Jones was found guilty and has not appealed his conviction. The indictment was dismissed as to Leo Giuliano.

      . 18 U.S.C.A. §§ 2315 and 371 read in pertinent part:
      § 2315. Sale or receipt of stolen goods, securities, moneys, or fraudulent State tax stamps. — Whoever receives, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, or pledges or accepts as security for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more, moving as, or which are a part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted, or taken
      Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      § 371. Conspiracy to commit offense or to defraud United States. — If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of sucli persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . The persons responsible for the theft were later determined to be Ernest Dean, Mooker Dean, a man named “Coffey”, a man named “Slim”, and an employee of the Ingersoll-Rand Company, Jackson Riley.

      . Normally an inventory would not have been taken until several weeks after the theft, but an alert employee noticed the empty spaces where the engines had been and notified his supervisor.

      . See note 1, supra.

      . Of course, the mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is “satisfactory.” Ante, n. 3. The jury is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on tlie Government.
      Barnes v. United States, 1973, 412 U.S. 837, 845, n. 9, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380, 387.

      . The appellants rely upon United States v. Vilhotti, 2 Cir., 1971, 452 F.2d 1186, cert. denied, 1972, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335, to support their proposition that the Government must prove actual knowledge of the interstate character of the theft in a conspiracy count.

      . “Slim” was the name attributed to one of the persons who originally stole the engines in West Virginia.

      . No objection was made to the charge by any of the appellants at trial and thus under Fed.R.Crim.P. 30, the erroneous instruction must rise to the level of plain error before constituting grounds for reversal.

      . This charge appears to be patterned after a model charge on the definition of a stolen motor vehicle under the Dyer Act, 18 U.S. O.A. § 2312 as found in 1 Devitt & Black-mar, Federal Jury Practice and Instructions § 37.04. The instruction would apply, for example, to a rental car or borrowing situation where the lessee or bailee lawfully obtained possession of the vehicle but thereafter formed the intent to unlawfully convert it 'to his or her own use.


author: PER CURIAM: RICHARD H. CHAMBERS,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Edward VIELGUTH, Special Grand Jury Witness, Defendant-Appellant.
    No. 74-2193.
    United States Court of Appeals, Ninth Circuit.
    July 17, 1974.
    Richard H. Chambers, Circuit Judge, dissented and filed opinion.
    Donald J. Stang (argued), Doron Weinberg, of Stender, Lapides, Stender & Weinberg, San Francisco, Cal., for defendant-appellant.
    Martin Fassler, Berkeley, Cal., submitted a brief amici curiae on behalf of the American Civil Liberties Union and the National Lawyers Guild Electronic Surveillance Project.
    Gerard Hinkley, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
    Before CHAMBERS, BROWNING and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

Appellant was called to testify before a grand jury. He declined to answer certain questions on the ground his answers might incriminate him. He was granted immunity pursuant to 18 U.S.C. §§ 6002 and 6003 and ordered to testify. He appeared before the grand jury, but again refused to answer certain questions.

The government moved that appellant be held in civil contempt pursuant to 28 U.S.C. § 1826(a). Appellant offered the defense that he believed the questions were based upon unlawful electronic surveillance and his answers would be inadmissible under 18 U.S.C. § 2515, citing Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972).

Appellant submitted two affidavits. The second and more detailed stated:

I believe that the evidence which forms the basis of the questions propounded to me by the grand jury, and the evidence which I would be required to give in answer to those questions, is inadmissible because it is the primary product of an unlawful act and/or was obtained by the exploitation of an unlawful act, namely illegal electronic surveillance.
My belief as stated above is based upon an analysis of the questions put to me by the grand jury at my previous appearances on January 31 and April 18, 1974. My analysis of these questions shows that they are based either directly or indirectly on materials which could only have been obtained by illegal electronic surveillance of my conversations or of my premises.

The affidavit then identified the telephone numbers, the premises,' and the periods of time appellant believed were involved in the alleged electronic surveillance.

In response the government filed two affidavits, one of the attorney and the other of the investigating agent responsible for the grand jury investigations. Each affidavit stated, “To my knowledge, Mr. Vielguth has not been the subject of any illegal electronic surveillance nor were the questions asked him in the Grand Jury based on any illegal electronic surveillance.”

The district court rejected appellant’s defense on the ground that under this court’s holding in United States v. Alter, 482 F.2d 1016 (1973), appellant’s affidavits were not sufficient to constitute a “claim” of unlawful electronic surveillance, and therefore the government was ■ not required to “affirm or deny the occurrence” of such surveillance under 18 U.S.C. § 3504(a)(1). The court did not reach the question of whether, if a sufficient “claim” had been made, the affidavits submitted by the government would have satisfied its obligation to “affirm or deny.”

