author: GIBSON, Chief Judge.

text:
    Henry McCoy WINGO, Jr., Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
    No. 74-1619.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1974.
    Decided Dec. 5, 1974.

      R. Steven Brown, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    Frederick Griffin, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and WEBSTER, Circuit Judge.

       Associate Justice Tom 0. Clark, United States Supreme Court, Retired, sitting by designation.

   GIBSON, Chief Judge.

Petitioner Henry McCoy Wingo, Jr. appeals from an order of the District Court partially granting Wingo’s petition for a writ of habeas corpus that challenged the conditions of his confinement at the United States Medical Center for Fedei’al Prisoners, Springfield, Missouri, and claimed that he is entitled to have three states enjoined from prosecuting him on numerous felony charges. Petitioner is presently serving a five-year prison sentence for interstate transpoi’tation of foi'ged securities. Numerous detainers have been lodged against him by the states of Arkansas, Louisiana, and Texas arising from untried state criminal charges. On April 23, 1974, four months after unsuccessfully requesting the states to proceed promptly against him on the untried charges, petitioner filed the instant petition challenging the adverse effects which the detainers were causing upon his federal confinement. Petitioner asserted that the states had so violated his Sixth and Fourteenth Amendment right to speedy trial that any prospective state convictions on the pending charges would be invalid. His complaint was that the detainers lodged against him were inhibiting his chances of obtaining early parole, minimum custody status, or transfer to rehabilitation or community treatment programs. He demanded that the court first order Respondent Ciccone to remove the al-ledgedly unlawful detainers from his prison records; second, that it restrain federal authorities from honoring the state detainers, including prohibiting them from transmitting notice to the states as to the date of petitioner’s eventual release; and finally, that it enjoin the states themselves from prosecuting the pending charges.

Pursuant to Local District Couih; Rule then in effect, the case was referred with several others to the United States Magistrate for a consolidated hearing and recommendations. On June 19, 1974, the District Court overruled petitioners’ exceptions to the Magistrate’s report, adopted the Magistrate’s recommendations in part, and, without a hearing, granted in part the consolidated petitioners’ writs of habeas corpus. The court ordered Respondent Ciccone to give prompt formal notice to each inmate as to the source and contents of any detainers lodged against him; to advise each inmate of his right to request each detainer-lodging authority, in writing (delivered to Respondent within 15 days of Respondent’s notice to the inmate), to speedily resolve the charges underlying each detainer; to serve each such motion on the appropriate detainer-lodging authority within three days of the inmate’s request; and to notify the detainer-lodging authority additionally that if the inmate is not brought to trial within 180 days, the detainer is to be removed “except for notice purposes.” The court, however, denied further relief on the basis that Wingo’s petition was limited to an attack on adverse conditions of his federal confinement and that the court was without power to disturb the state proceedings.

On appeal, Wingo argues that the only relief appropriate to eliminate the alleged punitive consequences of his detainers is for the court to restrain federal officials from honoring the detainers in any manner, and to enjoin the states from continuing the delayed prosecutions. He argues that the federal district court embracing the place of confinement has jurisdiction concurrent with the district court in the prosecuting state to rule on constitutional claims underlying the state detainers. Relief should be granted, he claims, because his right to speedy trial has been hopelessly violated by the states’ failure to make “diligent, good faith effort[s]” to try him promptly. He argues fur-her that “practical” adverse effects on his confinement will continue despite the court’s order that, absent prompt resolution of the state charges, the detainers are to be removed. In sum, petitioner asks that we overrule our acknowledgement in Cooper v. Lockhart, 489 F.2d 308, 317 n. 16 (8th Cir. 1973). that the custodial authority may notify a detainer-requesting authority of the inmate’s date of release even after the custodian has carried out a court-ordered “removal” of the detainer.

In reply, Respondent concedes, and we agree, that the District Court properly granted what relief it did by applying the principles of Cooper v. Lockhart, supra, to this new setting, involving state trial rather than parole revocation detainers, and federal rather than state custody. Mattingly v. Ciccone, 503 F.2d 502 (8th Cir. 1974). In Cooper, supra, 489 F.2d at 317, we ordered that, absent prompt action by the detainer-requesting state leading to a parole revocation hearing, the custodial state was to provide the detained “prisoner with the same opportunities given the other prisoners not subject to a detain-er.” (footnote omitted). In the instant case that is undoubtedly what the District Court implied in substance when it ordered Respondent to remove the detainers absent prompt action by the states. Therefore, if it is necessary for Respondent to remove the detainers pursuant to the court’s order, no so-called adverse “practical” effects will remain on the inmates’ conditions of confinement. Petitioner Wingo’s conjectures that punitive effects will remain are wholly unsubstantiated.

The issue and the relief granted in the instant proceeding have properly been limited to elimination of the alleged punitive consequences which abide with petitioner in his day-to-day federal imprisonment as a result of the detainers lodged against him which are based on state criminal charges lying dormant pending his release. Recently, in Hoyt v. Ciccone, No. 74-1428 (8th Cir., filed November 13, 1974), we commented that a similar request for broad injunc-tive relief by a federal prisoner seeking to defeat his state parole revocation de-tainer extended far beyond the principles of Cooper v. Lockhart, supra. In the instant case, involving state trial detainers on untried criminal charges, the policy of federal cooperation with the states is even stronger.

In denying the broad relief requested by petitioner, the District Court was undoubtedly conscious of the need to prevent perversion of the habeas corpus jurisdiction “into ‘a pretrial-motion forum for [federal] * * * prisoners.’ ” Here, petitioner seeks no less than “the derailment of a pending state proceeding by attempting] to litigate [affirmative] constitutional defenses prematurely in federal court.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973). Absent extraordinary circumstances, federal courts should not interfere with the states’ pending judicial processes prior to trial and conviction, even though the prisoner claims he is being held in violation of the Constitution. Braden, supra at 507-508, 93 S.Ct. 1123 (Rehnquist, J., dissenting); cf. Sam-uels v. Mackell, 401 U.S. 66, 69, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Petitioner demands, in effect, that we now litigate his speedy trial claim and grant him the severe remedy of outright dismissal on the state charges. To do so in these circumstances, however, would be an unjustifiable federal interference with three states’ judicial enforcement of their criminal laws. On the contrary, as this case is jurisdictionally presented, the District Court reached the outer limits of its power to coax prompt state resolution of the charges.

Petitioner’s final challenge to the reasonableness of the 180 day waiting period granted the states by the court, prior to the removal of the detainers, is additionally without merit. In view of the complexities inherent in coordinating the many transfers of the prisoner which will no doubt be required for his prosecution on nine charges in three different states, six months is not unreasonable. Cf. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Moreover, the period does not exceed the comparable time limits set out in the Interstate Agreement on Detainers Act, 18 U.S.C. App. § 2.

