author: PER CURIAM:

text:
    PORTLAND CEMENT ASSOCIATION, an Illinois not-for-profit Corporation, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent, Medusa Portland Cement Company and Northwestern States Portland Cement Company, Intervenors.
    No. 72-1073.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 1, 1975.
    Decided May 22, 1975.
    Rehearing and Rehearing En Banc Denied June 19, 1975.

      Robert E. Haythorne, Chicago, 111., with whom Edward W. Warren, Scranton, Pa., was on the brief, for petitioner.
    William L. Want, Atty., Dept, of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and Martin Green, Attys., Dept, of Justice, were on the brief, for respondent.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL  and ROBB, Circuit Judges.

       Circuit Judge Leventhal did not participate in this decision.

   PER CURIAM:

The court remanded to the Administrator of the Environmental Protection Agency, respondent, the case then before us involving the validity of the stationary source standards he had promulgated under section 111 of the Clean Air Act for new or modified portland cement plants. Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Some of the matters the court then reviewed on the petition of the Portland Cement Association we concluded required further consideration and clarification, hence the remand. These matters have now been reconsidered and clarified in the Administrator’s Response to the Remand Order, formulated after his draft of such Response had been the subject of comments by the Association and others. The Association has again petitioned this court, to decide whether the Administrator has complied with the remand order and whether the standards should be affirmed or set aside.

At argument petitioner’s counsel relied upon a formulation of positions which he handed to the court and which reads as follows:

1. Do established constitutional guarantees against statutory discrimination apply to environmental regulations?
2. If so, may the victim of a discriminatory regulation have it set aside through direct judicial review?
3. Under what, if any, circumstances could economic considerations produce a standard lower than the highest technologically achievable?
4. How does a standard prohibiting momentary excessive emissions conform to a statute whose purpose is curbing the total volume of pollution?
5. How can plume opacity be [a] valid standard when pollution and plume opacity can not be reliably correlated and evaluations of the same plume by several qualified observers will vary substantially?

The issues raised in these questions are more limited than those presented by petitioner in its brief. Therefore, although the questions will form the frame of reference for this opinion, other issues will be touched upon as well.

Questions 1 and 2 are directed to petitioner’s contention that the emission standard for cement plants is more stringent than those for incinerators and coal-fired power plants, and, also, for plants of the competing asphalt industry, as to which, however, no question had been raised at the agency level.

Petitioner’s contention is weakened by its admission, made in its comments on the Administrator’s draft response to the remand, that the standard for the portland cement industry is achievable by that industry. Moreover, our remanding opinion indicated our disagreement with petitioner on the subject of different emission standards for different industries. See, 486 F.2d at 389. Amplifying upon what we there said, we find no reasonable basis for invalidating as discriminatory the achievable emission standard for cement plants. Proof of unreasonableness in the diversity of the standards referred to is lacking. No doubt the Administrator will be influenced by accumulating experience should it give rise to reasons for modification of the range now existing between the prescribed standards.

Petitioner’s question No. 3 is very generally phrased. Neither the terms of our remand nor the proceedings now before us require an answer by the court. We note, however, that of course section 111 of the Act requires the Administrator to take into account the cost of achieving the emission reduction he prescribes. In our remanding opinion we did not require respondent to prepare a quantified cost-benefit analysis, showing the benefit to ambient air conditions as measured against the cost of the pollution control devices. We stated, however, that such studies as might be adduced in comments should be considered and that the Administrator should also consider contentions and presentations that the adopted standard unduly precludes the supply of cement, including whether it is unduly preclusive as to certain qualities, areas, or low-cost supplies. Though the Administrator found that “relating the cost of control to the benefits of the control at least at this time is a practical impossibility,” he went on to state that where the costs of meeting standards would be greater than the industry could bear and survive, such standards could not be implemented by the industry regardless of technological feasibility, and, moreover, that a gross disproportion between achievable reduction in emission and cost of the control technique would not be required. Here too we find no reason to disagree with the Administrator’s disposition of this aspect of the remand. The industry has not shown inability to adjust itself in a healthy economic fashion to the end sought by the Act as represented by the standards prescribed.

Question No. 4 was not at issue on the remand and we accordingly do not feel called upon to deal with it.

As to question No. 5, we have considered the detailed analysis by the Administrator of numerous factors involved in the use of plume opacity to determine whether or not a portland cement plant achieves a prescribed standard of pollution control. We are not warranted on the basis of his analysis to find that plume opacity is too unreliable to be used either as a measure of pollution or as an aid in controlling emissions.

The Administrator, using trained plume observers, has enlarged upon the tests previously utilized, in the effort to reach a reasonably accurate standard of measurement of opacity. He sets forth in detail the results which led to his 10% standard “as the standard which may not be exceeded by new kilns at Port-land cement plants,” with a relaxation, however, now permitted, to 20% opacity “to accomodate certain extreme circumstances.” His conclusions in resolving the opacity problem and the achievability of the prescribed opacity standard are well reasoned. The court finds no sound basis for rejecting them, remembering the tempered review we exercise in these matters of non-judicial expertise, and remembering too that in this, as in a somewhat related area which recently confronted the Supreme Court under the Clean Air Act, the courts cannot and do not “attempt to foresee, at this stage in the administration of the statute, all of the questions, say nothing of the answers, that may arise” — in that case over the allocation of a limited number of available variances under section 110(a)(3) of the Act — in this ease over the learning with respect to the value of plume opacity in measuring and controlling pollution.

