author: PER CURIAM:

text:
    UNITED STATES of America v. Robert N. PERRY, Appellant.
    No. 72-1735.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 4, 1973.
    Decided Feb. 22, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 15, 1974.
    McGowan, Circuit Judge, filed a separate statement, concurred in by Baz-elon, Chief Judge, and Wright, Leven-thal, and Robinson, Circuit Judge on denial of rehearing en bane.
    W. Gary Kohlman, Public Defender Service, Washington, D. C., for appellant.
    William M. Brodsky, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John T. Kotelly, Asst. U. S. Attys., were on the brief, for appellee.
    Before ROBB and WILKEY, Circuit Judges, and VAN PELT, United States Senior District Judge for the District of Nebraska.

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

   PER CURIAM:

On December 29, 1970 three men robbed a Peoples Drug Store in Washington. One of the men confronted Bret H. Womack, employed by Peoples as a uniformed special policeman, pressed a .45 caliber pistol against Womack’s side, and took his revolver. Another man took $137 from the possession of Mrs. Gladys Cody, an employee of the store. The third robber went to the rear of the store where he pointed a pistol at LeRoy Bradley, the store’s pharmacist and manager, forced Bradley to open the store’s safe, a cash drawer and a cash register, and took the money they contained, approximately $683.

On January 6, 1971 the appellant Perry was arrested on a warrant charging that he robbed a federally insured savings and loan association on December 18, 1970. Arraigned on this charge, he was ordered to be placed in a lineup and at this lineup he was identified by Bradley as the man who held the gun on him at Peoples Drug Store.

A juvenile was arrested near the scene of the robbery and charged as the robber who took Womack’s revolver. The third robber was never identified.

Perry was indicted and tried on an indictment in nine counts. Counts 1, 2 and 3, naming Womack as the victim, charged robbery while armed, robbery and assault on Womack with a pistol. The property taken from Womack was alleged to be a pistol, the property of Peoples Drug Stores. Counts 4, 5 and 6 identified Bradley as the victim and charged armed robbery, robbery and assault with a pistol. The property alleged to have been taken from Bradley was $683 belonging to Peoples Drug Stores. Counts 7, 8 and 9 named Gladys Cody as the victim and charged armed robbery, robbery and assault with a pistol, the property alleged to have been taken being $137 belonging to Peoples Drug Stores.

At trial Womack and Mrs. Cody were unable to identify Perry, but Bradley positively identified him as the man who came to the rear of the store, held the pistol on Bradley and took the money from the safe, cash drawer and register. The jury found Perry not guilty on the counts charging the armed robbery of Womack and assault with a pistol on Womack (counts 1 and 3) and not guilty on the counts charging the armed robbery of Gladys Cody and assault with a pistol on Gladys Cody (counts 7 and 9). They were unable to agree on count 2 charging the robbery of Womack, count 8 charging the robbery of Gladys Cody, and counts 4, 5 and 6 in which Bradley was identified as the victim. Accordingly the court discharged the jury and declared a mistrial.

The case was retried before another jury. Before the retrial, Womack having disappeared, count 2 of the indictment naming him as a victim was dismissed. The second jury found Perry guilty of the armed robbery of Bradley as alleged in count 4; this verdict of course subsumed the charge of robbery alleged in count 5. On the counts charging assault with a pistol on Bradley and Gladys Cody and the count charging the robbery of Gladys Cody, the verdict was not guilty. Perry appeals from the judgment entered on the verdict of guilty of the armed robbery of Bradley.

Relying on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Perry contends that “by virtue of the outright acquittals received in the first trial in [sic] the counts involving Mrs. Cody and Officer Womack, the doctrine of collateral estoppel precluded reprosecution of appellant for his alleged involvement in the December 29, 1970 robbery.”

We think the appellant misapprehends the purport of the decision in Ashe v. Swenson. In that case Ashe was tried for the robbery of Donald Knight, one of six participants in a poker game. Ashe was acquitted. Later he was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The Supreme Court held that the second prosecution was barred by collateral estoppel. The Court said the only issue in dispute before the jury at the first trial was whether Ashe had been one of the robbers. “And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.” (397 U.S. at 445, 90 S.Ct. at 1195). In the case before us, however, there was no finding by the jury at the first trial that Perry was not one of the robbers; the only finding was that he had not assaulted and robbed Womack and Gladys Cody with a pistol. On the counts alleging the robbery of Womack and Gladys Cody the jury disagreed and made no findings, and on all the counts relating to Bradley the jury also disagreed. Perry’s presence as one of the robbers was not inconsistent with these results. Consequently, this case is controlled, not by Ashe v. Swenson, but by United States v. Scott, 150 U.S.App.D.C. 323, 464 F.2d 832 (1972). In Scott’s case he was found not guilty of armed robbery, but the jury was unable to reach a verdict on another count charging unarmed robbery. The court declared a mistrial. Retried before a second jury, Scott was found guilty of unarmed robbery and we affirmed the conviction.

Perry testified in his own defense and on cross examination was impeached by evidence of his conviction of entering a savings and loan association with intent to commit robbery. His counsel did not object to the cross examination but asked only that the court instruct the jury on “the use of the criminal record.” (Tr. 111). This the court did immediately (Tr. 112) and the instruction was repeated in the court’s charge. (Tr. 139). There was no prejudicial error.

The appellant contends that his Fourth Amendment rights were violated because he was identified by Mr. Bradley at a lineup held pursuant to his arraignment on a charge other than the drug store robbery charge. This contention is answered by Anderson v. United States, 160 U.S.App.D.C. 217, 490 F.2d 785 (1974).

The judgment is

Affirmed.

Separate statement by McGOWAN, Circuit Judge, concurred in by Bazelon, Chief Judge, and Wright, Leventhal and Robinson, Circuit Judges, on denial of rehearing en banc.

I have not called for a vote on the suggestion for rehearing en banc filed in this case for the reason that the precise facts shown by the record do not indicate any violation of the Fourth Amendment. The conviction from which this appeal is taken was for the armed robbery of a Peoples Drug Store occurring on December 29, 1970. One week later appellant was arrested on a warrant charging him with the robbery of a savings and loan association on December 18, 1970. When he was arraigned pursuant to this arrest, the Government asked the magistrate to authorize a line-up at which appellant could be viewed by an eyewitness of the earlier robbery at the Peoples Drug Store. The Government represented in support of this application that an “Identification by Photo ID” had been made of appellant in connection with the drug store robbery. On the basis of this showing the magistrate authorized the line-up at which appellant was positively identified by an eyewitness to that robbery.

On these facts I have no doubt of the propriety of the line-up. The Government’s course of action appears to have been entirely reasonable in the circumstances, and the judicial authority it sought was properly forthcoming on the showing made. Indeed, the Government, in seeking judicial authorization, showed a commendable sensitivity to the Fourth Amendment protections which have always been thought to surround the person of one in lawful custody or out.

What is less clear to me is the soundness of the authority relied upon by the division for the result it reached. The division’s only comment in its opinion was as follows:

The appellant contends that his Fourth Amendment rights were violated because he was identified by Mr. Bradley at a lineup held pursuant to his arraignment on a charge other than the drug store robbery charge. This contention is answered by Anderson v. United States, 160 U.S.App.D.C. 217, 490 F.2d 785 (1974).

In Anderson error was claimed in the conviction of the appellant for an armed robbery allegedly committed on March 11, 1972. Anderson was arrested on April 1, 1972 and charged with assault with intent to commit robbery while armed on that same date, that is to say, April 1. Upon Anderson’s arraignment before the magistrate pursuant to that arrest, the Government informed the magistrate that it intended to place Anderson in a line-up for the offense for which he was arrested and also “ ‘for one or more armed robberies’ one of which had occurred in the same block.” When the Government refused to proffer any further information than this, the magistrate denied the motion for an Adams order, but did authorize a line-up to be held for the April 1 offense.