Judgment of the District Court is affirmed.

      . The Honorable William H. Becker, Chief Judge, United States District Court for the Western District of Missouri.

      . 18 U.S.C. § 2314. The sentence of five years in prison to be followed by five years probation was imposed October 19, 1973, by the United States District Court for the Western District of Louisiana.

      . In October, 1973, when petitioner was sentenced by the federal court, apparently as many as 25 state charges were outstanding against him arising from his alleged passing of worthless checks. The charges were reduced in number to 15 at the time of the District Court’s order and to 9 by the time of oral argument in this court, November 14, 1974.
      On November 14, 1973, while incarcerated in the Federal Correctional Institution at Texarkana, Texas, before his transfer to Springfield, Missouri, petitioner mailed pro se motions for speedy trial to each of the state jurisdictions which had requested a de- * tainer.

      . Only 90 days were granted to- tlie states before removal of detainers lodged against the other three consolidated petitioners, Calvin, Fair, and Henley. They are not parties to this appeal. The court, however, acknowledged that necessary and reasonable continuances could, of course, be granted by appropriate courts and that they would toll the waiting period. See also Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2, art. Ill (a).

      . Having rejected the Magistrate’s proposal that the case be handled as a class action including all other Medical Center inmates subject to state detainers, the court, as an alternative, requested Respondent to prepare a policy statement, applicable only to the Springfield Medical Center, providing for a uniform system of comparable notice and removal of adverse effects that detainers might have on confinement.

      . Relying on Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 499 n. 15, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

      . Relying on Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

      . In Cooper we said :
      Assuming the [Michigan] detainer [placed against the Arkansas state prisoner, Williams] is removed, there is, of course, nothing in this opinion which would prevent the State of Arkansas from notifying the State of Michigan of Williams’ release date.
      Cooper v. Lockhart, supra at 317 n. 16.

      . As Respondent notes in his brief, any evidence which Wingo may wish to present to substantiate his claims by way of future ha-beas petitions will not likely be barred by the rules governing dismissal of successive petitions. Sanders v. United States, 373 U. S. 1, 15-17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). However, as we recently held in Willis v. Ciccone, 506 F.2d 1011 (8th Cir., 1974), the habeas corpus jurisdiction is limited to claims involving the deprivation of substantial constitutional rights and requires prior exhaustion of remedies under prison grievance procedures. Id. at 1015, 1019.

      . See Interstate Agreement on Detainers Act, 18 U.S.C. App. § 5. See also S.Rep. No.1356, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News, pp. 4864-4867 (1970). However, of the three states at issue here, apparently only Arkansas has joined in the agreement. Ark.Stat.Ann. § 43-3201 et seq. (Supp.1973).

      . Because Wingo’s apparently unanswered mailing of requests to the detainer-lodging states, asking for speedy trial or dismissal of the charges, cannot be deemed an exhaustion of his state remedies, there can be no doubt that the District Court properly denied further relief. We do not express judgment on the propriety of granting further relief- — such as prohibiting notice or enjoining the state prosecutions — under more extreme circumstances. We do, however, caution against too liberally interpreting as exhaustion of state remedies a state appellate court’s summary denial of a petitioner’s pro se request for speedy trial or dismissal of criminal charges. The court in Kane v. State of Virginia, 419 F.2d 1369, 1373 (4th Cir. 1970), made such an interpretation when it vacated and remanded a Virginia district court’s dismissal of a federal habeas corpus petition filed by a federal prisoner confined at Marion, Illinois, against whom a Virginia state trial detainer had been lodged.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    SCM CORPORATION, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.
    No. 122, Docket 74-1585.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18, 1974.
    Decided Nov. 4, 1974.

      Stephen R. Kaye, New York City (Proskauer, Rose, Goetz & Mendelsohn, Ronald S. Rauchberg, Robert S. Marin, New York City, Widett & Widett, Jerome Gotkin, W. Thomas Fagan, Boston, Mass., Jacobs, Jacobs & Grudberg, Ira B. Grudberg, David L. Belt, New Haven, Conn., on the brief), for plaintiff-appellant.
    Stanley D. Robinson, New York City (Kaye, Scholer, Fierman, Hays & Handler, Milton Handler, Michael Malina, Kenyon & Kenyon Reilly Carr & Chapin, Robert D. Fier, New York City, Cummings & Lockwood, John F. Spindler, John R. Murphy, Xerox Corporation, Stamford, Conn., on the brief), for defendant-appellee.
    Before FEINBERG, MULLIGAN and DANAHER, Circuit Judges.

      Senior Circuit Judge of the District of Columbia Circuit, sitting by designation.

   MULLIGAN, Circuit Judge:

On July 31, 1973 SCM Corporation commenced an action against Xerox Corporation in the United States District Court for the District of Connecticut. The complaint, which takes up 46 printed pages in the appendix, basically charged Xerox with monopolizing throughout the world the skill and technology of plain paper copying and the manu-

facturing and marketing of plain paper copiers in violation of section 2 of the Sherman Act (15 U.S.C. § 2). The complaint also charged a variety of unreasonable restraints of trade in violation of section 1 of the Sherman Act (15 U.S.C. § 1). These include restrictive covenants, the acquisition of a large number of controlling patents in the field of xerography, and cartel arrangements with foreign corporations. The complaint also charged violations of section 7 of the Clayton Act (15 U.S.C. § 18) in the Xerox acquisition of stock and assets of corporations competing in the field. The complaint sought monetary damages of threefold the amount of $145 million, plus permanent injunctive relief. On July 31st SCM also moved for preliminary injunctive relief. On September 14, 1973 Xerox moved to strike the antitrust claims on the ground that the complaint was prolix and in violation of Fed.R.Civ.P. 8’s requirement that a pleading contain “a short and plain statement of the claim” and that pleadings shall be “simple, concise, and direct.” The Hon. Jon 0. Newman granted the Xerox motion on October 9, 1973. On November 5, 1973 SCM filed an amended complaint which substantially repeated the same antitrust claims albeit in an abbreviated manner. Xerox’s answer, filed on November 12, 1973, contained denials, defenses and counterclaims; on the same day Xerox made a demand for a jury trial.

On November 16, 1973 SCM moved under Fed.R.Civ.P. 42(b) for an expedited separate trial of the antitrust issues and a stay of certain patent issues as well as those issues raised by the counterclaims. As an alternative to severance SCM renewed its motion for a preliminary injunction. On January 3, 1974 Judge Newman denied the motion for a severance, finding that there was an insufficient showing that an early adjudication of liability would promote the efficient conduct of the trial. A briefing schedule was set for the preliminary injunction motion. In Pre-Trial Ruling No. 6, filed on April 19, 1974, the court denied SCM's motion for preliminary injunctive relief. This is an appeal by SCM from the denial of that motion.