We turn to another matter. In our remand decision we held that respondent was not required to file an impact statement pursuant to the National Environmental Policy Act, but should set out “significant adverse environmental consequences” of its standards as a “functional equivalent” of an impact statement. We note now a contention raised by petitioner in this regard, namely, that water pollution will be aggravated as a result of the larger piles of kiln dust caused by the tight emission controls. We have no factual basis, however, for disagreeing with the position of the Administrator that petitioner’s contention that the dispersal of the pollutants into the air would better serve the environment. The Administrator satisfactorily responds to this suggested alternative as follows, insofar as the record before us affords a basis for decision:

the total amount of particulates disposed of will be less if collected by emission control devices than if vented uncontrolled into the atmosphere.
* * * * * *
To the extent there is a problem, it is the judgment of the Administrator that the problem of water run off from collected piles of particulate matter is less than the problem of uncontrolled releases of particulate matter into the atmosphere.

Finally, we note the Administrator’s response to the court’s direction that the bases for the emission standard should be further identified. At the time of our remand tests on only two cement plants had been conducted. Since then the Administrator has tested five more plants. Although petitioner had an opportunity to comment on the results of only two of these, all seven tests have shown that the emission standard is achievable. The Administrator has in this as in other respects adequately responded to our remand.

The consequence is that we hold the standards prescribed to be valid. The action of the Administrator in promulgating them is, accordingly,

Affirmed.

      . These standards prescribed a maximum emission limit of .03 gr/scf for particulates (cement dust) from newly-constructed or modified cement plants and a limit of 10% for the opacity of plumes from the stacks of such plants. ■

      . 40 C.F.R. § 60.62 (December 16, 1971).

      . 42 U.S.C. § 1857C-6.

      . The Administrator in his Response to the Remand Order has fully considered and rationally rejected the cost-benefit analysis which was submitted by petitioner.

      . We add that the record before us affords no basis for holding that controlling momentary excessive emissions does not aid in curbing total pollution.

      . Train, Administrator v. Natural Resources Defense Council Inc, - U.S. -, - n.28, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975).

      . 42 U.S.C. §§ 4321-4335.


source: Caselaw Access Project

author: BAZELON, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America v. Alvin LUCAS, Appellant.
    No. 73-2165.
    United States Court of Appeals, District of Columbia Circuit.
    May 23, 1975.

      Timothy N. Black, Washington, D. C. (appointed by this Court), was on the brief for appellant.
    Earl J. Silbert, U. S. Atty., John A. Terry and Julius A. Johnson, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
    Opinion for the Court filed by Chief Judge BAZELON.
   BAZELON, Chief Judge.

Appellant Lucas was found guilty of distributing a controlled substance in a jury trial on June 22, 1972. His trial counsel having taken ill, Lucas was represented by new counsel at the proceeding on October 10 at which he was sentenced to a term of 5 — 15 years. Represented by his own counsel, Lucas’ co-defendant, John Butler, was sentenced to a term of 3 — 9 years.

Both defendants appealed their convictions. After oral argument in their consolidated appeals but prior to disposition, we were informed that Butler’s trial counsel was not a member of the bar of the District of Columbia. We thereupon remanded both cases “to allow the District Court to give appropriate consideration to the situation resulting from [the] improper representation of the appellant Butler.”

The remand hearing was held on June 27, 1973. It was devoted entirely to matters concerning Butler’s representation; no inquiry was made into the adequacy of Lucas’ counsel. Finding that the fact that Butler’s trial counsel was not a member of the bar had not prejudiced either defendant, the District Judge denied both defendants’ motions for a new trial.

Butler and Lucas again appealed. In an opinion issued on August 30, 1974, this court remanded Butler’s case for a new trial, United States v. Butler, 164 U.S.App.D.C. 151, 504 F.2d 220 (1974), finding that the representation he was given at trial failed to provide him with “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” Id. at 223, quoting United States v. DeCoster, 159 U.S.App. D.C. 326, 487 F.2d 1197, 1202 (1973).

Remaining were Lucas’ appeal as well as cross motions for summary affirmance and summary reversal. On September 23, 1974 we denied these motions but concluded that the record was inadequate for deciding the merits of Lucas’ claim that the representation given him had violated the standards set out in De-Coster, supra. Accordingly, we remanded the record to the District Court for supplementation.

On that remand, the attorneys who represented Lucas both at trial and at sentencing testified. The District Court found in pertinent part that:

“1. Defendant’s counsel was inadequately prepared for trial, particularly in failing (a) to seek to contact potentially important witnesses, '(b) to secure all information and documents in the possession of the law enforcement authorities which might have had a bearing on the defense of the case, and (c) to research or consider critical legal issues concerning the admissibility of important parts of both the defense and prosecution cases.
* * * sfc * *
3. Defendant was virtually without the services of counsel from and after the time of his conviction, and substitute counsel who appeared on his behalf at sentencing was inadequately prepared for that purpose.
4. Defendant was prejudiced by the foregoing shortcomings in counsel’s performance, principally in that (a) at least one potentially important witness who might have had knowledge helpful to the defense was not interviewed, [and] (b) potentially important documentary evidence was not inspected by defense counsel . . . .”

Based on its findings, the District Court concluded that “defendant did not, in connection with his trial or sentencing, receive the reasonably competent assistance of an attorney acting as his diligent conscientious advocate” and that since “the Government . . failed to meet its burden of proving the absence of prejudice to defendant from the failure of defense counsel adequately to perform their duties, defendant is entitled to a new trial with the reasonably competent assistance of counsel in his behalf.” Accordingly, the trial court requested that we remand the case to allow a new trial.

This case well demonstrates the critical need for the trial court’s thorough consideration of a defendant’s ineffectiveness claims. In the absence of the inquiry conducted by the trial judge in this case, any attempt to resolve the ineffectiveness issue raised by Lucas would have been nothing more than a Speculative exploration into whether “rational explanations could be made for the apparent errors in the conduct of trial.” United States v. DeCoster, supra, 487 F.2d at 1204. However, “neither one judge’s surmise nor another’s doubt can take the place of proof.” Id. In the instant case, it was the remand hearing which enabled an informed determination to be made as to whether Lucas had been denied the effective assistance of counsel.