The line-up so authorized was held on April 5. No witnesses of the April 1 offense appeared, but the two victims of the March 11 offense did appear and identified Anderson. A motion to suppress these identifications was denied by the District Court and that action was sustained by a division of this court on appeal. The theory embraced in support of this result was that, since Anderson was lawfully in custody, he could be viewed in the line-up for the crime for which he was arrested by victims of a different offense, even without prior judicial authorization and, indeed, in this case, in defiance of the magistrate’s refusal to give the authority expressly sought by the Government for this purpose. No suggestion for rehearing en banc was ever filed in the Anderson case, nor was certiorari sought in the Supreme Court, despite the fact that it appears to go substantially beyond what this court has countenanced with respect to the exhibition in line-up of persons lawfully in custody.

The division that decided Anderson relied on what seems to me a debatable proposition at best, namely, that line-ups of persons lawfully in custody can in no circumstances constitute “unreasonable searches and seizures.” The theory is that once a detainee has lawfully been subjected to the initial seizure of arrest, he retains no Fourth Amendment protection against subjection of his person to witness confrontations, however unrelated to the crime for which he was arrested.

The district judge in Anderson, denying the motion to suppress, carefully analyzed the basis for the asserted loss by lawful detainees of Fourth Amendment protection. See 352 F.Supp. 33 (D.D.C.1972). He was of the opinion that our decision in the Adams case, excluding the fruits of a line-up during detention, rested solely on the fact that an “unnecessary delay” under Fed.R. Crim.P. 5(a) made the detention illegal. Were a presentment made without delay, detention would not be illegal and neither, so he opined, would a line-up held during that detention, whether it was with, without, or even in the face of a denial of, the authorization of the magistrate at the presentment. In this view, an Adams order authorizing “other crime” line-ups is necessary to their legality only in the sense that it could extend or define the lawful period of detention and thus allow the line-ups to take place within it.

Whether or not prior judicial approval in the form of an Adams order is necessary to legalize an “other crime” line-up is an issue which our cases cited by the district judge have indeed left in some doubt. On the one hand, we expressed approval in United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969), of a proposed “other crime” line-up partly on the ground that it had been authorized in an Adams order. On the other hand, in United States v. Miller, 145 U.S.App.D.C. 312, 449 F.2d 974 (1971), we approved an “other crime” witness identification made prior to presentment, reasoning that, though the presentment followed the identification, it did not take place after “unnecessary delay” within the contemplation of Rule 5(a). See also Williams v. United States, 136 U.S.App.D.C. 158, 419 F.2d 740 (1969) (en banc), suggesting that if counsel were present at the line-up, a detainee could have no objection to its taking place before presentment.

Even if we were to conclude that prior judicial authorization in the form of an Adams order is not a precondition to the legality of “other crime” line-ups, the distinct question would remain whether the Fourth Amendment nonetheless imposes some limitations on the line-ups to which a detainee can be subjected. Our approval in Allen of an Adams order allowing line-ups for other crimes involving a similar modus operandi is, of course, consistent with the existence of some such Fourth Amendment limitations. The Williams case, supra, really did not pose the question, since the lineup there was for the crime for which the detainee had been lawfully arrested. In Miller, we grounded our approval of a pre-presentment witness confrontation not only on the absence of “unnecessary delay” in the presentment, but also on the fact that “probable cause existed for the appellant’s arrest on the [two ‘other crime’ charges] because of the similarities in the three crimes.” 449 F.2d at 982.

Anderson also goes well beyond what the Supreme Court has yet defined to be the limits of exposure of arrestees to line-up viewing. It is, of course, conceivable that the division in Anderson has anticipated accurately the ultimate reach which the Supreme Court may give to the approach seemingly underlying such a recent decision as United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Prophesying the ups and downs of the Fourth Amendment in the Supreme Court is, however, a chancy business. Since Robinson — and post -Anderson — the Court has upheld a warrantless seizure of an arrestee’s clothing the morning following his arrest. United States v. Edwards, 415 U. S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). This decision was based, however, on the Court’s view that the seizure was within the exception for searches and seizures incident to arrest. The Court was careful to point out that “we do not conclude that the warrant clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee. . . .,” and that “[h]olding the Warrant Clause inapplicable in the circumstances does not leave law enforcement officers subject to no restraints. This type of police conduct ‘must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.’ . . .” United States v. Edwards, supra at 808 & n. 9, 94 S.Ct. at 1239 and n. 9.

To say, in the face of these observations by the Supreme Court, that a person in lawful custody for one crime may be freely and indiscriminately exposed to line-up viewing in respect of which there neither has been nor will be any scrutiny by judicial authority of reasonableness under the circumstances, is a very long step indeed. It requires rigorous analysis in the context of a fully developed evidentiary record, at least in the absence of more plainly controlling authority than was relied upon in Anderson.

      . Appellant's alleged role in the savings and loan robbery was that of driver of the getaway ear. Since there were no eyewitnesses to this alleged participation, there was no occasion to hold a line-up in respect of it.

      . The so-called Adams order refers to a procedure which this court first held out as a possibility in Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, cert. denied sub nom., Roots v. United States, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1968), and which it sustained in United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287 (1969), and subsequent cases.

      . In Adams the court recognized the contingency that at presentment the detainee might be released pending trial, thereby apparently circumventing the holding of a lineup or line-ups for any purpose; and that the purpose of the Adams order, as this court conceived it, was to provide judicial authorization of a limited intrusion upon the liberty so acquired in order that line-ups might be held. There is no dougt that this was a purpose underlying our suggestion of the Adams order approach; and, if it be taken to be the only one, then it can be regarded as unrelated to whether the lineups involve other crimes.

      . Requiring a prior Adams order is certainly not the only means of imposing Fourth Amendment limitations in this context. The Fourth Amendment might be thought to require that subsequent line-ups involving other crimes be subject to challenge by counsel at the line-up as unreasonable for lack of any relationship to the detainee, and that the issue so raised be preserved for determination by the trial court.


source: Caselaw Access Project

author: J. SKELLY WRIGHT, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. William L. DeLOACH, Sr., Appellant.
    No. 73-1194.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 11, 1974.
    Decided March 1, 1974.

      Thomas R. Asher, Washington, D. C. (appointed by this court), for appellant.
    William D. Pease, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry and Stephen W. Grafman, Asst. U. S. Attys., were on the brief, for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for ap-pellee.
    Before BAZELON, Chief Judge, WRIGHT, Circuit Judge, and WYZANSKI Senior District Judge.

       Of the United States District Court for the District of Massachusetts, sitting by designation pursuant to 28 U.S.O. § 294(d) (1970).

   J. SKELLY WRIGHT, Circuit Judge:

Appellant DeLoach and a co-defendant, Harry Jackson, were tried on an indictment charging each with the first degree murder of two individuals, Francis Harper and Brenda Willis, and with carrying an unlicensed pistol. The jury acquitted Jackson of all charges but convicted DeLoach of two counts of second degree murder and of the weapons charge. This appeal proceeds on three theories: that the conduct of closing arguments prejudiced DeLoach’s case, that the trial judge’s instruction to the jury on “aiding and abetting” was unclear, and that the judge erred in summarily denying appellant’s pretrial motion challenging the jury selection system then in force in the District of Columbia.

We find that certain restrictions imposed on the closing argument of appellant’s counsel were erroneous and that, in the context of this case, the errors were not harmless. Accordingly, we reverse the convictions. As for appellant’s claim regarding the instruction on “aiding and abetting,” we find no lack of clarity when, the jury charge is considered as a whole. The jury selection motion was properly denied by the District Court for the motion was not timely filed.

I. THE EVIDENCE

The Government relied almost entirely on the testimony of a confessed accessory to the homicides, Stephen Davis, whose appearance was compelled under a grant of immunity pursuant to 18 U.S.C. § 6002 (1970). To demonstrate the importance of his testimony, we precede it with a brief summary of the other evidence introduced by the Government.

