author: BAZELON, Chief Judge: MacKINNON, Circuit Judge WILKEY, Circuit Judge

text:
    SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, suing in its own name and in the name of the United States, et al., Appellants, v. Richard M. NIXON, Individually and as President of the United States.
    No. 74-1258.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 2, 1974.
    Decided May 23, 1974.

      Samuel Dash, Chief Counsel, Senate Select Committee on Presidential Campaign Activities, Washington, D. C., with whom Rufus Edmisten, Deputy Counsel, James T. Hamilton, Asst. Chief Counsel, Richard B. Stewart, Sp. Counsel, Ronald D. Rotunda, Asst. Counsel, Senate Select Committee on Presidential Campaign Activities, Washington, D. C., Sherman L. Cohn, Eugene Gressman and Jerome A. Barron, Washington, D. C., were on the brief for appellants.
    John J. Chester, Washington, D. C., with whom James St. Clair, Boston, Mass., Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, Washington, D. C., and Charles Alan Wright, Austin, Tex., was on the brief, for appellee. George P. Williams, Washington, D. C., also entered an appearance for appellee.
    Philip A. Laeovara, Counsel to the Sp. Prosecutor, Washington, D. C., with whom Leon Jaworski, Sp. Prosecutor and Peter M. Kreindler, Executive Asst, to the Sp. Prosecutor, Washington, D. C., were on the brief for the Sp. Prosecutor as amicus curiae.
    Irving Jaffe, Acting Asst. Atty. Gen., Robert E. Kopp, Washington, D. C., and Thomas G. Wilson, Alexandria, Va., filed a brief on behalf of the United States as amicus curiae.
    Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON and WILK-EY, Circuit Judges.
   BAZELON, Chief Judge:

In this suit, the United States Senate Select Committee on Presidential Campaign Activities seeks a declaration that President Richard M. Nixon has a legal duty to comply with its subpoena duces tecum, directing him to produce “original electronic tapes” of five conversations between the President and his former Counsel, John W. Dean, III. By memorandum and order of February 8, 1974, the District Court for the District of Columbia denied the Committee’s motion for summary judgment and' dismissed the suit without prejudice. The Committee appeals. For the reasons stated herein, we affirm.

I.

The Select Committee was created on February 7, 1973, by a resolution of the Senate empowering the Committee to invéstigate “illegal, improper or unethical activities” occurring in connection with the presidential campaign and election of 1972, and “to determine . . . the necessity or desirability of new congressional legislation to safeguard the electoral process by which the President of the United States is chosen.” In testimony before the Committee on July 16, 1973, Alexander Butterfield, a former Deputy Assistant to the President, stated that certain presidential conversations, presumably including those about which Mr. Dean and others had previously testified, had been recorded on electronic tapes. The Committee thereupon attempted informally to obtain certain tapes and other materials from the President. When these efforts proved unsuccessful, the Committee issued the subpoena that is the subject of this appeal.

This subpoena directed the President to make available to the Committee taped recordings of five conversations that had occurred on specified dates “between President Nixon and John Wesley Dean, III, discussing alleged criminal acts occurring in connection with the Presidential election of 1972.” The subpoena was duly served on the President, together with a second subpoena duces tecum, requiring production of all records that concerned, directly or indirectly, the “activities, participation, responsibilities or involvement” of twenty-five named persons “in any alleged criminal acts related to the Presidential election of 1972.” Both subpoenas were returnable on July 26. By letter dated July 25, 1978, addressed to Senator Ervin as chairman of the Select Committee, the President declined to comply with either subpoena, asserting in justification the doctrine of executive privilege. The President stated that, although he had directed “that executive privilege not be invoked with regard to testimony by present and former members of [his] staff concerning possible criminal conduct,” executive privilege was being asserted with respect to “documents and recordings that cannot be made public consistent with the confidentiality essential to the functioning of the Office of the President.”

The Committee, in its own name and in the name of the United States, then brought this action to enforce the subpoenas. It alleged in its complaint that “the subpoenaed electronic tapes and other materials are vitally and immediately needed if the Select Committee’s mandate and responsibilities are to be fulfilled.” On August 29, the Committee filed a motion for summary judgment, seeking a declaration that the subpoenas were lawful and that the President’s refusal to honor them, on the ground of executive privilege or otherwise, was illegal. On October 17, the District Court dismissed the Committee’s action for want of statutory subject matter jurisdiction. The Committee appealed to this Court.

While the appeal was pending, the Senate on November 2 passed a resolution stating that the Select Committee is authoriTied to subpoena and sue the President and that the Committee, in subpoenaing and suing the President, was acting with valid legislative purposes and seeking information vital to the fulfillment of its legitimate legislative functions. The Select Committee asked this Court to hold its appeal in abeyance pending action on a bill, then before Congress, which conferred jurisdiction on the District Court for the District of Columbia in any civil action that the Committee theretofore or thereafter brought “to enforce or secure a declaration concerning the validity of any subpoena.” This bill was enacted by Congress and the President having failed to exercise his veto, took effect on December 19, 1973. On December 28, in light of this new jurisdictional statute, we remanded the case to the District Court for further consideration.

Following the remand, on January 25, 1974, the District Court issued an order quashing the Committee’s subpoena concerning twenty-five individuals. The Court found the subpoena “too vague and conclusory to permit a meaningful response” and, referring to our intervening opinion in Nixon v. Sirica, held the subpoena “wholly inappropriate given the stringent requirements applicable where a claim of executive privilege has been raised.” No appeal was taken from this order and the matter is not before us.

At the same time, the District Court issued two orders concerning the subpoena of the five identified tapes. In the first, the Court requested the Watergate Special Prosecutor to submit a “statement concerning the effect, if any, that compliance with [the subpoena] would, in his opinion, be likely to have upon pending criminal cases or imminent indictments under his supervision.” In the second order, finding the President’s claim of executive privilege “too general and not sufficiently contemporaneous to enable the Court to determine the effect of that claim under the doctrine of Nixon v. Sirica,” the Court requested the President to submit “a particularized statement addressed to specific portions of the subpoenaed tape recordings indicating whether he still wishes to invoke executive privilege as to these tapes and, with regard to those portions as to which the privilege is still asserted, if any, the factual ground or grounds for his determination that disclosure to the Select Committee would not be in the public interest.” The President responded to this order by letter dated February 6, 1974. Rather than setting forth the particularized claims and reasons for which the District Court had called, the President reasserted executive privilege generally as to all of the subpoenaed material, citing as the bases for his claim the need for confidentiality of conversations that take place in the performance of his constitutional duties, and the possibly prejudicial effects on Watergate criminal prosecutions should the contents of the subpoenaed conversations become public. The latter concern was raised with reference to the President’s constitutional duty to see that the laws are faithfully executed.

On February 8, the District Court entered the order at issue here. In the memorandum accompanying the order, the Court dealt first with the President’s assertion that the matter before it constituted a non-justiciable political question. Finding the reasoning of this Court in Nixon v. Sirica, which concerned a grand jury subpoena, “equally applicable to the subpoena of a congressional committee,” the District Court held that, under that case and the relevant Supreme Court precedents, the issues presented to it were justiciable. The Court then turned, in the terms of Nixon v. Sirica, to a weighing of “the public interests protected by the President’s claim of privilege against the public interests that would be served by disclosure to the Committee in this particular instance.” The Court found, first, that the Select Committee had failed to demonstrate either “a pressing need for the subpoenaed tapes or that further public hearings before the Committee concerning the content of those tapes will at this time serve the public interest.” At the same time, however, the Court rejected the President’s claim of privilege insofar as it was premised on the public interest in confidentiality, because, in its view, “the President’s unwillingness to submit the tapes for the Court’s in camera ex parte inspection or in any other fashion to particularize his claim of executive privilege precludes judicial recognition of that privilege on confidentiality grounds.” The Court then, in the discharge of its duty as a court of equity, undertook independently to weigh the public interest in safeguarding pending criminal prosecutions from possibly prejudicial pretrial publicity, against the Committee’s asserted need for the subpoenaed tapes. In the particular circumstances of this case, including the fact that the tapes had already been made available to the June, 1972, grand jury of this district, the Court found it necessary to assign priority to the public interest in “the integrity of the criminal process, rather than the Committee’s need.” It therefore dismissed the Committee’s suit without prejudice.

II.

The Select Committee contends that, once having determined that the President’s general confidentiality privilege failed, the District Court had no authority to engage in a balancing of interests, where the result was to pass judgment on the magnitude of need underlying the Committee's decision to authorize and issue a subpoena. Alternatively, the Committee argues that any such balancing must favor, as more urgently affected with the public interest, the Committee’s asserted need over the public interest in the fairness of the criminal process. We find it unnecessary to reach either contention. Neither the Committee’s position nor, if we read it correctly, that of the District Court accurately reflects the doctrines of Nixon v. Sirica, doctrines that, at least by analogy, we think controlling here.