The trial court having announced its intention to grant a motion by Lucas for a new trial, we remand the case for such action.

      . 21 U.S.C. § 841(a)(1).

      . Butler was found guilty of possessing a controlled substance with the intent to distribute it. 21 U.S.C. § 841(a)(2).

      . This is the same procedure that we adopted in DeCoster, supra. See 487 F.2d at 1201, 1204-05.

      . It is established that the constitutional right to the effective assistance of counsel extends to sentencing. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973); Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627, 630 (1955).

      . Testimony at the hearing indicated that Lucas’ counsel at trial neglected to interview a woman who may have been an eyewitness to a critical part of the narcotics transaction at issue. Moreover, counsel’s failure to object to inadmissible hearsay testimony was apparently due to his failure to do adequate legal research on the admissibility question. Additionally, the substitute counsel who represented Lucas at sentencing never conferred with Lucas’ original trial counsel about the case nor did he secure from original trial counsel the government’s allocution paper that had been in his possession since the day of Lucas’ conviction.

      . The trial court was fully justified in so concluding. Apart from announcing a general standard of effectiveness, DeCoster articulates several specific duties owed by counsel to client. Inter alia, “[c]ounsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed, . . [t]he investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities ., [a]nd the duty to investigate also requires adequate legal research.” 487 F.2d at 1204. The court’s findings reflect failures by counsel in fulfilling each of these duties.

      . Some of the cases in which this court has remanded the record to allow further trial court exploration of the ineffectiveness issue include DeCoster, supra; United States v. Hurt, 72-2229 (remanded April 22, 1974); United States v. Simpson, D.C.Cir., 495 F.2d 1076 (remanded April 26, 1974). As in the instant case, these remand proceedings have on occasion led the trial judge to find that trial counsel was ineffective and that a new trial was indeed warranted. See, e. g., United States v. Simpson, supra.

      An ineffectiveness claim should, as a normal matter, first be raised in a new trial motion before the District Court. In DeCoster we indicated that “when a claim of ineffective assistance is contemplated, it should first be presented to the district court in a motion for a new trial. In such proceeding, evidence de-hors the record may be submitted by affidavit, and when necessary the district judge may order a hearing or otherwise allow counsel to respond.” 487 F.2d at 1204-05 (footnotes omitted).


author: JAMES HUNTER, III, Circuit Judge: ADAMS, Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Anthony Joseph ACON et al., Appellees.
    No. 74-1766.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 12, 1974.
    Decided March 6, 1975.
    Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., John M. Elias, Jerome M. Feit, Marc Philip Richman, Washington, D. C., for appellant.
    James K. O’Malley, Morris, Safier & Makoroff, H. David Rothman, Herbert Lebovitz, Thomas A. Livingston, John Doherty, Pittsburgh, Pa., John Hudac-sek, Jr., Beaver Falls, Pa., for appellees.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This court must decide whether wiretap authorizations signed by an acting assistant attorney general, not specifically qualified to approve electronic surveillance under 18 U.S.C. § 2516(1), must be suppressed as facially insufficient under 18 U.S.C. § 2518(10)(a)(ii). The government appeals suppression by the district court. Because we believe that facial insufficiency in this case was an insubstantial violation of the Act, we reverse the district court’s order and remand the case for consideration of other grounds for suppression not yet reached by. the court.

I.

The district court for the Western District of Pennsylvania approved wiretap applications on December 9, and December 23, 1971. The applications submitted by the Organized Crime and Racketeering Section of the Justice Department were accompanied by authorization orders for electronic surveillance signed by Henry Petersen. Petersen was then Acting Assistant Attorney General. A series of later applications dated January 18, 25 and February 9, 1972 showed authorization by Petersen who had subsequently been confirmed as Assistant Attorney General by the Senate.

As a result of information derived from this surveillance, Anthony Aeon and three other defendants were indicted for conspiracy to conduct illegal gam-blings, 18 U.S.C. §§ 371 and 1955, and Aeon and five other defendants were indicted for conspiracy to obstruct the enforcement of Pennsylvania criminal laws, 18 U.S.C. § 1511. Defendants moved to suppress the evidence derived from the wiretaps on various grounds, only-one of .which was addressed by the district court’s narrowly drawn opinion.

At the suppression hearing, the government presented affidavits and inter-office memoranda from both Petersen and former Attorney General John Mitchell. A March 4, 1973 affidavit from Mitchell states that although the authorization order was signed by Petersen, Mitchell had in fact given the authorization. A series of memoranda dated prior to each wiretap application, initialed by Mitchell, and giving approval for the wiretap, was introduced at the suppression hearing in support of Mitchell’s more recent affidavit. Henry Petersen also submitted an affidavit which stated that, although he had reviewed the supporting papers, Mitchell had in fact given approval in each case. Petersen’s signature was affixed only after Mitchell’s approval of each application.

Although defendants challenged the allegedly institutional character of Mitchell’s approval under 18 U.S.C. § 2518(10)(a)(i), the district court did not reach this issue. The suppression order was based solely on grounds of facial insufficiency under § 2518(10)(a)(ii).

II.

Congress set out detailed procedures for obtaining electronic surveillance approval in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. §§ 2510-2520. 18 U.S.C. § 2516(1) provides that the Attorney Genera! or a specially designated Assistant Attorney General must authorize every wiretap application submitted for approval to the district court. 18 U.S.C. § 2518, in turn, sets out the information which must be contained in the application. §§ 2518(1)(a) and 2518(4)(d), for example, specifically require that the identity o'f the authorizing officer be stated in the application. Suppression of evidence derived from electronic surveillance is allowed when the communication has been unlawfully intercepted, § 2518(10)(a)(i), or when the order of authorization or approval is insufficient on its face, § 2518(10)(a)(ii).