The police found the murder victims at about 6:40 p.m., September 26, 1971, near an intersection in the Northeast section of the District of Columbia. Brenda Willis, in the front passenger seat of a parked Cadillac, had two bullet wounds in the head, fired at close range, and a third wound in her shoulder; a .38 caliber slug was later found in her sinus cavity. She never recovered consciousness and died at the scene. Francis Harper, lying in the street nearby, had five bullet wounds. Two .38 caliber slugs and one .22 caliber slug were removed from his body. The .22 slug had entered the right side of Harper’s face from extremely close range. He told officers he knew who had shot him; the name he mumbled before he died sounded to an observer like “Lloyd” or “Floyd.” The police never found the murder weapons, nor could any fingerprints be lifted from the car. On the front seat of the Cadillac officers found a large bowl containing heroin and cocaine valued at $4,000. Narcotics paraphernalia was found in the car, and autopsies revealed drugs in the blood of both victims.

The Government put on several eyewitnesses but conceded in opening argument that none would be able to identify the defendants; none was asked to do so. While the witnesses’ descriptions of persons glimpsed at the murder scene did not appear to fit DeLoach, several of the descriptions did appear to fit Stephen Davis. Within about ten minutes of finding the victims, the police issued a radio call for a truck which several of the witnesses had observed leaving the scene. Almost immediately, responding officers stopped a nearby truck driven by Davis in which Jackson was a passenger. The two men were released after brief questioning since the truck did not precisely fit the description in the radio call. That night Harper’s brother visited DeLoach, a friend of Harper, to tell him about the murders. While DeLoach professed surprise and sorrow, he kept a gun near him during the conversation.

Such would have been the case absent Davis’ testimony. The day after the murders, however, Davis engaged a lawyer and made a voluntary statement to the police about the affair. He was charged with first degree murder but released on bond. On April 28, 1972 an indictment issued charging Davis, Jackson, DeLoach, and Joseph Jackson, Davis’ employer, with murder, conspiracy to murder, and possession of unlicensed weapons. But on the day of trial, August 21, 1972, the Government secured dismissal of all charges against Joseph Jackson and.Stephen Davis and of the conspiracy charge against all defendants. Davis was granted immunity and ordered to testify.

His testimony matched his earlier statement to the police; DeLoach had asked Davis and Jackson to drive him in the truck to Chillum, Maryland on the day of the murders. Along the way DeLoach got out to make a phone call and returned to tell his friends that the people he wished to see were not at home. A few minutes later, however, DeLoach saw a Cadillac several car lengths ahead and said, “There is the people that I want to see.” Appellant got out of the truck and instructed Jackson to accompany him. As these two approached the Cadillac from opposite sides, Davis drove the truck around the corner. A moment later Davis heard gunshots and, at the same time, Jackson got back into the truck. Through the side mirror Davis saw DeLoach running up the street with a gun in his hand and also saw a body lying on the sidewalk. DeLoach reboarded the truck and the three drove off. DeLoach got out after several blocks, before the truck was stopped by the police, and Davis did not see him again until several months later, in court. Such was the story of the murders as told by Davis.

II. THE CONDUCT OF CLOSING ARGUMENTS

A. The Restrictions on the Argument of Appellant’s Counsel

Appellant’s counsel used the bulk of his closing argument to show that none of the evidence and testimony other than Davis’ story incriminated DeLoach. This was necessary spadework, but it left unanswered why the jury should doubt Davis’ testimony and how the murders occurred if not as Davis recounted. At the climax of his argument, counsel addressed these questions by attempting to show that Davis may have committed the murders himself. This attempt foundered in a sea of prosecution objections. To show the impact of these objections, we must resort here to rather lengthy quotations from the record.

MR. TREANOR [appellant’s counsel at trial]:
•X- -X- -X- X X- X
Without Mr. Davis, there is no evidence against Mr. DeLoach.
And, what do you think of his story? We can start with the 28th of September when Officer Fickling saw the Defendant DeLoach in his own home and didn’t make an arrest.
[PROSECUTOR]: Objection, your Honor. That is not in evidence. There is no evidence of that whatsoever.
THE COURT: Come to the bench.

Tr. 878-879. After much haggling at the bench, the prosecutor conceded that appellant's counsel had indeed introduced the evidence to which he had ad-vented. The court properly overruled the prosecutor’s objection. Several moments later appellant’s counsel began to argue how the murders might have occurred :

[By Mr. Treanor] * * *
This is what happened that weekend ladies and gentlemen. This is Defendant DeLoach’s theory of the case * * *
X * X X -X- X
So Davis stops the truck, and he gets out and goes back and gets in Harper’s car. And, he has no thought in his mind of killing anybody.
[PROSECUTOR]: Your Honor, I hate to object again, but there is nothing in the record to support that.
THE COURT: I sustain that. We can’t get into his mind. Disregard that.
MR. TREANOR: All right.
He had been drinking. He got into the back of the vehicle. Mr. Harper was there. Miss Willis was there. They were using narcotics.
[PROSECUTOR]: Your Honor, I object again. He is speculating to something that there is nothing in the record about.
MR. TREANOR: Well, we know they are in the car.
THE COURT: Where did you get this?
MR. TREANOR: May we come to the bench?
THE COURT: Come to the bench.
(At the bench.)
THE COURT: This is speculation.
MR. TREANOR: My theory of the case is that Davis went back—
THE COURT: You have to get evidence.
MR. TREANOR: He turns state evidence.
THE COURT: He may have turned state’s evidence. You may have wonderful theories, but you need evidence. I have ruled against you.
MR. FOGEL [Jackson’s counsel]: When he is through, can we take five minutes ?
THE COURT: We will see. Keep going.
(In open Court.)
THE COURT: Ladies and gentlemen, disregard that last statement of Mr. Treanor.
MR. TREANOR: There was a
quarrel of some kind inside this vehicle. He said that Mr. Harper was on the driver’s side and Miss Willis was on the other side. Whatever happened, the defense would argue to you that Miss Willis had in her possession the .22.
[PROSECUTOR]: Your Honor, I object. There is nothing to support that.
THE COURT: Come to the bench.
(At the bench.)
THE COURT: Where is there evidence that she had a 22 in her possession?
MR. TREANOR: The bullet went from right to left, which meant it was fired from the passenger’s side of the car.
THE COURT: You have no evidence that she had in her possession a 22.
MR. TREANOR: Your Honor, the inference came from the fact that there were open bags on the se[a]t, and they were selling narcotics. They would have carried weapons for their own protection.
THE COURT: I am sustaining the objection. You quit this fantasy you are getting into.
(In open court.)
THE COURT: Ladies and gentlemen, disregard that last statement.

Tr. 882-885.

Obviously flustered, appellant’s counsel quickly wound up his argument by suggesting, in several sentences, that the Government had not shown DeLoach’s “motive” for the murders. Counsel then moved for a mistrial, which motion was denied.

B. The Restrictions Were Erroneous

A criminal defendant’s constitutional rights to counsel and to a jury trial encompass a right to have his theory of the case argued vigorously to the jury. United States v. Sawyer, 143 U.S.App.D.C. 297, 298 n. 5, 443 F.2d 712, 713 n.5 (1971); Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971); United States v. Ham-monds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970).

The trial court has broad discretion in controlling the scope of closing argument. That discretion is abused, however, if the court prevents defense counsel from making a point essential to the defense.
In regulating the scope of argument, the court should be guided by criteria that are related to the function of argument, i.e., to help the jury remember and interpret the evidence. The prosecutor and the defense counsel in turn must be afforded a full opportunity to advance their competing interpretations * * *. The court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.