In Nixon v. Sirica, we were confronted with a challenge to an order of the District Court, entered as a means of enforcing a grand jury subpoena, requiring the President to produce the subpoenaed items to enable the Court to determine by in camera inspection whether the items were exempted from disclosure by evidentiary privilege. In his challenge to this order, the President argued that the District Court had acted beyond its jurisdiction. He contended that he is absolutely immune in all cases from the compulsory process of the courts, and that whenever, in response to a grand jury subpoena, he interposes a formal claim of privilege, that claim without more disables the courts from inquiring by any means into whether the privilege is applicable. We rejected both contentions, holding, contrary to the President, that at least with respect to grand jury subpoenas, it is the responsibility of the courts to decide whether and to what extent executive privilege applies. And we held further that, generally, “application of Executive privilege depends on a weighing of the public interest protected by the privilege against the public interests that would be served by disclosure in a particular case.”

As in the present case, our attention in Nixon v. Sirica was directed solely to one species of executive privilege — that premised on “the great public interest in maintaining the confidentiality of conversations that take place in the President’s performance of his official duties.” We recognized this great public interest, analogizing the privilege, on the basis of its purpose, “to that between a congressman and his aides under the Speech and Debate Clause; to that among judges, and between judges and their law clerks; and ... to that contained in the fifth exemption to the Freedom of Information Act.” We recognized, moreover, that protection of the presidential decision-making process requires a promise that, as a general matter, its confidentiality would not be invaded, even to the limited extent of a judicial weighing in every case of a claimed necessity for confidentiality against countervailing public interests of the moment.

We concluded that presidential conversations are “presumptively privileged,” even from the limited intrusion represented by in camera examination of the conversations by a court. The presumption can be overcome only by an appropriate showing of public need by the party seeking access to the conversations. In Nixon v. Sirica, such a showing was made by the Special Prosecutor:

[W]e think that this presumption of privilege premised on the public interest in confidentiality must fail in the face of the uniquely powerful showing made by the Special Prosecutor in this case. The function of the grand jury, mandated by the Fifth Amendment for the institution of federal criminal prosecutions for capital or other serious crimes, is not only to indict persons when there is probable cause to believe they have committed crime, but also to protect persons from prosecution when probable cause does not exist. As we have noted, the Special Prosecutor has made a strong showing that the subpoenaed tapes contain evidence peculiarly necessary to the carrying out of this vital function— evidence for which no effective substitute is available. The grand jury here is not engaged in a general fishing expedition, nor does it seek in any way to investigate the wisdom of the President’s discharge of his discretionary duties. On the contrary, the grand jury seeks evidence that may well be conclusive to its decisions in on-going investigations that are entirely within the proper scope of its authority.

We concluded that this strong showing of need was sufficient to overcome the general presumption of privilege premised on the public interest in the confidentiality of the presidential decision-making process. We held that it was within the power of the District Court “[to] order disclosure of all portions of the tapes relevant to matters within the proper scope of the grand jury’s investigations, unless the Court judges that the public interest served by nondisclosure of particular statements or information outweighs the need for that information demonstrated by the grand jury.” It became, therefore, incumbent upon the President to make particularized showings in justification of his claims of privilege, and upon the District Court to follow procedures, including in camera inspection, requiring careful deliberation before even the demonstrated need of the grand jury might be satisfied.

III.

The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government — a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President’s deliberations —we believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. Contrary, therefore, to the apparent understanding of the District Court, we think that Nixon v. Sirica requires a showing of the order made by the grand jury before a generalized claim of confidentiality can be said to fail, and before the President’s obligation to respond to the subpoena is carried forward into an obligation to submit subpoenaed materials to the Court, together with particularized claims that the Court will weigh against whatever public interests disclosure might serve. The presumption against any judicially compelled intrusion into presidential confidentiality, and the showing requisite to its defeat, hold with at least equal force here.

Particularly in light of events that have occurred since this litigation was begun and, indeed, since the District Court issued its decision, we find that the Select Committee has failed to make the requisite showing. In its papers below and in its initial briefs to this Court, the Committee stated that it seeks the materials in question in order to resolve particular conflicts in the voluminous testimony it has heard, conflicts relating to “the extent of malfeasance in the executive branch,” and, most importantly, the possible involvement of the President himself. The Committee has argued that the testimony before it makes out “a prima facie case that the President and his closest associates have been involved in criminal conduct,” that “the materials sought bear on that involvement,” and that these facts alone must defeat any presumption of privilege that might otherwise prevail.

It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee’s showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee’s functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it “would aid in a determination whether legislative involvement in political campaigns is necessary” and “could help engender the public support needed for basic reforms in our electoral system.” Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes.

We turn first to the latter contention. In the circumstances of this ease, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee’s constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. Moreover, so far as these subpoenaed tapes are concerned, the investigative objectives of the two committees substantially overlap: both are apparently seeking to determine, among other things, the extent, if any, of presidential involvement in the Watergate “break-in” and alleged “cover-up.” And, in fact, the Judiciary Committee now has in its possession copies of each of the tapes subpoenaed by the Select Committee. Thus, the Select Committee’s immediate oversight need for the subpoenaed tapes is, from a congressional perspective, merely cumulative. Against the claim of privilege, the only oversight interest that the Select Committee can currently assert is that of having these particular conversations scrutinized simultaneously by two committees. We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee’s subpoena'.

The sufficiency of the Committee’s showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress’s legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury’s need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee’s argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events.

By order of May 2, 1974, this Court took judicial notice of the President’s public release of transcripts, with partial deletions, of each of the tapes at issue here. In light of the President’s action we requested the Select Committee to file a supplemental memorandum stating whether the Committee “has a present sense of need for the materials subpoenaed” and, if so, in what specific respects the transcripts now available to the Committee, and to the public generally, are deficient in meeting that need. In its response to this order, the Committee states, first, that it needs access to the tapes in order to verify the accuracy of the public transcripts. In fact, however, the originals of four of the five tapes subject to the Committee’s subpoena have been transmitted by the President to the District Court, pursuant to that Court’s order, and are now in the District Court’s possession. Thus, as the Committee’s counsel acknowledged at oral argument, the subpoena now applies only to the copies of the tapes that remain in the President’s possession. This being so, however, the Committee would encounter, in some measure, the same problem of verification with respect to four of the five tapes as it claims now to confront in the transcripts.

The Committee also says that certain portions of the conversations have been deleted from the transcripts, with notations that they contain material “unrelated to Watergate” or “unrelated to Presidential action,” and that, were the tapes played on highly sensitive equipment, portions that the transcripts designate as “inaudible” might be understood. Finally, the Committee argues that inflection and tone of voice that the tapes would supply are indispensable to a correct construction of the conversations. The Committee has, however, shown no more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution of the ambiguities that the transcripts may contain. More importantly, perhaps, insofar as such ambiguities relate to the President’s own actions, there is no indication that the findings of the House Committee on the Judiciary and, eventually, the House of Representatives itself, are so likely to be inconclusive or long in coming that the Select Committee needs immediate access of its own.

IV.

In approaching our judicial function, we have no doubt that the Committee has performed and will continue to perform its duties fully in the service of the nation. We must, however, consider the nature of its need when we are called upon, in the first such case in our history, to exercise the equity power of a court at the request of a congressional committee, in the form of a judgment that the President must disclose to the Committee records of conversations between himself and his principal aides. We conclude that the need demonstrated by the Select Committee in the peculiar circumstances of this case, including the subsequent and on-going investigation of the House Judiciary Committee, is too attenuated and too tangential to its functions to permit a judicial judgment that the President is required to comply with the Committee’s subpoena. We therefore affirm the order dismissing the Committee’s action without prejudice, although on grounds that differ from those announced by the District Court.

Affirmed.

MacKINNON, Circuit Judge

(concurring) :

I concur in the result reached by the foregoing opinion but have some additional comments.

As I argued in dissent in Nixon v. Sirica, 159 U.S.App.D.C. 58, 87-120, 487 F.2d 700, 729-762 (1973), the President, as distinct from the executive establishment generally, possesses a constitutionally founded privilege enabling him to protect the confidentiality of conferences with his advisors. Recognition of that presidential privilege would dispose of the demands made by the instant subpoena, but failing majority consensus on this point I concur generally in the reasoning of the foregoing opinion as embracing an accurate analysis and sound application of the principles established in Nixon v. Sirica. This position evidences no retreat from my previously expressed views on the force, validity and importance of congressional subpoenas, id. at 95-96, 487 F.2d at 737-738, nor does it reflect a comparatively higher esteem for judicial subpoenas. Rather, my concurrence today is premised on the basic proposition that enforcement of any subpoena, whether congressional or judicial, depends in the first instance upon an assessment of the immediate purpose, object and need which prompted its issuance. Thus, even though recognizing that the legislative function is no less important than the prosecutorial, I agree that the Senate Committee has failed to demonstrate a present need of sufficient urgency to overcome even the qualified presidential privilege recognized by the majority in Nixon v. Sirica. Additionally, while I would not characterize the Senate Committee’s need as “merely cumulative,” it bears particular emphasis that legislation involves a cooperative effort of both the House and the Senate, that the House Committee on the Judiciary already possesses the recordings sought here, and that these materials more than likely eventually will be released to the public.

WILKEY, Circuit Judge

(concurring) :

On my own analysis our logical first conclusion should be that the constitutional principle of separation of powers makes the issue here a political question and therefore not justiciable (Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1968), and Nixon v. Sirica, 159 U.S.App.D.C. 120-157, 487 F.2d 700, 762-799 (1973) (Wilkey, J., dissenting) ); however, I agree that, taking the majority opinion in Nixon v. Sirica as still prevailing, Chief Judge Bazelon's opinion is likewise a sound basis for the action we take, and I therefore join therein without further reservation.

