author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Donn L. BERIAULT et al., Plaintiffs-Appellants, v. LOCAL 40, SUPER CARGOES & CHECKERS OF the INTERNATIONAL LONGSHOREMEN’S & WAREHOUSEMEN’S UNION et al., Defendants-Appellees.
    No. 72-2118.
    United States Court of Appeals, Ninth Circuit.
    July 25, 1974.

      Sherman Kellar (argued), of Engel & Kellar, Portland, Or., for plaintiffs-appellants.
    James H. Clarke (argued), of Mc-Colloeh, Dezendorf, Spears & Lubersky, Portland, Or., Raymond J. Conboy (argued), of Pozzi, Wilson & Atchison, Portland, Or., for defendants-appellees.
   OPINION

Before HAMLEY, WRIGHT and KILKENNY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This is a a labor dispute in which plaintiffs appeal from the dismissal of their action for declaratory, injunctive and monetary relief against defendants for breach of the union’s duty of fair representation and breach of a collective bargaining agreement. Jurisdiction is based on § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, and the Declaratory Judgments Act, 28 U.S.C. § 2201. We affirm in •part, reverse in part, and remand.

Plaintiffs are “casual checkers” who are non-union members of the employee bargaining unit represented by Local 40, Super Cargoes and Checkers of the International Longshoremen’s and Ware-housemen’s Union (ILWU). They brought suit against the ILWU and the Pacific Maritime Association (PMA) charging, in substance, that (1) they have been discriminated against with respect to their job classification, and have thereby been denied fringe benefits available to union members under the terms of the collective bargaining agreement, and (2) the ILWU and the PMA acted in violation of the collective bargaining agreement in giving union members preference over the plaintiffs in work assignments. Plaintiffs assert that the ILWU has breached its duty of fair representation in the negotiation and enforcement of the collective bargaining agreement.

Following trial on the segregated issues of preemption and exhaustion of remedies, the district court dismissed the complaint for lack of jurisdiction, finding that the matter was within the exclusive jurisdiction of the National Labor Relations Board and, further, that plaintiffs failed to exhaust the grievance procedures provided in their contract.

The Supreme Court has recognized that Congress, by conferring upon the National Labor Relations Board the powers to interpret and enforce the Labor Management Relations Act, necessarily implied that potentially conflicting “rules of law, of remedy, and of administration” cannot be permitted to operate. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959). This recognition forms the basis for the doctrine of preemption in labor relations, which, as a general rule, provides that “neither state nor federal courts have jurisdiction over suits directly involving ‘activity [which] is arguably subject to § 7 or § 8 of the Act.’ ” Vaca v. Sipes, 386 U.S. 171, 179, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), quoting San Diego Building Trades Council v. Garmon, supra 359 U.S. at 245, 79 S.Ct. 773.

The preemption doctrine, despite its apparent clarity, has become best described only by reference to its exceptions. See Symposium, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, 51 Texas L.Rev. 1037, 1041 (1973). Included in the list of exceptions that permit courts to adjudicate certain cases is one for all suits brought under § 301 for breach of the collective bargaining agreement [William E. Arnold Co. v. Carpenters, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (May 20, 1974); Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); see Severn, Section 301 and the Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529 (1963)], and one for at least some suits brought under the duty of fair representation. Vaca v. Sipes, supra.

In the present case, the district court found that although plaintiffs’ contentions are couched in terms of breach of the collective bargaining agreement, “their basic and underlying complaint is really directed to the terms of that agreement itself.” 340 F.Supp. at 156. The court appeared to conclude, therefore, that the § 301 exception to preemption was inapplicable and that it lacked jurisdiction over the matter. The court concluded moreover that important questions of labor policy and federal concern pervaded the matters under submission, further warranting a deferral of jurisdiction to the Board. In addition, the court concluded that the defendant ILWU committed no act constituting a breach of its duty of fair representation. That exception to the preemption doctrine therefore remained inoperative.

We are of the opinion that these conclusions of the district court were erroneous and we remand for further consideration, but we affirm as to the need to exhaust grievance procedures.

I.

BREACHES OF THE COLLECTIVE BARGAINING AGREEMENT

Section 301, 29 U.S.C. § 185, confers jurisdiction on district courts in “[s]uits for violation of contracts between an employer and a labor organization representing employees . . • . . ” In Smith v. Evening News Ass’n, supra, the Supreme Court held that the Garmon preemption doctrine had no application to § 301 suits. Later, in Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), the Court held that an individual employee could maintain a § 301 action to enforce his rights under a collective bargaining agreement. See Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274, 298, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Feller, A General Theory of the Collective Bargaining Agreement, 61 Calif.L.Rev. 663, 693-95 (1973).

We disagree with the district court here and conclude that plaintiffs actually claim breaches of the collective bargaining agreement and properly invoke federal court jurisdiction. True, “[i]t is the conduct being regulated, not [plaintiffs’] formal description of governing legal standards, that is the proper focus of concern.” Amalgamated Ass’n of Street Employees v. Lockridge, supra at 292, 91 S.Ct. at 1920. And true, much of plaintiffs’ complaint is clearly beyond the reach of § 301, being concerned not with breaches of the collective bargaining agreement but with the substance of the agreement itself. Nevertheless, plaintiffs do make two specific allegations of breach of the contract.

Plaintiffs allege that the ILWU and the PMA entered into an agreement, supplemental to the contract, providing for dispatch of “A” longshoremen from Locals 4 and 8 to checker jobs in preference to plaintiffs if there was insufficient longshore work to utilize all “A” longshoremen, and that the agreement has been continually breached by dispatching such longshoremen to do checking work even when there was longshoring available. Plaintiffs claim additionally that the ILWU and the PMA have dispatched striking unionists to checker jobs in preference to plaintiffs, thereby violating the anti-discrimination clause (§ 13.1) of the contract.

As to these contentions, therefore, federal jurisdiction exists under § 301, and the district judge erred in applying the preemption doctrine. The judge proffered an alternative, valid rationale for dismissing plaintiffs’ action, however, at least as to the breach-of-contract contentions: plaintiffs’ failure to exhaust contractual remedies.

Plaintiffs concede that the contract provides a comprehensive grievance and arbitration procedure which they failed to utilize fully. Approximately three weeks before filing their complaint in district court, plaintiffs filed a statement of grievances pursuant to the contract. They failed, however, to present evidence to support them at a hearing before the Joint Port Labor Relations Committee. Plaintiffs were invited to return and present additional evidence at a later time but failed to do so. They argue that their failure to pursue contractual remedies should not work to their detriment because resort to the grievance procedures would have been futile. The district judge rejected this argument, finding it to be purely “academic” since plaintiffs made no real effort to present and prosecute ' their grievance as provided in the contract.

As a general rule, employees must attempt to exhaust the grievance and arbitration procedures established by the bargaining agreement before seeking judicial enforcement of their rights. Vaca v. Sipes, supra 386 U.S. at 184-185, 87 S.Ct. 903; Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). Under certain circumstances, however, an employee may obtain judicial review of his breach-of-contract claim despite his failure to pursue contractual remedies.

The Court noted two such circumstances in Vaca v. Sipes. First, an employee is not limited to contractual remedial procedures when the conduct of the employer amounts to a repudiation of them. “In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action.” 386 U.S. at 185, 87 S.Ct. at 914. Secondly, an employee is excused from exhausting his contractual remedies if he was prevented from doing so by the union’s wrongful refusal to process the grievance. Id.