United States v. Sawyer, supra, 143 U.S.App.D.C. at 298-299, 443 F.2d at 713-714. (Footnotes omitted.) See Loveless v. United States, 104 U.S.App.D.C. 157, 260 F.2d 487 (1958).

The trial judge was apparently concerned that appellant’s counsel was trying to present facts or representations of fact dehors the record, which would of course be impermissible. But this concern was misplaced. Counsel’s plain intent was not to supplement or misstate the record but, as was quite proper, to suggest that the jury draw certain inferences from it. Thus he began his analysis with the clear statement that “[t] his is Defendant De-Loach’s theory of the case,” a formula repeated moments later at a bench conference. Similarly, counsel did not state that the record definitely showed Brenda Willis’ possession of the .22; rather, he stated:

Whatever happened, the defense would argue to you that Miss Willis had in her possession the 22.

(Emphasis added.) Concededly, counsel could have decorated his argument more liberally with such caveat phrases as “we would argue,” “we submit,” “you may infer,” and the like; the judge could have properly reminded him to distinguish for the jury in each instance what was in the record from what might be inferred from it. But the rulings here were not such reminders. Rather they entirely precluded counsel from arguing for the several inferences on which his case crucially depended.

This was error, for the record contained sufficient support for these inferences. Compare United States v. Dixon, 152 U.S.App.D.C. 200, 469 F.2d 940 (1972). Counsel’s theory that Davis had been in the Cadillac was supported by eyewitness testimony that a man roughly fitting Davis’ description had jumped from the car and run up the street. Counsel’s theory that Willis and Harper “were using narcotics” was supported by the autopsy report and by the cache of drugs found on the car’s front seat. Counsel’s theory that Brenda Willis, the passenger in the Cadillac, may have possessed the .22 was supported by the fact that Harper was shot by the .22 in the right side of his face at very close range, and by the eommon-sense inference that drug dealers would very likely arm themselves before driving about the city with $4,000 worth of narcotics.

A trial judge may not impose on a jury his own notion of which inferences are reasonable.

Now in this domain of logic, it is conceded, the counsel is free from restraint during argument. His desired inferences may be forced, unnatural, and untenable; but as to this the jury are to judge; that is precisely their function. To declare the desired inference irrational is to beg the question, by prejudging what the jury may believe.

6 J. Wigmore, Evidence § 1807(3), p. 272 (3d ed. 1940). This rule has special force in the present case, for “[i]f an accomplice has testified against the defendant, defense counsel may argue that the accomplice is seeking to protect himself or a friend.” ABA Project, supra note 8, Commentary to § 7.8(b). But in every criminal case, defense counsel should have wide latitude in drawing inferences from the record. See United States v. Chas. Pfizer & Co., 2 Cir., 426 F.2d 32 (1970), affirmed by equally divided Court, 404 U.S. 548, 92 S.Ct. 731, 30 L.Ed.2d 721 (1972); cf. United States v. Gorostiza, 9 Cir., 468 F.2d 915 (1972); Wakaksan v. United States, 8 Cir., 367 F.2d 639, 646 (1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967).

Arguing both first and last, the prosecutor has ample opportunity to rebut the inferences suggested by defense counsel. Furthermore, the presumption of innocence, the reasonable doubt standard, and the prohibition on directed verdicts of guilty combine to leave standing few if any limitations on the factual inferences which a jury may properly draw in the defendant’s favor.

C. The Error Was Not Harmless

The restrictions imposed upon the argument of appellant’s counsel were not harmless beyond a reasonable doubt. They cut to the core of counsel’s theory of the ease, and their impact was aggravated by the wide-ranging summations which the prosecutor and Jackson’s counsel were able to make to the jury. That some of the prosecutor’s remarks were improper added to the prejudicial effect.

The restrictions prevented appellant’s counsel from suggesting to the jury that Davis may have committed the murders and lied about DeLoach to cover up his own guilt. Whether this argument would have convinced the jury cannot be known. But the theory had support, however fragmentary, in the record, and without it DeLoach was “deprived of the substance of his defense.” United States v. Sawyer, supra, 143 U.S.App.D.C. at 299, 443 F.2d at 714; see United States v. Chas. Pfizer & Co., supra, 426 F.2d at 43-45. The Government reminds us that the erroneous rulings amputated only the “final few minutes of argument.” Brief for appellee at 16. But it is these minutes which probably have the greatest influence on the jury, especially where, as in this case, counsel has reserved his major points until the very end. If these concluding remarks by counsel had really been unimportant, the prosecutor would not, we think, have objected to them so strenuously; nor would he have devoted much of his rebuttal to ridiculing the theory of Davis’ sole culpability.

[A prosecutor’s] own estimate of his case, and of its reception by the jury at the time, is, if not the only, at least a highly relevant measure now of the likelihood of prejudice.

Garris v. United States, 129 U.S.App.D.C. 96, 100, 390 F.2d 862, 866 (1968).

Because of the erroneous restrictions on appellant's counsel, the closing argument phase of the trial was not well balanced. Appellant’s counsel could not speculate about Davis’ state of mind and motives, but the prosecution freely engaged in similar speculation about the defendant’s. Appellant’s counsel could not speculate about Willis’ possession of the .22 but the prosecution freely argued its own theories about the murder weapons. And Jackson’s counsel met no prosecutorial objection in making some of the arguments specifically foreclosed to DeLoach’s counsel. Obviously, the trial judge intended no partiality. Nevertheless, we cannot rule out the possibility that the jury inferred from the asymmetry in closing arguments that the judge approved the theories of the prosecutor or of Jackson’s counsel and disapproved those foreclosed to De-Loach’s counsel.

It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling. * * *

Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894). See also Quercia v. United States, 289 U.S. 466, 470-472, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) ; United States v. Nazzaro, 2 Cir., 472 F.2d 302, 313 (1973). Cf. United States v. Dellinger, 7 Cir., 472 F.2d 340, 387 & 390 (1972), cert. denied, 410 U.S. 970, 93 S. Ct. 1443, 35 L.Ed.2d 706 (1973).

Finally, the prosecutor’s closing argument did not always remain within the limits of propriety established by the Supreme Court.

He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
•* -X- -X-

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The prosecutor stated that Harper had been “shot down like a dog in the street,” a phrase condemned five years ago by Judge (now Chief Justice) Burger as being inconsistent with “the dignity of the Government.” Taylor v. United States, 134 U.S.App.D.C. 188, 189, 413 F.2d 1095, 1096 (1969). The prosecutor also insisted on characterizing the murders as “executions” and “assassinations.” This court recently made clear that “we do not condone” use of the former term. United States v. Jones, 157 U.S.App.D.C. 158, 164, 482 F.2d 747, 753 (1973). We also think that, “in the context of current events,” the term “assassination” constitutes an unnecessary appeal “to passion and prejudice.” See Brown v. United States, 125 U.S.App.D.C. 220, 224, 370 F.2d 242, 246 (1966). Just last year, we strongly disapproved a prosecution argument comparing a murder to the notorious political assassinations of the 1960’s. United States v. Phillips, 155 U.S.App.D.C. 93, 476 F.2d 538 (1973) (per curiam). As Judge (now Chief Justice) Burger has noted:

It is counsel’s responsibility to know the ground rules and follow them.

Gibson v. United States, 131 U.S.App.D.C. 163, 164 n.1, 403 F.2d 569, 570 n.1 (1968).

Reversed.

      . 22 D.C.Code § 2401 (1973).

      . 22 D.C.Code § 3204 (1973).

      . 22 D.C.Code § 2403 (1973), a lesser included offense of first degree murder.

      . The motion was filed on the day of trial, which is too late in view of the complexity of the issues raised. United States v. Greene, 160 U.S.App.D.C. 21, 24, 489 F.2d 1145, 1148 (decided Oct. 4, 1973). That case did not reach the substantive merits of the jury selection issue. Nor do we.