      . Senate Select Committee on Presidential Campaign Activities v. Nixon, 370 F.Supp. 521 (D.D.C.1974).

      . Senate Resolution 60, 93rd Cong., 1st Sess. § 1(a) (1973).

      . Section 3(a)(5) of Senate Resolution 60, supra, empowers the Committee:
      * * * to require by subpoena * * * any department, agency, officer, or employee of the executive branch of the United States Government * * * to produce for its consideration or for use as evidence in its investigation and study any * * * tapes, or materials relating to any of the matters or questions it is authorized to investigate and study which they or any of them may have in their custody or under their control * * *.

      . Joint Appendix at 26-27.

      . Joint Appendix at 29-33.

      . Joint Appendix at 35.

      . Complaint of the Senate Select Committee on Presidential Campaign Activities, et al., at 8; Joint Appendix at 8.

      . Senate Select Comm. on Presidential Campaign Activities et al. v. Nixon, 366 F.Supp. 51 (D.D.C.1973).

      . Senate Resolution 194, 93rd Cong., 1st Sess. (1973).

      . Pub.L.No. 93-190 (Dec. 18, 1973), to be codified as 28 U.S.C. § 1364.

      . Order, No. 73-2086 (D.C.Cir., Dec. 28, 1973) (en banc).

      . 159 U.S.App.D.C. 58, 73-76, 487 F.24 700, 716-718 (1973).

      . Order, C.A. 1593-73 (D.D.C. Jan. 25, 1974) ; Joint Appendix at 148.

      . Order, C.A. 1593-73 (D.D.C. Jan. 25, 1973) ; Joint Appendix at 144.

      . Order, C.A. 1593-73 (D.D.C. Jan. 25, 1974) ; Joint Appendix at 139-140.

      . Joint Appendix at 162-63.

      . 370 F.Supp. at 522.

      . Id.

      . 487 F.2d at 704.

      . 487 F.2d at 708-716.

      . 487 F.2d at 716.

      . 487 F.2d at 717.

      . Id.

      . 487 F.2d at 705, 717-718.

      . 487 F.2d at 717 (citations omitted).

      . 487 F.2d at 718.

      . 487 F.2d at 718-722.

      . 487 F.2d at 722.

      . See text and note at note 18, supra.

      . Brief of the Senate Select Committee, et al., at 27-28.

      . E.g., Supplemental Memorandum of the ¡Senate Select Committee, et al., at 2.

      . Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 788, 794 (1971). See Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

      . 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

      . 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933).

      . 487 F.2d at 718.

      . Brief of Senate Select Committee, et al., at 27-28.

      . B.g., Reply Brief of Senate Select Committee, et al., at 21-23.

      . U.S.Const., art. I, § 2, 1[5.

      . See 487 F.2d at 718.

      . See In re Grand Jury Subpoena Duces Tecum to Nixon, 360 F.Supp. 1 (D.D.C. 1973).

      . Supplemental Memorandum of the Senate Select Committee in Response to this Court’s Order of May 2, 1974, at 3.


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    CAPITAL TELEPHONE COMPANY, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Boris and Annette F. Squire, d/b/a Air Page, Intervenor.
    No. 72-1715.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 30, 1973.
    Decided May 24, 1974.

      Henry A. Solomon, Washington, D. C., for appellant.
    Gregory M. Christopher, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., were on the brief for appellee.
    Jeremiah Courtney and Arthur Blooston, Washington, D. C., were on the brief for intervenor.
    Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.
   MacKINNON, Circuit Judge:

Capital Telephone Co. (Capital) appeals from a decision of the Federal Communications Commission (the Commission) denying its application for authority to construct and operate a one-way radio paging station at Albany, New York. Capital contends that the Commission’s action deprived it of a comparative hearing in violation of its statutory right. We find the Commission’s action to be in accord with the governing statute and therefore affirm its decision.

I

Albany, Schenectady and Troy (the A-S-T area) are three cities in upstate New York located in close proximity of each other. Following the Commission’s allocation of two high-band radio channels (152.24 and 158.70 MHz) for one-way paging service by communications common carriers, four carriers applied for these channels in the A-S-T area. Peter Bakal filed an application requesting 152.24 MHz at Schenectady. Appellant Capital, a corporation wholly owned by Bakal, requested 158.70 MHz at Albany, and intervenor Air Page applied for the same frequency (158.70 MHz) at Troy. A fourth applicant, Pattersonville Telephone Co., also filed an application for 152.24 MHz to operate from Rotterdam Junction about 10 miles from Schenectady. All these applications were considered by the Commission at the same time to assure that no applicant would get a “head start” in this new field of high-band paging.

Capital is a corporation wholly owned by Bakal who is also its president. Although Bakal has a transmitter located in Schenectady and Capital has a transmitter in Albany, both transmitters are

operated from Bakal’s central control and switchboard in Schenectady. The Commission noted that Bakal had applied for 152.24 MHz at Schenectady, that Capital had applied for 158.70 MHz at Albany, and that these two.applicants were “affiliated in ownership and management.”

The Commission recognized the injustice that would be done to Air Page if both the Bakal and capital applications were granted. This would, in effect, grant to one individual the use of all the most desirable available high-band paging channels in the A-S-T area and leave Air Page to attempt to compete in the same area with the less desirable low-band channel it was then operating. In this situation, to conform to what it considered to be a fair and equitable distribution of the available frequencies, the Commission took cognizance of the identity of interest between Bakal and Capital and pierced the corporate veil of Capital. This resulted in Bakal and Capital being considered as one applicant. Accordingly the Commission conditionally granted Bakal’s personal application (for 152.24 MHz at Schenectady) pursuant to 47 C.F.R. 21.29, denied Capital’s application (for 158.70 MHz at Albany) and granted Air Page’s application (for 158.70 MHz at Troy). Pattersonville Tel. Co., 34 F.C.C.2d 258 (1972). In doing so the Commission stated:

We believe that it would not be either fair or realistic if we were to close our eyes to the relationship between the Bakal and Capital applications. [A] comparative hearing between Capital and Air Page for the 158.70 MHz frequency would serve no useful purpose, in our view, because as a matter of policy we would consider it inequitable for Dr. Bakal to be licensed to both 152.24 MHz and 158.70 MHz while Air Page, a qualified applicant, would be limited to operating on a technically inferior frequency in the 35 MHz band in the same general area.

34 F.C.C.2d at 262 (emphasis added). The Commission found that this disposition of the channels along with the operation of the Pattersonville frequency, which it also granted, would provide effective service and competition in the area, and precedent for its action was found in the Commission’s earlier decision in Mobile Radio Communications, Inc., 29 F.C.C.2d 62 (1971). In its decision denying Capital’s petition for reconsideration the Commission pointed out the Capital/Bakal application had not justified a need for both scarce channels “particularly in the face of a competing request from a qualified licensee for one of those channels” and that piercing the corporate veil and applying 47 C.F. R. 21.29 to the partial grant of Bakal’s application did not violate the well known strictures of Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).

II

The Communications Act of 1934, as amended, specifies the standards the Commission shall apply in granting licenses:

In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.

47 U.S.C. § 307(b) (1970) (emphasis added). We find that the Commission, in Conforming to this statutory admonition “to provide a fair, efficient, and equitable distribution of radio service,” validly exercised its discretion in piercing the corporate veil of Capital, in treating Bakal and Capital as one applicant, and in only partially granting their two applications.

The broad equitable standards of the statute, enacted to further public convenience, clearly support the Commission’s decision to look beyond the corporate entity to serve the interests of fairness, justice and equity. By directing the Commission to provide a fair and equitable distribution of radio service, the statute protects both the general public and other broadcasters. It would do violence to the statutory command to grant both desirable frequencies to a single commonly controlled enterprise having only one real owner and manager and yet compel another qualified applicant to broadcast on a much less satisfactory channel. This decision is merely an application of the Mobile Radio doctrine which directs that where one applicant desires both of two available frequencies and another qualified applicant is available, the Commission will grant one frequency to each applicant as a matter of sound policy.

The courts have consistently recognized that a corporate entity may be disregarded in the interests of public convenience, fairness and equity. E. g., Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 322, 59 S.Ct. 543, 83 L.Ed. 669 (1939); Chicago Milwaukee & St. Paul Ry. Co. v. Minneapolis Civic & Commerce Ass’n,’ 247 U.S. 490, 500-501, 38 S.Ct. 553, 62 L.Ed. 1229 (1918); Francis O. Day Co. v. Shapiro, 105 U.S. App.D.C. 392, 396-397, 267 F.2d 669, 673-674 (1959). The general rule was stated in United States v. Milwaukee Refrigerator Transit Co., 142 F. 247, 255 (C.C.E.D.Wis.1905), as follows:

If any general rule can be laid down, in the present state of authority, it is that a corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.