Plaintiffs in the present case have made no showing of the existence of either of these situations. Nor have they proved any other set of facts tending to excuse their conceded failure to exhaust the contractual grievance and arbitration procedures. As to the two purely breach-of-contract claims, therefore, the district court correctly dismissed the action.

II

DUTY OF FAIR REPRESENTATION

In Steele v. Louisville & N. R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), a case involving the Railway Labor Act, the Supreme Court first announced that a union has the statutory duty to represent fairly all of the members of the employee bargaining unit. Later, in Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), the Court applied the doctrine* to a case under the NLRA. This duty is implied from the grant to the union by § 9(a) of the NLRA, 29 U.S.C. § 159(a), of exclusive power to represent all employees in the unit. Vaca v. Sipes, supra 386 U.S. at 177, 87 S.Ct. 903. Section 1337, 28 U.S.C. § 1337, confers jurisdiction on federal courts over suits for breach of this duty. Retana v. Apartment Workers, Local 14, 453 F.2d 1018, 1022 (9th Cir. 1972); Waters v. Wisconsin Steel Works, 427 F.2d 476, 490 (7th Cir. 1970), cert. denied, United Order of Am. Bricklayers and Stone Masons Local 21 v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).

Plaintiffs here claim that the ILWU breached its duty of fair representation both when negotiating and when enforcing the collective bargaining agreement. The district court, upon finding “no allegation of bad faith, deceitful or dishonest conduct on the part of the union,” concluded that the union did not breach its duty of fair representation. We agree with plaintiffs that the court applied an improper test for determining breach of the union’s duty.

Considerable confusion has surrounded judicial attempts to articulate the standards applicable to a union’s duty of fair representation. See Symposium, The Duty of Fair Representation: A Theoretical Structure, 51 Texas L.Rev. 1119, 1122-38 (1973). Following Steele, many courts held that bad faith was a universal requirement of duty of fair representation claims and searched for “hostile discrimination” by the union. See Hardcastle v. Western Greyhound Lines, 303 F.2d 182 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed. 2d 229 (1962). One court required “something akin to factual malice.” Cunningham v. Erie R.R., 266 F.2d 411, 417 (2d Cir. 1959).

Courts have tended to move away from a rigid bad faith standard, however. In Vaca v. Sipes, supra, the Court made repeated references to “arbitrary” union conduct as constituting a breach of the union’s duty. The Court stated, for example, that it is incumbent on a union

to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.

Id. 386 U.S. at 177, 87 S.Ct. at 910. [Emphasis added.] The Court stated further that union conduct breaches the duty of fair representation when it is “arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916. [Emphasis added.]

Defendants here contend, however, that Lockridge, supra, decided four years after Vaca v. Sipes, “squarely rejected the view” that Vaca included mere arbitrary conduct within that conduct constituting a breach of a union’s duty. We disagree.

Lockridge does inject some ambiguity into this issue. It contains dicta in two places, for example, that seem to require a party seeking to prove a breach of the duty of fair representation to adduce substantial evidence of “fraud, deceitful action or dishonest conduct,” 403 U.S. at 299, 91 S.Ct. at 1924, quoting Humphrey v. Moore, supra 375 U.S. at 348, 84 S.Ct. 363, or of intentional and severe discrimination. 403 U.S. at 301, 91 S.Ct. 1909. In contrast to this language, however, Lockridge provides elsewhere that “[f]or such a claim to be made out, [a party] must have proved ‘arbitrary or bad-faith conduct on the part of the Union’ ” Id. at 299, 91 S.Ct. at 1924, quoting Vaca v. Sipes, supra 386 U.S. at 193, 87 S.Ct. 903. [Emphasis added.] These. two positions appear to us to be in conflict.

It is noteworthy that the Lockridge dictum referring to “fraud, deceitful action or dishonest conduct” is taken from the Court’s earlier opinion in Humphrey v. Moore, supra, which itself contains language indicating that mere arbitrary discrimination by a union may constitute a breach of the duty of fair representation. 375 U.S. at 350, 84 S.Ct. at 372. Indeed, in Vaca v. Sipes, the Court cited Humphrey v. Moore as authority for its statement of a union’s duty of fair representation, which included the duty “to avoid arbitrary conduct.” 386 U.S. at 177, 87 S.Ct. 903. At the very least, we cannot say that Lockridge “squarely rejected” the view that Vaca broadened the standard of the duty of fair representation to prohibit arbitrary conduct.

Six months after Lockridge, this court expressly considered the standard under which the duty of fair representation is to be judged and concluded that “the Vaca opinion’s repeated reference to ‘arbitrary’ union conduct reflects a calculated broadening of the fair representation standard.” Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local 14, 453 F.2d 1018, 1023 n. 8 (9th Cir. 1972). See Feller, Vaca v. Sipes: One Year Later, N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). In Retana, we concluded that Vaca rejected such cases as International Longshoremen’s and Warehousemen’s Union v. Kuntz, 334 F.2d 165, 171 (9th Cir. 1964), where this court held that “a bad faith motive, an intent to hostilely discriminate” is required, as distinguished from “arbitrary and unreasonable action.”

At least three other circuits also have examined the duty of fair representation after both Vaca v. Sipes and Lockridge and have concluded, as did we, that mere arbitrary conduct by the union in representing those within a particular bargaining unit constitutes a breach of that union’s duty. Sanderson v. Ford Motor Co., 483 F.2d 102, 110 (5th Cir. 1973) ; Woods v. North American Rockwell Corp., 480 F.2d 644, 648 (10th Cir. 1973); Griffin v. UAW, 469 F.2d 181, 183 (4th Cir. 1972).

Recognizing that one of the basic reasons for the duty of fair representation is the reconciliation of the necessity for strong unions with the need to protect individual rights of those represented by them, we feel this conclusion is compelled: a bad faith standard alone

cannot ensure that a union will offer minimal representation to all the employee it serves . . . [and it] allows unions to make unfounded decisions as long as there is no evidence of deliberate wrongdoing.

Symposium, The Duty of Fair Representation: A Theoretical Structure, supra at 1132. We conclude, therefore, that the district court applied an improper standard to the duty of fair representation when it found no breach of that duty solely because plaintiffs did not allege “bad faith, deceitful or dishonest conduct on the part of the union.”

Having established that plaintiffs properly stated a cause of action for breach of the duty of fair representation, we next consider whether the district court had jurisdiction to entertain the action. As we have said, 28 U.S.C. § 1337 confers jurisdiction on federal courts to entertain suits for breach of the duty of fair representation. Retana v. Apartment Workers, Local 14, supra 453 F.2d at 1021. The district court concluded, however, that its jurisdiction was preempted by that of the NLRB because the matter in dispute raises important questions of labor policy and federal concern is pervasive. Again we disagree.

In Vaca v. Sipes, the Supreme Court faced a duty of fair representation claim in the general context of a § 301 suit and concluded that the preemption doctrine was inapplicable to such a claim. The Court offered several reasons for not applying it.

A primary justification for the pre-emption doctrine — the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union’s duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L.M.R.A. Moreover when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184-186. Finally, . . . fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision.

Id. 386 U.S. at 180, 181, 87 S.Ct. at 912.

