author: PER CURIAM:

text:
    ARIZONA PUBLIC SERVICE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The People of the State of California et al., Intervenors.
    No. 73-1636.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 25, 1973.
    Decided Jan. 2, 1974.
    John T. Miller, Jr., Washington, D. C., for petitioner.
    William M. Sawyer, Atty., F. P. C., with whom Leo E. Forquer, Gen. Counsel, George W. McHenry, Jr., Acting Sol. F. P. C., were on the brief for respondent.
    Lawrence Q. Garcia, San Francisco, Cal., with whom J. Calvin Simpson, San Francisco, Cal., was on the brief for in-tervenors People of the State of Cal. and the Public Utilities Commission of the State of Cal. Sheldon Rosenthal, San Francisco, Cal., also entered an appearance for intervenors State of Cal. and the Public Utilities Commission of the State of Cal.
    Frederick T. Searls, Malcolm H. Fur-bush and Daniel E. Gibson, San Francisco, Cal., were on the brief for intervenor Pacific Gas and Electric Co.
    C. Hayden Ames and Donald J. Richardson, Jr., San Francisco, Cal., were on the brief for intervenor San Diego Gas and Electric Co.
    Thomas F. Brosnan, Washington, D. C., entered an appearance for intervenor Tucson Gas and Electric Co.

      Before WILBUR K. MILLER, Senior Circuit Judge, and TAMM and ROBB, Circuit Judges.
   PER CURIAM:

By our opinion of July 30, 1973, 483 F.2d 1275, we found “no fault with either the conclusions of the Commission or the process applied to juxtapose them,” but remanded this case to the Commission “to conduct whatever further proceedings it deems necessary either for the preparation and circulation of an impact statement or for preparation of a statement of reasons as to why an impact statement is unnecessary.” Pursuant to this remand the Commission has issued, as of October 26, 1973, and filed with this court, its Opinion 615-B entitled: “Opinion and Order in Compliance with Court Remand.”

Exercising the option afforded it by the court, the Commission’s Opinion 615-B sets out its reasons why it feels an impact statement to be unnecessary. Petitioner challenges the adequacy and the legal sufficiency of the Commission’s action on remand.

Opinion 615-B sets forth in some detail the factual considerations which prompt its conclusion that the denial of petitioner’s proposal “does not have a ‘significant effect on the quality of the human environment’ ”. Included in these data are a series of tables and calculations relating to the sulphur dioxide emissions in the Phoenix-Tucson area over a seven-year period on a comparative basis as between the burning of oil or natural gas. Several of the tables were prepared by the Environmental Protection Agency. A table computes the percentage total of these emissions as compared to the total emissions in the study area. Other tables set forth urban frequency distribution of sulphur dioxide on an annual basis and the applicable air quality standards in the Phoenix area. In addition, the Commission considered the testimony of qualified witnesses. Measuring and evaluating the complete record and considering “both the State and Federal standards as ceilings for pollution levels,” the Commission accepted testimony that its action would “raise the level of concentration to a mere 40% of the Federal standard.” It concluded that the “[djenial of El Paso’s application does not significantly affect the quality of the human environment and, therefore, no detailed environmental impact statement is required.”

Noting that the record encapsulated heretofore was not made in the present case, the petitioner challenges the Commission’s reliance on “extra record data.” Petitioner argues to this court that since subsections 7(c) and (e) of the Natural Gas Act require a hearing and record in these cases, it was deprived of “opportunity for cross-examination and presentation of rebuttal evidence” although “fundamental fairness required it.” (Petitioner’s Brief, pages 3-6.)

The factual situation is that all of the evidence considered by the Commission in this case was actually developed not in this case (Docket No. CP71-234), but in a case entitled El Paso Natural Gas Co. (Docket No. RP72-6). This latter docket related to hearings conducted by the Commission to consider, among other things, “the environmental impact of burning an almost identical amount of oil, as a substitute for natural gas, in the Phoenix-Tucson area.” Petitioner was a party to the RP72-6 proceedings, offered evidence and had full opportunity to participate in the hearings. Under these circumstances — embracing identity of parties, identity of issues and full opportunity for participation — we do not believe that the use of extra record data either deprives petitioner of any legally-recognized right, or constitutes a deprivation of fundamental fairness. The cases cited and discussed on this point are readily distinguishable from the present factual situation and our research has not disclosed reported cases which may be cited as authority for petitioner’s contention.

Petitioner also charges that the Commission “ignored relevant portions of the Docket RP72-6 record and misconstrued other parts.” Petitioner’s Brief at 9-21. Our review of the record does not convince us that there was any element of arbitrariness or capriciousness in the treatment of the evidence.

The court finds that the Commission, by Opinion 615-B, has adequately established by competent evidence that an environmental impact statement is not legally required in this case. The court further finds that the Commission’s action did not deprive petitioner of any procedural or “fairness” right, nor were its conclusions bottomed upon arbitrary or capricious considerations or treatment of the evidence.

      . Slip op. at 6; cf. 42 U.S.C. § 4332(2) (C) (1970).

      . E. g., Joseph J. Weinstein; Edwin M. Roberts.

      . 15 U.S.C. § 717f (c), (e) (1970).

      . Commission Opinion 615-B at 8 n. 5.


source: Caselaw Access Project

author: ROBB, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America v. James F. ANDERSON, Appellant.
    Nos. 72-2074, 72-2113.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 26, 1973.
    Decided Jan. 4, 1974.
    Matthew F. Medeiros, Washington, D. C., with whom John S. Koch, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.
    Paul L. Friedman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Charles E. Brook-hart and Barry W. Levine, Asst. U. S. Attys., were on the brief, for appellee.
    J. Patrick Hickey, Washington, D. C., filed a brief on behalf of Public Defender Service as amicus curiae, urging reversal.
    Before TAMM, MacKINNON and ROBB, Circuit Judges.
   ROBB, Circuit Judge:

Appellant Anderson was indicted in eight counts. The first six counts alleged armed robbery, robbery and assault committed against Marion Hunter and Eugenia Brennan on March 11, 1972. The seventh and eighth counts charged Anderson with assault to commit robbery while armed and assault to commit robbery on April 1, 1972, the victim being Missouri Rosebrough. The District Court having granted a motion to sever, 352 F.Supp. 33 (D.D.C.1972), Anderson was tried on counts 7 and 8 on September 11, 1972, and found guilty of assault with intent to commit robbery while armed. For this offense he was sentenced to a term of two to six years, and he appeals. (No. 72-2074).

On November 6 Anderson was tried on the remaining six counts and found guilty on two counts of armed robbery and two counts of assault with a dangerous weapon. The District Court imposed sentences of one to three years on each count, the sentences to run concurrently with each other, but consecutively to the sentences previously imposed on counts 7 and 8. He appeals. (No. 72-2113). The two cases have been consolidated in this court. With the permission of the court the Public Defender Service has filed a brief amicus curiae in No. 72-2113, urging reversal of the conviction on the charges of armed robbery and assault on March 11,1972.

No. 72-2074 — The September 11 Trial (The Missouri Rosebrough Case— Offenses of April 1, 1972)

Prior to selection of the jury, the prosecutor, at the request of appellant’s counsel, made a proffer concerning the identification of appellant by Mrs. Missouri Rosebrough: “[S]he told the police right off that it was Anderson, that she knew him from being in the apartment building, and the police then went upstairs, made the arrest and brought him down. . . . [A]nd she made the identification.” Appellant’s counsel responded, “Mr. Anderson, when he testifies, he will acknowledge that he knows her and does live in the same building.” He also stated: “Pm satisfied that my investigation would support the identification of Miss [sic] Missouri Rose-brough. ... I proffer this to the Court to avoid the need for a full hearing.” The court ruled that the witness could make an in-court identification of appellant because she had a source independent of the on-the-scene viewing, “particularly the matter of his being a tenant in the building known to her”.

