source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    MUNICIPAL ELECTRIC UTILITY ASSOCIATION OF ALABAMA et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Alabama Power Company, Intervenor. BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Alabama Power Company, Intervenor.
    Nos. 72-1293, 72-1294.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 26, 1973.
    Decided June 29, 1973.

      Arnold Fieldman, Washington, D. C., with whom Reuben Goldberg, Washington, D. C., was on the brief, for petitioners in No. 72-1293.
    D. Biard MacGuineas, Washington, D. C., with whom Bennett Boskey, Washington, D. C., was on the brief, for petitioners in No. 72-1294.
    Platt W. Davis, III, Atty., F. P. C., with whom Leo E. Forquer, Acting Gen. Counsel, and George W. McHenry, Jr., First Asst. Sol., F. P. C., were on the brief for respondent. Gordon Gooch, Gen. Counsel, F. P. C., also entered an appearance for respondent.
    George F. Bruder, Washington, D. C., for intervenor. Thomas M. Debevoise, Washington, D. C., also entered an appearance for intervenor.
    Before GEORGE C. EDWARDS, Jr., Circuit Judge for the Sixth Circuit, LEVENTHAL, Circuit Judge, and JOHN H. PRATT, United States District Judge of the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U. S.C. § 291(a).

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   LEVENTHAL, Circuit Judge:

These petitions to review attack orders of the Federal Power Commission which denied motions to reject a rate filing of Alabama Power Company, presented by various of its customers, Alabama municipalities and rural electric cooperatives engaged in the retail distribution of electric power.

At the outset of this controversy, Alabama Power’s interstate wholesales of electric energy to Petitioners were made pursuant to 46 individual contracts, providing for delivery at 121 separate locations. These contracts, all negotiated, were filed with the Commission as rate schedules. They contain various and differing terms and conditions of service, and called for deliveries at a fixed price for the duration of the contract. The contracts had various termination dates, ranging from January 3, 1972, to April 17, 1976.

On November 1, 1971, Alabama Power .tendered for filing under § 205(d) of the Federal Power Act, 16 U.S.C. § 824d(d), a new tariff schedule applicable to all “electric service provided by Alabama Power Company to municipal distribution systems . . . and rural distribution cooperative . . . . ” (R. at 915). In addition to a substantial rate increase over the contract levels, the new tariff embodied a variety of terms and conditions — including automatic tax and fuel cost adjustment provisions — that differed significantly from those of the negotiated contracts. Most important, it placed all wholesale sales on a uniform basis, at a single rate and under identical conditions of service. In place of the individual contracts, all sales were to be made pursuant to service agreements (short form contracts) that incorporated by reference the terms and conditions of the new tariff.

Under the terms of the filing, Alabama Power proposed that the new tariff schedule “became effective January 3, 1972, or the earliest date thereafter in accordance with existing contracts with [the affected] customers.” (R. at 916, emphasis supplied). The tariff was to be applied to all new service contracted for after the proposed effective date. As to service under existing contracts, however, the new tariff was to become applicable only “as of the date of contractual termination [of service] at [each existing] delivery point.” (R. at 917). Hence once outstanding agreements expired, all future service would be rendered under the terms of the proposed tariff. The conversion of municipal and distribution cooperative sales from an individual basis to a single standardized tariff, would become complete in 1976.

On November 15, 1971, the FPC issued a Notice of Proposed Changes in Rates and Charges. Petitioners filed timely intervention petitions, protests, and motions to reject the Alabama Power filing, objecting that the tendered filing: (1) violated § 205 of the Federal Power Act; (2) was premature and in violation of §§ 35.3 and 35.13 of the FPC’s Regulations; and (3) violated the Economic Stabilization Act of 1970, as amended.

By order issued December 30, 1971, the Power Commission denied Petitioners’ motions to reject the rate filing, granted the petitions to intervene, scheduled hearings to determine whether the proposed rate was just and reasonable, and suspended the effective date of the rate schedule until February 2, 1972. Applications for reconsideration were denied on February 11, 1972.

A. Matters Relating to Jurisdiction

I. Issues Under Economic Stabilization Act

Petitioners raise various contentions that the proposed rate increase was so grossly excessive, and the automatic adjustment provisions so patently contrary to the intent of the Stabilization Act, that the Commission should treat the entire filing as a substantive nullity, and that the FPC’s refusal to suspend the rate schedule for five months violated the Price Commission’s regulations, § 300.16(i)(3). These are issues arising under the Economic Stabilization Act, and — to the extent these are currently viable — they are cognizable in the district courts (and, on appeal, the Temporary Emergency Court of Appeals) and not before this court. Municipal Intervenors Group v. FPC, 153 U.S.App.D.C. 373, 473 F.2d 84 (1972).

2. Issues Under Federal Power Act

Petitioners’ other contentions, however, arise not under the Economic Stabilization Act but wholly under the Federal Power Act and FPC regulations promulgated thereunder. As to these matters, section 313 of the Federal Power Act mandates: Upon filing of the administrative record, in a pertinent court of appeals, it has exclusive jurisdiction “to affirm, modify, or set aside” the Commission’s order on such grounds. See 16 U.S.C. § 825Z(b); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 335-341, 78 S.Ct. 1209, 2 L.Ed.2d 345 (1958).

In Municipal Intervenors Group we stated: “The circumstance that utilities are subject to two types of regulatory control raises the possibility of two types of judicial review.” While both aspects of the Commission’s regulatory jurisdiction are reflected in the order sought to be reviewed, the issues on appeal arising under the Federal Power Act may be cleanly severed from those that require consideration of the Eeonomic Stabilization Act. We believe that an entirely harmonious accommodation of the two pertinent Congressional enactments can be achieved by dual review of the Commission’s order in both this court and the District Court, each tribunal acting within the sphere of its statutorily defined exclusive jurisdiction. Finding that the exercise of our jurisdiction under section 313 would not constitute an embarrassment to the separate jurisdiction of the District Court of the Economic Stabilization Act, we consider the issues properly cognizable under section 313.

B. Propriety of the Filing Under Section 205(d)

Petitioners first contend that Alabama Power’s filing represents a unilateral attempt to supplant its contractual service obligations and to impose a rate increase not consented to by its customers and in contravention of its agreements with them. Were this the case, the filing could not be accepted under section 205(d), and Alabama Power’s only recourse would be to request that the FPC institute proceedings under section 206(a) of the Act, to show that the existing contract rate was so unremunerative as to be affirmatively unlawful. FPC v. Sierra Pacific Power Co., 350 U.S. 348, 76 S.Ct. 368, 100 L.Ed. 388 (1956). See United Gas Pipe Line Co. v. Mobile Gas Service Co., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956) (Natural Gas Act).