In addition to these considerations, the Court noted that if the Board were to have exclusive jurisdiction, the unre-viewable discretion of the Board’s General Counsel to refuse to institute an unfair labor practice complaint might result in some cases going unheard. Id. at 182, 87 S.Ct. 903. A final but important reason for allowing courts to pass on whether there has been a breach of the duty of fair representation was the fact that the breach would “in many cases be a critical issue in a suit under L.M.R.A. § 301.” Id. at 183, 87 S.Ct. at 913. The Court suggested that it would make little sense in § 301 cases to require an employee to take his claim against the employer to court and his claim against the union to the Board, when both claims involve an alleged violation of the union’s duty of fair representation. See Symposium, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, supra at 1063; Morris, The Developing Labor Law, 801 (1971).

Because the last reason applies only to duty of fair representation claims in the context of § 301 suits, there has been some question, at least until Lockridge, whether Vaca provides relief from preemption of fair representation claims only in that setting. The Supreme Court appeared to answer this question in Lockridge, however.

Taken at face value, Lockridge suggests that all duty of fair representation suits are excused from preemption. See Symposium, A Matter of Wooden Logic: Labor Law Preemption and Individual Rights, supra at 1064; Morris, The Developing Labor Law, 136 (1971 Supp.). The Lockridge Court read Vaca with approval, as holding that

an action . . . for breach of a union’s duty of fair representation . . . [is not barred by preemption] . . . even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and, whether or not the lawsuit was bottomed on a collective agreement.

403 U.S. at 299, 91 S.Ct. at 1924. [Emphasis added.] This broad statement leads us to conclude that plaintiffs’ claims of breach of the ILWU’s duty of fair representation are not preempted and that the district court therefore incorrectly dismissed them for lack of jurisdiction.

Ill

CONCLUSION

In conclusion, plaintiffs’ claims of breach of the collective bargaining agreement were properly dismissed because plaintiffs failed to pursue the contractual grievance procedures and made no showing adequately explaining that failure. Their claims challenging breach by the ILWU of its duty of fair representation in enforcing the terms of the collective bargaining agreement fall for the same reason.

The claims relating to breach of the duty of fair representation in negotiating the collective bargaining agreement, however, do state a valid cause of action. The failure to exhaust grievance procedures is of no consequence as to these claims because plaintiffs seek modification of the contract, a remedy not available through the grievance procedure. The case is remanded to the district court with instructions to allow plaintiffs to amend their complaint to allege jurisdiction under 28 U.S.C. § 1337.

Accordingly the judgment of the district court is affirmed in part, reversed in part, and remanded.

      . The district court’s opinion is reported at 340 F.Supp. 155 (D.Or.1972.)

      . Prior to filing this action, plaintiffs also filed a charge against the PMA and the ILWU claiming violations of § 8 of the NLRA. The Regional Director issued Lis decision refusing to file a complaint on behalf of plaintiffs, from which they took no appeal.

      . Since the employee’s claim is based upon breach of the collective bargaining agreement, he is bound by terras of that agreement which govern the manner in which contractual rights may be enforced. For this reason, it is settled that the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the bargaining agreement.

        Id. at 184, 87 S.Ct. at 914.

      . We intimate no opinion, of course, as to whether plaintiffs should succeed on this cause of action. We merely note that it does not appear “beyond doubt that plaintiff [s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ; see Retana v. Apartment Workers Local 14, supra, 453 F.2d at 1022.

      . In Tyree v. Edwards, 287 F.Supp. 589 (D.Alaska 1968), aff’d per curiam, 393 U.S. 405, 89 S.Ct. 684, 21 L.Ed.2d 633 (1969), for example, a three-judge district court held that Vaca spoke only to § 301 suits and thus offered only narrow preemption immunity in duty of fair representation cases.

      . The district court, in applying the preemption doctrine, cited Lockridge for the proposition that “[i]f the conduct raises important questions of labor policy and federal concern is pervasive then jurisdiction is in the Board.” 340 F.Supp. at 157; see Amalgamated Ass’n of Street Employees v. Lockridge, supra, 403 U.S. at 296, 91 S.Ct. 1909. The court failed to consider however, that this general rule of preemption applies neither to § 301 suits nor, in light of Vaca and Lockridge, to fair representation suits. True, the Lockridge Court concluded that the preemption doctrine was applicable in that case. Lockridge was not a fair representation suit, however. The issue there was whether a state court had jurisdiction to construe the union security clause in the union-employee contract in order to determine whether Lockridge had been discharged from his employment in violation of that clause. The Court found that it was not a fair representation suit because the case was submitted and tried on the interpretation of the contract, not on a theory of discrimination. Id. at 300, 91 S.Ct. 1909. Neither was it a § 301 suit. The Court noted that § 301 suits are limited to interpretation and enforcement of the collective bargaining agreement itself, and do not include, as in that case, disputes relating “to the terms of union-emiiloyee contracts that are said to be implied in law.” Id.

      Thus, though the Lockridge Court stated that the preemption doctrine is inapplicable both to fair representation suits and to § 301 suits, Lockridge fell within neither exception. The Court concluded that the state court lacked jurisdiction because the dispute was arguably subject to the Board’s jurisdiction under §§ 7 and 8 of the NLRA and raised issues as to which “federal concern is pervasive and its regulation complex.” Id. at 296, 91 S.Ct. at 1923. For the view that preemption was improperly invoked even in Lockridge, see Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337, 1370-75 (1972).

      . See note 3 supra.

      . While plaintiffs did not plead jurisdiction under § 1337, which is the basis for a duty of fair representation claim, this appears to be a mere pleading error, and amendment rather than dismissal is the appropriate remedy.


source: Caselaw Access Project

author: ROBERT P. ANDERSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. John CAPRA et al., Defendants-Appellants.
    Nos. 998, 1022, 1044, 1060, 1061 and 1062, Dockets 74-1068, 74-1037, 74-1140, 74-1143, 74-1144 and 74-1148.
    United States Court of Appeals, Second Circuit.
    Argued May 9, 1974.
    Decided July 26, 1974.
    See also, D.C., 372 F.Supp. 609.

      Barry Ivan Slotnick, New York City, for John Capra.
    David Blackstone, New York City, for George Harris.
    Joseph I. Stone, New York City, for Alan Morris.
    George L. Santangelo, New York City, for Leoluca Guarino.
    Lawrence Stern, Brooklyn, N.Y., for Stephen DellaCava.

      Leonard J. Levenson, New York City, for Robert Jermain.
    Lawrence S. Feld, Asst. U.S. Atty., S.D.N.Y. (Paul J. Curran, U.S. Atty., Gerald A. Feffer, George E. Wilson, Daniel Beller, S. Andrew Schaffer and John D. Gordan, III, Asst. U.S. Attys., S.D.N.Y., on the brief), for the United States.
    Before- ANDERSON FEINBERG and MANSFIELD, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

The indictment in this case charges these defendants-appellants, John Capra, Leoluca Guarino, Stephen DellaCava, Robert Jermain, Alan Morris and George Harris, in five counts with violations of the narcotics laws. Count One alleges that all of the defendants conspired to violate the narcotics laws in violation of 26 U.S.C. § 7237(b) and 21 U.S.C. § 846. Counts Two and Three charge Capra, Guarino, DellaCava and Jermain with selling two kilograms of heroin in August, 1970, and one kilogram of heroin on November 6, 1970, respectively, not in pursuance of a written order in violation of 26 U.S.C. §§ 4705(a) and 7237(b). Count Two relates to one of several sales to Morris, discussed infra, by Capra, Guarino, Del-laCava and Jermain, and Count Three concerns one of a series of sales to Harris by these same defendants. Count Four charges Capra, Guarino, DellaCava and Jermain with distributing, and possessing with intent to distribute, five and one-half kilograms of heroin in October, 1971, in violation of 21 U.S.C. §§ 812.841(a)(1) and 841(b)(1)(A); and Count Five charges them with the same offense on that date with regard to one kilogram of cocaine. These counts relate to the Toledo station delivery, discussed infra. The jury found each of the defendants guilty as charged and a judgment of conviction was entered on each of the verdicts.