Mrs. Rosebrough testified that she lived on the first floor of an apartment house at 1420 Clifton Street, N.W., and the appellant lived on the third floor. For a year she had been seeing him around the apartment; “he would often be standing, every day and every night when I come from work, I would see him standing out in the hall.” Shortly after midnight on April 1, 1972 she and Mrs. Alberta Stephens were walking through an alley to the back entrance of the apartment building when Mrs. Rose-brough noticed Anderson walking behind them. She looked back several times, recognized Anderson, and said, “Oh, that’s the Anderson brother.” ‘ When she reached the apartment door and was about to take' out her key Anderson walked up. She thought he was going to the apartment but instead he produced a pistol and demanded her money. She said, “What money?” and then “I just hauled off and hit him with my fist and hollered, and he ran down the steps and then went on down the alley.”

Mrs. Rosebrough testified that while the attempted robbery was in progress she was no more than three feet from Anderson, that there was a light on the back porch and “real bright” parking lights in the alley, and she was able to get a good look at Anderson’s face.

After the attempted robbery, because Mrs. Rosebrough was extremely nervous, she stayed in her apartment all night. “I couldn’t call the police because I was just too nervous, and I couldn’t know whether he came back in the front door or what, and if I called the police I would have had to leave my apartment from the back and walked to the front”. She finally did call the police, and after they arrived around 9:00 A.M. she described to them what her assailant was wearing: a black shirt, a trench coat and dark trousers.

Acting on Mrs. Rosebrough’s report the police went to Apartment 308, looking for James Anderson, found him dressed in a black shirt and dark trousers, and took him down in the elevator. When the elevator reached the first floor Mrs. Rosebrough was standing nearby in the hall and the police asked her if she knew Anderson. She replied, “This is the guy who robbed me — who tried to rob me”. All this evidence came in without objection.

The testimony of Mrs. Alberta Stephens corroborated Mrs. Rosebrough’s account of the assault and attempted robbery, but Mrs. Stephens was unable to identify the appellant.

The defense was an alibi, that Anderson had returned to his apartment at 9:00 o’clock in the evening on March 31 and had not left until he was arrested at 9:00 the following morning. He admitted that he knew Mrs. Rosebrough because she lived in the same apartment building. On cross examination the prosecutor confronted Anderson with a handwritten statement given to the police at the time of his arrest, in which he said he had not arrived home until 12:55 A.M. on April 1. Anderson admitted that the statement and the signature were his.

Notwithstanding the concession of trial counsel, and the absence of any objection at trial, appellate counsel now contends that it was plain error to admit evidence of the identification made by Mrs. Rosebrough at the time of Anderson’s arrest. Appellate counsel argues that this confrontation was impermissi-bly suggestive, citing McRae v. United States, 137 U.S.App.D.C. 80, 420 F.2d 1283 (1969). Counsel also contends that the confrontation violated the police regulation providing: “If a suspect is arrested within 60 minutes of an alleged offense and within an area reasonably proximate to the scene of the crime, he shall be returned to the scene of the offense . . . for identification of the suspect.” The argument is that Anderson was not arrested within sixty minutes of the alleged offense.

We think the appellant’s attack on the identification must fail. The vice' of a one-man confrontation is of course that it may be suggestive and increase the likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In this case, however, Mrs. Rosebrough knew Anderson well so there was no danger of mistaken identification. The obvious purpose of the confrontation was to make certain that the police had arrested the man named to them by Mrs. Rosebrough.

The police regulation cited by the appellant is not a rule of evidence, and in any event does not fit the facts of this case.

The defendant’s handwritten statement, used to impeach his testimony at trial, was destroyed by fire in the office of the Clerk of the United States District Court, and a copy cannot be found. The appellant argues that the loss of this paper requires reversal of his conviction. Since the statement was not introduced in evidence at the trial, but was used only to impeach the appellant’s testimony, there is nothing to his point.

In charging the jury the district judge said that an important issue in the case was “the identification of Mr. Anderson as the perpetrator of these particular crimes” and that the defendant must be acquitted unless the jury was convinced beyond a reasonable doubt that he “was the person who committed these crimes”. There was no objection to the charge, but appellant’s counsel now claims that this part of the charge assumed that a crime had been committed and was therefore prejudicial. We think the point evaporates when the challenged statements are taken in the context of the entire charge.

No. 72-2113 — The November 6 Trial Offenses of March 11, 1972

Immediately after Anderson was arrested on April 1, 1972 in the Rose-brough ease, a criminal complaint against him was filed and he was arraigned before Magistrate Burnett on April 3. (April 1 was Saturday). The Magistrate appointed counsel and set bond. The government submitted a motion for an Adams lineup and requested the Magistrate to sign a lineup order. Adams v. United States, 130 U.S.App.D. C. 203, 399 F.2d 574 (1968), cert, denied, 393 U.S. 1067, 89 S.Ct. 722, 723, 21 L.Ed.2d 710 (1969). The Magistrate was informed that the government intended to place Anderson in a lineup in the Rosebrough ease and “for one or more armed robberies” one of which had occurred in the same block. The government refused to make any further proffer. The Magistrate denied the government’s motion for an Adams lineup but granted its motion for a Wade lineup for the April 1 offense. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). On April 5 Anderson and his appointed counsel attended a lineup. No witnesses to the April 1 offense were present; Mrs. Stephens, one of the witnesses, was to have attended but did not. However, Mrs. Marion Hunter and Mrs. Eugenia Brennan viewed the lineup and identified Anderson as the man who had held them up on March 11, while they were waiting for the elevator in the lobby of 1420 Clifton Street.

A motion to suppress testimony concerning the lineup identification by Mrs. Hunter and Mrs. Brennan was denied by the District Court. United States v. Anderson, 352 F.Supp. 33 (D.C.D.C. 1972).

The appellant and amicus contend that since the Magistrate declined to sign an Adams order, the viewing of the lineup by Mrs. Hunter and Mrs. Brennan, victims of the March 11 robbery but not connected with the assault on Mrs. Rose-brough, was contrary to the doctrine of the Adams case and violative of Anderson’s fourth amendment rights. We disagree.

In the Adams case the defendant, arrested for one crime, was placed in a lineup and identified by victims of another crime. He was convicted of the second crime. He had not been presented to a magistrate at the time of the lineup at which he was identified; on the contrary, presentment had been delayed for the purpose of putting him in the lineup. The conviction was reversed because of the failure to present the defendant to a magistrate as required by Rule 5(a), Fed.R.Crim.P. In the case at bar however the lineup was held after presentment. The Adams decision is therefore not controlling.

Relying upon Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the amicus contends that “an arrested citizen, like any other citizen, cannot be made to stand in a lineup for a crime other than the one charged against him except upon a finding of probable cause by a judicial officer.” We do not agree. That Anderson was lawfully in custody distinguishes his case from the Davis case; as the Supreme Court recently observed, “Davis is plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment.” United States v. Dionisio, 410 U.S. 1, 11, 93 S.Ct. 764, 770, 35 L.Ed.2d 67, 77-78 (1973).

Anderson was lawfully in custody and there is no contention that the lineup at which he was identified violated due process. Given these premises his constitutional rights were not infringed when he was viewed by victims of the March 11 robbery; as the District Court correctly concluded, so long as timely presentment is made before a magistrate and the lineup comports with due process, “the Government may place [a suspect] in a lineup for any number of offenses it chooses without prior court authorization . . . 352 F.Supp. at 35. See United States v. Eley, 287 A.2d 830 (D.C.Ct.App.1972). Cf. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973). See also, Doss v. United States, 431 F.2d 601 (9th Cir. 1970).

The judgments and sentences for assault with a dangerous weapon must be vacated, since we have held that assault with a dangerous weapon is included in armed robbery. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). With this modification the judgments are

Affirmed.


text:
    UNITED STATES of America v. Lee R. SMITH, Appellant.
    No. 72-2198.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 10, 1974.

      Arthur Lowy (appointed by this court) was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Warren L. Miller and Joseph B. Valder, Asst. U. S. Attys., were on the brief for appellee.
    Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.
   PER CURIAM:

Indicted for first degree murder, appellant was found guilty of the lesser included offense of second degree murder. On appeal he contends that the trial court committed three errors which justify reversal: (1) by refusing to admit, during appellant’s direct examination, a prior statement he gave to police, (2) in admitting two black and white photographs of the murder scene, and (3) in admitting testimony by the victim’s widow that her marriage was trouble-free. We see no necessity for oral argument and affirm the judgment of conviction.