However, we agree with the FPC’s conclusion that the Sierra and Mobile precedents are inapplicable to the instant case. Sierra held that section 205(d) did not permit a supplier to depart from a contract obligation to deliver power at a firm price, absent a contractual novation or an exercise of the Commission’s special powers under section 206(a) “to prescribe a change in contract rates whenever it determines such rates to be unlawful.”

In the present case, there is no attempt by Alabama Power to avoid its contract obligations, or to displace or supersede the established rates mid-way during the contracts. Alabama Power’s tendered rate schedule was expressly made subject to all outstanding contracts; and the operative date of the rate increases and tariff changes embodied therein is in each instance deferred to the expiration of the existing service contract.

Petitioners also invoke Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960). In Sunray, the Supreme Court stressed the statutory requirement of the Natural Gas Act that, in the absence of abandonment proceedings under section 7(b), a natural gas company holding a certificate of public interest and convenience must continue to provide service to its customers, even though its contractual obligations have terminated. Referring to this post-contractual period, the Court observed, 364 U.S. at 155, 80 S.Ct. at 1403:

The obligation that [the supplier] will be under after the contract term will not be one imposed by the contract but by the Act. [The supplier] will be free then, as it was not free during the contract term under the contract here in question, to make rate changes under § 4 [the Natural Gas Act counterpart to § 205 of the Power Act] without [the purchaser’s] consent.

Petitioners read this language to imply that, during the term of the contract, the supplier is wholly disabled from tendering any tariff under section 205, even though the filing will operatively affect rates only during the post-contractual period. This construction, we feel, distorts the Court’s intention, and attempts to draw from its language implications as to an issue neither before the Court nor addressed by it. Sunray speaks to the type of filing appropriate to initiate rate changes that are to take effect during the post-contractual period, and intimates no view as to exactly when such a prospective filing may be made.

We agree with the FPC’s conclusion that the Federal Power Act does not present any impediment to Alabama Power’s filing under section 205(d) of a tariff operative to affect rates for pertinent service only subsequent to expiration of existing service contracts.

C. Conformity to FPC Regulations Section 35.3(a) of the Commission’s Regulations, 18 C.F.R. § 35.3(a), provides in pertinent part:

All rate schedules or any part thereof shall be tendered for filing with the Commission and posted not less than thirty days nor more than ninety days prior to . the date on which the filing party proposes to make any change in electric service and/or rate, charge, classification, practice, rule, regulation or contract effective as a change in rate schedule, except as provided in paragraph (b) of this section, or unless a different period of time is permitted by the Commission.

Subsection (b), 18 C.F.R. § 35.3(b), goes on to provide:

Rate schedules predicated on the construction of new facilities may be tendered for filing and posted no more than 90 days prior to the date set by the parties for the contract to go into effect. The Commission, upon request and for good cause shown, may permit a rate schedule or part thereof to be tendered for filing and posted more than 90 days before it is to become effective.

Petitioners, reading § 35.3(a) in conjunction with the last sentence of §'35.-3(b), argue that Alabama Power’s filing, which includes changes that would not take effect until 1976, could not be accepted in the absence of special findings by the FPC of good cause requiring waiver of the “30-90 day” rule.

Subsection (b), which contains an express “good cause” requirement, is addressed to the particularized context of a rate schedule change “predicated on the construction of new facilities.” That is inapplicable to the present case.

Section 35.3(a) permits an exception to the 30-90 rule not merely in cases covered by § 35.3(b), but whenever “a different period of time is permitted by the Commission.” This reserves to the FPC discretion to accept non-construction-related filing more than 90 days in advance of their effective date.

Whether or not the FPC’s discretion has been soundly exercised will, of course, depend on the circumstances of the case as reviewed by the Commission. But we see no reason why a flexible housekeeping measure, designed for the agency’s efficiency in internal management, should be cast into a rigid procedural formalism diverting focus from the real issues presented in the filing.

In the matter before us, the basis for relaxing the 90 day rule suffices to justify the FPC’s action. Were the 90 day rule applied with full rigor to Alabama Power’s 46 contracts with Petitioners, the result would be a plethora of individual filings stretching from 1971 through 1976, each with individual supporting documentation. Differences in timing and the parties would complicate consolidation of proceedings, even though, in the Commission’s view, the dominant issue was common to all. Such redundancy is wasteful not only of the time and resources of FPC members and staff, but also of the resources of the parties — costs that must in the last analysis be borne by the consumer.

The single, consolidated proceeding envisioned in Alabama Power’s filing mitigates these difficulties. The FPC’s rules give ample latitude for the agency to develop and implement innovative methods for the effective dispatch of its functions. We find no abuse of the Commission’s discretion in accepting the filing for consideration.

D. The Matter of Prematurity

Having held that the FPC’s filing rules interpose no procedural obstacle to the consideration of the tendered filing, we next consider whether its action on the filing was proper. Administrative procedures fail of their fundamental purpose if the goal of expedition is bought at the sacrifice of reasoned decision-making and substantial fairness to the parties concerned. In this context, we consider Petitioners’ claim that a present determination of reasonableness- — based on a 1970 test year (R. at 962, 1783, 1919) — provides no assurance that the rate so approved will be equally reasonable when applied to customers with late-expiring contracts, say in 1976. In general, rate regulation determinations are based on projections from historical experience to a future effective period, and remain in effect indefinitely, until either the supplier seeks to alter them or the Commission finds them contrary to law under § 206(a). But the question is whether it is reasonable to proceed at the outset by using a recent period to chart schedules to become effective six years hence, and whether the legislative scheme does not contemplate that the proponent of any rate must shoulder a realistic burden of demonstrating its lawfulness, not in some theoretical sense but as it practically affects the parties at the time it is sought to be imposed. Finally, we approach the issue cognizant that, once a tariff has passed the Commission’s scrutiny under § 205 of the Act and is made applicable to a particular customer, the likelihood of obtaining a rate reduction or alteration in terms or conditions of service by a proceeding under § 206(a) is indeed remote. Not only would the customer bear the heavy burden of showing the tariff had become unlawful in the period since its approval, but the cost and uncertainty of such proceedings make recourse to them problematical.

Bearing in mind the novelty of the question and the fact that none of the Commission’s rules appear to offer firm guidance, we invited the parties to address this larger question of prematurity during oral argument and to file post-argument submissions detailing the steps that must be taken to convert to tariff-based service as each customer’s contract expires. From the memoranda, it appears that: “When a customer upon expiration of a fixed rate contract is converted to a filed tariff, a service agreement and amended list of purchasers is [sic] to be filed with the Commission.” Alabama Power has further assured the court that it intends to file such documentation with the FPC as each of its individual service contracts with Petitioners expires.