There was evidence from which the jury could have found that the defendants Capra, Guarino and DellaCava had formed a New York centered enterprise for the massive marketing of heroin and cocaine in which their functions were loosely but generally divided in this way: Guarino secured the drugs from importers; Capra acted as distributor; and DellaCava made the deliveries.

Later Joaquin Ramos (an admitted co-conspirator but not a defendant) and Jermain transferred drugs from Della-Cava in New York to Morris and Harris for sale in the Midwest. Ramos had served 17 years in federal prisons for narcotics violations and after his release in 1969, immediately began to frequent the Havemeyer Social Club in the Bronx, at the invitation of its proprietors, Capra, Guarino and DellaCava. The Club was one of the fronts for the enterprise Guarino offered to reestablish Ramos in the narcotics business, and while the latter considered the proposition, he helped count and secret away money which Del-laCava brough into the Club.

By the fall of 1969 Ramos and a partner were distributing a kilo of heroin each month. His usual routine was to place orders with Guarino or Capra at the Club and leave a car there, with a full tank of gasoline, so that DellaCava could pick up the drugs and, after driving around the City to insure that he was not being watched, return, leaving the narcotics in the trunk of the car for distribution by Ramos.

Jermain, whose major customer was Harris, a Detroit drug dealer, entered into a partnership with Ramos in March, 1970. On instructions from Capra, they developed a pattern of dealing in which Harris paid for the narcotics with “front money,” i. e. payment in advance, and Ramos or Jermain delivered the drugs to him or one of his agents. Later in 1970, Ramos and Jermain established an additional outlet with another Midwestern dealer, Alan Morris, who by 1971 was placing orders every three or four months for approximately $150,000 worth of heroin. As their business expanded, they not only demanded “front money” from Morris, but also refused to meet with him in New York City. Instead, Ramos or Jermain checked the packages of narcotics in public terminals and then forwarded the claim checks to Morris, who picked up the drugs without ever meeting the distributors face-to-face.

The growth of the enterprise, as outlined by Ramos and corroborating witnesses, was further discribed by federal and state narcotics agents who engaged in prolonged and intensive surveillance of these defendants.

In their several appeals the defendants-appellants launch their principal attacks upon their convictions by arguing that the trial court’s denials of their pre-trial suppression motions, relating to the admission of evidence of certain instances or episodes of joint criminal activities by them, were error and call for reversal. These occurrences, hereinafter more particularly described, were the Toledo railroad station delivery, the wiretap at Diane’s Bar, and the discovery of heroin traces and other evidence taken from DellaCava’s car on April 14, 1973. The appellants further claim that improper press coverage at the time of their arrests also requires reversal of all the judgments of convictions. These issues will be discussed seriatim.

I. The Toledo Railroad Station Delivery

In the summer of 1971, Morris placed a large order with Ramos for heroin and cocaine, for which he delivered payment of approximately $150,000 “front money” in New York City in September. During a meeting with Capra at the Lake Isle Country Club in Westchester, New York, Ramos put this cash in the trunk of Capra’s 1972 Lincoln Continental.

Capra, Guarino, DellaCava, Jermain and Ramos decided that delivery of the narcotics should be at the baggage room of the Toledo railroad station, and on October 20, 1971, at 11:13 a. m., shortly after the arrival of the daily train from New York, Ramos checked a dark Samsonite suitcase containing the drugs with the Toledo baggage agent.

Because of what he believed to be suspicious circumstances concerning the baggage check, including Ramos’ appearance and attitude, as well as the fact that luggage was normally left in lockers and not in the baggage room, the baggage agent feared the suitcase might contain a bomb particularly after it remained unclaimed for over a week. On October 28, one of the agents, with the assistance of the Toledo police, opened the suitcase and discovered the 5% kilos of heroin and the 1 kilo of cocaine.

Willie Middlebrook, an unindicted co-conspirator, presented the claim check on October 30, at 8:50 a. m. and after receiving the suitcase, went upstairs and met Morris in a luncheonette where they were both arrested.

The distribution of these narcotics formed the basis of Counts Four and Five against Capra, Guarino, DellaCava and Jermain. The narcotics were also used as evidence of the conspiracy, Count One. Capra, Guarino, and DellaCava claimed that the drugs were illegally seized, but the trial court ruled that none of these defendants had standing to raise Fourth Amendment objections to the admission of this evidence because none of them had retained a possessory interest in it.

The defendants contended that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), grants them automatic standing in possessory crimes. The Supreme Court, however, has recently limited the availability of automatic standing under Jones to, at most, those charged with “an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); see United States v. Pui Kan Lam, 483 F.2d 1202 (2 Cir. 1973) ; United States v. Sullivan, 488 F.2d 138 (5 Cir 1973) ; United States v. Hutchinson, 488 F.2d 484 (8 Cir. 1973). These defendants were not charged with physical possession at the time the goods were seized and, therefore, under the new criteria for standing stated in the Brown case, they had the burden of proving that they had retained a possessory interest.

To prove that interest, Capra, Guarino and DellaCava testified at the suppression hearing that the suitcase was theirs, that $38,000 was still owing for the drugs, and that their understanding with Morris was, if the drugs were defective in quality or stolen prior to delivery at Toledo, the front money would be returned. The trial judge dismissed these arguments as unpersuasive and held that the defendants transferred any interest they may have had in the suitcase or its contents when Ramos checked it on October 20, 1971; that any continuing interest of the defendants in the $38 suitcase, itself, was negligible; that the receipt of the front money satisfied the monetary interest which they had in the narcotics; and that any warranty as to the quality of the narcotics or any special contract conditions as to risk of loss were irrelevant to the question of ownership of the seized goods. See United States v. Pa-lazzo, 488 F.2d 942, 947-948 (5 Cir. 1974). These findings were further supported by Ramos’ testimony at the trial that all of the front money went to Capra, Guarino, and DellaCava, and that the balance due of $38,000 was the share belonging to Jermain and him. Where defendants, through the use of front money and baggage checks, have exerted such efforts to insulate themselves from personal possession of narcotics, they are hardly in a position to object that they have been “hoist with their own petard.” None of the defendants was able to prove that his reasonable expectations of privacy were infringed by the search of the suitcase, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and, consequently, each lacks standing to challenge the legality of the search.

While Jermain might have been able to establish a possessory interest on the basis of the money owed, he did not seek to do so at trial and cannot make such a claim for the first time now. See United States v. Gitlitz, 368 F.2d 501 (2 Cir. 1966), cert. den. 386 U.S. 1038, 87 S.Ct. 1492, 18 L.Ed.2d 602 (1967).

The trial court, therefore, was correct in denying the motions to suppress because these defendants lacked standing to question the propriety of this search and seizure.