I

The case below undoubtedly presents substantial questions of law and fact which will take months of discovery and trial. However, the question posed for us is narrow and we intimate no view and make no prognosis as to SCM’s ultimate prospects of success on the substantive issues raised. While the issue here is narrow, it is also somewhat unique in that the private antitrust plaintiff here is seeking preliminary in-junctive relief in what appears to be basically a section 2 Sherman Act case. In view of the worldwide scope of the alleged monopolization and the intricate and complicated accumulation of patents, licenses, and technological expertise charged, there is no precedent for such relief at this stage of the litigation. The question is also unique in that Xerox in effect demurred to the motion, which constitutes an admission for the purposes of the motion that SCM would succeed on the merits of its antitrust claim. As the court below recognized, it was also unusual for the district judge to deny the motion without conducting an evidentiary hearing, although such is not unheard of in this circuit, see Redac Project 6426, Inc. v. Allstate Insurance Co., 402 F.2d 789 (2d Cir. 1968).

We commence with the proposition that a district court’s determination to deny a preliminary injunction will be overturned only when there has been a clear abuse of discretion. Stamicarbon, N.V. v. American Cyanamid Co., 506 F. 2d 532, at 536 (2d Cir. 1974); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed. 2d 777 (1969); Societe Comptoir De L’Industrie, etc. v. Alexander’s Department Stores, Inc., 299 F.2d 33, 35 (2d Cir. 1962). The right of a private litigant in an antitrust action to preliminary injunctive relief is provided for by statute, section 16 of the Clayton Act (15 U.S.C. § 26), which states that such relief is available “under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity . . . and [upon] a showing that the danger of irreparable loss or damage is immediate. . . .” The statute is merely declarative of ordinary equitable principles. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742-743 (2d Cir. 1953).

Those equitable principles are well established in this Circuit. Since Xerox has conceded liability for the purposes of the motion, SCM has only the burden of establishing the possibility of immediate irreparable harm. Pride v. Community School Bd., 488 F.2d 321, 324 (2d Cir. 1973). While SCM has urged that its function as a private attorney general in enforcing the antitrust laws of the United States entitles it to particular consideration, it admittedly cannot escape its burden of establishing the threat of irreparable harm. The statute so requires and we are not free to disregard it.

Judge Newman found below that SCM had failed to make a sufficient showing of irreparable damage to justify a hearing and further that the relief it sought would alter the status quo beyond the function of a preliminary injunction. We find no abuse of discretion and affirm the denial of the relief sought.

II

In paras. 49-53 of its amended complaint SCM listed the specific preliminary injunctive relief it sought. This relief was of three kinds:

(1) SCM sought to enjoin Xerox from maintaining any patent infringement action against SCM or any other claim here or abroad which might impede SCM’s present and future efforts in the plain paper office copier field. SCM further sought a mandatory injunction granting it a license with respect to all United States and foreign patents and patent applications Xerox owns or controls.

(2) During the pendency of the action Xerox should be mandatorily enjoined to disclose its present short and long range plans for the manufacture and marketing of plain paper office copiers.

(3) Xerox should be enjoined against enforcing any restrictive employee covenants restraining its personnel from engaging in xerographic activities for any other company, following the termination of their employment with Xerox.

The opinion below considers each of these prayers for relief and the reasoning rejecting them is persuasive. The patent relief sought certainly does not preserve the status quo, which is the normal function of the preliminary injunction, Hamilton Watch Co. v. Benrus Watch Co., supra, 206 F.2d at 742; 7 J. Moore, Federal Practice f[ 65.04[1] (2d ed. 1974), but creates a new status which never obtained between the parties.

But there is further reason to find no abuse of discretion here. By letter dated March 8, 1974 Xerox agreed not to seek any preliminary injunction against SCM or its suppliers for the infringement of any patents concerning plain paper copiers; not to commence any patent infringement action concerning plain paper copiers without first giving ninety days’ written notice to SCM; not to commence any patent infringement action against any end user of copiers manufactured or sold by SCM; and to grant SCM, during the pendency of suit, a 4% royalty license under any Xerox patent covering the Van Dyk machine now marketed by SCM or the machine SCM is developing and expects to market in 1975. While these commitments are limited to the United States, Canada, and Latin America and are not worldwide, it is apparent that they undercut any claim of immediate irreparable harm.

The disclosure to SCM of the long and short range plans of Xerox is again hardly the simple maintenance of the status quo; quite the contrary, it is an irrevocable step because once the plans are revealed, their secrecy cannot later be restored if Xerox should prevail on the merits. The argument of SCM that if it fails to succeed ultimately on the merits the court could somehow protect the secrecy and confidentiality of the plans is unrealistic.

The injunction seeking the abrogation of personnel covenants which allegedly barred Xerox employees from serving competitors after termination of employment with Xerox, is again mooted by the March 8, 1974 letter of Xerox representing that no such contracts are in effect now and that none would be entered into during the pendency of this action.

Ill

On appeal SCM further argues that while its prayer for injunctive relief did specify the three areas we have discussed, the amended complaint further contained the usual language “and such other and further relief as this Court deems just and proper.” It is urged that the court below should have considered not only the particular forms of relief sought in the amended complaint but any “conceivable” forms of preliminary relief, including those set forth in SCM’s brief.

There is authority holding that motions to dismiss a complaint for legal insufficiency under Fed.R.Civ.P. 12(b)(6) should not be granted if the court finds that “some relief, not limited by the request in the complaint, can be granted.” Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-926 (2d Cir. 1968) (emphasis in original). However, the dismissal of a complaint and the denial of preliminary injunctive relief are not comparable. The very finality of the dismissal requires judicial scrutiny to determine if the complaint is salvageable, but requiring the court in a highly complex monopolization case to determine if conceivable alternate preliminary relief exists is unrealistic and is unsupported by authority.

The determination of Xerox not to contest the probable success of SCM on the merits was reasonably based on the expectation that the motion for preliminary relief was predicated on the specific relief sought in the amended complaint, to which Xerox affirmatively responded by concessions which basically provided the immediate security sought by SCM.

SCM argues that if any evidentiary hearing had been held it would have been able to make definite its unpleaded temporary remedies and further establish the threat of irreparable harm. This argument has some plausibility until the record is examined. On March 6, 1974, on the argument of the motion for the preliminary injunction, the trial court on several occasions explicitly advised SCM that the conducting of a protracted evidentiary hearing was not feasible unless SCM would provide some affidavit or offer of proof to support its continuing claim of irreparable damage. None was forthcoming.