Both the index of purchasers and the service agreement are part of the tariff itself. Additionally, they plainly constitute “rate schedules,” a term encompassing “all classifications, rules, regulations or contracts which in any manner affect or relate to service, rates, and charges,” as defined in the Commission’s Regulations, 18 C.F.R. § 35.2(b)(3). In view of § 205(e) of the Act, we think it inescapable that the filing of “any such new [rate] schedule” gives the Commission authority to inquire into the lawfulness of the rate schedule, to suspend its effectiveness pending such investigation, and, in the case of rate increases, to order the supplier to establish a refund account.

The effect of filing — at the time of conversion from contractual to tariff schedule service — of the necessary amendments to Alabama Power’s index of purchasers and the new service agreements will be to afford each affected customer a renewed opportunity to seek FPC review under § 205(e), as contemplated in the Act. In such event, the Commission need not conduct a full-scale proceeding de novo. The FPC could refer back to the proceedings on Alabama Power’s general tariff instituted pursuant to the Commission’s order of December 30, 1971, and to its determinations therein. Nevertheless, opportunity must be given the customers having late-expiring contracts to call on the utility to show that the assumptions underlying the FPC’s earlier determination of the tariff’s lawfulness have been validated by experience.

The details of procedural mechanics are best left to the Commission in the first instance. In broad outline, however, it appears that FPC review of the Alabama Power filing will proceed as follows: The § 205(e) proceedings that began in early 1972 will include all of Alabama Power’s wholesale municipal customers. As to those among the Petitioners whose contracts have already expired, whatever finding the Commission makes as to the lawfulness of the tariff will, of course, be immediately binding. As to those whose contracts remain in effect, such determination will be prospective in nature, and the contract rates and service conditions will remain in effect. When each of these latter contracts expires, Alabama Power will file with the Commission the documentation necessary to bring the affected customer within the terms of,the general tariff. At this time, if the Commission has reason to believe that the assumptions underlying its earlier determination are not operative — possibly due to a change in conditions, or more likely a projection of conditions that did not materialize — the Commission may order the § 205(e) proceedings to be reopened; require from Alabama Power whatever additional data is necessary to demonstrate the continuing validity of the tariff rate; if necessary suspend extension of the rate schedule to additional customers ; and take whatever further steps may be necessary to assure that the rates and conditions of service remain lawful.

The procedures outlined above do no more than to require continuing agency supervision of the tariff as its scope is enlarged to include all of Alabama Power’s wholesale municipal customers, thus assuring that the regulatory premises upon which approval was based retain their validity as the tariff is applied in practice. They permit maximum benefit to be drawn from the initial, consolidated proceeding. And they represent, in our view, the minimum necessary to assure protection of the statutory rights of those customers with late-expiring contracts.

Subject to these procedures, all of which arise in direct consequence of the sequence of filings detailed in the Commission’s memoranda, we find no error in the FPC’s denial of Petitioner’s motions to reject the filing. The Commission’s order to this effect is accordingly

Affirmed.

      . Petitioners in No. 72-1293 are the Municipal Electric Utility Association of Alabama and twelve of its member utility boards and municipalities. Appearing in No. 72-1294 are the Alabama Electric Cooperative and nine of its associated rural electric distribution cooperatives. Presenting identical issues, the two petitions were consolidated and jointly briefed and argued. In this opinion, we refer to the Municipalities and the Cooperatives, collectively, as “the Petitioners.”

      . Alabama Power Co., 46 F.P.C. 1386 (1971), reconsideration denied, 47 F.P.C. 280 (1972).

      . Under § 201 of the Federal Power Act, 16 U.S.C. § 824, the “transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce” are subject to the Commission’s authority.

      . See 16 U.S.C. § 824d(e).

      . Eleven of the delivery points -(involved in 3 contracts) terminate on January 3, 1972; one delivery point (involved in 1 contract) terminates on February 3, 1972; eleven of the delivery points (involved in 10 contracts) terminate in May 1972; four delivery points (involved in 3 contracts) terminate in July 1972; three delivery points (involved in 1 contract) terminates in August 1972; fifteen delivery points (involved in 1 contract) terminate in November 1972; thirty-three delivery points (involved in 10 contracts) terminate in December 1972; sixteen delivery points (involved in 9 contracts) terminate in 1974; six delivery points (involved in 3 contracts) terminate in 1975; and one delivery point (involved in 1 contract) terminates in 1976. (Petitioners’ Br. n. 15 at 14).
      Certain of the Municipalities apparently take the position that their contracts were extended to 1980 by various amendments. This issue is not before us, and for purposes of this appeal the parties have agreed to assume arguendo, in order to simplify exposition, that the latest expiration date is April 17, 1976. (Id. at 4 and n. 6).

      . Alabama Power Co., _ F.P.C. _ (Docket No. E-7647, Nov. 15, 1971) (R. at 1783).

      . See note to 12 U.S.C. § 1904 (Supp. I, 1970).

      . Alabama Power Co., 46 F.P.C. 1386 (1971) .

      . Chairman Nassikas and Commissioner Moody dissented on the ground that the rate should have been suspended for the full five month period permitted by statute. See 16 U.S.C. § 824d(e).

      . Alabama Power Co., 47 F.P.C. 280 (1972) (Chairman Nassikas and Commissioner Moody again dissented.).

      . Citing, inter alia, Municipal Light Boards v. FPC, 146 U.S.App.D.C. 294, 299, 450 F.2d 1341, 1346 (1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972).

      . 37 Fed.Reg. 652 (1972). This section was deleted except for price increases authorized under law to be placed into effect or legally placed in effect before September 18, 1972. 37 Fed.Reg. 18893 (1972). The current analogous rule is contained in 6 C.F.R. § 300.307(c)(1).

      . In response to our decision in Municipal Intervenors Group, Petitioners instituted separate actions in the District Court to review the Economic Stabilization Act issues arising from the FPC’s action. See Baldwin County Elec. Membership Corp. v. Price Comm’n, 481 F.2d 920 (T.E.C.A.1973).

      . 153 U.S.App.D.C. at 379, 473 F.2d at 90.

      . We have no occasion to consider what sort of accommodation would be necessary in a case where questions reviewable under the Power Act are inseparably interwoven with matters arising under the Economic Stabilization Act.