The Court of Appeals for the District of Columbia Circuit has concluded that the government’s obligation to affirm or deny the occurrence of electronic surveillance under section 3504(a)(1) “is triggered ... by the mere assertion that unlawful wiretapping has been used against a party.” In re Evans, 146 U.S. App.D.C. 310, 452 F.2d 1239, 1247 (1971). The Court of Appeals for the Second Circuit has agreed. United States v. Tosca-nino, 500 F.2d 267 (1974). This construction adopts the ordinary meaning of the language of the statute predicating the government’s obligation to affirm or deny upon a simple “claim” of inadmissibility. It is supported by the legislative history, which suggests that subsection (a)(1) was added to give to persons under interrogation the legal right to require on mere motion that which the Department of Justice informed Congress it had been affording voluntarily without demand — namely, an examination by the government of its files to determine whether any wiretaps or eavesdropping had occurred. Finally, as Judge Bazelon pointed out in In re Evans, supra, there are a number of compelling reasons why Congress would think it wise to require the prosecution to affirm or deny electronic surveillance on no more than a demand by persons who would be aggrieved by such surveillance if it had occurred.

However, the government argues, and the district court held, that this construction of section 3504(a)(1) is precluded by our decision in United States v. Alter, supra. The contention is a substantial one. Language in the Alter opinion suggests that the government is required to affirm or deny the existence of electronic surveillance only when the aggrieved person has made out a prima facie case that such surveillance has occurred, and that a mere claim of such surveillance is not enough. We conclude, however, that this holding in Alter applies only to a claim by the person under interrogation that questions put to him are tainted by unlawful surveillance of. conversations in which he did not participate.

Alter claimed unlawful surveillance both of his own conversations and of conversations between his attorney and third persons. The adequacy of Alter’s “claim” as to surveillance of his own conversations was not challenged — the government responded with a denial. The adequacy of Alter’s “claim” as to conversations, between his attorney and third persons was challenged. As to this “claim,” the Alter court held that a mere assertion of unlawful surveillance of counsel was insufficient; and set out in some detail the prima facie showing required to compel a government response. 482 F.2d at 1026.

The Alter court noted that the government objected to Alter’s standing with respect to statutory or Fourth Amendment grounds, but conceded Alter’s standing to assert interference with Alter’s Sixth Amendment right to effective assistance of counsel. 482 F.2d at 1026 n. 16. The government argued, however, that section 3504(a) applied only to Fourth Amendment rights, and that “claims upon Sixth Amendment grounds, not controlled by statute or by previous court decisions, are in the same posture as were Fourth Amendment claims prior to the change by case law and the statutory provisions. Thus, under Nardone [308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307] the aggrieved person must have asserted specific facts which if established would have required suppression of the evidence in question. Cohen v. United States, 378 F.2d 751, 760 (C. A. 9), cert. denied, 389 U.S. 897 [88 S.Ct. 217, 19 L.Ed.2d 215].” Brief for the Appellee, Alter v. United States, No. 73-1121, pp. 20-21.

While the Alter court did not adopt the government’s suggestion that Sixth Amendment “claims” were not governed by section 3504(a), it did accept the argument that a different and more extensive showing must be made before the government can be required to search its files for possible electronic surveillance or eavesdropping of the attorney’s conversations with third persons.

There are obvious reasons for such a distinction. The possibility that surveillance of conversations of the witness’ attorney with third persons may impinge upon the witness’ Sixth Amendment rights is of an entirely different order than the possibility that such surveillance of the witness’ own conversations may have violated the witness’ statutory and constitutional rights of privacy. The witness’ Sixth Amendment rights can be implicated only if the attorney’s conversations are relevant to his representation of the particular client in the matter at hand, in which case the witness has standing to require an affirmance or denial. The additional showing required by Alter is directed at establishing the possibility that electronic surveillance of an attorney’s conversations with third persons might fall into this category. These additional requirements may be justified not only because there is a much greater possibility that the claim of electronic surveillance of relevant third-party conversations will prove to be ill-founded, but also because disclosure of such third-party conversations would invade the privacy of additional persons.

One sentence in the Alter opinion suggests that the court may have intended to apply the same standard of particularity to a “claim” of violation of the witness’ right to privacy. Referring to Alter’s affidavits regarding electronic surveillance of his own conversations, the court said, “Alter’s affidavits were sufficiently concrete and specific to make a prima facie showing that on the occasions described someone was interfering with his telephone calls and that the F.B.I. was involved.” 482 F.2d at 1027. The court continued, “The burden was then on the Government squarely to affirm or to deny those charges. (Cf. United States v. Fannon (7th Cir. 1970) 435 F.2d 364.) The [Government] affidavit did neither” (emphasis added).

As the context indicates, the issue under discussion was not the adequacy of Alter’s “claim,” but rather the sufficiency of the government’s response. The holding was that when a “claim” is made that particularizes incidents of alleged surveillance, it is incumbent upon the government to affirm or deny the specific charges made. In such circumstances, a general, conclusory denial will not do. The Alter court did not hold, however, that a more general “claim” would not have been sufficient to require the government to file a response appropriate to such a claim.