II. The Wiretap at Diane’s Bar

To corroborate Ramos’ testimony that this was an ongoing conspiracy involving all the defendants, the Government offered several transcripts and recordings of wiretaps involving DellaCava, Guarino, and Capra, and the testimony of the officers who conducted survéil-lance of the defendants on the basis of leads provided by the wiretapping. The defendants moved, prior to trial, for the suppression of this entire line of evidence on the ground that it was the product of unauthorized eavesdropping.

At the suppression hearing the evidence disclosed that in an investigation, unrelated to the Toledo search, the New York City Police, in late 1971, began surveillance of Diane’s Bar at 2034 Second Avenue, Manhattan, where a reliable informant had said one Joseph Della-Valle was using the public telephone to arrange narcotics sales. Detective George Eaton of the Special Investigations Unit, Narcotics Division, listened to two telephone conversations between the informant and DellaValle when nat-cotics orders were confirmed. On the basis of these calls, personal observation, and other information provided by the informant, Eaton and a New York State Assistant District Attorney, Clifford Fishman, prepared an affidavit and application for an eavesdropping warrant pursuant to Article 700 of New York’s Criminal Procedure Law. In his affidavit, Eaton apprised the court that he could recognize DellaValle’s voice, based on the two prior calls, and on December 8, 1971 a state court warrant was issued for “the interception of telephonic communications of Joseph DellaValle with co-conspirators, accomplices and agents.”

Although Eaton had previously participated in wiretaps, Fishman had never supervised such an operation. But more experienced members of the prosecutor’s office briefed Fishman on the danger of intercepting non-pertinent telephone calls, and Eaton’s superior in the police department, Lieutenant John Hill, testified that, prior to the installation of the wiretap, Fishman had reviewed with Hill and Eaton certain precautionary procedures which they, in turn, repeated to all the other police participants in the eavesdropping.

Extensive background noise at the Bar interfered with attempts to quickly discover the nature of the intercepted conversations. The officers frequently had difficulty understanding the words of the parties, and the pertinency of what was said was not immediately apparent because all narcotics transactions were disguised by use of various codes, i. e. “Christmas presents” meant heroin, a “chess game” signified an exchange of narcotics, and a “four-room house with two stories” indicated four kilograms of heroin, cut twice.

The officers suspected at times that they might be confusing DellaValle’s voice with that of another unidentified narcotics operator who had a similar husky voice. Even those officers who, under another provision of the warrant, were eavesdropping on DellaValle’s conversations over his home telephone, could not tell whether a second voice was being intercepted at the Bar. Eaton became concerned when the individual overheard was continuously called “Beansy,” which was not one of Della-Valle’s known nicknames; references were made to “Beansy’s wife” while Del-laValle was thought to be single; and “Beansy” was said to be tending bar, which was not DellaValle’s known occupation. But because of the voice and the nature of the business transacted, Eaton testified that he was reasonably sure that “Beansy” and DellaValle were one and the same individual until 2:15 in the afternoon, Sunday, December 19, when the speaker turned away from the telephone and was heard to ask, “How long are you going to be here Beans?”

The next day Eaton reported to Fish-man that they had been inadvertently tapping two different individuals. Fish-man "replied that the warrant would have to be amended, but instructed Eaton to continue monitoring and surveillance to establish “Beansy’s” identity, although Fishman and Eaton both testified that they were aware that a person’s identity was not necessary to secure a “John Doe” warrant. See United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Even after Beansy was identified as DellaCava, Fishman did not proceed with dispatch to have the warrant amended. He conferred with others in his office on amendment procedures; then took a long Christmas weekend; and when he finally completed personally typing the application on January 2, 1972, he decided to hold it for four more days when the warrant expired and had to be renewed in any event. The warrant, therefore, did not authorize the interception of DellaCava’s telephone conversations until January 6, 1972, 18 days after the police received notice that “Beansy” was not DellaValle, and 17 days after Fishman had been so informed.

Meanwhile, at 6:30 p. m., December 23, the police overheard “Beansy” call Ray’s Stationery in the Bronx and ask for “Leo” or “Johnny Hooks.” “Hooks” answered the telephone and told “Bean-sy” to pick up a package. Eaton followed “Beansy” to a Bronx Social Club where he saw him take a package from a Lincoln Continental and place it in his car trunk. Eaton traced the license plates on both cars and found that the Lincoln belonged to John Capra and that “Beansy’s” car was registered in the name of Stephen DellaCava. Subsequent investigation confirmed that “Hooks” was Capra’s alias, that “Bean-sy” was DellaCava, who tended bar at Diane’s, and that “Leo” was Leoluea Guarino.

On the basis of this evidence, Capra, Guarino and DellaCava claimed: that Eaton had insufficient grounds to secure an eavesdropping warrant because he could not distinguish DellaValle’s voice; that he had previously investigated Del-laCava and was actually trying to intercept his calls when he applied for a warrant; that the police had failed to minimize the interception of calls unrelated to the original warrant authorization; and that all interceptions of DellaCava’s calls prior to the renewal of the warrant on January 6, 1972 were unauthorized. The defendants contended that if the trial court upheld any of these objections, all evidence which was the product of this wiretap should be suppressed.

The trial court found that Eaton’s recognition of DellaValle’s voice was founded on the two prior phone calls; that the New York court was fully apprised of this; and, that the warrant was, therefore sufficient on its face. It also found that Eaton’s previous contact with DellaCava had been a brief and insignificant part of an earlier unrelated wiretap which did not concern or result in any investigation of the defendant or Diane’s Bar and that the warrant is-' sued in the present case, therefore, was not based upon pretext.

In connection with the minimization claim, defendants alleged that all calls, including non-pertinent calls to and from this public telephone had been monitored in full in violation of New York Crim.Pr.L. § 700.30(7) and 18 U. S.C. § 2518(5). But after an intensive analysis of the intercepted calls, the trial court found that out of the 1561 calls listed (1159 of which reached the party intended) only 751 were recorded in full. Approximately 620 of these did not exceed two minutes, and 200 of the 235 calls involving DellaCava were also less than two minutes in duration. While the police did record several privileged conversations including a few with family members and one with a lawyer, the trial court found that this was not a commonplace practice in the extensive investigation. As a result of this analysis as well as Fishman’s and Eaton's efforts to limit interception of non-pertinent calls, the district court concluded that “all reasonable efforts were made to comply with legal requirements.”

The district court recognized that one of the most difficult questions in this case concerned the legality of the interception of DellaCava’s conversations. It found that the confusion of DellaValle’s and DellaCava’s voice was a good faith mistake, caused by their similarity and the poor monitoring conditions, and, therefore, held that there was no violation of the eavesdropping warrant prior to the realization that “Beansy” was not DellaValle. It, .however, also held that the police and the State prosecutor did commit error in delaying the application for an amendment of the warrant until 17 days after they learned that “Beansy” was not DellaValle. But the court said the delay was “reasonable and outlawry . . . [was] not warranted” because of the State prosecutor’s inexperience and lack of secretarial assistance, as well as the intervention of the holidays.

At the trial, therefore the court overruled the defendants’ objections and admitted the evidence which resulted from the wiretapping, and the defendants appeal from each of those rulings.