      . DeLoach is a 55-year-old black man weighing about 250 pounds. Davis is a younger black man with a medium “bush” hairstyle; on the night in question he was, according to police testimony, wearing a white shirt with stripes and dark trousers. Witness Hamiel described the man who shot Harper as being 45 to 50 years old, weighing 155 pounds, 5' 7", wearing a light hat and a brown jacket. Witnesses Charlene and Darlene Medlock saw two men emerge from the Cadillac, one falling out and the other jumping out and running. Charlene described the latter, wrho may have had a gun, as black, in his 30’s, wearing a white waist-length coat. Darlene described him as tall, black, with a short “bush” hairstyle, wearing a white jacket. From a nearby window, witness Putney saw a man lying in the gutter and another man running up the street; the latter she described as black, dark complexioned, 30 to 40 years old, wearing dark grey clothes and a hat.

      . DeLoach told Harper’s brother that he, DeLoach, had spoken by phone with Harper that day. A defense witness stated that he had been with Harper when the phone conversation occurred and that it had been amicable.

      . It is elementary * * * that counsel may not premise arguments on evidence which has not been admitted.
      Johnson v. United States, 121 U.S.App.D.C. 19, 21, 347 F.2d 803, 805 (1965). (Footnote omitted.)

      . On the distinction between misstating the record and drawing inferences from it, see United States v. Terrell, 2 Cir., 474 F.2d 872, 876-877 (1973) ; United States v. Dibrizzi, 2 Cir., 393 F.2d 642 (1968) ; American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 7.8(a) and Commentary thereto (Approved Draft 1971) (hereinafter “ABA Project”). Cf. Lawn v. United States, 355 U.S. 339, 359-360 n.15, 78 S. Ct. 311, 2 L.Ed.2d 321 (1958).

      . I5y use of such phrases counsel also makes clear that lie is not presenting his personal beliefs or opinions, which would be improper. See ABA Project, supra note 8, Commentary to § 7.8(b).

      . Even such reminders should be used sparingly. Defense counsel argues only once, and interruptions can seriously compromise his effect on the jury. As Judge (now Chief Justice) Burger has noted :
      [A] trial judge should not interrupt every argument which he thinks undesirable. Here as in other areas there are “gray zones” of argument which, though they sliould not be made, do not warrant interruption ...... *. The problem is one of balance; a serious transgression is impermissible by definition and it is as to these that intervention by the trial judge is called for. Other deviations can be dealt with by the trial judge’s post-trial admonition to counsel to avoid repetition of any departure from proper argument. This has long been an accepted method of instructing lawyers on courtroom conduct.
      Harris v. United States, 131 U.S.App.D.C. 105, 106 n.1, 402 F.2d 656, 657 n.1 (1968).

      . See note 5 supra.

      . Many cases recognize that the prosecutor may go beyond the normal bounds of proper argument to meet an issue introduced by defense counsel’s argument. See, e. g., United States v. Hodges, 10 Cir., 480 F.2d 229, 234 (1973) ; United States v. Gillis, 9 Cir., 474 F.2d 4, 5 (1973) ; United States v. Lipton, 2 Cir., 467 F.2d 1161, 1168-1169 (1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973) ; United States v. Fort, 143 U.S.App.D.C. 255, 443 F.2d 670 (1970), cert. denied, 403 U.S. 932, 91 S.Ct. 2255, 29 L.Ed.2d 710 (1971) ; United States v. Parker, 136 U.S.App.D.C. 97, 419 F.2d 679 (1969) ; Keys v. United States, 120 U.S.App.D.C. 343, 346 F.2d 824, cert. denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108 (1965). Given this power of rebuttal, the prosecutor need not and should not use harassing objections to restrict the inferences which defense counsel wishes to urge upon the jury.

      . In determining . whether an error is “harmless” under 28 U.S.C. § 2111 (1970) and Rule 52(a), Fed.R.Crim.P., a court must use the “reasonable doubt” test where the error is of constitutional dimensions. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The errors here impaired appellant’s constitutional right to closing argument in his behalf. See United States v. Sawyer, 143 U.S.App.D.C. 297, 443 F.2d 712 (1971) ; Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) ; United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970). However, we would reverse here even if the error lacked constitutional overtones, for we cannot say that “the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).

      . When an error appears during closing argument, the centrality or importance of the issue infected by error is a significant factor in determining whether jjrejudice resulted. Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969) ; King v. United States, 125 U.S.App.D.C. 318, 330, 372 F.2d 383, 395 (1967) ; see also United States v. Wasko, 7 Cir., 473 F.2d 1282, 1283 (1973).
      We have also given some weight to the fact that this case, resting on the testimony of a single, self-interested witness, must be classed as a close one. See Milton v. Wainwright, 407 U.S. 371, 372, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) ; Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) . This would be a larger factor were the error not of constitutional dimensions. See United States v. Jones, 157 U.S.App.D.C. 158, 165, 482 F.2d 747, 754 (1973) ; Gaither v. United States, supra.

      . See Walker, Thibaut & Andreoli, Order of Presentation at Trial, 82 Yale L.J. 216, 224 (1972).

      . * * * Miss Willis, unfortunately, was a victim of circumstances. She was a witness to the whole thing. She had to be taken care of. You can’t come up there and kill Mr. Harper — They obviously weren’t expecting Miss Willis to be in the car, but once she was there, they can’t leave a witness to this case.
      Again, deliberation and premeditation. "We have not only got to get rid of the person we want to get rid of, but we have got to get rid of the witness ourselves.”
      Tr. 841-842.
      * * * May you not infer that Mr. DeLoaeli was a little apprehensive at that point, and he figured he had better go down there with a gun in his hand in case there was any trouble.
      * * * * *
      * =i * He was g0ing to play like he didn’t know anything. But, he wasn’t going to take any chances with Johnny Harper when he went down to that door
      Tr. 853.
      * * * Johnny Harper came over there, and Mr. DeLoach thought, “Oh, my God, he knows I have killed his brother.”
      Tr. 925.
      * * * All they would have had to have done was reach over and take $4,000 in wholesale value of narcotics, but they didn’t do it, because they had something else on their minds. They had an execution on their minds of Francis Harper. And, unfortunately Brenda Willis happened to be there and was an unnecessary witness. And, dead witnesses tell no tales. So, she had to go also.
      Tr. 931-932.

      . The only link established between De-Loach and the murder weapons, which were never found, was Davis’ claim to have seen (through a car mirror) DeLoach running up the street with a gun in his hand. Davis did not claim to have seen either DeLoach or Jackson with a gun at any other time on the day of the murders. Yet the prosecutor argued:
      * * * Is that not consistent with when Francis Harper was fired at with that first 22 round that she started to turn around to see what was happening, and she was on the left hand side of that car, and Mr. DeLoach who was on the passenger’s seat reached over with his 38 and took care of her. * * *

      Tr. 842.
      And, they get in a truck and they drive eight miles, taking approximately 20 to 25 minutes driving time, with a loaded 38 and a loaded 22 in their possession. * * *
      Tr. 931.

      . Jackson’s counsel was permitted to suggest that Davis had left the truck and entered the Cadillac, and also that the .22 pistol belonged to Brenda Willis. The Government does not claim that these remarks ben-efitted appellant sufficiently to cure the erroneous restrictions placed on his own counsel’s argument. Jackson’s counsel stated to the jury before beginning argument, that he represented only Jackson. The two defendants had distinct interests in the closing argument phase of the trial, for Davis’ story had assigned them very different roles in the murders. Thus it cannot be assumed that Jackson’s counsel made his argument in a fashion well calculated to further DeLoach’s case.

      . As the trial court’s error lay in restricting appellant’s counsel, rather than in failing to restrict the prosecutor or Jackson’s counsel, the asymmetry cannot — as the Government urges — be blamed on the failure of appellant’s counsel to object to tlie broad arguments of the prosecutor and of Jackson’s counsel. The broad arguments on all sides were proper and thus invulnerable to objection. At any rate, interruptions and bickering are to be discouraged during closing arguments. See note 10 supra.