      . Alabama Power contends that its contracts with the City of Opelika, the Utilities Board of the City of Foley, and the City of Evergreen give it the right to effect unilateral rate increases in the context of the instant proceedings. The Commission did not address itself to these clauses, or whether the pertinent conditions have been satisfied. These questions are within the Commission’s primary jurisdiction and cannot properly be considered by this court in the absence of prior FPC consideration. See Portsmouth Gas Co. v. FPC, 101 U.S.App.D.C. 99, 247 F.2d 90 (1957). For purposes of this review proceeding, we treat these three contracts as firm price obligations that cannot be altered without mutual consent of the parties.

      . Section 205(d), 16 U.S.C. § 824d(d), provides:
      Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.

      . Section 206(a), 16 U.S.C. § 824e(a), provides:
      Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.

      . 350 U.S. at 353, 76 S.Ct. at 371.

      . The Federal Power Act contains no counterpart to sections 7 (b) and 7 (c) of the Natural Gas Act. We need not consider what obligation the Federal Power Act may impose upon a supplier of electrie power to continue making interstate wholesale sales after termination of its individual contracts. Cf. 16 U.S.C. § 824a (b). Certainly such a supplier of electric power is not subject to constraints greater than those applied to natural gas suppliers.

      . See 18 C.F.R. § 35.13.

      . Cf. Permian Basin Area Rate Cases, 390 U.S. 747, 757-758, 88 S.Ct. 1344, 20 L.Ed.2d 312 & nn. 12-15, concerning burden on agency from attempts to regulate natural gas producers on an individual basis.

      . As we said in Municipal Light Boards v. FPC, supra, 146 U.S.App.D.C. at 301, 450 F.2d at 1348:
      The filing rules at issue here are designed to give the FRC a “first cut” at the matei’ial in the filing. They are “mere aids to the exercise of the agency’s independent discretion,” and in both language and purpose leave room for a doctrine of “substantial” or “reasonable” compliance. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970).

      . Cf. Atlantic Ref. Co. v. Public Serv. Comm’n (CATCO), 360 U.S. 378, 389-390, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959); Sunray Mid-Continent Oil Co. v. FPC, supra, 364 U.S. at 144, 80 S.Ct. 1392.

      . Joint Memorandum of FPC & Alabama Power Co., filed Feb. 2, 1973, at 5. The superseding service agreement also serves as the notice of termination of contractual service required by 16 C.F.R. § 35.15. Id. at 6.

      . Id. at 7.

      . 18 C.F.R. §§ 35.2 n. 1., 154.34(a), 154.40, 154.41.

      . The continuing availability of § 205(e) review when transition from contractual to tariff-based service becomes effective disposes of Petitioners’ two remaining contentions.
      Rule 35.13 of the Commission’s Regulations contemplates the filing of various financial and operating data including, inter alia, “a statement comparing sales and services and revenues therefrom . . . under both the rate schedule proposed to be superseded or supplemented and the proposed changed rate schedule, each applied to the transactions for the 12 months immediately preceding and to the 12 months immediately succeeding the date on which the new rate schedule is to become effective,” and “an analysis of system costs for a test period of twelve consecutive months . . . and an allocation of such costs to the services rendered.” (18 C.F.R. §§ 35.13(b)(1), (4) (iii)). The Rule goes on expressly to provide, 18 C.F.R. § 35.13(b) (4) (iii):
      Pursuant to application of the filing public utility made at the time of filing of a rate schedule, the Secretary [of the FPC] may allow deviations from the data herein required.
      Moreover, these, as well as other filing requirements (see note 23, supra, and accompanying text) are subject to :
      the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted from the orderly transaction of business before it when in a given case the ends of justice require it.”
      American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), quoting N.L.R.B. v. Monsanto Cliem. Co., 205 F.2d 763, 764 (8th Cir., 1953). It would be premature for us presently to consider the extent to which either this express exception or the agency’s inherent discretion may apply to the documentary support required by Rule 35.13(b). The Commission plainly has ample authority to require sufficient updated financial data to permit an informed judgment as to whether the § 205(e) proceedings should be reopened.
      Likewise, the FPC’s continuing supervisory role includes authority to suspend implementation of future conversions (and the service agreements by which these are to be effected) for as long as five months to permit review, in accordance with § 205(e). Whether or not such suspensions will be necessary is a matter to be determined in light of the conditions prevailing at the time and, in any event, is a question that lies within the discretion of the Commission. Municipal Light Boards v. FPC, supra, 146 U.S.App.D.C. at 302-305, 450 F.2d at 1349-1352. Certainly there was no abuse of that discretion when the FPC rejected Petitioners’ request that a prospective order be entered automatically suspending the effectiveness of each future conversion. (Our remarks here are addressed solely to the requirements of the Federal Power Act and import no view as to what the Economic Stabilization Act or the Price Commission’s regulations may require.)


author: PER CURIAM: WINTER, Circuit Judge: LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America v. James TURNER, a/k/a Brother Turner, Appellant.
    No. 24914.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 15, 1972.
    Decided July 25, 1973.
    Rehearing Denied Aug. 30, 1973.
    See also, 152 U.S.App.D.C. 223, 470 F.2d 372.

      S. White Rhyne, Jr., Washington, D. C. (appointed by this Court), for appellant.
    Robert Alan Jones, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Herbert B. Hoffman, Asst. U. S. Attys., were on the brief, for appellee. Thomas A. Flannery, U. S. Atty., at the time the record was filed and Robert S. Tignor, Asst. U. S. Atty., entered appearances for appellee.
    Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and HARRISON L. WINTER, Circuit Judge for the Fourth Circuit.

       Sitting by designation pursuant to 28 U.S.C. § 291(a) (1970).

   PER CURIAM:

Judge Winter files an opinion in Parts I, II, III B and IV of which Chief Judge Bazelon and Judge Leventhal concur. Judge Leventhal files an opinion in which Chief Judge Bazelon concurs, Judge Winter concurring separately for the reasons stated in Part III A of his opinion. Thus, Parts I, II, III B and IV of Judge Winter’s opinion and Judge Leventhal’s opinion together constitute the opinion of the court. The judgment is affirmed.

So ordered.

WINTER, Circuit Judge:

Conviction in a jury trial of facilitating the concealment and sale of heroin in violation of 21 U.S.C. § 174 and sentenced to five years imprisonment, James Turner appeals. In the same trial, Turner was found not guilty of the sale of heroin in violation of 26 U.S.C. § 4705(a) (without a written order on an official form), and not guilty of the sale of heroin in violation of 26 U.S.C. § 4704(a) (other than from the original stamped package).