Capital contends that it was improper to treat it as Bakal’s alter ego because the prerequisites for piercing the corporate veil are not satisfied by the facts of this case. However, we need not pause to consider whether Capital would be Bakal’s alter ego under the strict standards of the common law alter ego doctrine which would apply in a tort or contract action. The contest in this case is over a license in a regulated industry and the applicable standard appears in the statute, not in court decisions involving civil suits. See, e. g., General Tel. Co. v. United States, 449 F.2d 846, 855 (5th Cir. 1971); H. P. Lambert Co. v. Secretary of Treasury, 354 F.2d 819, 822 (1st Cir. 1965); Mansfield Journal Co. (FM) v. FCC, 86 U.S.App.D.C. 102, 111, 180 F.2d 28, 37 (1950); Central & Southern Motor Freight Tariff Ass’n v. United States, 273 F.Supp. 823, 831-832 (D.Del.1967). In the Central & Southern decision, supra, the court stated:

This Court finds the Commission’s treatment of the wholly-owned consolidator issue inadequate. What is disturbing is the mechanistic, metaphysical incantation of the doctrinal bar of the corporate veil. Such doctrines lose much of their sacrosanctity when urged in the context of regulated industries. The fact that a subsidiary corporation exists should be a starting point for searching inquiry, not the finish line.

273 F.Supp. 831-832.

In our Mansfield Journal decision, supra, two newspapers owned and controlled by the same family applied for radio broadcasting licenses in nearby towns. The FCC denied one application on the ground that the applicant’s past monopolistic practices were contrary to the public interest. In denying the other application, the FCC looked beyond the corporate name and took cognizance of the identity of ownership and control between the two corporations. Affirming the FCC’s authority to pierce the corporate veil in carrying out the statutory objectives, the court stated:

While these two newspapers were separate corporations, with separate editorial staffs, and located in communities over fifty miles apart, the record shows that one family owns all of the stock in both corporations and that the owners took very active part in the control and policy formulation of the newspapers. We think the Commission was entitled to ascertain, and base its findings upon, the true locus of control.
* * # -X- * *
This is not to disregard the fact that the two newspaper companies conduct separate businesses. It is rather to recognize that the true applicant in each of these cases is the same individual, or group of individuals, and that the Commission is empowered to consider the conduct and history of the applicant before deciding to grant the benefits represented by a broadcasting license. The Commission, in the words of Chief Justice Marshall, is entitled to “look beyond the corporate name, and notice the character of the individual.” Bank of the United States v. Deveaux, 1809, 5 Cranch [9 U.S.] 61 at page 90, 3 L.Ed. 38. To carry out statutory objectives, it is frequently necessary to seek out- and give weight to the identity and characteristics of the controlling officers and stockholders of a corporation. [Citations follow.]

86 U.S.App.D.C. at 111, 180 F.2d at 37.

In the present case Capital is wholly owned by one individual who is also the president and manager of the corporation. This same individual operates and controls from the same office another business that is substantially identical to Capital’s. We find that substantial evidence supports the Commission’s decision to pierce Capital’s corporate veil in order to carry out the statutory mandate “to provide a fair, efficient, and equitable distribution of radio service.”

III

Without denying that it is essentially a single applicant in conjunction with Bakal, Capital contends that Albany is a separate and distinct communications market from Schenectady where Bakal received his requested paging frequency. However, the Commission noted that the Bakal transmitter should cover the entire A-S-T area “completely and adequately” and further stated that if for some unforeseen reason any part of that area does not receive “adequate service” from Bakal’s transmitter, he could apply for authority to add additional transmitters to reach any deficient area. Thus the Commission has assured Bakal and Capital of effective area-wide service.

Capital also asserts that under Ash-backer, supra, it was entitled to a comparative evidentiary hearing with Air Page on their mutually exclusive applications for the 158.70 MHz channel within the A-S-T area. As a practical matter Capital was afforded the opportunity for such a hearing but elected not to accept it. Under the Commission’s regulation, 47 C.F.R. 21.29, when the Commission treated the Bakal and Capital applications as a single application and granted it in part, Bakal had two choices. He had the right (1) to accept without a hearing the grant of channel 152.24 MHz and the denial of Capital’s application, or (2) within 20 days to reject the partial grant and exercise his right to an evidentiary hearing on both channels. Faced with these choices, Bakal elected to accept, without a hearing, the grant of channel 152.24 MHz. Now that such grant has become final, he attempts through Capital to ignore the condition upon which he received channel 152.24 MHz and to claim a right to a comparative hearing on channel 158.70 MHz which was granted to Air Page in the consolidated proceeding. The Commission commented upon Capital’s argument as follows:

Bakal appears to want the best of both worlds: he wants to retain the one channel that he received without a hearing as a result of the partial grant, and he also wants a comparative hearing with Air Page for the second channel. To accede to Bakal’s request and grant a comparative hearing in which Capital and Air Page would contest for the single remaining high band VHF channel in the Schenectady area would be most unfair to Air Page, and we reject it.

35 F.C.C.2d at 747. A comparative hearing would have been futile because, as we point out in Part II, the Capital/Bakal combination already has one frequency that will “completely and adequately” cover the A-S-T area, and Air Page was entitled to the license under the statutory standards of equity and fairness.

The condition imposed by the Commission’s regulation, 47 C.F.R. 21.-29, accords with both law and logic. When an applicant accepts a government permit which is subject to certain conditions, he cannot later assert alleged rights which the permit required him to surrender in order to receive it. See Rome Ry. & Light Co. v. Floyd County, 243 U.S. 257, 37 S.Ct. 291, 61 L.Ed. 706 (1917); American Bond & Mortgage Co. v. United States, 52 F.2d 318, 321 (7th Cir. 1931). See generally Buck v. Kuykendall, 267 U.S. 307, 316-317, 45 S.Ct. 324, 69 L.Ed. 623 (1925); Brennan v. Udall, 379 F.2d 803, 807-808 (10th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 477, 19 L.Ed.2d 468 (1967); Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 31, 365 F.2d 962, 964 (1966); Gray v. Commodity Credit Corp., 63 F.Supp. 386, 397-398 & nn. 21, 22 (S.D.Cal.1945). In view of the Commission’s valid treatment of Bakal and Capital as a single applicant, the regulation properly precluded them from accepting the benefits of the grant and at the same time denying the conditions upon which it was made. If Capital/Bakal wished to challenge the conditions of the partial grant, they were required to do so within the 20-day period before the grant became final. The original grant to Bakal was clearly conditional under the regulation, and by accepting the grant, Bakal precluded himself and Capital from treating it as unconditional.

Capital/Bakal’s challenge also represents an attempt to avoid the Commission’s “head start” policy. By going ahead with the 152.24 MHz operation throughout the A-S-T area while Air Page is tied up in a lengthy comparative hearing, Capital/Bakal would be operating without any competition from the 158.70 MHz channel. To allow Capital/Bakal to have this “head start,” estimated at about two years, would be an inequity to Air Page and a disservice to the public interest.

For the foregoing reasons, we affirm the decision of the Commission.

Judgment accordingly.

      . Schenectady is about 13 miles northwest of Albany; Troy is about 6 miles northeast of Albany.

      . This form of service is described in Radio Relay Corp. v. United States, 409 F.2d 322, 324 (2d Cir. 1969).

      . See Mobile Radio Communications, Inc., 29 F.C.C.2d 62, 64 (1971).

      . The Commission has always known that they are, inter alia, affiliated in ownership and management and share a downtown Schenectady office from which their separate transmitters are controlled by means of separately maintained control circuits.3
      Brief for Appellant at 5.
      [T]he Capital application states that the proposed one-way signalling station would have been controlled — -with Bakal and Capital’s other facilities in the AlbanySchnectady-Troy area — from a common control point at 611 Union Street, Schenectady, where there would be a shared use of switchboards and operators, as well as three service maintenance personnel (FCC File No. 2771-C2-P-69. Amendment filed December 23, 1971).
      Pattersonville Tel. Co., 35 F.C.C.2d at 746-47.

      . Bakal controls his transmitters by leased lines. Capital was recently authorized to control its transmitters by radio.

      . 47 C.F.R. 21.29 provides:
      Where the Commission, without a hearing, grants any application in part, or with any privileges, terms, or conditions other than those requested, or subject to any interference that may result to the station if a designated application or applications are subsequently granted, the applicant will be informed of the reasons for such action and the action of the Commission shall be considered as a grant of such application unless the applicant shall, within 20 days from the date on which public announcement of such grant is made, or from its effective date if a later date is specified, return the instrument of authorization and file with the Commission a written statement rejecting the grant as made and setting forth the reasons why the application should be granted as originally requested. Upon receipt of such statement, the .Commission will vacate its original action upon the application and reconsider the same. Upon such reconsideration, it will either grant or set the application for hearing in the same manner as other applications are set for hearing.

      . 34 F.C.C.2d at 261, 262; see note 9 infra and accompanying text.

      . Pattersonville Tel. Co., 35 F.C.C.2d 745 (1972).

      . Id. at 746-747.

      . Mobile Radio Communications, Inc., 29 F. C.C.2d 62 (1971).

      . Where the statutory purpose could be easily frustrated through the use of separate corporate entities a regulatory commission is entitled to look through corporate entities and treat the separate entities as one for purposes of regulation. 449 F.2d at 855.

      . “[T]he fiction of the corporate entity cannot stand athwart sound regulatory procedure.” 354 F.2d at 822.