I

The significant facts of the crime are relatively few. Appellant went to the home (an apartment) of his sister-in-law in an attempt to see his wife and to talk to her about her alleged misconduct. While there he got into a fight with his wife in which Boyd (the victim) interceded by telling appellant if he wanted to fight with his wife he should take her upstairs and fight her. His wife then went into the apartment and when appellant attempted to follow her, his sister-in-law, Mrs. Ferguson, attacked him. She hit him with an ash tray, he threatened her with a hawkbill knife and this knife was taken away from him by Cassandra Greene. Mrs. Greene and a man (Mr. Ed) then put appellant out of the apartment. As appellant left he told Boyd, who had remained outside the apartment during the fight, “I’ll get you and I’ll be back.” Five or ten minutes later appellant knocked on the door of Mrs. Ferguson’s apartment, Boyd opened the door and found appellant standing there with a sawed-off shotgun. Appellant then stated, “I am going to kill you, m-f-,” and, so saying, shot Boyd, killing him. Appellant claimed he acted in self-defense, claimed he was followed by Boyd to his apartment and that Boyd did not turn back until the appellant got his gun. His story at trial, however, was impeached by a contradictory statement he admitted giving to the • police on the night of the shooting.

II

At the beginning of appellant’s case in chief he made a proffer to prove through a police officer that shortly after the murder happened appellant made a statement to a police officer that was reduced to writing and signed by appellant. The written statement embodied appellant’s description of the killing of Boyd but was not “a confession or in the nature of a confession.” Appellant’s counsel described it as being “in the nature of a defense . . . ” In substance it asserted that he killed Boyd in self-defense. Appellant proposed to take the stand first and then introduce the written statement through the police officer “for the purpose of corroborating what this man [appellant] is going to state on the stand.” To this proffer of the written document the Government objected on the ground that it was a prior consistent statement, hearsay and self-serving and therefore inadmissible at that time. The Government indicated its objection went to the reading of the entire statement and that it had no objection to the defense asking the appellant if he gave the police a written statement when he was arrested which recited facts substantially the same as his present testiiñony. In sustaining the Government’s objection the court pointed out the statement was hearsay and that at that stage of the trial the statement would “ [c] orroborate an exculpatory statement that is self-serving.”

Later in the trial, after appellant had testified, the Government was allowed to refer to the contents of the statement, without admitting it into evidence, to impeach his trial testimony. Thereafter the trial court indicated that it was now permissible for appellant to introduce the entire statement into evidence, but defense counsel was of opinion that the court’s initial refusal was irreparably prejudicial and he refused to offer the statement for admission into evidence. We find that the court’s rulings with respect to the proffer, and the use of the written statement in cross-examination during the trial, followed well established principles of trial procedures and were completely proper in all respects.

Judge Sobeloff pointed out in Schoppel v. United States that:

It is not proper ... in chief to seek corroborative support of a witness by showing that after the event under inquiry and before the trial he made statements to the same effect.

270 F.2d 413, 417 (4th Cir. 1959). After so stating, the opinion criticized the Government’s conduct of the trial in repeatedly eliciting testimony that certain of its witnesses had been interviewed and given statements to the F.B.I., and then handing the statement to defense counsel in the presence of the jury and thereby creating an aura of corroboration by a prior statement. Our prior decisions also indicate that when a witness’ testimony has not been impeached, his prior extra-judicial utterances are ordinarily inadmissible. The reason for this rule was stated by Justice Story as far back as 1836:

[The witness’] testimony under oath is better evidence than his confirmatory declarations not under oath, and the repetition of his assertions does not carry his credibility further, if so far, as his oath.

Ellicott v. Pearl, 35 U.S. (10 Pet.) 412, 439, 9 L.Ed. 475 (1836). Modern legal scholars are also in accord. 4 Wigmore, Evidence § 1124 (Chadbourn rev. 1972) ; McCormick, Evidence § 49 (2d ed. 1972).

One general principle is that in the absence of an attack upon credibility no sustaining evidence is allowed.

McCormick, id. (footnote omitted).

The Government summarizes appellant’s contentions as a claim that he was prejudiced because

his credibility was undermined because, since the statement was not admitted during his direct testimony, “[t]he jury may well have inferred . that he was afraid to discuss it . . . ” (Appellant’s Brief at 16-17); “the refusal to admit the statement when it was requested by the defendant made him appear unnecessarily inconsistent and subjected him to prejudicial lines of questioning” (id. at 17); and “the prosecutor asked leading questions for which there was no basis” (id. at 18) (appellant does not support this contention by any citation to the record). These assertions are unsubstantiated and speculative. They are indeed no more than an example of the fact that “[t]he prosecutor’s course was a classic example of the proper purposes of cross-examination.” (Willie) Jones v. United States, supra, note 16, 111 U. S.App.D.C. 276 at 280, 296 F.2d 398 at 402.

Brief for Appellee at 15.

The substance of appellant’s claim is a contention that he should have been allowed to impeach himself with the statement and then rehabilitate his own impeached testimony. But appellant could not use an impeachment of himself as a foundation for the admission of otherwise inadmissible testimony. His whole theory in this respect is exploded by Judge Sanborn’s well-reasoned opinion in Throckmorton v. St. Louis-San Francisco Ry., 179 F.2d 165 (8th Cir.), cert, denied, 339 U.S. 944, 70 S.Ct. 797, 94 L.Ed. 1359 (1950), which is cited with approval by Judge Wright in Gregory v. United States, 125 U.S. App.D.C. 140, 146 n. 13, 369 F.2d 185, 191 n. 13 (1966). Throckmorton involved an action for injuries in which plaintiff asserted in his direct testimony that his injuries were the result of a de-feetive brake on one of the defendant’s railroad cars. In an affidavit executed shortly after the accident he had stated that he did not know what had caused the accident. He succeeded in entering into evidence a letter from an insurance company inquiring into what had caused the accident and citing the fact that he had not answered this question in the previously executed affidavit. He then sought to introduce his reply letter in which he asserted that the cause of the accident was the defective brake. The trial court excluded this letter, and, in upholding the exclusion, the opinion by Judge Sanborn stated:

What the plaintiff, in effect, did was to impeach himself — assuming that the affidavit constituted impeachment —and, then, to offset the effect of the impeachment, he sought to introduce in evidence a self-serving declaration contained in a letter written after this case had been commenced. It is elementary that a party cannot make evidence for himself by writing a letter containing the statements that he wishes to prove.

Throckmorton v. St. Louis-San Francisco Ry., supra, 179 F.2d at 169. Part and parcel of this rule is the corollary principle that a prior consistent statement (here the written statement of appellant) may be introduced into evidence to rehabilitate a witness. It was this rule that the court followed when it ruled late in the trial that the statement was properly admissible at that time.

The three cases cited by appellant in support of his contention all involved instances where admissions of the defendant were introduced by the Government as part of its case in chief and the cases are thus inapposite on their facts. And it is patently frivolous further to assert, as appellant does, that he was denied his Sixth Amendment right to assistance of counsel because the court’s refusal to admit appellant’s statement at the start of his testimony made it impossible for him to present his case “in the best light legally [sic] possible.”

III

The trial court also acted well within its discretion in admitting two black and white photographs of the inside of the house showing where the victim was standing when he was shot and where he fell. These pictures show a large rug bearing a dark gray stain identified as blood. Most murder trials necessarily involved the admission of some such evidence. We have recognized that trial courts in murder cases may admit photographs of the body so long as they have some probative value and are not intended solely to inflame the jury. Photographs of the murder-scene, absent the body, should not be judged by a more rigorous standard, since such photographs may have positive probative value. The photographs here were clearly probative of the place where the victim was shot, and were thus material on the issues in the case. We have examined the photographs, find them relatively innocuous and hold them to be clearly admissible under our prior decisions.