Turner attacks the validity of his conviction on four grounds. He contends that: (1) the evidence was legally insufficient to convict him, (2) evidence that he was unemployed but had $3,000 in cash on his person when arrested was improperly admitted against him, (3) evidence that he attempted to bribe a crucial government witness was improperly admitted against him and the error was compounded by improper instructions to the jury with regard to the consideration it might give to this evidence, and (4) his acquittals on the two charges of sale of heroin, respectively, were so inconsistent with the verdict of guilty on the charge of facilitating the concealment and sale of heroin that a judgment of acquittal was required to be entered on the latter.

We find no merit in any contention and affirm the judgment.

I.

To pass upon the claim of insufficiency of the evidence and to provide the context of Turner’s other contentions, it is necessary to recite some of the government’s proof.

The government’s principal witness, Mrs. Estelle Tompkins, was a former drug addict who had been a paid informer employed by the Bureau of Narcotics and Dangerous Drugs since 1960. On July 2, 1969, she was in the apartment of Miss Gladys Irby, at 744 Girard Street, N.W. Miss Irby, whom Mrs. Tompkins had known for about twelve years, was present, as was the defendant whom Mrs. Tompkins had known for twenty or twenty-one years, and two other persons whose identity was unknown to Mrs. Tompkins. At that time, defendant requested Mrs. Tompkins to go to New York to bring back some cutting materials for diluting narcotic drugs and a box of gelatin capsules. Miss Irby gave Mrs. Tompkins $150 to facilitate the transaction. After full consultation with representatives of the Bureau, Mrs. Tompkins performed the mission and, on July 4, at 4:30 a. m., she took a package containing these items to Miss Irby’s apartment and left it with her.

On July 5, Mrs. Tompkins went back to the apartment and purchased two tablespoons of suspected narcotics for $50. After she left the apartment, Mrs. Tompkins told the agents of the Bureau that the package of cutting materials and capsules was still at the apartment and that defendant would be there to pick it up at approximately 2:00 p. m.

Agents of the Bureau set up a surveillance on the apartment, and at about 2:15 p. m. defendant entered and left shortly thereafter carrying a brown package similar to the one which Mrs. Tompkins had brought and left there the preceding day.

Three days later, on July 8, Mrs. Tompkins telephoned Miss Irby and tried unsuccessfully to arrange a purchase of an ounce of “pure” heroin, i. e. heroin purer than customary “street strength,” but not necessarily totally undiluted. With Mrs. Tompkins’ permission, the call was monitored by an agent of the Bureau. The next morning, at 5:30 a. m., Miss Irby returned the call and told Mrs. Tompkins that the deal could be made for $1,000, but that Miss Irby would have to get the heroin from defendant because she did not have uncut heroin herself.

At about 2:20 p. m. that day, Mrs. Tompkins received a telephone call which was monitored by an agent of the Bureau. The caller was a male who asked “Estelle” what she wanted. When Mrs. Tompkins replied that she wanted an ounce of pure heroin, the male caller replied, “Okay, I will get it ready for you.” He said that he was at Miss Irby’s apartment and asked Mrs. Tompkins how long it would take her to get there. She said that it would take about twenty minutes. He then instructed her to call when she got in the neighborhood so that he could come and open the door to the premises which had a security lock on it. Mrs. Tompkins unequivocally identified defendant as the caller. Besides knowing him for approximately twenty years, she had visited his home and socialized with him frequently and spoken with him over the telephone on numerous occasions.

Mrs. Tompkins and the agent of the Bureau who accompanied her did not go to pick up the heroin immediately because they lacked sufficient funds to effect the purchase; but after they obtained the money, the two of them went to Miss Irby’s apartment shortly after 4:00 p. m. Mrs. Tompkins entered and she received eight or nine spoonsful of white powder from a plastic bag into a glassine envelope. Defendant was not present and there were no tax stamps on the package or anywhere else on the premises. Mrs. Tompkins did not have a written order form for the drugs and Miss Irby did not request one. The powder was later shown by chemical analysis to be a mixture containing twenty-two percent heroin.

Mrs. Tompkins saw defendant several times in April 1970, after he had been accused of the instant offense. She was permitted to testify that defendant told her he would give her part or all of the $3,000 taken from him at the time of his arrest in exchange for her testimony that it was not he who spoke with her on the telephone on July 9, 1969. This testimony was received over defendant’s objection. When the jury was about to be charged, defendant objected to the giving of any instruction relating to this testimony. The district court, however, instructed the jury that it might consider the testimony “not [as] evidence of guilt with respect to the offense or offenses with which the defendant is charged in this case [but] as tending to prove the defendant’s consciousness of guilt or as relevant to the intent, or the absence of mistake, or as tending to establish the identity of the persons charged with the commission of the crime.” Defendant lodged no exception to the charge.

II.

The principal thrust of defendant’s contention that the evidence was legally insufficient to permit the jury to find him guilty beyond a reasonable doubt is directed to the identification testimony of Mrs. Tompkins. Defendant concedes that “ [i] f defendant was in fact the person who placed the call to Mrs. Tompkins at 2:00 p. m. on July 9, there could be little doubt of his guilt.” The uncertainty of the accuracy of the identification of a voice on the telephone, inconsistencies in her other testimony, and her possible bias are all stressed to support the overall conclusion that there was lacking the degree of certainty in the proof which would enable a jury to make the requisite finding ultimately resulting in defendant’s loss of his liberty.

As a general rule, federal courts have permitted evidence of identification of a voice on the telephone where a basis on which to make a reasonably accurate identification has been shown. Noriega v. United States, 437 F.2d 435 (9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648 (1971); United States v. Turner, 423 F.2d 481 (7th Cir.), cert. denied, 398 U.S. 967, 90 S.Ct. 2183, 26 L.Ed.2d 552 (1970); United States v. Valdes, 417 F.2d 335 (2d Cir.), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1969); Palos v. United States, 416 F.2d 438 (5th Cir.), cert. denied, 397 U.S. 980, 90 S.Ct. 1107, 25 L.Ed.2d 391 (1969); Hale v. United States, 410 F.2d 147 (5th Cir. 1969); United States v. Cooper, 365 F.2d 246 (6th Cir.), cert. denied, 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1966); Michaud v. United States, 350 F.2d 131 (10th Cir. 1965); Espinoza v. United States, 317 F.2d 275 (9th Cir. 1963); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964); Davis v. United States, 279 F.2d 576 (4th Cir. 1960).