Indeed, the basic flaw in the SCM case here is its continuing failure to supply the necessary proof of a threat of irreparable harm. Its posture continues to be that the Xerox monopoly is so pervasive that it must be apparent that SCM is sorely and grievously afflicted. However, it is basic that equitable relief will not be granted where an adequate remedy at law exists. Money damages if determinable with a reasonable degree of certainty constitute such an adequate remedy. See Danielson v. Local 275, supra, 479 F.2d at 1037. The latitude granted the victim of antitrust violations in establishing his monetary damages has long been recognized. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 262-264, 66 S.Ct. 574, 90 L.Ed. 1040 (1946); Columbia Pictures Industries, Inc. v. American Broadcasting Companies Inc., 501 F.2d 894 (2d Cir. 1974); William Goldman Theatres, Inc. v. Loew’s, Inc., 69 F.Supp. 103, 105-106 (E.D.Pa.1946), aff’d, 164 F.2d 1021 (3d Cir.), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948). Note that in the last-named case, the fact that plaintiff had not operated his business at all during the relevant period did not prevent the district court from awarding money damages in the form of probable lost profits.

SCM has claimed here that it has suffered monetary damages at least in the sum of $145 million and that it can establish such damages. When trebled this is by no means an insignificant sum, but there is no suggestion that Xerox will be unable to pay a damage verdict and there is no affidavit or other proof that SCM will perish in the interim. In any event, if SCM can hereafter establish the threat of irreparable harm not otherwise readily compensable there is nothing to prevent it from then making application for specific injunctive relief.

In light of its failure to provide an appropriate basis to justify the conducting of an extensive and protracted evi-dentiary hearing, we find no abuse of discretion in the determination of the court below in denying the extraordinary relief which SCM has sought.

      . The only precedent for the grant of preliminary injunctive relief in a section 2 case is apparently Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462 (E.H.Pa.1972), which involved an attack by a club in a new hockey league upon the “reserve clause” of the established and entrenched National Hockey League. The issues there were clearly more precise than those faced by the court below. Moreover, the need for immediate relief was emphasized by findings of fact (based in part upon affidavits) that absent the relief the new league would be destroyed economically. Id. at 496.

      . We also note that the Federal Trade Commission had proceeded against Xerox, largely on the same violations urged by SCM, some 6 months before the xtresent action. FTC Dkt. 8909, filed January 16, 1973. As this court has recently noted in a comparable situation, this factor “takes the ground from under appellants’ argument that they are the vindicators of the ‘public interest’.” Columbia Pictures Indus., Inc. v. American Broadcasting Cos., 501 F.2d 894, 898 (2d Cir. 1974).

      . SCM urges that there is an exception to the “status quo” rule where the party seeking the relief lias established the violation of a statute. Reliance is placed upon Danielson v. Local 275, 479 F.2d 1033 (2d Cir. 1973). The opinion in that case does not announce or rely upon any such rule. As we have already indicated, the injunction statute applicable here (15 U.S.C. § 26) enlists general equitable principles. Every antitrust plaintiff perforce urges a breach of statute, so following the rule suggested by SCM would effectively eliminate the long-established equitable status quo concept, in derogation of the scheme of section 26.
      Further, Danielson is clearly distinguishable from the case at bar. Danielson involved unlawful picketing plus physical harassment over a four month period, all of which was found by the Regional Director of the NLRB to constitute a violation of the National Labor Relations Act. The fact pattern there was simplistic compared to the alleged complex worldwide monopolization pattern here. The pre-picketing status quo clearly apparent and simply cured in Daniel-son is quite distinguishable from the dismantling of the colossal patent apparatus allegedly erected over a score of years.

      . Witness, for example, the following comments of Judge Newman at that hearing:
      One thing I am wondering is whether perhaps there is something you need to do in between the allegation of irreparable injury, which is where you [SCM] are at now, and the full development of a record of witnesses, which is what you contemplate. I am wondering whether you need to in some fashion particularize your claim of irreparable injury, because it’s very easy for anybody to say there is going to be irreparable injury, and I am not sure that just saying that precipitates a full dress hearing.
      Now, I am a little concerned . . . whether there is not some obligation on the plaintiff seeking what is at least the unusual, if not unprecedented, remedy of a preliminary injunction in the Section 2 case to particularize the claim of irreparable injury, rather than standing on the somewhat conclusory allegation that, yes, we have been or will be irreparably injured, and what I’m wondering is whether your burden is not only to particularize your claim, but perhaps to make a rather extensive presentation by affidavit and offer of proof on what it is that ought to require this hearing.
      After all, many preliminary injunctions, in general, anti in antitrust, in particular, have been resolved on affidavits. They have not been multi-week trials, and I am not sure that Xerox needs to accelerate its discovery and prepare witnesses and even come in prepared to cross examine your witnesses until there has been an adequate demonstration on affidavit that at least you have a precise claim of irreparable injury, rather than just the naked pleading.
      Vol. 2, Exhibits, pp. E 637-38, and E 677-78.

      . SCM relies on Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) for the proposition that the ultimate collection of monetary damages does not mean that a plaintiff may not in the interim be irreparably damaged. That case however involved the cancellation of the Ford distributorship of a franchised dealer who had been in business for 20 years. Not only did interim injunctive relief sought there (the enjoining of the termination of the dealership) preserve the status quo, but the cut-off of the dealership would obviously have brought about an immediate and drastic financial peril to the entrepreneur. Here, SCM is now marketing plain paper copiers manufactured by Van Dyk and further indicates it will enter the plain paper copier field with its own product in 1975. The peril to it from a denial of the preliminary relief is clearly of a lesser magnitude than in Semmes. In any event, the claim of financial disaster is not supported by affidavit.


author: DONALD RUSSELL, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Norman Laverne WILCOX, Appellant.
    No. 73-2500.
    United States Court of Appeals, Fourth Circuit.
    Argued Sept. 30, 1974.
    Decided Dec. 3, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1408.

      James J. Caldwell [Court-appointed counsel], Charlotte, N. C., for appellant.
    Michael S. Scofield, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The defendant appeals from his conviction for bank robbery on two grounds: One is the refusal to suppress in-court identification testimony allegedly tainted by an illegal pretrial lineup; the other, the admission of the testimony of two so-called “surprise” government witnesses. We find the contentions to be without merit and accordingly affirm the conviction.

The North Graham Street Branch of the First Union National Bank, Charlotte, North Carolina, was robbed in the afternoon of August 31, 1972 by two black individuals. A bank teller and an eyewitness to . the robbery, Mrs. Edna Norwood had observed one of the robbers on two separate occasions that day prior to the robbery. The first occasion was as she returned from her lunch hour. When she drove into the bank parking lot, she found a car, driven by the person she later identified as the defendant, parked in her normal parking space. Expecting the car to depart, she waited “for a few minutes,” all the time observing the driver of the parked car and being addressed by one of the occupants of the ear until the car vacated the parking space. The driver of the car was thereafter observed by her entering the bank. As Mrs. Norwood was preparing to open her teller window, she saw him in another teller’s line. He left but returned about an hour later.