IV

Appellant also objects to the admission of testimony by the decedent’s wife as to the quality of her marriage, i. e., that the victim was a “loyal devoted type of husband,” that her marriage during the period “was good” and they “were having no problems.” This testimony had some relevance, as appellant admits, as to the accuracy of appellant’s suspicions of his wife and the victim. If appellant did not want the testimony admitted into evidence, he should have objected to it at trial. It is obviously too late now, since it is clear that its admission did not constitute plain error under Fed.R.Crim.P. 52(b). The rule requiring objection at trial is not lightly to be set aside and thus permit a defendant to let in evidence at trial as a hedge to insure reversal on an appeal if his client is convicted.

Affirmed.

      . D.C.Code § 22-2401.

      . Id. § 22-2403.

      . Tr. at 97, 14, 16.

      . Id. at 98-99.

      . Id. at 17-18, 99.

      . Id. at 28.

      . Id. at 200.

      . Id. at 251-62.

      . Id. at 182.

      . Id.

      . Id. at 183, 319.

      . mat 182-87.

      . Id. at 186-87.

      . Id. at 182.

      . Id. at 183, 186. Appellant’s theory of admissibility was indistinct and conclusory :
      MR. PARKER: This is not an exculpatory statement. If Your Honor would readit. [sic] It is not hearsay. It is something that was told to Officer Crist and I would ask Your Honor to have this read into the record and I would ask Your Honor to take a look at it and see that this is a perfectly legal thing to have Officer Crist testify to.
      THE COURT: If it is not a confession or an admission, how could the Officer testify to it?
      MR. PARKER: It is not all one way, if Your Honor please, there is some things in there [sic] . . . the Defendant says that he shot the deceased.
      THE COURT: Then he gives an excuse for it.
      MR. PARKER: He goes ahead and tells the whole story there, if Your Honor please. . . .
      There are certain statements that are in there that certainly are not that are not in terms of exculpatory. In fact, one of them says in there that he said to one of these witnesses to the fact he was going to kick his fanny if he didn’t tell him the truth to what happened in reference to him and his wife.” (Tr. 183-185)

      . Id. at 251-55.

      . Id. at 315-20.

      . 270 F.2d at 417.

      . Coltrane v. United States, 135 U.S.App. D.C. 295, 418 F.2d 1131 (1969) (Robinson, J.) ; Gregory v. United States, 125 U.S. App.D.C. 140, 369 F.2d 185 (1966) (Wright, J.) ; Johnson v. United States, 121 U.S. App.D.C. 19, 347 F.2d 803 (1965) (Wright, J.) ; Baber v. United States, 116 U.S.App. D.C. 358, 324 F.2d 390 (1963) (Washington, J.), cert, denied, 376 U.S. 972, 84 S.Ct. 1139, 12 L.Ed.2d 86 (1964).
      Judge Wright’s opinion in Johnson v. United States, supra, states:
      It is a well known rule of evidence, applicable in criminal and civil cases alike, that prior consistent statements may not be used to support one’s own unimpeached witness.
      121 U.S.App.D.C. at 21-22, 347 F.2d at 805-806 (footnote omitted).

      . When the witness has merely testified on direct examination, without any impeachment, proof of consistent statements is unnecessary and valueless. The witness is not helped by it; for, even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it. Such evidence ... is ordinarily rejected.
      4 Wigmore, Evidence § 1124 (Chadbourn rev. 1972) (footnotes omitted).

      . United States v. Alexander, 139 U.S.App. D.C. 163, 164, 430 F.2d 904, 905 (1970) ; Perkins v. United States, 315 F.2d 120, 123 (9th Cir.), cert, denied, 375 U.S. 916, 84 S. Ct. 201, 11 L.Ed.2d 155 (1963) ; Throckmorton v. St. Louis-San Francisco Ry., 179 F.2d 165 (8th Cir.), cert, denied, 339 U.S. 944, 70 S.Ct. 797, 94 L.Ed. 1359 (1950) ; Paul T. Stone, Inc. v. Metzler, 68 App.D.C. 359, 98 F.2d 231 (1938).
      The fact that the Government had previously introduced evidence -which defen-dan [t] . . . would contravene, does not constitute an attack upon credibility within the meaning of the above rule.
      Perkins v. United States, supra, 315 F.2d at 123. Cf. United States v. Sherman, 171 F. 2d 619 (2d Cir. 1948), cert, denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738 (1949), holding that when a witness at trial is impeached through a prior inconsistent written statement, it is improper to admit a second written statement, given subsequently to the first, to corroborate his trial testimony and thereby attempt to break the force of the impeachment. In rejecting the prior consistent statement under such circumstances, Judge Learned Hand pointed out:
      [S]uch a statement is as incompetent when the witness has been impeached by an inconsistent statement, as when he has not been.

        Id. at 622. Ellicott v. Pearl, 35 U.S. (10 Pet.) 412, 439, 9 L.Ed. 475 (1836) and Conrad v. Griffey, 52 U.S. (11 How.) 480, 13 L.Ed. 779 (1850) are cited as authority. The latter case sets forth the development of the rule.

      . Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398 (en banc 1961), cert, denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962) ; Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) ; Ziang Sun Wan v. United States, 53 App.D.C. 250, 289 F. 908 (1923), rev’d, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131 (1924).

      . Brief for Appellant at 20.

      . Tr. at 23-24.

      . Id. at 23.

      . Harried v. United States, 128 U.S.App.D.C. 330, 336, 389 F.2d 281, 287 (1967).

      . See United States v. Hurt, 155 U.S.App.D.C. 217, 223, 476 F.2d 1164, 1170 (1973) ; Harried v. United States, 128 U.S.App.D.C. 330, 336, 389 F.2d 281, 287 (1967). See also United States v. Cartano, 420 F.2d 362, 364-365 (1st Cir.), cert, denied, 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970) ; Talbot v. Nelson, 390 F.2d 801, 803 (9th Cir.), cert, denied, 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136 (1968) ; Maxwell v. United States, 368 F.2d 735, 740 (9th Cir. 1966) ; Rivers v. United States, 270 F.2d 435, 437 — 438 (9th Cir. 1959), cert, denied, 362 U.S. 920, 80 S.C. 674, 4 L.Ed.2d 740 (1960).

      . Tr. at 175.

      . Brief for Appellant at 40.

      . See Tr. at 175.

      . We likewise see no merit in appellant’s claims that the court’s refusal to permit him to introduce liis post-arrest statement at the start of his case in chief deprived him of any due process right to present his own case; or that he was denied due process by the charge to the jury that they could consider that the defendant had an interest in the outcome of the trial; by his arrest immediately following the murder which made it impossible to take pictures where a trail of blood might have been found; and by the prosecutor being the first to talk to a particular defense witness after he arrived in court and because the defense was not given a record of their conversation. Defendant was permitted to present his case according to the applicable rules of law, the part of the charge to the jury to which appellant objects was proper and the other claims are ingenious, but show no improper prejudice and are without merit.


author: BASTIAN, Senior Circuit Judge:

text:
    Linwood A. ARRINGTON, Appellant, v. Anderson McGRUDER, et al., Appellees.
    No. 73-1037.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 13, 1973.
    Decided Jan. 25, 1974.
    Robert Plotkin, Washington, D. C., appointed by this Court, with whom Howard L. Feinstein and Julian Tepper, Washington, D. C., were on the brief, for appellant.
    James M. Hanny, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John H. Bayly, Jr., Asst. U. S. Attys., were on the brief for appellees.

      Before BASTIAN, Senior Circuit Judge, and TAMM and WILKEY, Circuit Judges.
   BASTIAN, Senior Circuit Judge:

Appellant Linwood A. Arrington was arrested and charged with indecent act on a minor child and sodomy in violation of 22 D.C.Code §§ 3501(a), 3502. He was found guilty and sentenced on September 17, 1960, to a term of from 3 to 10 years on the sodomy conviction and from 3 to 10 years on the indecent act conviction — the sentences to run concurrently. Parole was granted on December 10, 1965, and Arrington was placed under the supervison of the District of Columbia Board of Parole until October 6, 1970; but on March 3, 1967, a warrant for parole violation was executed, and Arrington was remanded to custody. He was released a second time on March 11, 1968, bufa second parole violation warrant was issued on July 7, 1969, and appellant was again returned to custody. Thereafter, he was transferred to' a work release program on September 9, 1971, but absconded 11 days later and on December 6, 1971, was returned to the District of Columbia Jail where he remained until April 26, 1973, when he was again transferred to the work release program.