      . 47 U.S.C. § 307(b) (1970).

      . The Bakal transmitter located northwest of Schenectady should cover the cities of Albany, Schenectady, and Troy completely and adequately. If, however, it should turn out that for some unforeseen reason some part of that area was not receiving adequate service from that transmitter, Bakal can apply for authority to add an additional transmitter, or transmitters, operating on tlie same frequency, to improve the signal strength in particular parts of his service area. In sum, then, we are of the view that Bakal has made no showing of a need for two one-way signalling channels, particularly in the face of a competing request from a qualified licensee for one of those channels.
      35 F.C.C.2d at 747.

      . Note 5 supra.

      . That is, before 20 days passed from the date of the issuance of the grant. 47 C.F.R. 21.29; note 5 supra.

      . Note 3 supra and accompanying text.


author: McGOWAN, Circuit Judge:

text:
    UNITED STATES of America v. Roland ADDISON, Appellant. UNITED STATES of America v. Albert Henry RAYMOND, Appellant.
    Nos. 72-1579, 72-1678.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 4, 1973.
    Decided June 6, 1974.
    Carroll L. Gilliam, Washington, D. C. (appointed by this court), for appellants.
    Henry F. Greene, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty.. at the time the brief was filed, John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee. David M. Bullock, Asst. U. S. Atty., also entered an appearance for appellee.
    Before McGOWAN, LEYENTHAL and MaeKINNON, Circuit Judges.
   McGOWAN, Circuit Judge:

Appellants in these consolidated appeals were jointly tried on charges arising from an alleged shooting of an officer of the Metropolitan Police Department. Each was convicted of assault with intent to kill while armed (22 D.C. Code § 501), and assault on a member of the police force with a dangerous weapon (22 D.C.Code § 505). Additionally, appellant Raymond was convicted of carrying a dangerous weapon in violation of 22 D.C.Code § 3204.

Appellants challenge the District Court’s determination to admit testimony based on spectrogram, or so-called “voiceprint,” analysis. United States v. Raymond, 337 F.Supp. 641 (D.D.C. 1972). This is a matter of first impression in this court, and, so far as we are aware, it has not been passed upon by any other federal court of appeals. We hold that the District Court erred in admitting this evidence. However, our examination of this record clearly indicates that the jury’s judgment was not substantially swayed by the error. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Accordingly, we affirm the convictions.

I

On the evening of April 9, 1971, Sergeant Ronald Wilkins responded to a radio call that a policeman was in trouble at a Safeway store in Northeast Washington. After finding neither any policeman at the scene nor any indication of trouble, he began to driye away. Upon stopping at a nearby intersection, Sergeant Wilkins saw two persons, whom he recognized immediately and later identified as appellants, shouting obscenities at him from the adjacent corner. The individuals began to flee on foot, occasionally looking back to renew their verbal barrage, and Sergeant Wilkins backed his patrol car in the direction of their flight. However, when the individuals ran into a dark wooded area, he decided to forego the chase rather than follow them into the darkness by himself.

As Sergeant Wilkins began slowly to pull away, the individuals emerged from the darkness and approached the patrol ear at a “trotting” pace. Before Wilkins could remove his seatbelt and get out of the car to question the pair, one produced a pistol and began firing through the window of the automobile. In the moments that followed, five shots were fired at Sergeant Wilkins, one of which struck him in the left wrist and emerged through the left elbow. The Sergeant managed to get his car into gear, drive forward some fifty or sixty feet to an intersection, and roll out of the automobile to take cover. Upon observing his attackers departing the area, Wilkins reentered the patrol car and radioed for assistance.

In his initial call for help, Sergeant Wilkins identified appellant Raymond by name as the person who had shot him, and gave a description of appellant Addison. Within moments, the Sergeant recalled appellant Addison’s name and identified him as the other individual.

The “policeman in trouble” signal was prompted by an anonymous telephone call placed to the Communications Division of the Metropolitan Police Department. The essence of the call was relayed to the police dispatcher, who sent the general radio call to which Sergeant Wilkins responded. As is the practice for all incoming calls to the Communications Division, the telephone conversation was recorded.

Following appellants’ arrest, each was required to read the statements made in the recorded call into a tape recorder. Each had counsel present, and each complied. Those tapes, along with a re-recording of the actual conversation, were then sent to Lieutenant Nash, a voice technician at the Michigan State Police Department. The Lieutenant made spectrograms of each and, based on his analysis of those spectrograms, concluded that appellant Raymond had placed the call that led Sergeant Wilkins to the scene of the attack. After hearing evidence on the general validity of the spectrogram method of identification and on the reliability of analyses conducted by Lieutenant Nash particularly, the District Court permitted the Lieutenant to testify as a voiceprint expert.

II

In Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), this court set forth the standard by which questions of admissibility of expert testimony based on new methods of scientific measurement are to be resolved. The Frye standard has been adopted by numerous courts since that time, see, e.g., United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970); Marks v. United States, 260 F.2d 377, 382 (10th Cir. 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959); and the Frye holding was recently reaffirmed by this court in United States v. Skeens, 494 F.2d 1050 (D.C. Cir. 1974), a case in which we adhered to the earlier determination to exclude polygraph evidence from criminal trials.

The Frye standard for determining whether a generic class of scientific evidence is to be admitted at trial requires that the “[theory] from which the deduction is made be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, supra, at 1014. This obviously sets forth a standard that is neither common to criminal litigation nor easily applied in the individual case. Equally obvious, the Frye standard retards somewhat the admission of proof based on new methods of scientific investigation by requiring that they attain sufficient currency and status to gain the general acceptance of the relevant scientific ’ community. This is not to say, however, that the Frye standard exacts an unwarranted cost. The requirement of general acceptance in the scientific community assures that those most qualified to assess the general validity of a scientific method will have the determinative voice. Additionally, the Frye test protects prosecution and defense alike by assuring that a minimal reserve of experts exists who can critically examine the validity of a scientific determination in a particular case. Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential.

As the record and the court’s opinion reveal, the District Court focused more on the reliability of Lieutenant Nash’s conclusion than on the general acceptance of his technique within the scientific community. After hearing testimony of experts and examining some of the literature of the field, the District Court concluded that “the spectrographic identification of Albert Raymond was clearly reliable enough to be admitted into evidence,” to be given as much or as little weight as the jury might choose. Raymond, supra, at 645. On the broader point of admissibility of this generic class of evidence, we find that the District Court erred.

While the District Court did make reference to what was said to be the scientific community’s growing acceptance of the technique of spectrogram analysis as a means of speaker identification, neither the court’s opinion nor the record satisfy the Frye standard of admissibility. In reaching its conclusion, the court placed primary reliance on studies directed by Dr. Oscar Tosi, Professor of Audiology and Speech Sciences at Michigan State University, which were first published in 1971. The court felt that the Tosi studies had both demonstrated the probable accuracy of Lieutenant Nash’s conclusions and dissipated the scientific community’s previous skepticism concerning the validity of voiceprint identification. In assessing the scientific community’s present attitude toward spectrogram analysis, the District Court relied heavily on the testimony of Dr. Peter Ladefoged, Professor of Phonetics at U.C.L.A. Dr. Ladefoged had initially been one of the scientific community’s most vocal opponents of the use of voiceprints for criminal identification, and he had testified to this opposition in previous trials. After examining the results of the Tosi study and of some of Lieutenant Nash’s spectrogram analyses, Dr. Ladefoged modified his earlier position and adopted a more favorable stance regarding the technique.

As Dr. Ladefoged’s cited letter to the President’s Science Advisor itself indicates, however, his conversion to the voiceprint identification technique has been a limited one. While Dr. Ladefoged stated that new evidence had moved him to “cautiously reconsider the possibility” of the use of spectrogram analysis in criminal trials, he went on to express a number of continuing reservations. He pointed out, for instance, that the Tosi studies did not necessarily indicate that spectrogram analysis would enjoy a comparable success rate when applied to the general populace, and indicated that voiceprint identification of females would probably be more difficult than identification of males. Dr. Ladefoged further identified problems arising from voice mimicry and from the possibility of “confusable voices,” and concluded that “we do not at the moment know the probable error rate” of a spectrogram analysis technique applied to the broad populace. Thus, viewed in its entirety, Dr. Ladefoged’s letter, as he himself characterized it in his testimony, simply reflects a position “of abatement of skepticism towards voiceprint,” not one of complete acceptance. This position, according to his testimony, was shared by the community of scientists.

The testimony of Dr. Donald Graham Stuart, Professor of Language and Linguistics and Director of the Phonetics Laboratory at Georgetown University, was considerably less sanguine. Dr. Stuart emphasized that the Tosi study was an inadequate basis from which to determine the validity of spectrogram identification of the broader voice population of the United States, and expressed his opinion that it was “danger.ous and irresponsible” to purport to make absolute identification by comparison of spectrograms. Dr. Stuart also represented that the scientific community continued to view the technique with skepticism and concern, even after the release of the Tosi study.

Thus, while portions of the record suggest that spectrogram analysis may become a useful tool for the resolution of questions of criminal liability, it is equally clear that techniques of speaker identification by spectrogram comparison have not attained the general acceptance of the scientific community to the degree required in this jurisdiction by Frye. Whatever its promise may be for the future, voiceprint identification is not now sufficiently accepted by the scientific community as a whole to form a basis for a jury’s determination of guilt or innocence. We hold that the District Court erred in determining that this type of evidence is admissible in criminal trials.