Defendants assert that an acting assistant attorney general cannot be designated specially under § 2516(1) to authorize wiretaps. With this point, we agreé. Defendants argue further that any authorization order signed by an improper person is facially insufficient and, therefore, subject to suppression under § 2518(10)(a)(ii). They assert that suppression for facial insufficiency is required even if authorization was actually given by a person properly qualified under § 2516(1).

In light of the technical nature of this facial insufficiency, we cannot agree that suppression is required under these circumstances.

DESIGNATION TO AUTHORIZE UNDER § 2516(1)

In United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the Supreme Court held that only the Attorney General and the nine assistant attorneys general who were “responsive to the political process . . ” could authorize wiretaps under § 2516(1). 416 U.S. at 520, 94 S.Ct. 1820 citing S.Rep. No. 1097, 90th Cong., 2nd Sess. 96-97 (1968), 2 U.S.Code Cong, and Admin.News, p. 2185 (1968). “Political responsiveness” in the Court’s view, was achieved by presidential appointment and Senate confirmation, 416 U.S. at 520 n. 9, 94 S.Ct. 1820. In Giordano, improper authorization by the attorney general’s executive assistant rendered the interception unlawful and subject to suppression under § 2518(10)(a)(i). According to the Court, Congress sought to restrict the use of electronic surveillance by restricting the power to authorize wiretaps to a small group of senior Justice Department officials. Violations of the significant provision, therefore, were sufficient to warrant suppression.

In the present case, the government argues that an acting assistant attorney general is not the same as the attorney general’s executive assistant. Although for other purposes this may be true, we cannot agree in this context. Congress has created a very narrow and specific authorization power. An acting assistant attorney general is not mentioned in the statute. Neither does an acting assistant attorney general meet the Supreme Court’s test of political responsiveness. As such, an acting assistant attorney general who has not been appointed by the President and confirmed by the Senate, may not be designated specially to authorize wiretaps under § 2516(1).

FACIAL SUFFICIENCY

In the instant case, however, we are not dealing with an authorization by an acting assistant attorney general. We are dealing with a signature on the authorization order placed there by an unqualified person.

In United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), the Supreme Court held that where the attorney general had authorized a wiretap, suppression was not required merely because the authorization was signed by someone else. The Court in Chavez clearly distinguished between suppression under § 2518(10)(a)(i) and (10)(a)(ii). Neither (i) nor (ii) supplied grounds for suppression in Chavez. The Court held that misidentification of the authorizing officer violated the identification requirements of § 2518(l)(a) and § 2518(4)(d). Because the purpose of these sections was merely to fix responsibility, they did “not establish a substantive role to be played in the regulatory system.” Chavez, 416 U.S. at 578, 94 S.Ct. at 1857. As such the violation was technical; the interception was not unlawful and suppressable under (10)(a)(i) since the authorization had been given by a person qualified under § 2516(1).

The Court also specified that the authorization order was sufficient on its face since the signatory, assistant attorney general, Will Wilson, could have been designated specially to authorize under § 2516(1).

The instant case is clearly distinguishable from Chavez, however. Here the defendants attack not misidentification under (10)(a)(i) but the facial sufficiency under (10)(a)(ii) of an order signed by an improper person.

Giordano and Chavez recognize that suppression under (10)(a)(i) is not required for every technical violation. Only “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,” Giordano, 416 U.S. at 527, 94 S.Ct. at 1832, is suppression required under § 2518(10)(a)(i). Defendant-appellees argue that § 2518(10)(a)(ii), in contrast, applies irrespective of whether substantial limitations of the Act are violated.

In support of this point, they cite language from Giordano: “Paragraphs (ii) and (iii) [of § 2518(10)(a)] must be deemed to provide suppression for failure to observe some statutory requirements that would not render interceptions unlawful under paragraph (i).” 416 U.S. at 527, 94 S.Ct. at 1832. This language does imply that paragraphs (ii) and (iii) must reach violations of some provisions of Title III which do not directly and substantially implement the congressional intent to limit use of wiretaps. Despite this intention to extend (10)(a)(ii) further than (10)(a)(i), we do not conclude that suppression is required for every minor facial insufficiency.

There is a distinction in the kinds of information which must be supplied to the approving judge. Clearly, the name of the authorizing officer is less important than statements of fact which must be submitted under § 2518(l)(b). Unless the judge is properly apprised of the facts, he cannot make an appropriate probable cause determination as required by § 2518(3). In contrast, the name of the authorizing officer is not as likely to affect the judge’s determination that a wiretap is or is not warranted.

In Giordano and Chavez, the Supreme Court examined affidavits which varied the submitted identification information. Clearly, an aggrieved party may impeach the information submitted by the government to the approving court. In Giordano, this occurred. In Chavez, however, the government was allowed to vary the identification information after it had been shown by the party- attacking the wiretap that the signatory had not in fact given approval. The government was then allowed to show that a proper party, then Attorney General Mitchell, had approved the wiretap. That the government was allowed to vary the identification information submitted to the approving court, supports our conclusion that this requirement is less important than others. The government certainly would not be allowed to amplify the facts presented on the face of the affidavit to the district court in order to improve the district court’s finding of probable cause, United States v. Ceraso, 467 F.2d 647, 653 (3d Cir., 1973).

We perceive a distinction between information which the government may vary by subsequent affidavit and information which must stand on the four corners of the affidavit. Based on this difference, we conclude that suppression is not required for facial insufficiency relating to less critical requirements which may be varied by subsequent affidavits. The identification directives in our opinion fall within this category.