On his return, the driver was accompanied by another smaller individual. The driver was wearing a hat, sun glasses, and a loud shirt which immediately drew Mrs. Norwood’s attention, causing her to recognize him as “the same guy that I had seen earlier that day.” Both individuals stood in Mrs. Norwood’s teller line, slightly to the right of her window, for two to three minutes. Although Mrs. Norwood was waiting on another customer, she testified that she “kept looking at them” because of her earlier experience with the driver. Suddenly, the smaller bank robber shouted, “get him,” and the larger of the two, later identified by Mrs. Norwood as the defendant, forced the manager and the assistant manager out of their offices and instructed them to lie on the floor by the vault. While the bank employees and customers were lying on the floor as directed, the smaller robber cleared money from the teller drawers and the larger robber stood to the side of the teller cages, gun in hand, surveying the scene. Mrs. Norwood, forced to the floor on her knees, continued to observe these events. The robbers then fled the bank with $4,197.00 in bank funds.

On January 10, 1973 the defendant was indicted for the bank robbery and arraigned for trial on October 1, 1973. On October 19, 1973, six days before the trial, the district court on the government’s motion, ordered the defendant to participate in a lineup. At the lineup, he was required to wear a hat and sun glasses, and to speak the words uttered by the bank robber at the time of the commission of the crime. As a result of the lineup, the defendant was positively identified by Mrs. Nor-wood as the man she had seen three times on the day of the robbery — first as the driver of the car occupying her parking space and twice later in the bank, including the time of the robbery itself.

At trial, the government’s case consisted primarily of the testimony of the bank manager, the testimony of Mrs. Norwood identifying the defendant as the larger of the two unmasked bank robbers, and the testimony of the two allegedly “surprise” government witnesses connecting the defendant to the actual planning and perpetration of the crime.

I.

It is the defendant’s initial contention that the court order requiring him to submit to a lineup and the manner in which it was conducted violated his Fifth Amendment privilege against compulsory self-incrimination, his Sixth Amendment right to assistance of counsel, and his Fourteenth Amendment right to due process. We examine first whether the lineup procedure violated the defendant’s Fifth Amendment privilege.

As in Wade and Gilbert, we find that neither the lineup itself nor anything Wilcox was required to do in the lineup, violated his privilege against self-incrimination. An accused at a lineup may be required to don disguises worn, to take stances assumed, or to speak words uttered by the perpetrator of the crime.

The major thrust of defendant’s argument is, however, that the exclusion of defense counsel from the interview of government counsel with the witness Norwood immediately after the actual confrontation of the defendant and the witness at the lineup amounted to a denial of his constitutional rights as declared in the Wade-Stovall-Gilbert trilogy. The factual basis for this claim is that after the confrontation in the lineup parade, the witness was interviewed in the absence of defense counsel to determine whether she could identify any one of the participants. In her initial interview — lasting at most two minutes • — -Mrs. Norwood, the identifying witness, indicated recognition and requested the opportunity to view the defendant for a second time. This second confrontation occurred in the presence of and without objection from defendant’s counsel. After this second viewing, Mrs. Norwood reaffirmed her initial identification. At this point, the government conducted a second interview with the identifying witness and, after the interview was concluded, made the witness available then and there for an unlimited private interview by defendant’s counsel. The interview conducted by government counsel lasted approximately fifteen minutes. It is this interview, conducted in the absence of counsel, and immediately before the interview of the same witness by defendant’s counsel, that the defendant contends was violative of his constitutional rights. It should be emphasized that, other than the absence of the defendant’s counsel from the interviewing of Mrs. Norwood after the actual confrontation in the lineup, the record is devoid of even the slightest indication of suggestive influence; nor does the defendant contend that there was any. We therefore turn directly to the defendant’s contention that the mere absence of counsel at the interview of Mrs. Nor-wood, after the formal confrontation in the lineup was concluded, called for the suppression of her in-court identification under the rationale of Wade-Gilbert-Stovall.

There is no dispute that the Wade-Gilbert-Stovall trilogy clearly mandates the presence of counsel at an identification lineup where there is a “confrontation compelled by the State between the accused and the victim or witnesses to a crime.” These authorities go farther and make it equally clear that in-court identification testimony will be excluded if it follows confrontation had in the absence of counsel, unless it can be shown that the in-court identification had an independent source or constituted harmless error. The rule so promulgated is generally declared to be an extension of the principle expressed initially in Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, that presence of counsel is constitutionally required at every critical stage of the criminal prosecution; and a “critical stage” for Sixth Amendment purpose exists whenever “substantial rights” of the accused may be adversely affected, Mempa v. Rhay (1967), 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336. Accordingly, “ * * * the principle of Powell v. Alabama and succeeding eases requires that we [as a Court] scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Based on such an analysis, Wade found that when “the accused is exhibited to identifying witnesses”, or, as the majority opinion in United States v. Ash (1973), 413 U.S. 300, 314, 93 S.Ct. 2568, 37 L.Ed.2d 619, stated it, when the accused is subjected to a lineup constituting “a trial-like confrontation”, or, as Justice Stewart puts it in his concurring opinion in Ash, when “the prosecution presents the suspect to witnesses for pretrial identification,” constitutes an event where such “potential substantial prejudice” may be suffered by an accused as to qualify as a “critical stage of the criminal prosecution.” It is this “trial-like confrontation of the accused and the prosecutorial system” — this “confrontation * * * between the accused and the victim or witnesses to a crime” — this confrontation when “the accused is exhibited to identifying witnesses,” often under conditions where he is compelled to act, talk or dress in what may be a suggestive manner creating a substantial potential for misidentification, and where, because of nervous tension or inexperience, he is unlikely to be able to correct at the time or reconstruct later at trial the improperly suggestive manner of presentation without the assistance.of counsel, that make the occasion a “critical stage in the prosecution”, forcing the presence of counsel. Thus in Wade, the Court, elaborating on its conclusions, referred to the possibility of “mistaken identification” and “miscarriage of justice” which may result from “the manner in which the prosecution presents the suspect to witnesses for pretrial identification” and the difficulty of securing a “meaningful confrontation” on the issue of prosecutorial prejudicial lineup procedures in an accurate reconstruction of the lineup procedures in the absence of counsel. As Ash makes clear, however, it was not so much the “lack of scientific precision and inability to reconstruct an event” as “whether confrontation with counsel at trial can [could] serve as a substitute for counsel at the pretrial confrontation” that actually represented the test that made the presence of counsel obligatory at a lineup confrontation. It follows, therefore, that the requirement of counsel, as mandated under Wade and related cases, is limited in application “to the period during which an accused is within sight of a potential identification witness,” or, as Ash puts it, quoting from Wade, at the point where there is a “pretrial confrontation, with the State aligned against the accused,” for the Sixth Amendment [as developed in Wade] applies only to personal confrontations between the accused and the state. To repeat, this confrontation of the accused and the witnesses is the particular period when there is that opportunity for “potential substantial prejudice” through misidentification, that makes presence of counsel obligatory. And this is the construction that has been given Wade from the outset.