We think the rule should be applied here. Mrs. Tompkins was shown to have known defendant for approximately twenty years, to have known him well, and to have talked with him on the telephone numerous times. There was ample basis to admit her identification testimony. The possible deficiencies in her testimony — mistake, impeachment by other discrepancies and bias — were not so great as to render it inadmissible. Indeed, these were counterbalanced by other corroborating factors: (1) defendant was shown to have visited the premises where the illegal sale of heroin was made; (2) defendant employed Mrs. Tompkins to obtain cutting materials for narcotics only seven days before the offense in the instant case; (3) defendant was seen entering and leaving the premises only four days prior to the offense, apparently carrying out the cutting materials which Mrs. Tompkins had procured; (4) the male caller on July 9 knew and used Mrs. Tompkins’ first name, “Estelle,” in the conversation; and (5) as we will hereafter discuss, defendant admitted his identity as the caller. Any deficiencies in Mrs. Tompkins’ testimony went to its weight and were matters for the consideration of the jury, but we cannot conclude that the jury should not have heard her identification of the defendant.

III.

A. Because they are closely related, I would treat together defendant’s contentions of error in the admission of evidence that he was unemployed, that he had $3,000 in cash on his person when arrested, that he sought to bribe Mrs. Tompkins, and that the district court improperly instructed the jury with respect to the bribe attempt. Defendant’s principal argument is that this evidence collectively amounted to evidence of the commission of crimes other than those with which defendant was accused in the instant case, that such evidence of other crimes was inadmissible, and that admission of the evidence, over defendant’s objection, constituted reversible error. Defendant stresses the differences between this case and United States v. Washington, 150 U.S.App.D.C. 68, 463 F.2d 904 (1972), in which, in the absence of objection, the court held it not plain error to cross-examine a defendant about $735 in cash on his person when arrested where he had testified in his own behalf and denied that he used or sold narcotic drugs. The decision there was predicated upon the fact that at trial defendant had not objected to the later challenged cross-examination and that he had opened the door to it by his testimony in his own behalf. The court further recognized, with respect to the latter, that had defendant objected to the cross-examination the “question might have been close” as to whether the cross-examination would have been proper, but it concluded that the failure to object was fatal to the contention on appeal.

The district court admitted the challenged evidence and instructed the jury to consider it, solely on the theory that it fell within one of the exceptions to the general rule that “evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged, “i. e., that it was relevant to (1) motive, (2) intent, (3) absence of mistake or accident, and (4) identity. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 89-90 (1964). In this I perceive no error, because on the record, as the case comes to us, I think the evidence was admissible collectively to prove an admission of guilt on the part of the defendant. Hence, even if defendant’s failure to object to the instruction which was given is ignored, I would conclude that the defendant received more benefit from the district court’s instruction to the jury than he was entitled to claim.

I reach these conclusions by this route: The principal factual question in the case was the identity of the male caller who spoke with Mrs. Tompkins on the telephone on July 9, 1969. While the record shows that Mrs. Tompkins and the defendant had several conversations after the defendant was formally accused and arrested, the record is silent as to whether they ever discussed what testimony Mrs. Tompkins was prepared to give at the trial. Defendant did not testify and Mrs. Tompkins was not questioned about the substance of these conversations. The record thus fails to establish that defendant was told by Mrs. Tompkins, or learned from any other source, that Mrs. Tompkins was prepared to identify defendant as the caller. If Mrs. Tompkins’ testimony that defendant offered to give her all or a part of the $3,000 that the government had confiscated from him at the time of his arrest in exchange for testimony that “it wasn’t him on the ‘phone’ ” is believed, it follows that the jury should have been permitted to conclude that defendant impliedly admitted that he was the caller, because he could not have had that knowledge if he was innocent. Since his admission included disclosure that he had $3,000 on his person when arrested, admission of that evidence was not error; and admission of evidence that he was not known to be gainfully employed was relevant to show why the tendered bribe money would be required to be gotten from that seized from him rather than from other funds. Thus, the case is not like one where there is evidence of flight during or after arrest, and where it can be said that such evidence has only limited probative value because an innocent man may choose to flee because of fright, as well as a guilty man because of knowledge of guilt. Here, it would have been proper to conclude that defendant would have attempted to bribe Mrs. Tompkins only because he was conscious of his guilt and thus knew that she was in a position to identify him.

As Judge Leventhal’s opinion stresses, my conclusion is premised on the lack of evidence to show that defendant innocently learned the substance of Mrs. Tompkins’ testimony. I do not think it improper to rely on this negative fact. At the outset, I put aside any notion that as a reviewing court we should be absolutely bound by the theories of counsel or the trial court under which alleged error in the admissibility of evidence is to be judged. Our function is to determine if there was error and if the rights of the defendant were prejudiced; not to determine if the theories of counsel and the trial judge were correct irrespective of the result which was reached.

The motion for particulars, which was not formally answered can hardly be read to elicit information about the substance of Mrs. Tompkins’ testimony, and the motion for suppression, at most, discloses peripheral knowledge of the fact of the conversation but not the source of such knowledge. Of course Mrs. Tompkins’ testimony may have been disclosed and explored at the omnibus hearing held March 25, 1970, but it is significant that? despite pointed questioning in oral argument before us, neither defendant’s counsel nor counsel for the government could suggest any source of defendant’s knowledge consistent with his innocence. True, both were other than the attorneys who represented the parties at trial, but I do not think it unreasonable to assume that their knowledge of the case extended beyond the bare transcript of trial.

What is perhaps more significant is that Judge Leventhal’s theory of admissibility of the evidence as proving “consciousness of guilt” disguises but does not avoid that with which I think we should openly grapple. The persuasiveness of an attempted bribe as evidence of “consciousness of guilt” depends in most part on whether defendant innocently knew of the need for a bribe or whether his knowledge was guilty knowledge. Thus, even under this restricted theory of admissibility, defendant’s trial counsel was put on notice of the need to dilute the implication of “consciousness of guilt” by any evidence available to accomplish that purpose. Absent such evidence, I am firm in my conclusion that the record's silence on the crucial factor of how defendant may have innocently obtained knowledge of Mrs. Tompkins’ testimony should permit us to treat the evidence of the bribe as an admission by conduct.

B. A further word is required with regard to the evidence that defendant had $3,000 on his person when arrested. At trial, the government’s theory of its admissibility was that, in addition to corroborating the testimony of Mrs. Tompkins, such evidence proved defendant’s financial ability to traffic in large quantities of narcotics. Admission of the evidence to show defendant’s financial ability to commit the specific crime charged, I agree, was proper. However, at the close of the evidence, the government asserted that it would argue that the fact that defendant had such a large sum on him at 4:00 a. m. was material evidence that he was engaged in the commission of such crimes. Over defendant’s objection, the district court agreed that he could so argue. The prosecutor’s actual argument on the subject consisted of only two rhetorical questions: “Who was the man who when he was arrested had $3,000 on him at 4 o’clock in the morning? Who carries $3,000 on him on the day, if they are not trafficking in narcotics ?”