Arrington filed a petition for a writ ^of habeas corpus on September 7, 1972, alleging that it was unlawful for the Parole Board to hold him beyond his maximum release date (October 6, 1970). That petition was dismissed on September 21, 1972, and this appeal followed.

Although appellant’s ultimate release date was originally October 6, 1970, the practical effect of his parole violations, in light of 24 D.C.Code § 206, has been to extend that date to November 27, 1974. The maximum date is set ahead because Section 206 does not allow for credit for time spent on parole. That is, a parole violator must return to incarceration to serve the balance of his original sentence and loses the time which he spent on parole before the violation.

Appellant argues that since his original sentence was 10 years, his continued confinement by the Parole Board beyond October 6, 1970, is a deprivation of liberty without due process of law. This argument was rejected in Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963), a case which did not reach the question of the statute’s constitutionality, but held, on the authority of Jones v. Clemmer, 82 U.S.App.D.C. 288, 163 F.2d 852 (1947), that the language of the statute is clear and unambiguous.

The language of Section 206 is similar to its counterpart in the federal probation scheme, 18 U.S.C. § 4205, which has consistently been sustained against constitutional attack. Appellant argues that Section 206 is different from Sec-i tion 4205 in relevant aspects and that those cases which uphold the constitutionality of Section 4205 do not dictate an identical result with respect to Section 206. The basic distinction, however, lies in the express provision of Section 4207 which provides that after a parole revocation, “the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” (Emphasis added.) Appellant would have us hold that the D.C. Board’s lack of discretion to resen-tence the parole violator for “part of the remainder of the term” is a crucial difference between the two sections. But this appears to be a distinction without a difference since the federal parole authorities may nevertheless detain a parole violator for the entire balance of his original term. Furthermore, although the D.C. Board of Parole does not have the statutory authority to commit a parole violator for less than the entire balance of the term, it may (as it did in the present case) reparóle the prisoner at a later date. Thus the effect is the same. The crucial language, however, which provides that “the time the prisoner was on parole shall not diminish the time he was sentenced to serve”, is identical in both statutes. It has already been noted that this provision in the federal statute has consistently withstood constitutional attack.

The issue here does not involve the question of the time after violation of the terms of parole custody and before reimprisonment as a parole violator; as to such time, it has been held that the violator of parole custody is in the same status as an escapee, and that such time does not count as time in custody. See Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). As to the time after parole and before the parole violation, the statutory language is clear and unambiguous; Bates v. Rivers, supra. To hold, as appellant would have us do, would be to frustrate the clear intent of Congress to provide some discipli■nary powers in the Parole Board; without this necessary check on parolees the board might be more reluctant to grant parole to more deserving prisoners. Zerbst v. Kidwell, supra,.

In light of the safeguards provided upon parole revocation, we cannot say that continued imprisonment as a result of parole violations and pursuant to the clear language of Section 206, which extends beyond the original release date, is a deprivation of liberty without due process of law. That Congress might have selected a different statutory scheme for parole does not render the present scheme unconstitutional.

II

Appellant also contends that the failure of the District Court to grant credit for time served in pre-trial and pre-sentence confinement is a violation of his guarantee to equal protection of the law as well as the law and public policy of the District of Columbia. We need not reach the constitutional question as there is another basis on which to decide this issue.

This Court held in Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966):

Wherever it is possible, as a matter of mechanical calculation, that credit could have been given, we will conclusively presume it was given. [Footnote omitted.} The problems and expenditure of resources which would be caused by allowing each prisoner to attempt to demonstrate that in his particular case credit was not given, we feel, outweigh any possible unfairness. (Emphasis added.) Id. at 104, 367 F.2d at 330.

In the present case, appellant was sentenced to two concurrent 3 to 10 year terms. However, he faced a possible 20 year sentence on the Sodomy count as the victim was under 16 years of age. Accordingly, the Stapf presumption applies, and we are unable to afford appellant any relief.

The judgment of the District Court is affirmed.

      . 22 D.C.Code § 3501(a) provides :
      Any person who shall take, or attempt to take any immoral, improper, or indecent liberties with any child of either sex, under the age of sixteen years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child shall be imprisoned in a penitentiary, not more than ten years.

      . 22 D.C.Code § 3502 provides :
      Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any other person or animal, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with another person, .shall be fined not more than $1,000 or be imprisoned for a period not exceeding ten years. Any person convicted under this section of committing such act with a person under the age of sixteen years shall be fined not more than $1,000 or be imprisoned for a period not exceeding twenty years. And in any indictment for the commission of any of the acts, hereby de-dared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner in which said unnatural or perverted sexual practice was committed, but it shall be sufficient if the indictment set forth that the defendant committed a certain unnatural and perverted sexual practice with a person or animal, as the case may be: Provided, That the accused, on motion, shall be entitled to be furnished with a bill of particulars, setting forth the particular acts which constitute the offense charged.

      . 24 D.C.Code § 206 provides:
      When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. The Board may then, or at any time in its discretion, terminate the parole or modify the terms and conditions thereof. If the order of parole shall be revoked, the prisoner, unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after his return to custody. For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence. The time a prisoner was on parole shall not be taken into account to dimmish the time for which he was sentenced.
      In the event a prisoner is confined in, or as a parolee is returned to a penal or correctional institution other than a penal or correctional institution of the District of Columbia, the Board of Parole created by section 723a of title 18, U.S.Code, shall have and exercise the same power and authority as the Board of Parole of the District of Columbia had the prisoner been confined in or returned to a penal or correctional institution of the District of Columbia.

      . 18 U.S.C. § 4205 provides:
      A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.

      . See Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963) and cases cited therein.

      . Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L. Ed .2d 656 (1973).


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Sam VAGLICA, Steve Guggino, Henry Trafficante, Berthold John Haas and Isabel Margaret Seeley, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Alfonso SCAGLIONE, Wade Robert Westmoreland, Julius L. Richardson, Peter Richardson, Phyllis A. Moore, a/k/a Annie Moore, and Oliver Hurley, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Luis Henry FIGUEREDO, Jr., Louis Henry Figueredo, Sr., Guy Stein, Sr., Omer Thomas Caron, Charline Albritton, James I. Black, Manuel Llano and A. T. Edwards, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA, Joseph Carl Castellana, James Camilo Castellana, Helen Louise Hawkins and Thomas Henry Peterson, Defendants-Appellees.
    Nos. 73-1149, 73-1255, 73-1256 and 73-1588.
    United States Court of Appeals, Fifth Circuit.
    March 8, 1974.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for the United States.
    John S. Matthews, Henry Gonzalez, Thomas J. Hanlon, Tampa, Fla., for Sam Vaglica and others.
    Jack T. Edmund, Robert E. Pyle, Lake Alfred, Fla., for Alfonso Scaglione and others.
    Barry Cohen, Paul Antinori, Jr., Raymond E. LaPorte, Richard A. Bokor, Henry Gonzalez, Tampa,-Fla., Clinton A. Curtis, Kenneth L. Connor, Lake Wales, Fla., John D. Demmi, Tampa, Fla., J. Hardin Peterson, Lakeland, Fla., for Luis Henry Figueredo, Jr., and others.
    Henry Gonzalez, Robert W. Knight, Tampa, Fla., for Salvatore Castellana and others.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   PER CURIAM:

In each of these appeals, which we consolidated for oral argument, the Government is challenging a district court’s dismissal of an indictment count charging multiple defendants with conspiracy to conduct an illegal gambling enterprise in violation of 18 U.S.C. §§ 371 and 1955. The district court dismissed the count in each case on the ground that it violated Wharton’s Rule. We have reserved our holding in these cases pending the court’s disposition of an earlier-argued case involving exactly the same issue. We have now held in United States v. Pacheco, 5th Cir. 1974, 489 F.2d 554, that a two count indictment charging both a substantive violation of and a conspiracy to violate 18 U.S.C. § 1955 does not violate Wharton’s Rule. Therefore, we reverse the district court’s dismissals and remand for trial. See United States v. Pacheco, supra.