In both United States v. Bennett (2d Cir. 1969), 409 F.2d 888 and United States v. Cunningham, supra, two early Circuit cases decided after Wade, the Court refused to go beyond “the actual confrontation between the accused and the victim or witnesses to a crime” in applying Wade. Both of these cases and their holdings are cited and discussed by Judge Wilkey in his dissenting opinion in United States v. Ash (1972) 149 U.S. App.D.C. 1, 461 F.2d 92, 112-113, an opinion which was substantially affirmed by the Supreme Court. 413 U.S. 300, 93 S.Ct. 2568. In this dissent, Judge Wilkey said:

“In one of the earlier circuit decisions after Wade, Judge Friendly correctly appraised the limits of Wade: ‘. . . to require that defense counsel be allowed or appointed to attend out-of-court proceedings where the defendant himself is not present would press the Sixth Amendment beyond any previous boundary.’ In United States v. Cunningham a witness at a lineup was interrogated outside the presence of both the accused and his counsel as to the witness’s identification. The Fourth Circuit held this procedure entirely proper, Judge Winter saying:
“ ‘Here, the lineup was terminated and witnesses were being interrogated outside of the presence of suspects. Confrontation had occurred and was terminated. By the rationale of Wade and Gilbert, counsel was no longer required unless we were prepared to hold that defense counsel must be present whenever the government interrogates a witness whose testimony may be used as part of the government’s case at trial.’ ” (Footnotes omitted.)

It is obvious that, if the requirement of counsel applies solely to the period of confrontation between the accused and the witnesses, as these authorities declare, then the subsequent interrogation of the witnesses by the prosecution as to whether they identified the accused or not at the lineup parade does not present that “serious potential for prejudice [that occurs] in confrontation between an eyewitness and a suspect,” where counsel is required. And such, with a single exception, is the uniform holding of the authorities. One of the leading cases so holding is United States v. Cunningham, supra. In that case, counsel was present at the lineup parade but, because of some argument between counsel for the government and counsel for the defendant, the latter was ejected. It was while counsel for the defendant was absent that the in-court identification witness “picked [the accused] from the lineup.” The defendant asserted that the interrogation of the identifying witness in the absence of counsel was constitutionally invalid, thus raising the same issue as does the appellant in this case. In dismissing the claim, the Court said (423 F.2d p. 1274):

“The interrogation of witnesses in the investigation of crime or in the preparation for trial is not limited by the rules of evidence or the order of proof, and conscious or unconscious attempts to lead witnesses may occur. We do not think that these dangers are any greater in the case of identification witnesses than witnesses who possess other types of knowledge with regard to the commission of a crime. It is not claimed that to date the Supreme Court has required the presence of counsel during the interrogation of all witnesses, and we will not so require with regard to the interrogation of identification witnesses once the actual confrontation has been completed.”

Doss v. United States (9th Cir. 1970) 431 F.2d 601 is to the same effect. There, as here, the defendants conceded the lineup itself was not unfairly conducted. Counsel was present at the confrontation but, as here, they complained that they were not permitted to listen to and hear the remarks passing between the witnesses and the officers “both during the proceeding and immediately afterward.” After observing that the rule in Wade is predicated on a finding of “grave potential for prejudice” during the confrontation, the Court said (431 F.2d pp. 603-604):

“The rationale and decision in Wade is epitomized in the following quotation:
“ ‘Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup which may not be capable of reconstruction at trial and since the presence of counsel itself can often avert prejudice and assure meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid” [of counsel] — as at the trial itself.’ ([388 U.S. at] p. 237, 87 S.Ct. at p. 1937)

“The grave ‘potential for prejudice,’ of course refers to the likelihood of a mistaken identification of a suspect in a lineup, and as the Court carefully pointed out, the probability of such an error in judgment is most often due to ‘the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for 'identification.’ Significantly the Court noted that cross-examination at the trial often affords an adequate means to protect the accused but that a witness at a lineup can be subjected to subtle influences of which he may not be aware — for example, the composition of the lineup, distinctive dress of the subject, etc. Cross-examination might very well not suffice to disclose such covert improprieties as those mentioned in Wade, but we do not believe that the ordinary witness is so unlikely to be schooled in the detection of influences, consisting of verbal suggestions, that he could not recall them on cross-examination. In sum, we conclude that Wade does not support appellant, that the ordinary witness is capable of recalling and recounting conversations concerning the identity of a suspect and that the prosecution need not, in effect, permit defense counsel to ‘sit in’ on conferences with prospective witnesses.”

To the same effect is United States v. Banks (5th Cir. 1973), 485 F.2d 545, 546, 548, cert. denied, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764. In that case, all the witnesses “viewed the lineup and then adjourned with the two FBI agents to a side room before giving an initial response as to the identity of any of the men in the lineup. Counsel for defendants observed the lineup, its preparation and execution, but was not permitted to enter the side room where the witnesses were taken to give their initial responses.” The Court pointed out that, “[T]he witnesses were not prohibited from talking with counsel for the accused after giving their initial responses privately to the FBI agents.” The Court held that in such situation, which parallels so closely the circumstances of this case, the procedure followed “did comply with the constitutional specifications of Wade and Gilbert, and that defendants were not denied effective assistance of counsel.”

In principle Ash, too, supports the ruling of the District Court. After all, the identification of the accused in an interview after a photographic display cannot be distinguished in principle from the identification after a lineup, assuming that the lineup has been validly conducted. In either event, whether the identification was made after a physical viewing of the lineup or after a photographic display, “the possibility of irretrievable prejudice” in an identification, “is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses,” and certainly too “remote” to constitute such interview a “ ‘critical stage’ of the prosecution”. This is particularly true if the accused is given, as he was in this case, equal pretrial access to the identification witness. It was this equal access which the Court in Ash found removed any inequity in the adversarial process and satisfied the goal of professional parity implicit in the Sixth Amendment guarantee.

We conclude, therefore, that there was no error in the District Court’s ruling that the absence of counsel at the interrogation of the identifying witness, following the actual confrontation of the accused and the witness, did not taint the witness’ pretrial identification. We are confirmed in this view by the absence of any evidence or even claim of suggestiveness in the interrogation itself of the accused. Cf., United States v. Banks, supra.