This court is of the opinion that the trial court correctly ruled that the warrant, on which the wiretapping was based, was legally sufficient. The requisite contents of an affidavit for a state warrant are determined by state law, United States v. Manfredi, 488 F.2d 588 (2 Cir. 1973), application for cert. pending 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 and so long as the affiant presents a sufficient and truthful basis for a warrant, reviewing courts in New York have usually upheld the issuance of the warrant. See People v. Porter, 44 A.D.2d 251, 354 N.Y.S.2d 424 (1974). In this case, the State court issued the ex parte order on the reasonable assumption that Eaton could distinguish DellaValle’s voice over a public telephone in a bar and the fact that this assumption was frustrated to a substantial degree by an unusual combination of' circumstances does not render nugatory the supporting affidavit.

This court is also in accord with the district court’s ruling that the issuance of the warrant by the State court was not based upon a pretext. See People v. Asaro, 57 Misc.2d 373, 291 N.Y.S.2d 613, aff’d 34 A.D.2d 968, 312 N.Y.S.2d 807 (1968).

In reviewing the district court’s ruling on minimization, state law must again be applied, United States v. Rizzo, 491 F.2d 215 (2 Cir. 1974); New York, however, has interpreted its minimization provisions in light of the federal statute which goes no “further than to require that the methods used to effect minimization be in good faith and reasonable.” United States v. Manfredi, 488 F.2d at 600; United States v. Tortorello, 480 F.2d 764 (2 Cir.), cert. den. 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); see also People v. Castania, 73 Misc.2d 166, 340 N.Y.S.2d 829 (Monroe Cty Crt 1973). Although the trial court’s analysis of these interceptions revealed that many non-pertinent calls had been intercepted, a vast majority of these did not exceed two minutes, “too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation,” especially under the circumstances of this case. United States v. Bynum, 485 F.2d 490, 500 (2 Cir. 1973), judgment vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). Defendants asserted that the interception of any non-pertinent calls is prima facie evidence of failure to minimize, but the trial court correctly concluded that the police in this ease reasonably complied, in good faith, with minimization requirements.

The trial court’s denials of the defendants’ motions to suppress the evidence resulting from the calls to and from DellaCava between December 19, 1971 and January 6, 1972, were, however, error. The warrant only authorized the interception of conversations by Joseph DellaValle “with” conspirators; and the knowing interception of calls involving DellaCava, rather than DellaValle, was, therefore not within the officers’ discretion. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927).

The government asserts that whatever infirmity resulted from this warrantless tapping was cured by the inclusion of DellaCava in the renewed warrant issued on January 6, 1972, but it fails to state from what source it derived the authority to maintain the warrantless eavesdropping for the preceding 17 days. New York’s eavesdropping statute makes no provision for warrantless interception, New York Crim.Pro.L., Art. 700, and the government has cited no cases in which New York courts have construed this statute otherwise.

Moreover, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 18 U.S.C. § 2510 et seq., prohibits warrantless eavesdropping, except under two specially defined circumstances, i. e., national security and an emergency. Title III creates federal wiretapping procedures that also operate as national standards which only permit the states “to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.” (Emphasis added.) Senate Rpt. No. 1097, April 29, 1968, 1968 U.S. Code Cong, and Admin.News pp. 2112,. 2187. The standards are to be construed strictly, because Congress knew that it was creating an investigative mechanism which potentially threatened the constitutional right to privacy, and it carefully wrote into the law the protective procedures for the issuance of warrants which the Supreme Court had declared in Katz v. United States, supra, and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), were “constitutional precondition [s] of . electronic surveillance.” Katz, at 359, 88 S.Ct. 507; see 1968 U.S. Code Cong, and Admin.News p. 2113, supra.

Under 18 U.S.C. § 2518(10)(a), Congress made clear its intention “to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). See also In Re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239 (1971), cert. den., 408 U.S. 930, 92 S.Ct. 2479, 33 L.Ed.2d 342 (1972).

Obviously failure to amend the warrant was not justified by national security considerations, or by the presence of an emergency. Even assuming arguendo that DellaCava’s conversations constituted an emergency within the meaning of § 2518(7) (a), the continuation of the eavesdropping for 17 days would still not qualify under the emergency exception to the statute because such interceptions must be terminated within 48 hours if, within that time, no warrant has been secured. Id.

The district court, therefore, had no discretion to decide whether to exclude the evidence obtained in violation of Title III. The good faith efforts and worthy intentions of the police, the' prosecutor’s lack of experience and need of secretarial assistance, as well as his election to give priority to a holiday, are wholly extraneous considerations.

All of DellaCava’s intercepted conversations between December 19, 1971 and January 6, 1972, are ordered suppressed.

Publicity at Time of Arrests

Capra, Guarino, and DellaCava were arrested on the night of April 13, 1973, as part of a round-up of over 80 alleged narcotics dealers. Three days later, New York newspapers, each of which have extensive circulation, carried front-page articles which featured detailed on-the-scene reports of the arrests. New York Post, 4/16/73, p. 1, 4; New York Daily News, 4/17/73, p. 1, 3, 11-13, 39; New York Times, k/Yl/lS, p. 1, 37. The New York Daily News showed photographs of Capra in handcuffs leaving his house, the police car on the freeway carrying Capra to the federal detention center, and Guarino, handcuffed, entering the detention center. The News’ on-the-scene report included a description of the interior of Capra’s “opulent” New Rochelle home on the night of the arrest.

At a suppression hearing regarding another issue Bernard Gallespie, the New York police sergeant who arrested Capra, disclosed that the New York City Police Public Relations Director, who was a non-commissioned officer, and a New York Daily News reporter had accompanied him on the night of the arrest and that they had entered Capra’s home. These men were not identified at the house as reporters, and the Capra family apparently assumed that they were plain-clothesmen. Gallespie stated that a New York Magazine reporter and a New York Times photographer were also outside Capra’s house that night.

The trial judge questioned the veniremen to make sure that none of them had prior knowledge of this case; the court also allowed the defendants six additional preemptory challenges to insure impartiality. The defendants, therefore, after the selection of the jury, did not claim that the jurors had been influenced by the publicity, but they did contend that the trial court, under its supervisory powers, should suppress the indictment because the government actively encouraged this publicity. The trial court withheld its ruling on the motion until the jury had returned its verdicts, at which time the court posed a series of questions to the government to determine the extent and nature of the prearranged publicity.

The government’s answers established that on the evening of April 13, 15 minutes before the officers, who were to participate in the secret arrests, met for a briefing at the New York headquarters of the Bureau of Narcotics and Dangerous Drugs, the Narcotics Unit Chief of the United States Attorney’s office was informed that members of the press would be present during part of the briefing and would accompany officers making arrests. He initially objected but he acquiesced when the Chief of Domestic Enforcement of the United States Drug Enforcement Administration and New York City’s Deputy Police Commissioner for Organized Crime Control insisted that the only way to keep the raids secret and prevent possible flights of the accused was to guarantee to members of the press a special story which they, in turn, agreed not to publish for three days.

The government denied that the press was allowed to attend the entire briefing and asserted that, in accordance with the public relations guidelines of the Department of Justice, 28 C.F.R. § 50.2, the reporters were only provided with the names of the defendants, their addresses, age, marital status, and the charges against them. Nonetheless, the trial court pointed out that newspaper photographs showed the briefing session in progress, and that the newsmen appeared to have been fully cognizant of the code words and the communications system to be used.

The government admitted that after the briefing, members of the press did accompany officers to the various scenes of arrest. It conceded that this was in contravention of the guidelines of the Justice Department, supra, and stated that it would use its best efforts to insure that such an incident would not recur. The government, however, failed to assure the trial court that members of the press would not be allowed to attend arrest briefings in the future.