The district court’s ruling that the evidence was admissible and argument proper to prove defendant’s financial ability to commit other crimes was error, because, absent special circumstances not present here, “evidence of other crimes is not admissible as direct evidence of guilt . . . .” United States v. Washington, 463 F.2d 906. Although perilously close to reversible error, the prosecutors’ argument was oblique in its reference to other crimes and the references uttered were an insignificant part of an extended argument. I therefore see no reversible error, but I think that in future cases the government should limit its proof and argument to those showing that the defendant had the means to commit the crime charged and should assiduously avoid any shred of implication that the government asserts that a defendant engages in such transactions generally.

IV.

Defendant’s contention that his acquittals on the two charges of sale of heroin foreclosed his conviction of facilitating the concealment and sale of heroin is grounded upon Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). That case held that the double jeopardy clause prevented a defendant from being subjected to successive prosecutions for robbing six participants in a poker game where, under the evidence, the only disputed issue of fact was the identity of the robber, and defendant was found not guilty when he was tried for robbing the first victim. The rationale of Ashe was that, under the facts of that case, the first acquittal constituted an adjudication that defendant was not the robber and the guarantee against double jeopardy prohibited relitigation of that issue. Although Ashe was concerned with multiple prosecutions, it has been suggested by Chief Judge Bazelon, concurring specially, that its doctrine may be equally applicable to multi-count indictments. United States v. Fox, 140 U.S.App.D.C. 129, 433 F.2d 1235, 1239 (1970).

Aside from the question of whether Ashe applies to verdicts on multi-count indictments, it is inapposite here. In the first and second counts of the indictment returned against him, defendant was charged with the sale of narcotic drugs without a written order of the person to whom the drugs were sold on a form issued in blank by the Secretary of the Treasury, and not in the original stamped package, respectively. By contrast, in the third count, defendant was charged with facilitating the concealment and sale of narcotic drugs, in violation of 21 U.S.C. § 174.

At trial, the government offered no direct evidence of a sale by defendant to Mrs. Tompkins. Defendant was not present when the transaction occurred in Miss Irby’s apartment, and there was no evidence to show that defendant was in actual physical possession of the heroin at any time. Thus, the jury could quite reasonably have concluded that defendant’s sole connection with the heroin that Mrs. Tompkins obtained from Miss Irby was the telephone call which he made on July 9 to facilitate the sale. While the jury may have inferred from the evidence that defendant had either made a sale to Miss Irby, or that Miss Irby acted as his agent in making a sale to Mrs. Tompkins, in the absence of testimony of a personal transaction between Mrs. Tompkins and defendant, the jury quite properly may not have been satisfied beyond a reasonable doubt that defendant did more than facilitate a sale made by Miss Irby acting in her own behalf. Thus, we see no inconsistencies in the jury’s several verdicts, since defendant’s acquittal on the charges of sales of heroin did not necessarily adjudicate that he did not facilitate a sale or concealment by someone else. These acquittals are no bar to his conviction on the third count.

For all of these reasons, the judgment of the district court is

Affirmed.

LEVENTHAL, Circuit Judge:

The majority of the court has decided that the court should consider the propriety of the trial judge’s instruction on the “bribe” issue, and should uphold that instruction.

1. The prosecutor elicited from Mrs. Tompkins, the principal Government witness and alleged purchaser of the narcotics, that she had conversations with the defendant concerning this case, about going to see his lawyer, and one in which he purportedly offered $3,000 in exchange for her testimony “that it wasn’t him on the ‘phone.’ ” At a bench conference, defense counsel asked that the testimony be stricken as immaterial and unduly prejudicial, and he moved for a mistrial. The prosecutor was asked for authority and cited Bowman v. United States, 50 App.D.C. 90, 267 F. 648 (1920), where intimidation of a witness, in order to suppress testimony, was held admissible at trial as “evidence of consciousness of guilt.” The trial court then denied the defense motions and admitted Mrs. Tompkins’ testimony. (Tr. I: 38-39).

Subsequently, the issue resurfaced in connection with the prosecutor’s request for an instruction that the evidence of the bribe offer, if credited, “may show consciousness of guilt, but they [the jury] are not required to make that inference.” Defense counsel objected. The judge said he would not give that instruction and accordingly precluded the Government from presenting argument to that effect to the jury (Tr. I: 241-242). During the summations which followed, neither counsel referred to the bribe offer.

However, the bribe offer was ultimately made the subject of an instruction somewhat different from that requested by the prosecutor. The judge referred to Bowman and explained his thinking thus (Tr. 1: 243-244):

THE COURT: The question on which it turns it seems to the Court is whether sufficient evidence tends to be more probative than prejudicial. I think it is a fairly close question. I think bribery is as serious as a threat to kill. It goes to the vitals of the administration of justice. But it throws some light on the intention of the defendant with respect to these crimes. Justice Charles Robb said in this Bowman opinion, if the jury believes that the defendant threatened the life of Esther Brown as testified by her, the testimony of the assault made in pursuance of those threats had a legitimate bearing on the question at issue, the intent of the defendant in committing the act charged, for there would have been no occasion for an innocent man to resort to such threats and assault. It is that latter language which gives me some hesitancy for this reason: Conceivably an innocent man could take the position that the charge against him was so serious as he would do anything, even bribe a witness.

The instruction given by the judge, quoted in the footnote margin, advised the jury: (1) The bribe offer “is not evidence of guilt” of the offense, nor does it create a presumption of guilt. (2) Some innocent people charged with serious offenses may resort to unlawful as well as lawful means to insulate themselves against successful prosecution. (3) However, the evidence, if credited, may be considered ■ along with all other evidence, “as tending to prove the defendant’s consciousness of guilt or as relevant to intent or the absence of mistake or as tending to establish the identity of the person charged with commission of the crime.”