Even were there some defect in the lineup parade or subsequent confrontation, the in-court identification testimony of Mrs. Norwood would still be admissible as based on an independent source. Wade at 241 of 388 U.S., 87 S.Ct. 1926; United States v. Cunningham at 1275, of 423 F.2d; Stanley v. Cox (4th Cir. 1973) 486 F.2d 48, 55, cert. denied, 416 U.S. 958, 94 S.Ct. 1975, 40 L.Ed.2d 309. The record indicates clearly and convincingly that Mrs. Norwood’s in-court identification stemmed from her observations on the date of the crime rather than her viewing of the defendant at the challenged lineup; in fact, this is the plain purport of her testimony that she “never really forgot what he looked like.” Mrs. Norwood was trained to be observant of faces; her responsibilities as a teller demanded such expertise on her part. She had ample opportunity to observe the defendant, first in the bank parking lot under normal, daylight conditions and later in the bank both prior to and during the robbery. The bank robbers were unmasked. While Mrs. Norwood was unable to tell whether or not the defendant was clean shaven at the time of the robbery, it is clear that the mental image from which she identified the defendant stemmed from her observations prior to the lineup. Although she could not recall the color of the clothes worn by the defendant or other participants at the lineup, she had little difficulty describing his dress on the day of the robbery. She also indicated differences in the defendant’s appearance on the date of the robbery and his appearance at trial or at the lineup — e. g., the longer length of his sideburns and his “Afro-bush”. Despite intensive examination by defense counsel, as indicated by the colloquy set out in note 30, Mrs. Norwood’s identification was unwavering, certain, and clearly the result of a source independent of the lineup and admissible as such.

II.

The defendant’s second argument challenges the District Court’s admission of the testimony of Olethia Gibbons and Horace Brewer. It is his contention that the government informally agreed to make available to defendant’s counsel its file, and that such file, when made available, included no statements procured from either Gibbons or Brewer. The subsequent calling of these witnesses by the government, it is argued, took the defendant unfairly by surprise, requiring suppression of their testimony under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

It is clear that the action of the District Court in admitting the testimony of these two witnesses will not justify reversal. Their testimony was not exculpatory and was accordingly not within the Brady rule. Moore v. Illinois (1972) 408 U.S. 786, 794-798, 92 S.Ct. 2562, 33 L.Ed.2d 706, reh. den., 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 155; United States v. Anderson (4th Cir. 1973), 481 F.2d 685, 689-691, aff., 211 U.S. 417, 94 S.Ct. 2253, 41 L.Ed.2d 21. Even had the government procured statements from these witnesses in memoranda setting forth their testimony, it was not obligated to furnish such statements to the defendant prior to trial itself. Rule 16(b), Fed.R.Crim.P.; 18 U.S.C. § 3500; United States v. Westmoreland (D.C.Ind.1967), 41 F.R.D. 419, 424. It is the government’s position, however, that it had no written statements from these two witnesses or even memoranda giving the substance of their testimony. It offered evidence that it only discovered that these witnesses could give any pertinent evidence as the trial was beginning. Government counsel certified to the Trial Court that he had never had any written statement from Gibbons and that he had only rough notes of an FBI interview with Brewer after the trial had begun. A copy of these notes was furnished to defendant’s counsel prior to Brewer’s cross-examination, which is all the defendant was entitled to under § 3500, 18 U.S.C. It is clear the government did not suppress any evidence in its file as made available to defendant’s counsel and that it acted in good faith. United States v. Zammiello (9th Cir. 1970), 432 F.2d 72; United States v. Panzar (5th Cir. 1969), 418 F.2d 1239. Under the circumstances, it was clearly within the discretion of the District Court to admit the testimony of the two witnesses and the exercise of that discretion will not be disturbed on appeal.

Affirmed.

      . Neither the manager nor the assistant manager was able positively to identify the defendant at the subsequent lineup. The manager’s testimony indicated that he was engrossed in reviewing bank records when the robber entered his office, leveled a revolver in his face, and ordered him to the vault area. In being escorted to the vault area, the robber at all times remained behind and out of view of the managers. Although the manager’s initial glimpse of the robber would not permit a positive identification, he was able to describe him in general terms as being a black male, of medium height, about five-eleven, and in his early or mid-twenties.

      . The record indicates that the delay between Wilcox’s indictment and trial was due mainly to a trial for an unrelated bank robbery which had been concluded approximately one week before the lineup challenged in this appeal. Moreover, prior to this other trial, the defendant had been held in the custody of the U. S. Marshal in New Haven, Connecticut — the result of his conviction for still yet another unrelated bank robbery.
      In light of the defendant’s distant trial and confinement, we are constrained to view as meritless his suggestion that the delay in holding the lineup indicated that the government’s case was “critically lacking.” Neither does the time between the identification and trial, without more, render the lineup per se illegal under the proscriptions of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, or on due process grounds tinder Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401. Delay between crime and identification is normally one factor to be considered by the jury in weighing the reliability of the identification. There are a number of recent cases in which the time interval was about as much as that here and the identification testimony was found admissible. See United States v. Hurt (1973), 155 U.S.App.D.C. 217, 476 F.2d 1164 (lapse of 12 .months); Souza v. Howard (1st Cir. 1973), 488 F.2d 462, cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (lapse of about a year); United States v. King (1972), 149 U.S.App.D.C. 61, 461 F.2d 152 (lapse of 14 months).

      . United States v. Wade, supra, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

      . Wade, 388 U.S. at 221-23, 87 S.Ct. 1926; Gilbert, 388 U.S. at 266, 87 S.Ct. 1951; United States v. Jones (4th Cir. 1971) 443 F.2d 1077.

      . The witnesses were instructed neither to talk nor to communicate with one another during or after the lineup. They were then collectively taken into a viewing room where they observed a parade of five individuals, the defendant and four others of similar build and appearance. Each participant was identified only by number. After the parade, each participant was exhibited individually wearing a hat and sun glasses similar to those worn by the bank robber. Defense counsel was present at each of these stages of the proceedings and could point to no instance of suggestion.

      . 388 U.S. at 228, 87 S.Ct. at 1933.

      . Powell was rested on the Fifth Amendment and not the Sixth Amendment, but nonetheless it is regarded generally as the precursor of the Wade rule.

      . See 388 U.S. at 226, 87 S.Ct. at 1932:
      “ * * * It is central to that principle [of Powell] that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.”

      . 388 U.S. at 227, 87 S.Ct. at 1932 (Italics added).

      . 388 U.S. at 272, 87 S.Ct. at 1956.

      . 413 U.S. at 323, 93 S.Ct. at 2583.

      . 388 U.S. at 227 and 272, 87 S.Ct. at 1956. Cf., 388 U.S. at 239, 87 S.Ct. at 1938 :
      “Legislative or other regulations, such as those of local police departments, which eliminate the risk of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ ”
      In keeping with this thought, some commentators have suggested that the requirement of counsel could be obviated if the police authorities would make films of the lineup. Note, Right of an Accused to the Presence of Counsel at a Post-Indictment Lineup, 9 Wm. & Mary L.Rev. 528, 533 (1967) ; Note, United States v. Wade — Right to Counsel at Pre-Trial Lineup, 63 Nw.U.L. Rev. 251, 261 (1969).