Although the identification requirements were designed to fix responsibility on the person actually authorizing the wiretap, Justice Department practice regrettably has frustrated this purpose. During Mitchell’s tenure as Attorney General the person signing the authorization order had rarely authorized the wiretap; and quite often even the person whose name appeared on the order had not actually signed it. Instead anonymous assistants affixed a name in what had become a purely ministerial act. In United States v. Ceraso, 467 F.2d 647, 649 (3d Cir., 1972), for example, this court did not disapprove an order to which the assistant attorney general’s name had been affixed by an underling. Thus, if Petersen had signed Mitchell’s name rather than his own, earlier cases would mandate rejection of a (10)(a)(ii) suppression motion. We do not feel that a different result should obtain merely because Petersen signed his own name.

Support for our view that (10)(a)(ii) suppression is not required for every minor insufficiency is derived from a recent Second' Circuit case. In United States v. Cirillo, 499 F.2d 872 (2nd Cir., 1974), cert. denied 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974), New York state and federal law enforcement officials joined to investigate an organization of narcotics dealers. Wiretap approval was secured from a New York state court. Despite the fact that the New York wiretap statute requires minimization directive to be included in every wiretap order, the Second Circuit refused to overturn a federal conviction based on wiretap evidence derived from an order failing to include such a directive. The court accepted affidavits from officers who executed the order stating that minimization had occurred despite the absence of a minimization order. Although the wiretap order was facially insufficient, suppression was not required.

The court, in an opinion by Judge Mansfield, concluded that the defect was technical since there had been substantial compliance with the statute. 499 F.2d at 880 citing Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959) (deficiencies are technical where no substantial rights are involved.)

In this case we believe the facial insufficiency was technical for two reasons. Mitchell had actually approved the wiretap so that there was substantial compliance with the statute. Only the less crucial identification requirements were actually breached.

III.

For the foregoing reasons the district court’s order of suppression will be reversed and the case remanded for consideration of the other grounds for suppression not yet reached by the district court.

ADAMS, Circuit Judge

(concurring):

I concur in the result reached by the majority.

Like Judge Hunter, I conclude that evidence derived from a court-approved wiretap may not be suppressed under 18 U.S.C. § 2518(10)(a)(ii) where, as here, the wiretap has in fact been authorized by a Justice Department official empowered to do so under 18 U.S.C. § 2516(1), and the only defect in the authorization procedure is in the identification of the authorizing officer.

Since the then Attorney General authorized the challenged wiretaps, I find it unnecessary to decide the further legal question whether an Acting Assistant Attorney General is “responsive to the political process” and thus empowered by 28 U.S.C. § 2516(1) to authorize wiretaps.

      . United States v. Acon, 377 F.Supp. 649 (W.D., Pa. 1974).

      . The district court did not reach suppression motions alleging an absence of probable cause to approve the initial wiretap application.

      . On the December 9 authorization, Henry Petersen’s title was improperly given as Assistant Attorney General rather than Acting Assistant Attorney General. The government argues that because he was called an Assistant Attorney General in the December 9 order, that order was not facially insufficient. We decline to make any distinction on the basis of what Petersen was called. He was an acting officer and the sufficiency of the order will be judged accordingly.

      . The affidavit dated March 4, 1973 and signed and sworn by Mitchell states:
      John M. Mitchell, being duly sworn, deposes and says:
      I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972.
      On December 8 and December 23, 1971, and on- January 18, January 24, and February 7, 1972, I approved requests for authority to apply for interception orders in this matter and personally initialed memoranda of those dates reflecting my favorable action on the requests. 1 have examined the originals of these memoranda and certify that they bear my initials which were personally affixed to them by me on the above dates. Attached are copies of my personally initialed memoranda of those dates reflecting my favorable actions on the requests.
      My memoranda of approval in this case constituted notification to the Assistant Attorney General of the Criminal Division that the discretionary action of approving each of the requests to make application to the court for an interception order had been taken by me.
      There were five substantially identical interoffice memoranda from Mitchell to Petersen on which Mitchell’s initials appeared. The December 8, 1971 memorandum states:
      This is with regard to your recommendation that authorization be given to Thomas A. Bergstrom, Special Attorney, Pittsburgh Strike Force, to make application for an Order of the Court under Title 18, United States Code, Section 2518, permitting the interception of wire communications for a fifteen (15) day period to and from telephone numbers 412-774-8488 and 412-774-1821, both located at 390 Pennsylvania Avenue, Rochester, Pennsylvania, and 412-643-4396 and 412-643-8168, both located at 757 Virginia Avenue, Midland, Pennsylvania, in connection with the investigation into possible violations of Title 18, United States Code, Sections 1955 and 371, by Anthony “Tony” Aeon, Rockliffe “Rocky” Fritz, Robert “Bobby” Ciamacco, Charles Belas, Madeleine “Mad” D’Angelo, also known as Mrs. Louis Dangelo and also known as Mrs. Lewis D’Angelo and others known and others as yet unknown.

        Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specifically designated to exercise those powers for the purpose of authorizing Thomas A. Bergstrom to make the above-described application.

      . Petersen’s sworn affidavit, dated March 15, 1973, describes a procedure whereby special units of the Organized Crime and Racketeering Section of the Justice Department requested wiretaps. The requests were processed through various levels of the Criminal Division of the Justice Department. The affidavit states, based on staff recommendations, the Attorney General approved each wiretap. Petersen then signed the order submitted to the district court at the Attorney General’s request.

      . Although not reaching this issue, the district court did question the sufficiency of these memoranda and affidavits to show authorization. The court expressed doubts about “the propriety of relying on these affidavits [to show authorization] which themselves contradict the actual language of the designation memoranda . ..” 377 F.Supp. at 652.
      Despite the deviation by the Justice Department from the authorization procedures contemplated by the statute, several cases have held that papers, substantially identical to these were sufficient authorization. The sufficiency of identical papers was not questioned by the Supreme Court in United States v. Chavez, 416 U.S. 562, 569 n. 2, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Although not reproduced in the Supreme Court opinion the papers relied on by the Court are reproduced in United States v. Chavez, 478 F.2d 512, 514 (9th Cir., 1972).
      Substantially identical procedures were deemed sufficient by this Court in United States v. Ceraso, 467 F.2d 647, 651 (3d Cir., 1972). See United States v. Becker, 461 F.2d 230 (2nd Cir., 1972), United States v. Cox, 462 F.2d 1293 (8th Cir., 1972).