We therefore hold that appellant’s affidavits were sufficient to require the government to affirm or deny the occurrence of the alleged surveillance. Since the district court did not reach the question of the adequacy of the government’s response, that issue is not before us and we do not consider it.

Reversed.

RICHARD H. CHAMBERS,

Circuit Judge (dissenting):

I would affirm. I would follow what was said in the Alter case, United States v. Alter, 482 F.2d 1016 (9 Cir. 1973), rather than telling the district court that it didn’t read Alter right. Further, the record shows that defendant says he must have been subjected to electronics surveillance because (his opinion) the grand jury questions “could not have been asked without wire tapping.” I would guess that there are 10,000 cases of an informer for every one of electronic surveillance. I would not put the government to its proof on the basis of the legal opinion of Yielguth, which does not exclude the more probable source. Whatever Vielguth did, it has not been suggested that he lived alone in a windowless room and stayed there alone year in and year out.

As to the government’s response, if one was required as the majority holds, I would hold now that the response was insufficient. The affidavits are replete with the statement, “To my knowledge.” That, to me, is an obfuscation carrying with it all of the clarity of that pitiful phrase, “and/or”, so prevalent in the 1930’s.

As I have indicated in my concurrence in United States v. Weir, 495 F.2d 879 at 882 (9th Cir. 1974), I think that when the government does the best it can reasonably do in responding to suggestions of illegal electronic surveillance that is usually enough, but “to my knowledge” is a substitute for nothing.

      . 18 U.S.G. § 3504(a) provides:
      In any trial, hearing, or other proceeding in or before any . . . grand jury . . of the United States—
      (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.

      . United States v. Doe (Popkin), 460 F.2d 328, 335-336 (1st Cir. 1972), a pre-Gelbard decision, appears to take the government’s view. However, appellant’s counsel states, “Subsequent to Gelbard, the First Circuit revised its earlier opinion in an unpublished order requiring the government to affirm or deny. No. 72-1090 (1st Cir., July 12, 1972).” Appellant’s Opening Brief at 14. The government has not challenged counsel’s statement.

      . The Supreme Court referred to the relevant legislative history in Gelbard v. United States, 408 U.S. 41, 56, 92 S.Ct. 2357, 2365, 33 L.Ed.2d 179 (1972):
      Subsection (a) (1) [of Section 3504] was added at the suggestion of the Department of Justice. At that time the Department followed the practice of searching Government files for information about wiretaps and eavesdropping. The Department advised the Senate Judiciary Committee that while it had been “conduct [ing| such examinations as a matter of policy even in cases where no motion ha[d] been filed defendants should be assured such an examination by a specific requirement of law rather than hav[ingj to rely upon the continued viability of a current policy.” Id., at 553. The Senate report on § 3504 explained that “since [subsection (a) (1) 1 requires a pending claim as a predicate to disclosure, it sets aside the present wasteful i>raetice of the Department of Justice in searching files without a motion from a defendant.”

      . Requiring the government to affirm or deny the existence of illegal surveillance of witnesses imposes only a minimal additional burden upon the government, but requiring a witness to establish the existence of such surveillance may impose a burden on the witness that he can rarely meet, since, to be effective, electronic surveillance must be concealed from its victim. Requiring more than a claim may encourage the development of more secretive means of illegal surveillance, rather than encourage elimination of such unlawful intrusions. Moreover, requiring a witness to disclose details regarding specific conversations that may have been subjected to surveillance would in itself be an invasion of privacy. See In re Evans, 146 U.S.App. D.C. 310, 452 F.2d 1239, 1247-1250 (1971).

      . The same distinction appears to have been made in United States v. Fitch, 472 F.2d 548, 549 (9th Cir. 1973). See also Beverly v. United States, 468 F.2d 732, 752 (5th Cir. 1972).

      . The showing required by Alter is as follows :
      To raise a prima facie issue of electronic surveillance of counsel for a grand jury witness, the affidavit(s) or other evidence in support of the claim must reveal
      (1) the specific facts which reasonably lead the affiant to believe that named counsel for the named witness has been subjected to electronic surveillance;
      (2) the dates of such suspected surveillance ;
      (3) the outside dates of representation of the witness by the lawyer during the period of surveillance;
      (4) the identity of the person(s), by name or description, together with their respective telephone numbers, with whom the lawyer (or his agents or employees) was communicating at the time the claimed surveillance took place; and
      (5) facts showing some connection between possible electronic surveillance and the grand jury witness who asserts the claim or the grand jury proceeding in which the witness is involved.
      When these elements appear by affidavit or other evidence the Government must affirm or deny illegal surveillance pursuant to 18 U.S.O. sec. 3504(a). 482 F.2d at 1026.