Although the trial court was of the opinion that the government’s conduct was ill-conceived and said it was particularly concerned because the government apparently did not intend to exclude the members of the press from arrest briefings, it held that the circumstances did not require the suppression of the indictment.

After oral argument before this court, however, the government did state “that the press should not be invited to meetings where law enforcement officers discuss plans to arrest persons accused of criminal conduct,” that is to say, arrest briefings.

The trial court correctly held that there was no showing of prejudice in this case. Absent proof of bias on the part of individual members of a jury, reversal, because of extensive publicity adverse to the accused, is required where, after reading or hearing it, a resulting conclusion of guilt in the minds of the general public would be practically certain, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), or where improper pressure on a jury was clear from the record itself, Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), neither of which the trial court found here. But allowing members of the press to attend pre-arrest briefings of the police presents the grave danger that undue publicity will, in advance of trial, convict the accused in the minds of the general public and seriously prejudice his right to be accorded a fair trial by an impartial jury.

The government has belatedly stated that it will not invite members of the press to these briefings. In the exercise of its supervisory powers, Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), this court is of the opinion that the Government must not allow the press to be present at such meetings.

The Government’s actions did not deny the defendants due process in this case, but to insure that future trials are not prejudiced, the Government must not permit their recurrence.

The trial court’s denial of the motion to suppress the indictment is affirmed.

The Car Search

Prior to trial, DellaCava moved to suppress certain evidence, including $13,900, a machine for sealing plastic bags and some traces of heroin, seized from his car at the time of his arrest on April 14, 1973. After holding a hearing, the trial court found that the following events had occurred.

At the arrest briefings, Detective Eaton, Sergeant Timothy Restivo of the New York Police Department, together with Group Supervisor James Becknar and Special Agent David Samuel of the Bureau of Narcotics and Dangerous Drugs, were assigned to apprehend Del-laCava. He had been under surveillance all day and the officers were told that they would find him at Bachelors III, on the Upper East Side. Just before 2 a.m., Eaton saw DellaCava’s brown 1973 Oldsmobile 98 parked near the restaurant; officers who were waiting to apprehend others at the scene confirmed that DellaCava was there.

They decided not to arrest him in the restaurant, and thus alert the other suspects, but, rather, to “stake out” his Oldsmobile. Shortly after 2 a.m., Della-Cava left the restaurant, made two telephone calls from different public phones, entered his car, and drove off. He was followed by the officers, who stopped him at 86th Street and Lexington Avenue and placed him under arrest. To avoid the crowd which had gathered, the officers decided to transfer the" arrest proceedings to an underground sanitation garage at 79th Street and the Hudson River.

Special Agent Samuel testified at the suppression hearing that, upon arrival at the garage, the officers “impounded-[ed] the car for safekeeping.” Samuel removed the keys from the ignition, and Eaton, Becknar, and Restivo thoroughly searched the entire vehicle. Restivo found the sealing machine and a brown gym bag containing $13,900 in the trunk. Laboratory tests subsequently revealed that the interior of the bag was covered with traces of heroin powder.

The government contended at the hearing that this was a routine inventory search for the protection of the defendant’s property, but the trial court properly rejected that argument because, even though the police may have “exercised a form of custody or control” over the car, they clearly conducted the search for the purpose of securing incriminating evidence. Cady v. Dombrowski, 413 U.S. 433, 443, 93 S.Ct. 2523, 2529, 37 L.Ed.2d 706 (1973).

The district court, nevertheless, held thát the police, viewing the movements of the defendant on the night of the arrest in light of their prior knowledge of his use of automobiles in narcotics transactions, had reasonable cause to believe that the car was being used to transport contraband and was, therefore, subject to forfeiture. 49 U.S.C. § 781 ; 21 U.S.C. § 881. The court noted that Samuel had actively worked on the case for a month and, during the eight months prior to the arrest, had become familiar with DellaCava’s role. It also found that Eaton had maintained his surveillance of DellaCava since the wiretap at Diane’s Bar. The district court stressed that the indictment, under which Della-Cava was arrested, contained allegations of dealings in narcotics which reinforced the agents’ belief that DellaCava was engaged in transporting drugs that evening.

If agents have probable cause to believe that a car is or has been used for carrying contraband, they may summarily seize it pursuant to the federal forfeiture statutes and search it. See United States v. Ortega, 471 F.2d 1350 (2 Cir.), cert. den. 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973) ; United States v. Ayers, 426 F.2d 524 (2 Cir.), cert. den. 400 U.S. 842, 91 S.Ct. 85, 27 L.Ed.2d 78 (1970); United States v. Francolino, 367 F.2d 1013 (2 Cir. 1966), cert. den. 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110 (1967).

While agreeing with the trial court “that the question is a close one,” this court finds no basis for reversing the district court’s holding that “the search on balance should be held lawful” and that there was probable cause to believe that the car was being used to carry contraband on the night of the arrest. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Severance

Defendants Capra, Jermain, Morris and Harris requested severances below on the ground that the evidence failed to prove a single conspiracy. They argued that the prosecution actually revealed multiple conspiracies, which should have been tried separately. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

The trial court properly denied these motions. When a continuing, chain-relationship between the defendants as importers, distributors, and sellers is prov: en, see United States v. Sisca, 503 F.2d 1337 (2 Cir. 1974); United States v. Rizzo, 491 F.2d 215 (2 Cir. 1974); United States v. Bynum, 485 F.2d 490 (2 Cir. 1973), and where the evidence against the particular defendants who request severance is not “so little or so ‘vastly disproportionate’ ” in comparison to that admitted against the remainder of the defendants, United States v. Rizzo, supra, 491 F.2d at 218, severance is not required. The trial judge instructed the members of the jury not to consider evidence against any defendant once he had ceased to be a member of the conspiracy; this sufficiently protected the defendants under the circumstances of this case.

The remaining claims raised by the defendants do not have sufficient merit to require discussion.

Conclusion

The judgments of conviction against Capra, Guarino and DellaCava on the first or conspiracy count are reversed because of the admission into evidence of the recordings and transcripts of the illegal electronic interceptions of their conversations and the testimony regarding the resulting police surveillance of their activities. Giordano, supra.

Because they were not parties to the intercepted calls, Jermain, Morris and Harris were not “aggrieved persons” within the meaning of 18 U.S.C. § 2518(10) (a); they, therefore, lacked standing at the trial to contest the admission of the evidence resulting from the electronic surveillance. 1968 U.S. Code Cong. & Admin.News p. 2185; Alderman v. United States, 394 U.S. 165, 175-176 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). “Coeonspirators and codefendants have been accorded no special standing” to enforce the exclusionary rule. Alderman v. United States, supra, 394 U.S. at 172, 89 S.Ct. at 965. Their convictions on the conspiracy count are affirmed. Brown v. United States, supra, 411 U.S. 223 at 230, 93 S.Ct. 1565, 36 L.Ed.2d 208; United States v. Garcilaso de la Vega, 489 F.2d 761, 763 (2 Cir. 1974); United States v. Pui Kan Lam, supra, 483 F.2d at 1205; United States v. Solis, 469 F.2d 1113, 1114 n. 1 (5 Cir. 1972), cert. den. 410 U.S. 932, 93 S.Ct. 1375, 35 L.Ed.2d 594 (1973).