      . ' Three later wiretaps were suppressed although Petersen was an Assistant Attorney General when he signed these authorizations. Despite facial sufficiency, suppression was predicated on a showing that supporting affidavits presented information derived from the earlier invalid wiretaps.

      . 18 U.S.C. § 2516(1) provides:
      The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, ... an order authorizing or approving the interception of wire or oral communications

      . Evidence obtained in violation of Title III may not be used according to 18 U.S.C. § 2515 which provides:
      Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter.
      Suppression sanctions for improperly intercepted communications are included in 18 U.S.C. § 2518(10)(a):
      (10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
      (i) the communication was unlawfully intercepted;
      (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
      (iii) the interception was not made in conformity with the order of authorization or approval, (not relevant here).

      . The government cites 28 C.F.R. 0.132(d) (1974) which provides that in the event of a vacancy, a ranking department head, such as an acting assistant attorney general “shall perform the functions' and duties and act as” an assistant attorney general. The government argues that unless vacancies can be filled by fully qualified persons, the government will grind to a halt while Senate approval is pending. This argument ignores the fact that there are nine assistant attorneys general and the fact that this statute is very specific in its limitations. The logic of Title III need not necessarily apply to all activities by an acting assistant attorney general. Several district court opinions have held that an acting officer is outside the scope of § 2516(1). United States v. Narducci, 341 F.Supp. 1107 (E.D.Pa., 1972), United States v. Boone, 348 F.Supp. 168 (E.D.Va., 1972).
      We note but decline to follow a contrary holding in United States v. Pellicci, 504 F.2d 1106 (1st Cir., 1974) cert. denied 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1974) and United States v. Vigi, 350 F.Supp. 1008 (E.D. Mich. 1972).

      . Relying solely on Chavez, the Fifth Circuit has held on identical facts that suppression is not required. United States v. Robertson, 504 F.2d 289 (5th Cir., 1974). The Court in Robertson considered only the issue of misidenti-fication as a suppression ground under (10)(a)(i). Suppression for facial insufficiency under (10)(a)(ii) was not raised in that opinion.

      . In Chavez, the Supreme Court explored the purposes of the identification requirements. Although made in the context of (10)(a)(i), the analysis is also relevant to (10)(a)(ii).
      Requiring identification of the authorizing official in the application facilitates the court’s ability to conclude that the application has been properly approved under § 2516; requiring identification in the court’s order also serves to “fix responsibility” for the source of preliminary approval. This information contained in the application and order further aids the judge in making reports required under 18 U.S.C. § 2519. That section requires the judge who issues or denies an interception order to report his action and certain information about the application, including the “identity of . . . the person authorizing the application,” within 30 days, to the Administrative Office of the United States Courts, § 2519(l)(f). An annual report of the authorizing officials designated in § 2516 must also be filed with that body, and is to contain the same information with respect to each application made as is required of the issuing or denying judge, § 2519(2)(a). Finally, a summary of the information filed by the judges acting on applications and the prosecutors approving their submission is to be filed with Congress in April of each year by the Administrative Office, § 2519(3). The purpose of these reports is “to form the basis for a public evaluation” of the operation of Title III and to “assure the community that the system of court-order[ed] electronic surveillance ... is properly administered. . . . ” S.Rep. No. 1097, 90th Cong., 2d Sess., 107. While adherence to the identification reporting requirements of §§ 2518(1)(a) and (4)(d) thus can simplify the assurance that those who Title III makes responsible for determining when and how wiretapping and electronic surveillance should be conducted have fulfilled their roles in each case, they do not establish a substantive role to be played in the regulatory system. (Footnotes deleted). 416 U.S. at 575-8, 94 S.Ct. at 1856.

      . On the diminished importance of the signature see Giordano, 416 U.S. at 525 n. 14, 94 S.Ct. 1820; United States v. Falcone, 505 F.2d 478 (3d Cir., 1974); United States v. Iannelli, 477 F.2d 999, 1001 (3d Cir., 1973).

      . For other cases finding technical violations of wiretap statutes see United States v. Rizzo, 492 F.2d 443, 446 (2nd Cir., 1973), United States v. Manfredi, 488 F.2d 588, 598 (2nd Cir., 1973), United States v. Poeta, 455 F.2d 117 (2nd Cir., 1972).
      In a somewhat analogous situation, Judge Friendly found technical defects in a search warrant. The court applied Rule 52(a), F.R. Cr.P. to the defective warrant, in a holding which denied suppression on grounds of harmless error. United States v. Ravich, 421 F.2d 1196 (2nd Cir., 1970).

      . We do not necessarily support the Second Circuit’s view that failure to include a minimization order is a minor facial insufficiency. We cite the case for the proposition that there can be facial insufficiency which is technical, and, therefore, insufficient to require suppression.

      . United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).


author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ismael RIVERA, a/k/a "Pequilino”, Appellant.
    No. 580, Docket 74-2115.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 14, 1975.
    Decided March 13, 1975.