Judge Winter’s opinion seeks to avoid the issue of whether the bribe offer could be admitted as evidence of “general consciousness of guilt” by saying that the instruction gave the defendant more than he was entitled to, since the evidence tended directly to prove identity, in that his knowledge at the time of the bribe offer that the witness would testify to a telephone conversation with him meant he must have engaged in that conversation. But on December 24, 1969, prior to the time of the alleged bribe (April, 1970), defendant had filed a motion for a bill of particulars requesting, among other things, “the name of the person to whom the narcotics were allegedly transferred,” and also a motion for a pretrial hearing on the admissibility of telephone conversations, which stated the defense expected “that the unnamed purchaser will testify as to certain telephone conversations allegedly between herself and one Gladys Irby as well as the defendant; also that Agent Wilder overheard the said alleged telephone conversations.” This motion, filed by an experienced defense counsel, may well have, indeed probably, reflected his 1969 conversations with the prosecutor or with Mrs. Tompkins herself. In any event, on March 28, 1970, there was an “omnibus hearing” before Judge Gaseh on pending motions. The docket sheet contains no entries reflecting any action on the defense motions, but it is entirely possible that Mrs. Tompkins’ expected testimony of the telephone conversation was fully explored at the omnibus hearing. It was not until after this hearing that the April, 1970, offer of a bribe was alleged to have been made.

It would be speculation for this court to posit that defendant’s knowledge that Mrs. Tompkins would testify to an alleged telephone conversation tended to show that he had engaged in the conversation. No such suggestion was put forward at trial by the prosecutor, who was obviously interested in admission of the bribe offer and had prepared himself to argue for its admission as evidence of “general consciousness of guilt.” Experienced defense counsel put forward a reference to the telphone conversation in the motion filed in 1969, without being concerned that this was an admission of guilty knowledge. This was not the basis put forward for receipt of the evidence by the experienced trial judge, a former United States Attorney, who had also presided over the omnibus hearing.

3. Facing up to the situation as it developed at the trial, to consider whether error was committed, the court’s inquiry properly begins by noting that it seems to be generally accepted doctrine that a party’s “misconduct constituting obstruction of justice” prior to trial is “commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means.” McCormick on Evidence § 273, at 660 (2d ed., 1972). That seems to be the widely accepted rule, as evidenced by decisions of other courts. It is supported in the jurisprudence of this court by the 1920 Bowman opinion of Justice Charles Robb.

Professor McCormick’s treatise raises a question about this rule and its assumptions, while conceding that such evidence is generally admitted. The question is a good one, and the trial judge also identified it, saying that bribery might be consistent with innocence, coupled with a strong desire to resist prosecution for a serious offense. But on balance, and considering the relative probative force and prejudice, he believed that the evidence of the bribe offer should be admitted. He undertook to limit any unfair inference by instructing the jury that this might have been done by an innocent man, that it was not direct evidence of the offense, and that it was only a circumstance to be considered. Defense counsel acquiesced in the form of that instruction (Tr. II: 2), although appellate counsel now objects that it was confusing and contradictory.

This is not a case where the appellate court should upset the trial court’s exercise of discretion. Such matters as bribery, intimidation, and spoliation of documents stand on a different level, as indicators of guilt, from, for example, flight. While bribery is consistent with innocence, it seems probable, as a fact of life, that a very high percentage of men who offer to bribe witnesses are in fact responding to a general consciousness of guilt.

Perhaps one point that merits further discussion is this: The bribe offer is said to be admissible as broad corroboration. But in this case it depended on crediting the testimony of the same witness who made the critical identification. On the other hand, the jury may well have thought her a truthful witness who might have been mistaken, though not dishonest, if they knew only of her voice identification over the telephone. But the unlikelihood of “mistake” about identifying a person making a bribe offer in a face-to-face confrontation, on an assumption of demeanor — veracity, permit not only an inference of defendant’s general “consciousness of guilt,” but also, in the alchemy of the juryroom, operate to confirm the strength of her original observation, and remove any residual doubts, in view of her tenacity in persisting in the testimony notwithstanding the proferred bribe.

In this context, the instruction of the trial judge, while not ideal, was a reasonable exercise of discretion, to admit probative evidence and yet contain any undue prejudicial effect. What the judge did was to adapt the flight instruction of Austin v. United States to a bribery situation. This was reasonable. Where, as here, the post-accusation conduct of the defendant sought to be put before the jury is itself unlawful, the need of a cautionary instruction is even more pronounced than in the case of flight, which, though it has less probative force, does not generally constitute a criminal offense.

       21 U.S.C. § 174 was repealed by Pub.L. 91-513, 84 Stat. 1291, effective October 27, 1970. Section 1103 of Pub.L. 91-513 preserved prosecutions for violations occurring before its effective date. Defendant’s violation was alleged to have occurred on or about July 9, 1969.

      . Now, ladies and gentlemen, you may recall there was some evidence in this case tending to indicate that the defendant offered the complaining witness a considerable sum of money if she would change her expected testimony to reflect that she was unable to identify his voice over the telephone. This evidence, if the jury believes it, is not evidence of guilt with respect to the offense or offenses with which the defendant is charged in this case,' nor does it create a presumption of guilt. Some innocent people charged with serious offenses may resort to various means both lawful and unlawful calculated to insulate them against successful prosecution. You may consider this evidence, however, if you believe it, as tending to prove the defendant’s consciousness of guilt or as relevant to intent or the absence of mistake or as tending to establish the identity of the person charged with the commission of the crime. If any of these circumstances seem relevant to you, you may consider this evidence, if you believe it, along with all of the other evidence in the case and give it such weight as in your judgment it is entitled to receive. (Tr. II: 39-40).

      . How otherwise account for the reference to Agent Wilder?

      . See, e. g., Justice Ervin’s opinion in State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 849 (1952), using language much like that quoted from McCormick:
      An attempt by an accused to induce a witness to testify falsely in his favor may be shown against him. Such conduct indicates a consciousness on his part that his cause cannot rest on its merits, and is in the nature of an admission that he is wrong in his contention before the court, (citing cases and texts)
      See also State v. Rolfe, 92 Idaho 467, 444 P.2d 428, 431 (1968); People v. Gambony, 402 Ill. 74, 83 N.E.2d 321, 325 (1949); State v. Smith, 355 Mo. 59, 194 S.W.2d 905, 907 (1946); 2 Wigmore on Evidence, § 278 (1940 ed. at 123 and cases collected 1972 Supp. at 41).

      . A question may well be raised whether the relatively modest probative value of this species of evidence is not often outweighed by its prejudicial aspects. The litigant who would not like to have a stronger case must indeed be a rarity. It may well be that the real underpinning of the rule of admissibility is a desire to impose swift punishment, with a certain poetic justice, rather than concern over niceties of proof. In any event, the evidence is generally admitted. McCormick, supra at 661 (footnotes omitted).

      . 134 U.S.App.D.C. 259, 414 F.2d 1155 (1969).

      . Cf. United States v. Robinson, 154 U.S.App.D.C. 265, 475 F.2d 376, at 384 (1973); United States v. Telfaire, 152 U.S.App.D.C. 147, 151, 469 F.2d 552, 557-558 (1972).