      . Counsel failed to object to use of the terms “execution” and “assassination.” Objection was raised to the phrase “shot down like a dog,” and the trial court instructed the jury to disregard the phrase. We need not decide whether, in this context, the prosecutor’s remarks were sufficient in themselves to warrant reversal. We view them merely as factors to be weighed in assessing the prejudicial impact of the court’s erroneous rulings on the argument of appellant’s counsel. But we remind the Government that some remarks cause prejudice which is not eradicable by subsequent judicial instructions, Gaither v. United States, supra note 14; King v. United States, supra note 14, and that a defendant’s failure to object is not dispositive, Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734 (1943) ; United States v. Jones, supra note 14, 157 U.S.App.D.C. at 164, 482 F.2d at 754; United States v. Young, 150 U.S.App.D.C. 98, 104, 463 F.2d 934, 940 (1972). It is obviously unrealistic to expect defense counsel to object when the prosecution characterizes a murder as an “execution” or “assassination” ; the objection would make the counsel, and his client, seem at once callous and overly fussy.


author: McGOWAN, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Frank R. SCOTT et al; UNITED STATES of America, Appellant, v. Bernis L. THURMON et al.
    Nos. 71-1702, 71-1703.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 13, 1972.
    Decided June 27, 1974.

      Philip L. Kellogg, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Donald T. Bucklin, Asst. U. S. Attys., were on the brief, for appellant.
    Addison M. Bowman, Washington, D. C. (appointed by this court), for appel-lees, Spencer, Daviage and Abston.
    John A. Shorter, Jr., Washington, D. C., with whom Colie B. Chappelle, Washington, D. C., was on the brief, for ap-pellees Scott and Thurmon.
    Before McGOWAN, MaeKINNON and ROBB, Circuit Judges.
   McGOWAN, Circuit Judge:

The Government appeals a District Court determination that (1) law enforcement officials conducting a judicially authorized wiretap failed to minimize, to the degree required by the statute, interceptions of non-narcotics-related conversations and (2) all evidence derived therefrom should be suppressed. United States v. Scott, 331 F.Supp. 233 (D.D.C.1970). We deferred decision pending action by this court on another case involving common issues, including that of minimization. United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007 (1974). We conclude that the standards ■ for measuring minimization employed by the District Court are at variance with those subsequently announced and thoroughly discussed in James. Accordingly, we remand for reconsideration in light of that opinion and the additional comments contained herein.

I

Pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, officials of the Federal Bureau of Narcotics and Dangerous Drugs and the Metropolitan Police Department applied for judicial authorization to intercept wire communications of members of a narcotics conspiracy who were using a telephone listed to Geneva Jenkins. The District Court granted authorization on January 24, 1970, empowering agents to intercept the “wire communications of Alphonso H. Lee, Burnis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described,” and commanding them to minimize interceptions of conversations not subject to interception under Title III.

On that same day the interception began. Officials subsequently sought and obtained authorization to intercept narcotics-related conversations conducted over two other telephone numbers, and later obtained an extension of the original authorization. On February 24, 1970, all of the interceptions terminated, and search and arrest warrants were executed that led to the arrest of twenty-two persons and the seizure of considerable quantities of narcotics.

Following indictment, another district judge ordered comprehensive discovery and thereafter conducted an extensive series of hearings on multiple defense motions. The court concluded that the agents conducting the interception of conversations over the Jenkins phone had failed to comply with the minimization mandate, and ordered suppression of conversations intercepted in that wiretap and all other evidence derived therefrom. The Government, after failing in its attempt to obtain reconsideration of the court’s order, exercised its statutory right of appeal. 18 U.S.C. § 2518(10)(b).

Minimization was but one of a number of issues urged upon the District Court during the extensive pretrial hearings. The defendants advanced individual contentions, as well as numerous common questions pertaining to the constitutionality of Title III and to the implementation of the statutory requirements in this case. Moreover, the court was at the time essentially writing on a clean slate. Few appellate decisions existed to offer guidance in the resolution of the many complex constitutional and statutory problems underlying Title III, and this court had not as yet spoken to those questions at all. James now teaches that the District Court properly rejected appellees’ constitutional challenge to the provisions of Title III. United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1020 (1974). Moreover, we have examined the affidavit filed in support of the application for authorization to intercept conversations on the Jenkins phone, and we feel that the court properly rejected all challenges to its sufficiency. See id. at 1021. Finally, we concur in the court’s rejection of appellees’ contentions that the authorizing order insufficiently particularized the conversations that could be intercepted.

II

The Government asserts that the court erred in permitting each “aggrieved person,” in the language of the statute, to raise a minimization objection based on the interception of conversations in which he did not participate, insisting that this enables appellees to assert the privacy interests of others in violation of long established principles of Fourth Amendment law. See generally Brown v. United States, 411 U.S. 223, 230 (1973), and cases cited therein. Pointing out that all of the conversations cited by the court involve either Geneva Jenkins or appellee Bernis Thurmon and third parties, the Government maintains that only Geneva Jenkins and appellee Thurmon have standing to suppress intercepted conversations.

The Congressional definition of “aggrieved person” was designed “to reflect existing law.” S.Rep.No. 90-1097, 90th Cong., 2d Sess., 91 (1968). See also Alderman v. United States, 394 U.S. 165, 175 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. King, 478 F.2d 494, 506-507 (9th Cir. 1973); United States v. Doe, 451 F.2d 466, 469 (1st Cir. 1971). Moreover, Congress understood that this would serve to limit the statutory remedy so as not to “press the scope of the suppression rule beyond the present search and seizure law.” S. Rep.No. 90-1097, supra, at 96.

There appears to be no question that each of the appellees in this case is an “aggrieved person” within the meaning of the statute. As such, each is protected by the stringent safeguards of Title III, including the requirement that agents minimize interceptions of conversations that they are not authorized to intercept. Each aggrieved person is entitled to question whether the statutory minimization requirement has been satisfied and, on proving that it has not, to move to suppress a communication on the ground that “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10) (a)(iii). The question presented by the Government’s challenge is really whether some of the appellees can introduce evidence based on conversations in which they did not participate in order to attempt to demonstrate that the intercepted conversations to which they were a party were not, in the statutory phrase, seized “in conformity with the order of authorization.”

Any inquiry into possible noncompliance with the minimization requirement is, by its very nature, one that calls for an examination of the totality of the monitoring agents’ conduct during the duration of the authorized interception. Fragmenting the minimization inquiry in the manner suggested by the Government would force the court to adopt an unrealistically narrow view of the issue, thus making any assessment of the overall reasonableness of the agents’ conduct a highly artificial exercise. The District Court properly recognized this, and rejected the Government’s argument. The court also properly recognized the necessity of assessing the totality of the agents’ conduct, and indeed considered the cited conversations only as examples of their actions. See Scott, supra, 331 F.Supp. p. 2, at 247. We find no error in this regard.

Examination of the District Court’s resolution of the merits discloses, however, that the court did apply an improper standard in assessing the agents’ alleged noncompliance with the minimization requirement. As James and other cases make clear, any minimization determination requires an assessment of the reasonableness of the agents’ efforts in light of the purpose of the wiretap and the information available to them at the time of interception. See also United States v. Bynum, 360 F.Supp. 400 (S.D.N.Y.), aff’d, 485 F.2d 490 (2d Cir. 1973), vacated on other grounds 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); United States v. Focarile, 340 F.Supp. 1033 (D.Md.), aff’d sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), aff’d, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

It appears that the trial court’s conclusion that the agents made no attempt to minimize stemmed in large part from its conclusions that they failed to succeed. The court relied heavily upon the fact that some sixty percent of the intercepted conversations appeared to be unrelated to narcotics transactions. This, together with the fact that the agents intercepted all of the conversations conducted during this period of authorization, in the opinion of the District Court, “strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz [Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576] and Berger [Ber-ger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040].” Scott, supra, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209, p. 2, at 247. The court purported to find confirmation of this initial impression in its examination of certain conversations which, in its opinion, clearly should not have been intercepted.