      Stanley M. Meyer, Brooklyn, N. Y. (Preminger, Meyer & Light, Brooklyn, N. Y., of counsel), for appellant.
    Eugene F. Bannigan, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S.D.N.Y., and Rudolph W. Giuliani- and John D. Gordan, III, Asst. U. S. Attys., of counsel), for appellee.
    Before LUMBARD, FRIENDLY and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

A three count indictment in the District Court for the Southern District of New York charged Ismael Rivera with the first degree murder of Special Agent Frank Tumillo of the Bureau of Narcotics and Dangerous Drugs (BNDD), with wounding another BNDD agent, Thomas Devine,' while effecting or attempting to effect a robbery of money and property of the United States, citing 18 U.S.C. § 2114, and of assaulting Devine with a deadly weapon, citing 18 U.S.C. §§ 111 and 1114. Rivera’s alleged role in the perpetration of all these offenses was that of an aider and abettor, 18 U.S.C. § 2.

A trial before Judge Knapp and a jury resulted in a mistrial when the jury was unable to agree upon a verdict. At a second trial before Judge Wyatt, the jury returned guilty verdicts on all counts. Judge Wyatt imposed the mandatory sentence of life imprisonment on the murder count, see 18 U.S.C. § 1111, to run consecutively with concurrent terms of imprisonment of 25 and 10 years on the two other counts. Rivera appeals.

I.

Taking the evidence in the light most favorable to the Government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. McCarthy, 473 F.2d 300 (2 Cir. 1972), and omitting, for the time being, the grand jury testimony of Hector Vigo, which will be discussed in Section II, and certain evidence adduced by the Government in response to Vigo’s recantation of that testimony at the trial, the facts relevant to this appeal were as follows:

In the latter part of September or early October, 1972, Mabel Salvatierra, a BNDD informer, commenced negotiations with Jose Nieves for the purchase, of 10 kilograms of cocaine for $160,000 for her “customers,” special agents Frank Tumillo and Jeffrey Hall, who were acting in an undercover capacity. At about the same time, and over the course of a three week period, Nieves, accompanied on a number of occasions by defendant Rivera, met with Vigo and urged him to obtain the cocaine, for which he would receive a $20,000 commission. During the first or second week of October the negotiations terminated without any cocaine being obtained by Nieves or his associates because Nieves had failed to supply the money necessary to complete the transaction.

On October 11, 1972, Nieves, accompanied by Wilson Colon, recruited William Silberberg and his roommate, Pete Diaz, to assist in robbing the purchasers of the $160,000 they were to pay. The robbery was planned for the following day. During the early afternoon of October 11, Artemio Rosa, a long time acquaintance of both Nieves and Rivera, went to Nieves’ apartment in Manhattan. Nieves and Rivera were in the apartment when Rosa arrived. While there, Rosa observed several weapons. He testified that two — a long barreled .38 caliber revolver and a silver plated pearl handled small caliber automatic — were owned by and had been brought to the apartment by Rivera.

During the evening of that same day the negotiations between Nieves, BNDD informants Salvatierra and her paramour, Jose Marful, and special agents Tu-millo and Hall continued. After Hall showed Nieves a “flash roll” containing $160,000, Nieves, accompanied by the informants and special agents, drove to another location in Manhattan where he made what he claimed were two unsuccessful attempts to meet with his alleged source; finally, after an alleged phone conversation with the source, he indicated that the transaction had to be delayed until the next evening.

In the early evening of October 12, between about 7:00 and 7:30 p. m., Rosa encountered the defendant in a social club on West 6th Street and engaged him in a brief conversation. A few minutes later, while Rosa was playing the club’s jukebox, Nieves and Matta entered the club and spoke with Rivera for about five minutes. At Rosa’s request, a few moments later Rivera drove him uptown, and then, after dropping him off, proceeded back' downtown. Later that evening, at about 9:00 p. m., Nieves met Silberberg at Colon’s bar, La Borocca, and terminated Silberberg’s further participation in the planned robbery because Silberberg was “spaced out” on heroin and cocaine. Silberberg testified that; while at the club, Nieves had a conversation with Colon, during which Nieves exchanged a small gun, to wit, the pearl handled automatic Rivera had brought to Nieve’s apartment on October 11, for a .38 revolver similar to one later used by Nieves to shoot agent Tumillo, which was recovered directly after the aborted robbery. Shortly before 9:30 p.m. Nieves and Matta were observed leaving a taxi and approaching Salvatierra’s apartment. At about 9:30, accompanied by Tumillo and informant Marful, they left her apartment and drove in Tumil-lo’s car to the Sheraton Motor Inn on 42nd Street and 12th Avenue where they met agent Hall, who had already checked into Room 1007. Hall immediately showed them the money, of which there was only $150,000. After they had been allowed to count the money, it was agreed that Nieves and Matta would leave the hotel, obtain the cocaine from their source, and return to meet Tumillo in about two hours in the bar in the hotel lobby. In the meantime, Hall was to rent a. second room, where the cocaine was to be deposited after the room key was received from Tumillo; after depositing the narcotics Nieves and Matta were then to return to Room 1007 where they would receive the $150,000 from Hall. As Nieves and Matta were leaving, they rejected Hall’s offer of a ride, indicating that “our man” would provide one.

Shortly after 10:00 p. m. Nieves and Matta entered the cocktail lounge located on the fifth floor of the hotel where the bartender served them drinks. Sometime thereafter they were joined by the defendant at the bar, and about five minutes later all three left the lounge.

At around 10:45 p. m. Nieves and Mat-ta were observed entering one of the lobby elevators near the front desk. At approximately the same time BNDD group supervisors Thomas Devine and Ronald Caffrey entered the hotel and proceeding directly to room 1005, the surveillance room, where they joined agents Paul Sennett and Hall, and an informant. Soon after arriving in the surveillance room, Devine went through the connecting door to room 1007 to join agent Tumillo. At that time Caffrey, from his vantage point in room 1005, observed Tumillo standing by the window with his hands raised above his head. Upon entering room 1007, Devine was confronted by Matta, who was holding a long barreled .38 caliber revolver. In the brief struggle which ensued, the connecting door slammed and locked. After some shooting which resulted in Tumillo’s death and ■ serious wounds to Devine’s leg and back, first Matta, and then Nieves, were shot and killed while attempting to escape down the hallway.