The record shows that none of the evidence resulting from the illegal wiretaps was used to prove the guilt of any of the defendants, Capra, Guarino, DellaCava and Jermain, on the substantive charges, Counts 2, 3, 4 and 5. All of the events relating to these four counts, and all of the relevant events encompassed in the counts, occurred prior to the installation of the wiretap; moreover Ramos’ testimony on these charges was independently corroborated. There is no indication in the record nor was there a claim by any of the defendants that the police identified Ramos or asked him to testify as a result of evidence uncovered by the wiretaps. See Wong Sun v. United States, supra; Giordano, supra.

The judgments of conviction entered on Counts 2, 3, 4 and 5 against the defendants Capra, Guarino, DellaCava and Jermain are affirmed.

It is so ordered.

      . Some of the illegal activities in this ease occurred prior to May 1, 1971, when the Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law 91-153, became effective. These activities formed the basis for substantive counts 2 and 3, which charged violations of the earlier laws, 26 U. S.C. §§ 4705(a) and 7237(b). The remaining substantive counts charged violations of the new laws, 21 U.S.C. § 812, § 841(a)(1), and § 841(b)(1)(A). The conspiracy spanned both these time periods and, thus, violated both 26 U.S.C. § 7237(b) and 21 U. S.C. § 846.

      . Morris, Middlebrook and Ramos were convicted in August, 1972 for possession of these narcotics in violation of Ohio state law. Ramos, a second offender, was sentenced to 10 to 20 years imprisonment, and in November, 1972, he agreed to turn state’s evidence in return for the government’s promise to aid him in securing parole.

      . Defendants are no longer forced to choose between admitting guilt or asserting constitutional rights because Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), holds that nothing a defendant states to prove standing can be used against him as evidence in chief at trial. See United States v. Pui Kan Lam, 483 F.2d 1202, 1205 n. 4 (2 Cir. 1973).

      . Assuming arguendo that the defendants did have standing, this court is in agreement with the trial court’s alternative holding, that this was a private search, and not subject to the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The government did not instigate this search, United Staets v. Cangiano, 464 F.2d 320 (2 Cir. 1972), vacated on other grounds, 413 U.S. 913, 93 S.Ct. 3047, 37 L.Ed.2d 1023 (1973), aff’d 491 F.2d 905 (2 Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 3223, 41 L.Ed.2d 1171; rather, it was motivated by a genuine concern on the part of railroad personnel for the safety of railroad property, fellow employees, and themselves. See United States v. DeBerry, 487 F.2d 448 (2 Cir. 1973). This concern was understandably engendered by the unusual baggage check, Namos’ nervous behavior, the weight of the suitcase, the delay in claiming it, and prior exposure, through media and personal experience, to bomb scares. Police participation was not so pervasive that the opening of the suitcase was primarily for “the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action.” Haerr v. United States, 240 F.2d 533, 535 (5 Cir. 1957). And when police are merely assisting a private party, who has authority to search and a legitimate need to do so, see United States v. Antonelli, 434 F.2d 335 (2 Cir. 1970), courts are reluctant to exclude resulting evidence. Wolf Low v. United States, 391 F.2d 61 (9 Cir.), cert. den. 393 U.S. 849, 89 S.Ct. 136, 21 L.Ed.2d 119 (1968). See generally United States v. Blum, 329 F.2d 49 (2 Cir.), cert. den. 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1045 (1964).

      . Because this court is of the opinion that reversal of the conspiracy count as to Capra, Guarino and DellaCava is mandated by both ’ the illegal wiretapping after December 19 and the resulting taint of police surveillance and subsequent wiretaps, see United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the questions of whether the interception of DellaCava’s conversations prior to December 19, when the trial court found that the officers in good faith reasonably believed that they were listening to DellaValle, was authorized by State law and within the meaning of the federal wiretapping law, 18 U.S.C. § 2510, et seq., or permissible under the Constitution, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), are left open for future consideration.

      . The New York Constitution, Art. 1 § 12, apparently bars warrantless wiretapping:
      “The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.”

      . People v. Sher, 68 Misc.2d 917, 329 N.Y.S.2d 2 (Green Gty Crt 1972) permits retroactive amendment of a New York warrant to substitute specifically identified persons for “John Does” and to add new crimes to those previously listed on the warrant. Neither of these changes invades the privacy interests of a person whose conversations could not have been intercepted under the original authorization.

      . Congress had in mind by use of the term “emergency” an important event, limited in duration, which was likely to occur before a warrant could be obtained. Senate Rpt. No. 1097, 1968 U.S.Code Cong, and Admin.News, pp. 2112, 2193.

      . The government contends that United States v. Cox, 449 F.2d 679 (10 Cir. 1971), cert. den. 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972), construes the federal statute to permit a court to validate by retroactive approval a warrantless interception. Like People v. Sher, infra, n. 4, however, Ooso merely allowed police, who were authorized to listen to all conversations concerning a particular crime over a private telephone but who also overheard another conversation about plans for a different criminal offense, to continue to listen to conversations relating to both crimes without immediately seeking an amendment to the warrant.

      . Defendants also continue to argue in this court that all interceptions, even those prior to December 19, must be suppressed because the government failed to provide an inventory of the intercepted phone calls within the statutory time period, N.Y.Orim.Pro.L. § 700.50(3), and because the tapes were not immediately sealed after the eavesdropping ceased. Id., § 700.50(2). The trial court found that the State court had authorized the delay in filing the inventory in order to protect the secrecy of on-going investigations and that the defendants had shown no prejudice resulting from either delay. Under these circumstances, the trial court was correct in holding that neither New York nor federal law requires suppression. People v. DiLorenzo, 69 Misc.2d 645, 330 N.Y.S.2d 720 (Rockland Cty Ct. 1971) ; United States v. Cirillo, 499 F.2d 872 (2 Cir. 1974) ; United States v. Manfredi, 488 F.2d 588 (2 Cir. 1973), application for cert. pending 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240; United States v. Rizzo, 492 F.2d 443 (2 Cir. 1974).

      . § 781(a), 49 U.S.C., reads:
      “It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.”
      § 881(a)(4) of 21 U.S.C. also subjects to forfeiture all vehicles used to transport narcotics.

      . Even if it were assumed that part of Eaton’s familiarity with DellaCava’s use of automobiles was derived from what was learned by way of the illegal wiretaps sixteen months before, this court would not be justified in finding error in the trial court’s holding of probable cause. The federal agent Samuel, under cross-examination by defense counsel, testified that during the eight months prior to the arrest, he had learned of the Toledo delivery and the respective roles of Capra, Guarino, Ramos and DellaCava. From this, the trial judge could infer that Samuel had knowledge of the fact that Ramos, six months prior to the arrest of DellaCava, had told federal authorities that DellaCava acted as a narcotics deliveryman. None of Ramos’ testimony was derived from the illegal wiretaps, United States v. Tane, 329 F.2d 848 (2 Cir. 1964), and, therefore, on the night of the arrest, an independent and untainted source of information supported the agents’ decision that Del-laCava’s activities gave rise to probable cause to believe that he was transporting contraband. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; United States v. Falley, 489 F.2d 33 (2 Cir. 1973) ; James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150 (1969) ; United States v. Epstein, 240 F.Supp. 80 (S.D.N.Y.1965).

      . The motion by David Blackstone, Esq., attorney for the appellant George Harris, for leave to withdraw as assigned counsel is denied.
      The motion by the Government for dismissal of the appeal by Harris is denied in view of the fact that the appeal has been heard and decided.