      . See, Note, Criminal Law — Right to Counsel — Sixth Amendment Does Not Grant Accused the Right to Counsel at Pre-Trial Photographic Display, 26 Vand.L.Rev. 1323, 1327-8 (1973) ; United States v. Ash, supra, 413 U.S. at 314, 93 S.Ct. 2568.

      . 388 U.S. at 228, 87 S.Ct. at 1933.

      . 388 U.S. at 272, 87 S.Ct. at 1956.

      . See 388 U.S. 224-27, 87 S.Ct. 1926.

        See, also, Note, United States v. Wade—Right to Counsel at Pre-Trial Lineup, 63 Nw.U.L.Rev. 251, 255 (1969), where it is stated that Wade is predicated on the Sixth Amendment, “specifically the right of an accused to confront the witnesses against him and the attendant implied right of cross-examination.”

      . 388 U.S. at 227-228, 87 S.Ct. at 1933.

      . 413 U.S. at 316, 93 S.Ct. at 2577.

      . United States v. Cunningham (4th Cir. 1970), 423 F.2d 1269, 1274, n. 3.

      . 413 U.S. at 311, 93 S.Ct. 2568 and 388 U.S. at 235-6, 87 S.Ct. 1926, 1937.

      . See 413 U.S. at 309-12, 93 S.Ct. 2568.

        See, also, Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent? 72 Mich.L.Rev. 719, 761, n. 276. In this article, the author, in elucidating on the holding in Ash, said the question there decided was “not whether counsel can help to guarantee a fair trial but whether the defendant required counsel’s assistance in a confrontation with the procedural system or a skilled adversary. Since the defendant’s presence is a sine qua non of confrontations, the sixth amendment right to counsel does not extend to procedures, such as photographic displays, that do not personally involve the defendant.”

      . In so restricting the scope of the rule, the Court was necessarily making a judgment on the degree of “potential for prejudice” required to mandate presence of counsel and stated it in terms of “grave potential for prejudice.” 388 U.S. at 236-237, 87 S.Ct. 1926. It has been aptly observed that if the mere possibility of prejudice is regarded as sufficient to compel the presence of counsel, “the result would be the presence of a very harried and disgruntled attorney at every stage of criminal investigation wherein the slightest taint of prejudice to the defendant might inhere.” Note, Extension of the Sixth Amendment Right to Counsel — The Road from Wade to Ash, 7 U. of Rich.L.Rev. 139, 149 (1972). However, Wade very carefully circumscribes its ruling and, weighing the possible “prejudice”, fixes the boundaries of its rule as the time period involved in the actual setting up and operation of the confrontation of accused and witness.

      . Note, The Right to Counsel at Pre-Trial Lineups, 42 UMKC L.Rev. 251, 252 (1973).

      . People v. Williams (1971) 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942, a 4-3 decision, is tlie only contrary authority. This case, it would appear is weakened by the subsequent decision of the same court in People v. Lawrence (1971) 4 Cal.3d 273, 93 Cal.Rptr. 204, 481 P.2d 212, which upheld an identification made in the absence of counsel on a viewing of a picture of a simulated lineup. In so holding, “The Court observed that the need for any identification at the time of viewing outside the context of a formal lineup was slight.” 1972 Utah L.Rev. 100 at 102. See 481 P.2d at p. 215. Williams, also, was rejected in State v. Favro (1971) 5 Wash.App. 311, 487 P.2d 261.

      . Professor Grano in his article cited supra, instances this case by way of contrast with People v. Williams, supra, as authority for the proposition that the presence of counsel is not required at identification immediately after lineup. 72 Mich.L.Rev. at 726, n. 53.

      . Cf., Note Lawyers and Lineups, 77 Yale L.J. 390, 397-8. In this article, the author deals with the role of counsel at the lineup: May he engage in “obstructionist efforts in a stationhouse” as the Government contended was the case in Cunningham, or is his role largely “that of a witness”? In Ash, supra, Justice Stewart described the role of counsel “primarily as an observer.” 413 U. S. at 324, 93 S.Ct. 2568.

      . See, also, State v. Favro, supra, 5 Wash. App. 311, 487 P.2d 261 where, in denying a claim of invalid identification on the same grounds as are pressed here, the Court said (pp. 262-263) :
      “ * * * Ilis objection was to the identification of the suspect out of his presence following the lineup. It is urged that the identification is a part of the lineup and the lineup is therefore not completed until the identification is made. We disagree. While it may be good procedure to identify the accused at the lineup, identification follows the lineup. The purpose of counsel at the lineup is to prevent impermissible suggestiveness or influence at the lineup proceeding. Mr. Favro argues that the police might improperly assist the eyewitness in the identification following the lineup. This unfortunate possibility is present throughout the pretrial proceedings up to the time of in-court testimony by the eyewitness. Skillful cross-examination is the remedy for such purported misconduct. To hold otherwise is to require the presence of counsel whenever a witness who will testify about the identity of the ac-eused is interrogated by the police. * * * The goal is to detect any unfairness in the confrontation between the witness and the accused and to insure that any suggestion made at that time by the law enforcement officer, either intentionally or unintentionally, is observed. The basis for the requirement of the presence of counsel is the presence of the accused when confronted by the witness or witnesses.” (Emphasis in the opinion.)
      In Ash, the Court said (p. 318, 413 U.S., P. 2578, 93 S.Ct.) :
      “ * ...... The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.”

      . 413 U.S. at 325, 93 S.Ct. at 2581. See, also, United States v. Cunningham, supra.

      . 413 U.S. at 319, 93 S.Ct. 2568.

      . DEFENSE COUNSEL : So the first time you picked him it was not on account of his facial appearance?
      MRS. NORWOOD: When he first—

        DEFENSE COUNSEL: You did not recognize his facial appearance, did you?
      MRS. NORWOOD: Yes.
      DEFENSE COUNSEL: You are saying now that you did ?
      MRS. NORWOOD: Yes. That’s why I asked to see him again.
      DEFENSE COUNSEL: So now you are saying that you did or did not recognize?
      MRS. NORWOOD : I did. I picked Number Two.
      DEFENSE COUNSEL: From his looks?
      MRS. NORWOOD: From when he walked in the door the very first time I picked Number Two.
      DEFENSE COUNSEL: You picked him?
      MRS. NORWOOD: Yes Sir.
      DEFENSE COUNSEL: Uhuh. Now, did your seeing him in this line-up refresh your recollection as to what the person looked like that came into the bank, having seen him last Friday does that now refresh your memory as to what the man looked like who came into the bank?
      MRS. NORWOOD: I never really forgot what he looked like.

      DEFENSE COUNSEL: You say you never have really forgotten?
      MRS. NORWOOD: No.
      Trial Transcript at 29, 35 (Italics added).