This court’s intervening opinion in James indicates that an assessment of the reasonableness of agents’ attempts to minimize must be judged on a considerably more particularized basis. For example, a substantial number of the intercepted conversations that cannot be classified as narcotics-related appear to have been either very short in duration or extremely ambiguous in nature, or both. Interception of those conversations cannot be considered unreasonable, for the agents could not have determined whether they were innocent prior to their termination. See United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973), vacated on other grounds, 417 U. S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). And, if the Government’s characterization of the number of intercepted conversations of this type proves substantially correct, it would appear that the District Court’s determination that sixty percent of the intercepted calls were unrelated to narcotics substantially overstates the case for noncompliance with the order to minimize. Likewise, the cited conversations between appellee Geneva Jenkins and her mother .must be examined more carefully. While all of the conversations may appear in retrospect to have been innocent, that does not necessarily indicate that each interception was unreasonable. The conduct of the agents must be assessed in light of the information available to them at the time. If the Government’s assertion that agents had reasonable cause to suspect the mother’s knowledge of the narcotics conspiracy proves correct, interception of those conversations would not be unreasonable, at least until such time as the initial suspicion should have been dissipated.

Ill

While examination of the District Court’s opinion persuades us that the court applied improper standards in resolving the minimization question, we cannot with equal certainty determine what the proper resolution of the issue should be. Many of the underlying facts essential to an assessment of the reasonableness of the agents’ conduct have not been established. Much of the Government’s argument in this court is based on an analysis prepared by it of the intercepted calls, including its resulting characterization of the information available to the agents at the time of the particular interceptions. This comprehensive analysis was not made available to the court prior to the motion for reconsideration of its suppression order, and the transcript of the hearing on that motion indicates that it was not carefully examined at that time.

The call analysis, while not technically new evidence, may suffer some of the same infirmities. It may, for example, contain errors of characterization or other factual inaccuracies that can best be identified and corrected in adversarial proceedings. Likewise, the Government’s characterization of the nature of information available to the intercepting agents should be subject to appellees’ scrutiny and challenge. Only after the court is satisfied that it has a complete and accurate picture of. the agents’ actions can it make a meaningful assessment of the reasonableness of their conduct.

The District Court, upon remand, should accept the call analysis and any other evidence that might appear to be of assistance in the resolution of this complicated minimization question. And, after assuring itself of the validity of the evidentiary offerings, it should again assess the reasonableness of the agents’ conduct in light of James and the comments contained herein.

The suppression order is vacated without prejudice, and the case is remanded to the District Court for re-examination of the minimization issue in the light of James and for further proceedings consistent herewith.

It is so ordered.

      . Tlie application and judicial authorization identified the subscriber of the telephone number as Geneva Thornton. However, the District Court opinion indicates that the name Thornton was an alias, and that the subscriber’s real name was Geneva Jenkins. She was indicted under that name. United States v. Scott, 331 F.Supp. 233, 236 (D.D.C.1970). In this opinion, we will refer to her as Geneva Jenkins, and to the telephone number on which the authorization was granted as the Jenkins telephone.

      . The District Court’s opinion in terms dealt only with the question of the agents’ efforts to minimize unauthorized interceptions in the Jenkins wiretap. Its suppression order excluded all evidence derived from this initial interception, and “evidence obtained either directly or indirectly as a result of the intercept authorized by the Order of January 24, 1970.” United States v. Scott, 331 F. Supp. 233, 248 (D.D.C.1970). While it appears that at least some information obtained from the Jenkins wiretap is reflected in the application and affidavit supporting the interceptions on the other telephone numbers, see JA at 28, 39-41, there was also a substantial amount of independent material contained in those documents. In these circumstances we are unable to say with certainty whether the District Court thought those taps to be fatally tainted by what it considered to be the invalid Jenkins tap. If on remand the District Court should persist in this view of the Jenkins tap, it will presumably be required to determine whether the other interceptions were tainted to an unacceptable degree by information obtained from that tap. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . Although the application for the initial interception requested authorization for a twenty day wiretap, the court order granted permission for thirty days. However, agents sought extension of the initial authorization after twenty days, and that extension was granted. Appellees have not pointed to any particular harm resulting from the court’s oversight, and we have found none.

      . Section 2510(11) defines an “aggrieved person” to be any person “who was a party to any intercepted wire or oral communication” or a person “against whom the interception was directed.” 18 U.S.C. § 2510(11). Bach appellee claims to have been a party to an intercepted conversation, and tlie Government does not contest this claim. Section 2518, in turn, states that aggrieved persons “may move to suppress the contents of any intercejrted wire or oral communication, or evidence derived therefrom, on the grounds that—
      (i) the communication was unlawfully intercepted ;
      (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
      (iii) the interception was not made in conformity with the order of authorization or approval.”

        Id. § 2518(1) (a). See United States v. Giordano, infra, 469 F.2d 522 (4th Cir. 1972).

      . The Government’s argument on standing is correct insofar as it relates to the question of which conversations an individual aggrieved person might suppress upon proof that the monitoring agents failed adequately to minimize. As Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), indicates, the prohibition against assertion of another’s rights normally would preclude an aggrieved irnrson from suppressing a conversation in which he did not participate. See United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972).
      On this appeal the Government argued vigorously that, even assuming a breach of the statutory minimization requirement, it was error for the District Court to exclude all of the intercepted conversations, including those clearly related to narcotics. Since the question of the appropriate remedy for such breach does not arise until the breach itself is established, we do not, in view of the disposition we make of this appeal, find it necessary to address that question.

      . Although the opinion does not so indicate, the transcript of the hearings reveals that the Government unsuccessfully pressed this argument upon the District Court.

      . We do not mean to imply that in all cases the District Court should allow each aggrieved person access to the totality of the intercepted conversations in order to prove a minimization challenge. Title III makes the authorizing judge the custodian of the intercepted conversations. 18 U.S.C. § 2518 (8) (a), (d). Additionally, Section 2518 (10) states that the judge, upon the filing of a motion to suppress, “may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.” There may be cases in which the district judge determines that he can confidently rule on the minimization question without permitting complete access to all of the intercepted conversations.


text:
    TENNESSEE GAS PIPELINE COMPANY, a Division of Tenneco, Inc., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Columbia Gas Transmission Corporation et al., Intervenors.
    No. 72-1945.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 11, 1974.
    Decided Aug. 1, 1974.

      Dale A. Wright, Washington, D. C., for petitioner.
    Charles E. Bullock, Atty., Federal Power Commission, for respondent. Leo E. Forquer, Gen. Counsel, Federal Power Commission, George W. McHenry, Jr., Sol. and Joan E. Heimbigner, Atty., Federal Power Commission, were on the brief, for respondent.
    Peter H. Schiff, Albany, N. Y., entered an appearance for intervenor, The Public Service Commission of the State of New York.
    Daniel L. Bell, Jr., Charleston, W. Va., entered an appearance for intervenor Columbia Gas Transmission Corp.
    Barbara M. Gunther, Brooklyn, N. Y., entered an appearance for intervenor, The Brooklyn Union Gas Co.
    John E. Holtzinger, Jr., Washington, D. C., entered an appearance for interve-nor, Consolidated Gas Supply Corp.
    John W. Glendening, Jr., New York City, N. Y., entered an appearance for intervenor, The Berkshire Gas Co., and others.
    William W. Winter, Chicago, 111., entered an appearance for intervenor, The Peoples Gas Light and Coke Co., and others.
    B. Jenkins Middleton, Washington, D. C., entered an appearance for intervenor, Rochester Gas and Electric Corp.
    Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, United States Senior District Judge for the District of Montana.