Reversed and remanded.

      . “ . . . When to the idea of an offense plurality of agents is logically necessary, conspiraey . . . cannot be maintained . . . ” 2 Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932).


author: BELL, Circuit Judge:

text:
    WARREN G. KLEBAN ENGINEERING CORPORATION, Plaintiff-Appellant, v. Thomas CALDWELL et al., Defendants-Appellees, Denton Roberts, Jr., d/b/a Roberts Electrical Service, Intervenor-Appellant.
    No. 73-3323
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 8, 1974.

      Ralph E. Rood, Dewitt T. Hicks, Jr,, Columbus, Miss., for Kleban.
    Johnny N. Tackett, Aberdeen, Miss., for Roberts.
    W. Lester McDonough, New Albany, Miss., Laurel G. Weir, Philadelphia, Miss., for defendants-appellees.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc., v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   BELL, Circuit Judge:

Plaintiff-appellant, a citizen of Mississippi, began this suit against other Mississippi citizens in the state courts of Mississippi. It was removed to federal district court by the appellees, who constitute the Pontotoc County Board of Education. The case concerns damages allegedly owed by appellees for their refusal to accept plaintiff-appellant and intervenor-appellant as subcontractors in the construction of two school buildings. We vacate for lack of jurisdiction in the district court.

While the buildings were required by federal court order, to establish a unitary school system in Pontotoc County, no federal question is involved in this suit. The district court addressed the jurisdictional issue 'as follows:

“Although no party has questioned our jurisdiction, we conclude that we are vested with ancillary jurisdiction to determine the present controversy because of the many-faceted aspects of the prolonged litigation aimed at establishment of a unitary school system in Pontotoc County, as reflected by the extensive prior hearings and various injunctive orders of this court, which we judicially note. Wright, Law of Federal Courts, 2d Ed., § 9, p. 19.”

The district court misconceives the scope of ancillary jurisdiction. That doctrine is a limited exception to the rule that federal district courts have only such jurisdiction as is provided, in terms, by the Constitution or a statute. It may be employed when a federal court is presented with issues or parties so closely related to a matter over which it has jurisdiction as to be part of a single Article III “case”. In such circumstances, ahd in the interest of judicial economy and complete justice, a federal court can exercise ancillary jurisdiction over such issues or parties. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-727, 86 S.Ct. 1130, 16 L.Ed.2d 218, 228-230, dealing with the related concept of pendent jurisdiction.

Thus the doctrine may be appropriately employed to obtain jurisdiction, in the absence of diversity, over non-federal compulsory counterclaims, Scott v. Fancher, 5 Cir., 1966, 369 F.2d 842, and cross-claims, Childress v. Cook, 5 Cir., 1957, 245 F.2d 798. It should be noted that in each instance Rule 13, F. R.Civ.P., requires that the claim arise out of a transaction or occurrence that is the subject matter of claims properly before the court. On the other hand, permissive counterclaims are not appropriate for ancillary jurisdiction. Revere Copper & Brass, Inc. v. Aetna Cas, & Sur. Co., 5 Cir., 1970, 426 F.2d 709, 714-715.

Similarly, while ancillary jurisdiction can support the presence of impleaded parties, id. at 715, and of intervenors as of right, id., it cannot support the presence of permissive intervenors. Babcock & Wilcox Co. v. Parsons Corp., 8 Cir., 1970, 430 F.2d 531, 540. The rules governing these joinder devices amply illustrate the proposition that ancillary jurisdiction operates only when there is a tight nexus with a subject matter properly in federal court. See Rules 14 and 24, F.R.Civ.P. That is, the ancillary claim must bear a “logical relationship to the aggregate core of operative facts which constitutes the main claim over which the court has an independent basis of federal jurisdiction.” Revere Copper & Brass, supra, 426 F.2d at 714.

Further indications of the limited nature of ancillary jurisdiction are that it is insufficient to support joinder of a person needed for just adjudication under Rule 19, F.R.Civ.P., see Ranger Ins. Co. v. United Housing of New Mexico, Inc., 5 Cir., 1974, 488 F.2d 682, and that it apparently will not support an action by a class which includes persons who do not themselves satisfy jurisdictional amount requirements. See Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511.

The instant case is well outside the established bounds of ancillary jurisdiction. Appellants have no connection with the desegregation of Pontotoc County schools, and the factual and legal issues are totally different from those in that federal question ease. As we view it, the issue here is not even close, for the exercise of ancillary jurisdiction neither fits within any conventional category, nor does it contribute at all to judicial efficiency and complete justice among the parties.

The district court having no jurisdiction to render its judgment, that judgment must be and is vacated with direction that the ease be remanded to the state courts of Mississippi.

Vacated and remanded with direction.

      . The district court properly inquired on its own initiative whether it had jurisdiction of the removed suit. 28 U.S.C.A. § 1447(c) ; Gonzalez-Roman v. Federal Land Bank of Baltimore, D.P.R.1969, 303 F.Supp. 482, 483. Indeed, cases decided under the predecessor to current Section 1447(c) of Title 28 — 28 U.S. C.A. § 80 (1940) — held that the district courts had an affirmative duty to scrutinize their own jurisdiction. Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6, 8. Likewise, the Courts of Appeals have a continuing duty to inquire into the basis of jurisdiction in the district court and to satisfy themselves that the district court properly had jurisdiction to entertain an action. Mitchell v. Maurer, 1934, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338, 343; Fay v. Layne-Western Co., 8 Cir., 1960, 282 F.2d 97, 99.

      . We note that the parties failed on their own to raise the jurisdictional issue on appeal. This, however, is of no moment. It is settled law that the parties may not, by silence or agreement, confer upon the federal courts that jurisdiction which Congress has withheld. Mitchell v. Maurer, 1934, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338, 343; Lowry v. International Brotherhood etc., 5 Cir., 1958, 259 F.2d 568, 575. Upon determining that the trial court was without jurisdiction to entertain the instant suit, our function is limited to vacating the judgment below with directions that the case be remanded to the courts of the State of Mississippi for disposition. United States v. Corrick, 1936, 298 U.S. 435, 440, 56 S.Ct. 829, 831-832, 80 L.Ed. 1263, 1268; Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 8 Cir., 1964, 337 F.2d 24, 27.


text:
    Beverly Camp SIMPSON, Plaintiff-Appellant, v. John G. SIMPSON, III, Defendant-Appellee.
    No. 73-1521.
    United States Court of Appeals, Fifth Circuit.
    March 8, 1974.
    Rehearing and Rehearing En Banc Denied April 24, 1974.
    Robert Sellers Smith, Huntsville, Ala., Emily Carssow, ACLU, Atlanta, Ga., for plaintiff-appellant.

      Glenri F. Manning, Huntsville, Ala., for defendant-appellee.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   BELL, Circuit Judge:

The issue presented on this appeal is the scope of the wire interception provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520. Is the interception by a husband using electronic equipment of the conversations of his wife with a third party over the telephone in the marital home included in the statutory proscription? The context in which we must address this issue is a suit by the wife for civil damages against the husband, pursuant to Section 2520. The district court answered in the negative and we affirm, although the language and legislative history of the Act leaves the question in considerable doubt.

THE FACTS

Harboring uncertainties as to his wife’s faithfulness, appellee obtained a device for tapping and recording telephone conversations. He attached the device to phone lines within his home, and thereby intercepted conversations between his wife and another man. The conversations were mildly compromising establishing that the other man was making advances, and that while the wife was resisting, she was not doing so in a firm and final fashion. Convinced that he had “caught her,” appellee played the tapes, or portions thereof, to various neighbors and family members. He also played them for a lawyer, on whose advice the wife agreed to an uncontested divorce.