Ill

Although we have concluded that admission of evidence based on spectrogram analysis was error, our review of the record convinces us that the error did not fatally infect the jury’s verdict. Kotteakos v. United States, supra. The Government’s proof against appellants, based on the partially corroborated identification made by the victim, was overwhelming. As the record indicates, Sergeant Wilkins had arrested both appellants on charges of disorderly conduct on March 28, only eleven days prior to the shooting incident that gave rise to this appeal. The Sergeant was responsible for transporting appellants to the station and for conducting routine paperwork incident to the arrests. That process consumed some forty-five minutes, during which time Sergeant Wilkins had ample opportunity to observe appellants carefully. Sergeant Wilkins again saw both appellants on March 31, when he appeared in order to be available to testify at appellant Addison’s trial on the charges arising from the previous arrest. Clearly, these recent prior contacts provided Sergeant Wilkins a somewhat unique acquaintance with both appellants which made his subsequent identification all the more convincing.

Sergeant Wilkins likewise had a significant opportunity to observe both appellants during the events that culminated in the attack upon him. He testified that he first saw appellants standing on a street corner, shouting obscenities at him. At the time, the Sergeant was stopped at the intersection, and he was able to see both individuals clearly. The intersection was well lighted, and Sergeant Wilkins’ testimony was that he immediately recognized both individuals. Sergeant Wilkins again had an excellent opportunity to observe both appellants during the few moments that immediately preceded the.shooting. His testimony indicates that both appellants trotted toward the patrol car, appellant Addision maintaining a position closely behind appellant Raymond at all times. Both individuals approached the car, and appellant Raymond stooped down and peered into the car window twice before producing the pistol and begining to fire. Finally, after driving a short distance from the spot at which he was shot, Sergeant Wilkins again saw both appellants as they ran from the scene.

In Sergeant Wilkins’ radio call to report his attack, he identified appellant Raymond as the person who had fired the. shots. According to his testimony, the Sergeant was not then certain whether appellant Addison’s name was Roland Addison or Addison Roland, and he therefore described appellant Addison but did not mention his name. However, by the time Officer Smallwood arrived to render aid, at most a matter of moments after the initial radio call for help, Sergeant Wilkins had clarified his confusion, and he identified appellant Addision by name. Sergeant Wilkins repeated this identification to Officer McMullen, who arrived shortly thereafter.

Thus, the victim of the crime, who had both an unusually good opportunity to recognize the identity of his attackers as a result of his recent prior contacts with each and a sufficient opportunity to see and identify both during the period immediately prior to the attack,- gave positive and convincing identification of each, both before and during trial. Examination of the record indicates that Sergeant Wilkins never waivered in his account of the significant events nor, more importantly, in the certainty of his identification.

Additionally,' Sergeant Wilkins’ identification was partially corroborated by the testimony of Officer Collins, who arrived to render assistance shortly after Wilkins’ call for help. Officer Collins also knew appellants; he too had been present during their arrest on March 28, and had gone to the station in connection with their booking. Officer Collins had again seen appellants, together, earlier on the day of the shooting.

Officer Collins testified that he arrived moments after the shooting occurred, and that he saw two individuals running away. At the time, Officer Collins only saw the backs of the individuals and thus could not positively identify either person. He could only state that one of the fleeing individuals was similar in appearance to appellant Raymond. Officer Collins subsequently obtained a better opportunity to view appellant Addision, however. He noticed that one of the fleeing individuals entered a nearby apartment building, and he began to follow in that direction. As he approached the apartment, Officer Collins was able to see into the hallways through a glass panel that exposed the stairway to sight from the exterior. Officer Collins clearly saw an individual climbing the stairs from the second floor to the third, and instantly recognized him as appellant Addision.

In light of this overwhelming record of guilt, the role of the spectrogram analysis was cumulative at best. Proof that appellant Raymond had lured Sergeant Wilkins to the scene of the attack was not essential to the establishment of any of the elements of the crimes for which appellants stand convicted. And while, if believed, it would be corroborative of the identification of appellant Raymond, the record clearly indicates that such corroboration was superfluous. Thus, even recognizing the inherent difficulties of making determinations of harmless error for the first time at the appellate level, see United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292, 1308-1309 (1973), we find the record of guilt in this case to be so overwhelming as to make remand unnecessary.

The convictions in both appeals are Affirmed.

      . Courts in Florida and Minnesota now admit spectrogram analysis at trial, Alea v. State, 265 So.2d 96 (Fla.App.1972); Worley v. State, 263 So.2d 613 (Fla.App.1972); State ex rel. Trimble v. Hedman, 291 Minn. 442, 192 N.W.2d 432 (1971), as does the United States Military Court of Appeals. United States v. Wright, 17 U.S.M.C.A. 183, 37 C.M.R. 447 (1967). After ruling that spectrogram analysis was inadmissible, State v. Cary, 56 N.J. 16, 264 A.2d 209 (1970), the Supreme Court of New Jersey later indicated that growing acceptance of the technique might prompt it to reconsider. State v. Andretta, 61 N.J. 544, 296 A.2d 644 (1972). Finally, the intermediate appellate, courts of California appear to be divided on the question. Compare Hodo v. Superior Court, 30 Cal.App.3d 778, 106 Cal.Rptr. 547 (1973) with People v. King, 266 Cal.App.2d 437, 72 Cal.Rptr. 478 (1968).

      . As described more fully hereinafter, Wilkins’ familiarity with appellants derived from the fact that he had arrested them for disorderly conduct a few days earlier.

      . Appellant Raymond raises objections to the District Court order requiring the submission of his voice sample. He first contends that, notwithstanding the fact that he had appointed counsel at the time of the issuance of the order who was subsequently present when the sample was taken, he was deprived of effective assistance of counsel, for the reason that counsel was denied adequate time to consider the novel issues presented by the Government’s motion to compel the voice samples. Additionally, appellant Raymond contends that the Government violated his Fourth Amendment right to privacy by compelling him to provide a voice sample in advance of a determination that the sample would be admissible at trial. It appears that United States v. Dionisio, 410 U.S. 1, 13-15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), resolves the latter point adversely to appellant’s position.
      Nor do we find merit in appellant’s related argument concerning ineffective assistance of counsel. This assertion rests in large part on the assumption that more time would have enabled counsel to interpose a successful Fourth Amendment objection to the court’s order requiring that voice samples be given. Dionisio reveals that that is not the case. And, once appellant’s underlying reliance on a Fourth Amendment right of privacy is stripped away, it can be seen that none of the other arguments were lost by not being raised at that time. Thus, even assuming the validity of appellant’s assertion that the rapidity of procedures deprived counsel of time for research and study of the questions involved, it is clear that appellant suffered no injury that would begin to suggest that he might have been deprived of his Sixth Amendment right to effective assistance of counsel.

      . A spectrogram is a graphic representation of some of the factors claimed uniquely to characterize the voice of a particular speaker. Proponents of the “voiceprint” technique maintain that, by careful comparison of spectrograms, experts can determine whether any given set of spectrograms match.

      . Although the proposed Federal Rules of Evidence reflect a general trend toward more liberal admission of evidence, the commentary to Proposed Rule 703, regarding Bases of Opinion Testimony by Experts, suggests that the drafters intended to preserve judicial power to exclude particular categories of “expert testimony”:
      If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data “be of a type reasonably relied upon by experts of a particular field.” The language would not warrant admitting in evidence the opinion of an “aceidentologist” as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied.
      The House of Representatives’ version of the Federal Rules of Evidence, approved on February 6, 1974, retains Rule 703 in the same form as promulgated by the Supreme Court. Bee H.R. 5463, 93d Cong., 1st Sess. (1974).

      . Rule 28(a) of the Federal Rules of Criminal Procedure provides for judicial appointment of experts in an appropriate case. This power is retained in Rule 706 of the Federal Rules of Evidence passed by the House of Representatives. 1-T.R. 5463, supra.

      . Bee Tosi, Oyer, Lashbrook, Pedrey, Nichol, and Nash, Experiment on Voice Identification, 51 J.Acoust.Soe.Am. 2030 (1972) ; Voice Indentiiication Through Acoustic Spectrography, Report SHSLR 171, Dept, of Audiology and Speech Sciences, Michigan State Univ. (Feb.1971) ; An Experiment on Voice Identification: Excerpts from Report SHSLR 171, Dept, of Audiology and Speech Sciences, Michigan State Univ. (July 1971).

      . Bee Ladefoged and Vanderslice, The “Voice-print Mystique,” reprinted from Working Papers in Phonetics, Dept, of Linguistics, U.O.L.A., November, 1969.

      . Letter from Dr. Ladefoged to Dr. Edward E. David, Jr., Science Advisor to the White House, May 24, 1971. Dr. Ladefoged had circulated the letter to many members of the scientific community and discussed its contents with others, and he felt that the letter accurately expressed the general views of the scientific community. Raymond, supra, at 644-645 n. 23. The letter was introduced into evidence in the District Court and is part of the record of this appeal.
      Although Dr. Ladefoged continued to express reservations concerning the application of the technique of spectrogram analysis to broader voice samples than that tested by Dr. Tosi, his opinion of Lieutenant Nash’s skills was quite high. The testimony of Drs. Tosi and Ladefoged indicated that Lieutenant Nash was the most accomplished of the small group of voiceprint analysts.