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

   PER CURIAM:

Tennessee Gas Pipeline Company (Tennessee) petitions this court to review and set aside a letter order of the Federal Power Commission (the Commission) issued July 31, 1972, which rejected a “Purchased Gas Cost Tracking Rate Increase” filed by Tennessee. We find that the July 31st order was in direct conflict with a prior Commission order, and direct the July 31st order to be set aside.

A “tracking rate change” enables a pipeline to adjust its rates to reflect certain cost increases without following the detailed procedures required for a general rate change. In 1970 the Commission instituted a rulemaking to establish a uniform policy for tracking rate changes. This rulemaking culminated in Order No. 452, issued April 14, 1972, which established a new procedure for pipelines to include Purchased Gas Adjustment provisions (PGA clauses) in their gas tariffs.

Prior to the issuance of Order No. 452, Tennessee filed a revised tariff to which several parties objected. Rather than undergo an extensive hearing procedure, and pursuant to the Commission’s policy encouraging settlements, Tennessee and the other interested parties submitted a settlement agreement on the new tariff for Commission approval. On May 19, 1972, the Commission issued Opinion and Order No. 619 which approved the settlement agreement with minor changes.

The approved settlement agreement permitted tracking rate changes during a prescribed transition period. After the expiration of the transition period, tracking rate changes would be governed by the new PGA procedures established by Order No. 452. Although the settlement agreement as submitted to the Commission authorized tracking rate changes until December 31, 1972, by Order No. 619 the Commission cut back the transition period so that the tracking authority would expire June 13, 1972. In addition to the time limitation on the tracking authority, the settlement agreement imposed two conditions: (1) any tracking rate increase must take effect on the first of a month, and (2) a tracking increase must be filed 40 days in advance of its effective date.

Noting that it had approved similar tracking provisions in other cases, the Commission in Order No. 619 approved tracking authority for Tennessee as being “reasonable and proper and in the public interest in carrying out the provisions of the Natural Gas Act.” See Jt. App. at 30-32. However, Order No. 619 resulted from a 3-2 decision of the Commission, Commissioners Brooke, Walker and Carver forming the majority. Chairman Nassikas and Commissioner Moody dissented.

On June 13, 1972, Tennessee attempted to exercise its tracking rate authority by filing a tracking increase to become effective August 1, 1972. This tracking increase was filed within the transition period established by Order No. 619. However, in an order dated July 31, 1972, the Commission denied the increase on the ground that a tracking increase had to become effective within the authorized period and not merely be filed during such period. The Commission stated that its action “reflects the approach consistently applied by the Commission that tracking filings must become effective on or before the date the tracking authority terminates.” It is this July 31st order which we are asked to review.

On a petition for rehearing of the July 31st order, the Commission split 2-2 and hence the petition was denied. The two members voting to deny rehearing were Chairman Nassikas and Commissioner Moody, the same two members who had dissented from initial approval of the settlement agreement. The fifth Commission member who had participated in Order No. 619, Commissioner Carver, had resigned in the interim and his replacement had not yet been appointed.

■ The effect of the July 31st order was completely to abrogate the tracking authority approved by Order No. 619 because, under the July 31st interpretation, it was impossible for Tennessee ever to obtain a tracking rate change under the settlement agreement. The settlement agreement was approved on May 19th. In view of the requirement for 40-days notice and the provision that tracking rate changes must take effect on the first of a month, the earliest possible date that a tracking increase could become effective was July 1st. But July 1st was beyond the June 13th expiration date of the tracking authority. Thus, by interpreting the settlement agreement to require the tracking change to become effective within the authorized period, the two Commissioners who originally dissented from approving the settlement agreement effectively overruled that agreement by “interpreting” the tracking authority out of existence.

At oral argument counsel for the Commission (that is, counsel for the two members of the Commission who voted to deny rehearing) acknowledged that under the interpretation contained in the July 31st order, it was impossible for Tennessee ever to exercise the tracking authority contained in the settlement agreement and approved by Order No. 619. The Commission also acknowledges that it is bound by approved settlement agreements. Brief for FPC at 18; see, e. g., Chicago v. FPC, 128 U.S.App.D.C. 107, 116-119, 385 F.2d 629, 638-641 (1967), cert. denied, 390 U.S. 945, 88 S.Ct. 1028, 19 L.Ed.2d 1133 (1968). To support its position the Commission relies entirely on its general power to interpret ambiguous contractual terms, and argues that the July 31st order represents a reasonable interpretation of the settlement agreement.

We cannot accept the Commission’s view that a reasonable interpretation is one which completely destroys the provision being interpreted. Although the settlement agreement and Order No. 619 did not explicitly state whether the tracking rate change must be filed or must become effective during the authorized period, we must conclude that'the Commission intended tracking rate authority to exist during some period. Otherwise, it was pointless for the Commission in Order No. 619 expressly to ratify tracking authority for Tennessee and to establish a transition period for its exercise. The only interpretation consistent with the apparent intent of Order No. 619 is that the tracking rate change must be filed within the authorized period.

Since the contrary interpretation embodied in the July 31st order is unreasonable and conflicts with prior Order No. 619, the order of July 31, 1972, must be set aside.

Judgment accordingly.

      . We have jurisdiction to set aside the July 31st order under 15 U.S.C. § 717r(b) (1970).

      . Order No. 619 stated :
      The purchased gas cost tracking provisions in Articles VIII and XIII of the Settlement are approved upon condition that such tracking authority shall expire 60 days from the April 14, 1972, issue date of Commission Order No. 452.
      Jt. App. at 35. Pertinent portions of Articles VIH and XIII of the settlement agreement provide:
      ARTICLE VIII
      Tracking Rate Changes for Changes in Gas Suppliers’ Rates

        Section 1. Prom time to time during the Moratorium Period, Tennessee’s jurisdictional rates shall be adjusted downward and may be adjusted upward to reflect changes in Tennessee’s cost of purchased gas in accordance with the procedures in this Article VIII and Article XIII hereof.
      ARTICLE XIII Procedures for Piling Tracking Rate Changes

        Section 1. At least forty days prior to the Effective Date of Adjustment for each rate change filed pursuant to Articles VIII, IX, X, XI and XII hereof, Tennessee shall file with the Commission and post as defined by Section 154.16 of the Commission’s Regulations revised tariff sheets to reflect the effective rate after the rate change as determined pursuant to each of such Articles and this Article XIII. Each such filing shall include the necessary computations to show such determination of each rate change.

        Section 2. The Effective Date of Adjustment for each rate change filed pursuant to Articles VIII, IX, XI and XII shall be that specified in Tennessee’s filing thereunder and shall be the first day of a calendar month.

        Section 5. All rate changes filed jmrsu-ant to Articles VIII through XIII hereof shall be permitted to become effective as of the Effective Date of Adjustment specified in each such filing without suspension, condition, or refund obligation, except for the limited refund obligations provided in Section 7 of Article IX hereof, Section 5 of Article XI hereof, and Section 4 of Article XII hereof.

        Section 6. Rate changes filed pursuant to Articles VIII through XII hereof shall be coordinated so that Tennessee shall make no more than five such rate changes before the end of the Moratorium Period. Tennessee may, therefore, combine rate filings under two or more of such Articles without regard to the limitations on frequency of filing or minimum amounts set forth in said Articles for separate filings thereunder.
      Jt. App. at 8, 19-21.

      . Despite the Commission’s reference to “the approach consistently applied by the Commission,” in this appeal counsel for the Commission candidly acknowledges:
      This is a case of first impression, as there lias been no other express Commission interpretation of the phrase “exxiiration of tracking authority.” Without any prior Commission interpretation of judicial precedents to be followed, the question to be asked is whether the Commission’s interpretation was reasonable.
      Brief for FPC at 13.