After the divorce appellant brought this action. Failing below, she has appealed, arguing before this court that her claim is bolstered by constitutional protections of privacy and emerging concepts of women’s rights. We take a more pedestrian view of the case, and are of the opinion that it involves nothing more nor less than statutory construction. If Congress intended to extend such a remedy to persons in her position, appellant prevails; if it did not, she fails. This being the case, we turn to the statute and its history.

TITLE III

Title III of the Omnibus Act broadly prohibits the interception or disclosure of a wire communication, subject to stated exceptions which are not relevant to this case. Violators are subject to criminal penalties of up to $10,000 or five years. They are also civilly liable to persons whose communications they intercept or disclose.

The naked language of Title III, by virtue of its inclusiveness, reaches this case. However, we are of the opinion that Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts. We reach this decision because Congress has not, in the statute, committee reports, legislative hearings, or reported debates indicated either its positive intent to reach so far or an awareness .that it might be doing so. Given the novelty of a federal remedy for persons aggrieved by the personal acts of their spouses within the marital home, and given the severity of the remedy seemingly provided by Title III, we seek such indications of congressional intent and awareness before extending Title III to this case.

Our independent search of legislative materials has been long, exhaustive, and inconclusive. To summarize the results, we have found no direct indications that Congress intended so much, and only several scattered suggestions that it was aware that the statute’s inclusive language might reach this case. In support of this general statement, we now turn to a specific discussion of the statute and its history.

An initial observation about Title III is that it is a part of a crime control act. In the Omnibus Act Congress sought generally to strengthen the position of law enforcement officials, see Senate Judiciary Comm., Senate Report No. 1097, 1968 U.S.Code Cong. & Admin.News, p. 2112. Further, the Senate report states that, “The major purpose of title III is to combat organized crime.” Id. at U.S.Code Cong. & Admin.News 1968, p. 2157. Five of Title III’s eleven sections deal almost exclusively with procedures for utilizing electronic surveillance against criminal activities, 18 U.S.C.A. §§ 2514, 2516-2519, and its principal goal is surveillance standards that satisfy the constitutional requirements of Berger v. New York, 1967, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, and Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. See Senate Report, pp. 2161-2163.

Be this as it may, Title III also was intended to protect individuals against invasions of their privacy by sophisticated surveillance devices. Senate Report, p. 2153. Thus, the Senate report introduces its section on the “Problem” with the following paragraph:

The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man’s personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor’s advantage.

Id. at U.S.Code Cong. & Admin.News 1968, p. 2154. The report further states that, “To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers . . . .” Id. at U.S.Code Cong. & Admin.News 1968, p. 2153. The nature and breadth of Congress’s response to private surveillance is fairly indicated by the Senate report's section entitled “Prohibition,” quoted in full in the margin.

For our purposes it must be pointed out that we have herein quoted virtually every phrase of the report’s text dealing with private surveillance — amounting to less than one of the ten pages about Title III, the balance concerning electronic surveillance by law enforcement officials. Not only does the report, like the act, focus on crime control, but it also contains no clear indication that Congress intended to intrude into the marital relation within the marital home. We thus have considered it necessary to consult the extensive legislative hearings on the subject, the better to gauge Congress’s intent and awareness.

The impression left by these hearings is similar to that produced by the report —the focus was official use of surveillance devices, with little explication of how far the private prohibition should extend. This is strikingly true of the hearings immediately preceding passage of Title III. While there are occasional references to the fact that the bill would prohibit private use of electronic surveillance techniques, there are no substantive discussions of the probable or desired reach of the prohibition. Earlier hearings also accorded little attention to private users. For example, we have found in Sen. McClellan’s 1966 hearings only three relevant sentences. Similarly, of Sen. Long’s six-part 1965-1966 hearings, four parts dealt ex- „ clusively with government surveillance, and one with “service observing” by telephone companies; Part 5 dealt in part with private use, although much of it concerned government serveillance practices.

Of what testimony there was about private surveillance, only a minor portion was with reference to the marital setting. The only relevant passages which we have found, in hearings stretching over five years, are set forth in the margin. It should be noted that the concerns and information in these passages are primarily directed towards the involvement of private investigators in marital conflicts. Indeed, were appellant seeking to recover from a third party, we could not, on the basis of this legislative history, accept the defense that the interceptions were authorized by the husband. However, to our minds a third-party intrusion into the marital home, even if instigated by one spouse, ■is an offense against a spouse’s privacy of a much greater magnitude than is personal surveillance by the other spouse. The latter, it seems to us, is consistent with whatever expectations of privacy spouses might have vis-a-vis each other within the marital home.

“The three large areas of snooping in this [non-governmental] field are (1) industrial (2) divorce cases, and (3) politics. So far, we have heard no real justification for continuance of snooping in these three areas. If any justification exists, we will probably hear about it in the next few weeks as we expect to explore this terrain thoroughly.” Hearings #II, pt. 5, at 2261 (see note 10, supra).

When we narrow our search to mate-. rial relevant to this ultimate issue, that of whether Congress intended its regulations to invade the realm of personal acts within the marital home, we find very little indeed. We think that only two passages support appellant’s case, these being the testimony of Ben Jamil and John W. Leon, quoted in note 14. These statements suggest congressional awareness that private individuals were using electronic surveillance techniques within their own homes. However, they do not support the proposition that Congress was concerned that such activities took place.

OTHER CONSIDERATIONS

Given this inconclusive legislative history, we think two other factors are important. First, it is clear that Congress did not intend to prohibit a person from intercepting a family member’s telephone conversations by use of an extension phone in the family home— subsection (5) (a) (i) of section 2510 directly covers this point. If there is a convincing distinction between this clearly acceptable overhear and the overhear accomplished by appellee, we fail to see it. In fact, we think the (5) (a) (i) exemption is indicative of Congress’s intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other.

Second, we note that not only does Title III have the primary goal of controlling crime, but that it also prescribes criminal sanctions for its violators. That is, if appellant prevails here then appellee is subject to severe criminal penalties, assuming of course that the prosecution could meet the higher standards of proof required for criminal convictions. We thus are bound by the principle that criminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed. See Kordel v. United States, 1948, 335 U.S. 345, 349, 69 S.Ct. 106, 109, 93 L.Ed. 52, 56. We consider this basic due process principle to be of considerable importance in this ease, in light of our own inability to determine from the statute and its legislative history whether one is prohibited from taping one’s spouse’s conversations within one’s own home.

CONCLUSION

As should be obvious from the foregoing, we are not without doubts about our decision. However, we have concluded that the statute is not sufficiently definite and specific to create a federal cause of action for the redress of appellant’s grievances against her former husband. Our decision is, of course, limited to the specific facts of this case. No public official is involved, nor is any private person other than appellee, and the locus in quo does not extend beyond the marital home of the parties.

Affirmed.

      . 18 U.S.C.A. § 2510(4) & (5) :
      “(4) ‘intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.
      (5) ‘electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire or oral communication other than—
      (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business ; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties ;
      (b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal; . . . ”

      . 18 U.S.C.A. § 2510(1) :
      “(1) ‘wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications;
      “Paragraph (1) defines “wire communication’ to include all communications carried by a common carrier, in whole or in part, through our Nation’s communications network. The . coverage is intended to be comprehensive.” Senate Judiciary Comm., Senate Report No. 1097, 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2178.

      . See 18 U.S.C.A. § 2511(2) & (3).
      The district court seems to have placed some reliance on the exception contained in § 2511(2)(d):
      “It shall not be unlawful under this chapter [§§ 2510-2520 of this title] for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.”
      We think this inapposite for two reasons. First, the exemption requires consent of a “party to the communication,” and “ ‘party’ would mean the person actually participating in the communication.” Senate Judiciary Comm., Senate Report No. 1097., 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2182.
      Second, even if we were to hold that the husband is capable of consenting for the wife, or that the wife’s use of the marital home’s phone implied consent to be overheard by the husband, the consent would be vitiated by the purpose of committing an “injurious act.” See 114 Cong.Rec. 14094 (1968), where this proviso is stated to reach consensual recordings “made for the purpose of blackmailing the other party, threatening him, or publicly embarassing him.”