      . The literature of the field affirms the indications in the record that the scientific community has thus far failed to determine whether spectrogram analysis is a valid technique of speaker identification. While some scientists appear to support Dr. Tosi’s affirmative assertions, see, e. g., Kersta, Voice-print Identification, 196 Nature 1253 (1962) ; Stevens, Williams, Carbonell, and Woods, Speaker Authentication and Identification : A Comparison of Speetrographic and Auditory Presentations of Speech Material, 44 J.Acoust.Soc.Am. 1596 (1968), others remain dubious, or at least unconvinced. See Bolt, Cooper, David, Denes, Pickett, and Stevens, Speaker Identification by Speech Spectrograms: Some Further Observations, 54 J.Acoust.Soc.Am. 531 (1973) and sources cited therein. The authors of this latter study commend the Tosi studies for their contribution to understanding of some of the problems of voice identification. They assert, however, that much remains to be learned before scientists can give a definitive answer to the question of the reliability of speetrographic analysis .for voice identification. The authors note some of the many problems that remain to be solved and “question the basis on which claims have been made that the dominant view of the scientific community is now in agreement” with Tosi’s estimates of the reliability voice-print identification of the general population. Id. at 533.

      . Appellant Addison raises two individual challenges to his convictions. First, he asserts that the District Court erred in refusing his motions to sever. Conceding, as he must, that Rule 8(b) authorizes a joint trial in this instance and that the decision to grant severance is one committed to the discretion of the trial court, see, e. g., United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971); United States v. Wilson, 140 U.S.App.D.C. 220, 434 F.2d 494 (1970), appellant Addison maintains that the quantum of proof against appellant Raymond was so much greater that denial of his motion was an abuse of that discretion. Having examined the ’vcord, we cannot agree. The only significant differences in the evidentiary case against appellants Addison and Raymond was the voiceprint identification of the latter.
      Appellant Addison’s somewhat related point is that the evidence was insufficient to support his conviction on the theory of aiding and abetting. In this regard, appellant places primary reliance on Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969). However, we think that the facts of this case readily distinguish it from Bailey. In the Bailey case, the appellant’s actions were consistent with an entirely innocent presence; the evidence provided no basis from which the jury could conclude beyond a reasonable doubt that appellant was a participant in the criminal venture. The same cannot be said of the facts of this case. Here, both appellants shouted at Sergeant Wilkins and fled in a manner suggestive of a desire to lure him into a vulnerable position. When that failed, both returned to the patrol car, where appellant Raymond shot the officer. Appellant Addison continually maintained a position of close proximity to appellant Raymond as he approached the car and fired the shots, and he fled with him thereafter. The cumulative impact of these facts amply supports a jury determination that appellant Addison was considerably more than an innocent bystander.

      . Appellant Raymond challenges the propriety of his trial as an adult for a crime that he allegedly committed while he was sixteen years old. While recognizing that our decision in Bland resolves the matter adversely to his position, appellant raised the point in order to have preserved it in the event that the United States Supreme Court reversed our decision. That did not happen, and Bland therefore disposes of this question. United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973).

      . Appellant Raymond took the stand and offered an alibi defense. He was unsuccessful, however, in his attempts to subpoena corroborative witnesses. Appellant Addison chose not to testify.


author: PER CURIAM:

text:
    UNITED STATES of America v. Solomon M. FULERO, Appellant.
    No. 73-1923.
    United States Court of Appeals, District of Columbia Circuit.
    June 14, 1974.
    Sherman L. Cohn, Washington, D. C. (appointed by this court), was on the brief, for appellant.
    Earl J. Silbert, U. S. Atty., John A. Terry, John H. Bayly and David R. Ad-dis, Asst. U. S. Attys., were on the brief, for appellee.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.-
   PER CURIAM:

An indictment in two counts charged the appellant with unlawful possession of marijuana with intent to distribute it (21 U.S.C. § 841(a)) and with unlawful possession of the same marijuana in violation of 33 D.C.Code § 402. The appellant was tried without a jury before the District Court, found guilty, and placed on probation under the Youth Corrections Act, 18 U.S.C. § 5010(a). On this appeal he claims that the marijuana introduced in evidence against him was seized during the course of an unlawful search.

The circumstances of the search and seizure were explored at a hearing on a motion to suppress. The record discloses that an employee at the Greyhound Bus Depot in Yuma, Arizona, telephoned Sergeant Kindle of the Yuma City Narcotic Task Force and told him “three hippies had brought in two footlockers that were being sent to Washington, D. C. and that the situation appeared suspicious.” Shipping marijuana through Greyhound was “normal practice in Yuma” (Tr. 7) and on many prior occasions agents of the depot had spotted packages containing marijuana. Sergeant Kindle went to the depot and looked at the footlockers, one of which was green and the other blue. The name of Frank Delgado was on them as the shipper. Delgado was known to Sergeant Kindle as a man probably involved in the narcotics traffic. The sergeant noticed that the footlockers smelled of mothballs which was significant because mothballs are frequently used in an attempt to conceal the odor of marijuana, and Kindle had on many occasions found marijuana shipped in this fashion.

With these facts before him the sergeant called the United States Customs Service and obtained the services of a dog handler and a marijuana-sniffing, dog, Chief. When the handler and Chief arrived the two footlockers were placed “in different positions on the baggage floor with approximately ten to 12 [sic] other valises, pack, boxes, and so forth, all around the area, and then the dog handler was told to go ahead and run the dog through the packages.” (Tr. IS.) The sergeant testified “the green footlocker was the closest one to the dog and he went immediately to the green footlocker. The dog handler pulled him off and brought him back and walked him around a little bit, and had him walk through there again, and he went back to the green footlocker. He did it three times consecutively, and on the third time he pawed and tried, to chew at the footlocker to get into it.” (Tr. 15.)

The sergeant testified that he had seen Chief perform before, probably ten times or more and that on each occasion he had discovered marijuana. Chief had been working at the port of entry at San Luis, Arizona, regularly for at least two years and had been consistently reliable. (Tr. 13, 14, 21.)

His suspicions having been confirmed by Chief, the sergeant went before a Justice of the Peace and got a search warrant authorizing a search of the two footlockers. The affidavit in support of the warrant is in the record, Government Exhibit 2. When the search warrant was executed the trunks were found to contain 40 kilos (approximately 88 pounds) of marijuana. (Tr. 17.) Sergeant Kindle seized 24 kilos and sent 16 along to Washington after notifying-the Washington Police that the shipment was on the way. The Washington Police covered the arrival of the lockers at the Greyhound Bus Terminal here and arrested Fulero when he picked them up.

The appellant contends that Chief’s sniffing of the air around the footlockers was an unconstitutional intrusion into the lockers. We think the argument is frivolous. The appellant also contends that there was no probable cause for the issuance of the search warrant. We think there was ample probable cause and that the conduct of the police was a model of intelligent and responsible procedure.

The judgment is affirmed.


author: MiacKINNON, Circuit Judge:

text:
    UNITED STATES of America v. Preston G. THORNTON, Appellant.
    No. 73-1113.
    United States Court of Appeals, District of Columbia Circuit.
    June 3, 1974.

      William A. Kahn, Washington, D. C. (appointed by this court), for appellant. Jon P. Axelrod, Washington, D. C. (appointed by this court), at the time the brief was filed.
    Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, and Harry R. Benner, Asst. U. S. Atty., were on the brief, for appellee.
    Before BAZELON, Chief Judge, MaeKINNON, Circuit Judge, and CHRISTENSEN, §United States Senior District Judge for the District of Utah.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   MiacKINNON, Circuit Judge:

Appellant was convicted of first degree burglary (D.C.Code § 22-1801 (a)), rape (D.C.Code § 22-2801), sodomy (D.C.Code § 22-3502) and robbery (D.C.Code § 22-2901). After reviewing the briefs and record we Con-eluded that oral argument was unnecessary. Hereafter we discuss the issues raised and affirm the judgment of conviction.

I

At the close . of the Government’s case the court granted a motion for judgment of acquittal with respect to three armed counts and in stating to the jury that it had done so, said:

In other words, those counts are no longer before you for your deliberations. You will be concerned only with the Four Counts of this indictment. (Tr. 178.)

Previously the court had told the jury:

You should not draw any inferences, nor should you be influenced with respect to the innocence or guilt of the defendant by any ruling which I made during the course of the trial. (Tr. 172.)

At the time these instructions were given defense counsel did not object to them and later he indicated he was satisfied with the instructions given by the court (Tr. 193-94). Under such circumstances, and in view of the other instructions given by the court, we see no error.

II

For his second point appellant contends that the court did not properly instruct the jury with respect to the intent required for first degree burglary. However, the court did read the burglary statute to the jury as part of the instructions (Tr. 179) and that contains a statement of the required intent. As to the intent required the court instructed as follows:

[Y]ou must find that the Government has proved beyond a reasonable doubt . that at the time the Defendant intended to break and carry away . or to commit some criminal offense therein. (Tr. 180.)