      . 18 U.S.C.A. § 2511(1) :
      “(1) Except as otherwise specifically provided in this chapter [§§ 2510-2520 of this title] any person who—
      (a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
      (b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
      (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; . . .
      (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
      (d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . 18 U.S.C.A. § 2520:
      “Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter [§§ 2510-2520 of this title] shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person—
      (a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
      (b) punitive damages ; and
      (c) a reasonable attorney’s fee and other litigation costs reasonably incurred.
      A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter [§§ 2510-2520 of this title] or under any other law.”

      . We have no doubts, however, that Congress has the power to legislate the result sought by appellant, under its authority to control interstate commerce.

      . We note that not only would the result sought by appellant create a federal remedy for marital grievances, it would also override the interspousal immunity for personal torts accorded by the majority of states. Discussions of the rules followed by the various states may be found at Clark, The Law of Domestic Relations, 252-56 (1968), and Pros-ser, The Law of Torts, 861-64 (4th ed. 1971).

      . Hereinafter cited as Senate Report.

      . “Virtually all concede that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants. No one quarrels with the .proposition that the unauthorized use of these techniques by law enforcement agents should be prohibited. It is not enough, however, just to prohibit the unjustifiable interception, disclosure, or use of any wire or oral communications. An attack must also be made on the possession, distribution, manufacture, and advertising of intercepting devices. All too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected. The prohibition, too, must be enforced with all appropriate sanctions. Criminal penalties have their part to play. But other remedies must be afforded the victim of an unlawful invasion of privacy. Provision must be made for civil recourse for damages. The perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings. Each of these objectives is sought by the proposed legislation.”

        Senate Report, U.S.Code Cong. & Admin. News 1968, p. 2156.

      . Our research has involved the following hearings:
      I. Hearings on Wiretapping, The Attorney General’s Program, Before the Senate Judiciary Comm., 87th Cong., 2d Sess. (1962).
      II. Hearings on Invasions of Privacy, Before the Subcomm. on Admin. Practice & Procedure of the Senate Judiciary Comm., pts. 1-6, 89th Cong. (1965-1966).
      III. Hearings on Criminal Laws and Procedures, Before the Subcomm. on Criminal Laws & Procedures of the Senate Judiciary Comm., 89th Cong., 2d Sess. (1966).
      IV. Special Inquiry on Invasion of Privacy, Before the Special Subcomm. on Invasion of Privacy of the House Gov’t Operations Comm. 189th Cong., 1st Sess. (1965).
      V. Hearings on the Right of Privacy Act of 1967, Before the Subcomm. on Admin. Practice & Procedure of the Senate Judiciary Comm., pts. 1 & 2, 90th Cong., 1st Sess. (1967).
      VI. Hearings on the Anti-Crime Program, Before Subcomm. No. 5 of the House Judiciary Comm., 90th Cong., 1st Sess. (1967).
      VII. Hearings on Controlling Crime Through More Effective Law Enforcement, Before the Subcomm. on Criminal Laws & Procedures of the Senate Judiciary Comm., 90th Cong., 1st Sess. (1967).
      Citations to those hearings will be by the appropriate Roman numeral. E. g., the hearings on the Right of Privacy Act of 1967 will be cited as Hearings # V.

      . For example:
      Congressman McClory: “I am talking about a device being put on by an official, by the police department, because we are opposing in this legislation and all legislation, any private eavesdropping.” Hearings #VI, at 956 (see note 10, supra).

      In the same hearings, at 1045, Prof. G. Robert Blakey noted that the “two major private uses” of electronic surveillance equipment were in commercial eavesdropping and “domestic relations investigations.” He made a similar comment at Hearings # V, pt. 2, at 413.

      . Sen. McClellan (describing a bill similar to Title III: “This bill outlaws all privato wiretapping.”

        Hearings #111, at 2 (see note 10, supra).

      Sen. McClellan (addressing Sen. Edward V. Long, who was testifying about tho hearings on the subject previously held by his Subcommittee on Administrative Practice & Procedure) :
      “Then you agree with me that we should make this law as strong as possible, and go a far as it is possible to go, to absolutely outlaw it, except in such cases as Congress may, in its wisdom, permit wiretapping under orders of a Court in certain rather exceptional cases as a matter of necessity in law enforcement.”

        Sen. Long:
      “Let me say this. I agree with you entirely that there should be a very, very strict law prohibiting wiretapping.”

        Id. at 79.

      . Sen. Long:

      . The following is from an article entitled “Is Big Brother Taping You? ”, by Arthur Whitman, from Tape Recording, Feb. 1965, reprinted in Hearings #II, pt. 1, at 18 (see note 10, supra) :
      “Individuals involved in civil suits bug each others’ premises to gather useful information and evidence. The prime area for this is divorce actions, particularly in states with restrictive codes. So little is sacred in this line of endeavor that bugs are rou-finely discovered under the beds of estranged husbands and wives who suspect each other of errant ways. The latest twist in this game is the installation of tiny radio transmitters in cars that relay. to prying ears and tape recorders any conversations or other sounds produced by drivers and passengers.”
      Richard Gerstein, Dade County District Attorney:
      “Nonetheless, it is routine procedure in marital disagreements and other civil disputes for private detective agencies, generally with full knowledge of the lawyers, to tap telephones.”

        Hearings #II, pt. 2, at 1009 (see note 10, supra).

      Bernard Spindel, private investigator/electronic technician (explaining the '10% of his work that he refers to as the “affirmative, defensive type of eavesdropping”) :
      “In other words, it is restricted to defense in the sense that a man believes that there is some wrongdoing within his own premises; we will help him electronically obtain the evidence of such wrongdoing. But it is restricted within the confines of the law and within a man’s own home or premises, where he has absolute control, whether it be his office or his home or his factory.”

        Id., pt. 5, at 2262.
      Ben Jamil, president of a firm which sold significant quantities of electronic surveillance equipment to persons other than public officials and license private investigators :

        “I don’t feel, however, that I am in any position to judge the rightness or wrongness of this mother eavesdropping on her daughter with one of my devices. Any more than I have the right to determine whether a suspicious husband or wife is entitled to snoop on his or her mate, a businessman is within his rights to determine whether an employee is guilty of pilferage . . . .”

        Id. at 2365.
      John W. Leon, a private investigator, noted that 80% of his domestic work involved husbands spying on wives. He described the “10-day blitz,” named for the fact that if it uncovers nothing within ten days you may as well forget the theory that your spouse is playing around. The blitz includes telephone taps, car and room bugs, voice-activated tape recorders, and an automatic camera, all of which could be purchased for private use for $400. He testified that previously he would have employed the devices himself for a client, but no longer did so because of F.O.C. regulations.
      When questioned about the ethics of these practices, he replied:
      “[W]e have found statistically that once the truth is out in any domestic squabble, there is a 50% better chance of a couple being reconciled. Every time we make a case, I practically feel like a surgeon who is cutting out a cancer.”

        Id. at 2411.

      . We are aware that there is no statutory requirement of an expectation of privacy in wire communications. Compare § 2510(1), note 2, supra, with § 2510(2).,
      “(2) ‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;
      We are here noting only that it is a large jump from a prohibition on third-party surveillance to one on personal spousal surveillance.

      . We have also searched congressional debates, but without finding any comments sufficiently relevant to merit printing here. See 114 Cong.Rec. 12280-84, 12294-98, 12982-13000, 14469-86, 14693-751, 16274-98 (1968).

      . See note (1), supra.

      The meaning of the phrase “being used by the subscriber or user in the ordinary course of its business” becomes clear in light of objections to the original version, which did not contain this phrase. Prof. Herman Schwartz, appearing for the A.C. L.U., stated his fear that the original version would permit intruders or other unauthorized persons to use extension phones without being subject to the prohibitions and penalties of the act. In the course of this objection, he made the following comment :
      “I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem, But this bill does not go to that and goes beyond that.” Searings #VI, at 989 (see note 10, supra).