Finally, the court gave another instruction on intent:

Some criminal offenses require only a general intent. Where this is so, and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act.
Other offenses such as robbery, burglary in the first degree require more than a mere general intent to engage in certain conduct or to do certain acts.

A person who knowingly does an act which the law forbids intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent. (Tr. 187, emphasis added.)

These instructions correctly stated the law, and while they could have been more expansive on “specific intent,” they were not objected to at trial. Under such circumstance plain error is required to justify reversal and we fail to find the instructions to be that deficient.

Ill

With respect to the conviction of rape, appellant makes the novel argument that the court erred in not instructing the jury that specific intent was required to be shown for the crime. He bases this contention on a theory that the Government brief correctly analyzes as follows:

First, he [appellant] says, assault with intent to commit rape has been held to be a lesser included offense in the crime of rape. Second, a lesser included offense is one which is necessarily established by proof of the greater offense. Ergo, he concludes, rape includes the element of specific intent.

Govt. Br. at 12. This argument appears to have some essence of logic and has a superficial appeal but has been rejected elsewhere, and we refuse to accept it. It is not invariably true that a greater offense includes all elements of an offense which under some circumstances may be a lesser included offense, and not all lesser related offenses are necessarily lesser included offenses. Judge Leventhal pointed this out in Fuller v. United States, 132 U.S.App.D.C. 264, 294, 407 F.2d 1199, 1229 (en banc 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969), when he stated: “[I]n some cases a charge of second degree murder may not properly be demanded on the facts [under a felony-murder indictment].” In United States v. Whitaker we said:

[T]he idea that the simple mechanistic test of all theoretical elements of the included offense being present in the greater offense charged in the indictment . . . has not always been followed in this Circuit.

United States v. Whitaker, supra, 144 U.S.App.D.C. at 348 n. 11, 447 F.2d at 318 n. 11.

In Whitaker we held that even though unlawful entry may be a lesser included offense in burglary, burglary does not always include the lack of permission element which is a requirement for unlawful entry. A similar situation in a related context occurs in the offense of carnal knowledge where we have held that while the lesser included offenses of indecent liberties and assault with intent to commit carnal knowledge each require a specific intent, the greater offense of carnal knowledge does not. United States v. Heard suggests:

Perhaps this technical difficulty can be reconciled by treating [assault with intent to commit rape] as a lesser included offense of [rape] as a matter of general application, subject to withdrawal from that category in a particular ease wherein defendant raises a claim, such as intoxication, that would be a defense to the lesser but not the greater offense.

The pattern of intent that runs through these crimes suggests that where the crimes consist principally of acts which in and of themselves are great physical and personal intrusions into the rights of other individuals, a general mens rea may be sufficient and may generally be inferred from the proscribed acts themselves, while in those instances where the principal element of the crime is largely subjective, and the personal and physical harm inflicted is correspondingly less, then a specific intent, which is not a requirement of the greater offense, may be required. Actually, as has been stated, “[A]ll attempts require specific intent”; so if we were to follow appellant’s logic of superimposing the specific intent of an included crime upon the greater offense, a specific intent would be required for practically every crime. This could not be the law. The differing requirements for lesser offenses result principally from the differing nature of the crimes and from their historical and legislative definitions. The requirement of a specific intent for lesser crimes exists because of a desire to protect the individual against conviction on slight evidence. The same protection is unnecessary where substantial overt acts aré committed and fully consummated offenses are provable. There is no rule of law that crimes which carry greater punishment require the proof of greater, or even the same, criminal intent as included or related crimes which carry lesser punishment. Each crime has its own elements and peculiarities and as we said in McGuinn v. United States, 89 U.S.App.D.C. 197, 199, 191 F.2d 477, 479 (1951), “Rape is not a crime which requires a specific intent.” This is in accord with the great weight of authority which holds the crime of rape requires no intent other than that indicated by the commission of the acts constituting the offense. We accordingly reject this argument by appellant.

IY

Appellant next contends that it was unduly coercive for the court to instruct the jury that its verdict must be unanimous without also informing them of their right to disagree. Such charge was not objected to at trial and in any event its language is not coercive or improper. We reject appellant’s contention in this respect and likewise see no merit in his contentions that the trial court abused its discretion in having the court reporter read selected portions of the testimony to the jury, and that substantial prejudice resulted from a slight error in the reading. In such matters the trial judge has a wide discretion to evaluate the consequences on the jury.

Finally, we find no error in any of the other minor points raised by appellant, conclude that he had a fair trial and accordingly affirm the judgment.

Affirmed.

      . D.C.Code § 22-1801 (a) (1973) provides:
      § 22-1801. Burglary — Penalties.
      (a) Whoever shall, either in the nighttime or in the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry away any part thereof, or any fixture or other thing attached to or connected thereto or to commit any criminal offense, shall, if any person is in any part of such dwelling or sleeping apartment at the time of such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. Burglary in the first degree shall be punished by imprisonment for not less than five years nor more than thirty years.

      . The “redbook” instruction provides :
      WHERE CHARGES AGAINST CO-DEFENDANT ARE DISMISSED IN MID-TRIAD
      The charges against (name of co-defendant) have been disposed of. They are no longer of concern to you. They should not control nor influence your verdict with reference to the defendant, and you must base your verdict solely on tlie evidence admitted as to liim.
      Criminal Jury Instructions, District of Columbia, Instruction 1.12, p. 16 (2d ed. 1972). The variance is not substantial.

      . Note 1 supra.

      . See United States v. Moore, 140 U.S.App. D.C. 309, 435 F.2d 113 (1970).

      . Askew v. State, 118 So.2d 219, 221-222 (Fla.1960).

      . United States v. Whitaker, 144 U.S.App.D.C. 344, 348-349, 447 F.2d 314, 318-319 (1971); Fuller v. United States, 132 U.S. App.D.C. 264, 292-294 & n. 28, 407 F.2d 1199, 1227-1229 & n. 28 (en banc 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

      . In United States v. Kearney, 162 U.S.App. D.C. -, 498 F.2d 61 (May 17, 1974), we pointed out that it was erroneous to conclude that all the elements of a lesser offense of unlawful entry (D.C.Code § 22-3120) were necessarily included in the greater offense of first degree burglary (D.C.Code § 22-3102) arising from the same incident.

      . Note 6 supra.

      . United States v. Heard, 137 U.S.App.D.C. 60, 62, 420 F.2d 628, 630 (1969), cert. denied, 397 U.S. 1016, 90 S.Ct. 1252, 25 L.Ed. 2d 431 (1970).

      . Id.

      . State v. Michel, 225 La. 1040, 74 So.2d 207, 213 (1954), aff’d, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ; see Wharton, Criminal Law and Procedure, Rape § 322, at 663.

      . Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970), modified on other grounds, 434 F.2d 1283 (9th Cir.) cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); Carlton v. United States, 395 F.2d 10, 12 (9th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969); McGuinn v. United States, 89 U.S.App.D.C. 197, 199, 191 F.2d 477, 479 (1951); Askew v. State, supra note 5; People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702, 706 (1967); State v. Pilcher, Iowa, 158 N.W.2d 631, 637 (1968); aff’d after remand, Iowa, 171 N.W.2d 251 (1969); Coots v. Commonwealth, 418 S.W.2d 752, 754 (Ky.1967); State v. Michel, 225 La. 1040, 74 So.2d 207, 213 (1954), aff’d, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Frank v. State, 6 Md.App. 332, 251 A.2d 249, 251 (1969); People v. Phillips, 385 Mich. 30, 187 N.W.2d 211, 214 (1971); State v. Tompkins, Mo., 277 S.W.2d 587, 591 (1955); State v. Ramirez, 84 N.M. 166, 500 P.2d 451, 452 (Ct.App.1972), cert. denied, 84 N.M. 180, 500 P.2d 1303 (1972); State v. Hairston, 222 N.C. 455, 23 S.E.2d 885, 889 (1943); Walden v. State, 178 Tenn. 71, 156 S.W.2d 385, 387 (1941); State v. Smith, 3 Wash.2d 543, 101 P.2d 298, 302 (1940); Rhodes v. State, 462 P.2d 722, 727 (Wyo. 1969). 75 C.J.S. Rape § 9, p. 471 (1952); 44 Am.Jur. Rape § 2, p. 902; Wharton, Criminal Law and Procedure, Rape § 300 (1974 Cum.Supp.); cf. id. §§ 323-24 n. 10.

      . See Maxfield v. United States, 360 F.2d 97, 102 (10th Cir. 1966); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295, 298 (1965), aff’d after remand, 424 Pa. 380, 227 A.2d 849 (1967) (“A trial judge need not charge jurors specifically that they may disagree.”); People v. Zabel, 95 Cal.App.2d 486, 487, 213 P.2d 60, 61 (1950).

      . See Salzman v. United States, 131 U.S.App.D.C. 393, 395-396, 405 F.2d 358, 360-361 (1968); United States v. Price, 447 F. 2d 23, 31 (2d Cir.), cert. denied, 404 U.S. 912, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971); United States v. Chicarelli, 445 F.2d 1111, 1114-1115 (3d Cir. 1971); United States v. Campbell, 138 F.Supp. 344, 345-348 (N.D. Iowa 1956).