Immediately after ascertaining Tumil-lo’s and Devine’s conditions, Caffrey returned to the surveillance room, picked up the flash roll and left the hotel to report the unexpected events to Agent Hunt. While crossing 12th Avenue he heard, but did not see, a car accelerating from a stopped position in the vicinity of 42nd Street to a high rate of speed. During his briefing of Hunt, Caffrey hailed a New York City Police car and requested the officers to radio for assistance, which they did in a dispatch at 10:53 p. m. At approximately 11:00 p. m., a car driven by defendant Rivera emerged from the Brooklyn Battery Tunnel and struck an automobile being driven by Joseph Caporicci, an off-duty New York City Police officer. When Caporicci approached Rivera’s car to exchange registrations, the defendant attacked him. Their brief struggle was joined by James Infantolino, a passenger in the Caporicci automobile, and then interrupted by an officer of the Tunnel Authority. After Caporicci identified himself, the officer requested that they move their cars out of traffic. Caporicci drove his car across the toll plaza, parking it near a retaining wall on the other side of the collection booths. While he was moving his car, Rivera was observed walking near the end of the toll booths where he dropped certain objects that were discovered to be four .38 caliber bullets. Caporicci placed the defendant under arrest and informed Mrs. Rivera, who had been a passenger in the defendant’s automobile, that her husband would be taken to the 76th Precinct in Brooklyn and that she should remain with their car or by the side retaining wall until a squad car had arrived from the Precinct. Instead of pulling over and parking, Mrs. Rivera drove away. As this occurred, Caporicci looked inside the car and observed the handle and cylinder of a revolver wedged between the cushions of the passenger seat. The defendant was taken to the 76th Precinct at about 11:25 p. m., where he was subsequently booked on charges of assault, possession of a weapon, and driving while intoxicated. Shortly before 1:00 a. m., Mrs. Rivera arrived at the station and was also placed under arrest for possession of a weapon and leaving the scene of an accident.

Early in the morning of October 13, 1972, Rosa was contacted by Rivera’s sister who asked him to provide the defendant with bail money. Later that day the money was provided and on the next day Rosa met Rivera and inquired about the latter’s black eye and facial cuts. Rivera replied “[t]hat the Federal agents were after him in the highway and he had an accident with a police car [in] Brooklyn.” He also indicated that he had started the fight in order to permit his wife to escape because there was a gun in the car. When asked whether he knew about Nieves and Matta, Rivera answered either that “he was very lucky he had not been killed then” or “he was very luck[y] he had not been killed there.”

In January 1973, an investigation was initiated to ascertain whether Nieves and Matta had the assistance of any third party in their attempted robbery. About one month later Rivera contacted Rosa and requested money, informing Rosa that the police were after him and that he had to leave town. Rosa gave the defendant $1,000 that same night. Soon thereafter Rivera departed with his wife and child for Puerto Rico. After living in Puerto Rico under the names of Mr. and Mrs. Ismael Monte from April through June 1973, they returned to New York City.

Rivera and Frank Torres were arrested on September 28, 1973, by agents of the Drug Enforcement Administration. During an interview later that day, and after being fully apprised of his rights, including his right to remain silent and to a court appointed lawyer if he could not afford to retain one, Rivera admitted knowing both Nieves and Mat-ta, and having been with them earlier in the evening on the day of the shooting. He also acknowledged being Rosa’s partner. However, he denied any involvement in the attempted robbery, indicating falsely that he had been in jail at 10:00 p. m. that evening. Prior to arraignment, Rivera was returned to the holding area where he told Torres: “It’s a mistake to trust anybody. I told the wrong man.” The following day Rivera made a virtually identical comment to his wife. On October 13, 1973, while being lodged at the Federal Detention Headquarters on West Street in New York City, Rivera attacked and beat Rosa. After the incident, he told another inmate that he had hit Rosa because Rosa had “ratted” on him.

II. Hector Vigo’s grand jury testimony.

On June 18, 1973, some ten months before the first trial and a year before the second, Hector Vigo testified before a grand jury in the Southern District of New York that two days after the shooting Rivera had said that he had been waiting downstairs in a hotel for Nieves and Matta, that he had fled from the hotel when he heard the shooting, that he believed federal agents were looking for him, and that he was going to leave for Puerto Rico because he was involved in the shooting — “he was downstairs waiting for the guys and then he heard the shooting and he left.” However, when called as a Government witness, Hector Vigo testified, as he had at the first trial, that, although Rivera had come into his bar on two occasions directly after he had learned of the shooting of Nieves, he had never had any conversation with Rivera relating to the shooting. When confronted with his grand jury testimony, Vigo admitted this to be an accurate transcript. However, far from having his recollection refreshed by this, he again claimed the testimony was false; that most of the testimony had been told him by government agents during questioning and the rest he had made up; and that he had been willing to give such false testimony because government agents had threatened that unless he testified as desired, they would take away his children and put his wife and mother in jail. The Government offered the transcript in evidence under the principle announced by this court in United States v. DeSisto, 329 F.2d 929 (2 Cir), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), and many subsequent cases. Defense counsel specifically stated he had no objection and the evidence was received. In his charge the judge, again without objection, instructed that Vigo’s grand jury testimony, if believed, could be considered as substantive evidence, and not merely as “impeaching” Vigo’s denial of any conversation with Rivera concerning the latter’s involvement in the shooting.

The Government urges us not to consider Rivera’s attack on the admission of the grand jury testimony, and the other evidence subsequently adduced by it on the subject of threats, on the ground of lack of objection, United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966); United States v. Pinto, 503 F.2d 718, 723 (2 Cir. 1974). Indeed, this may be a stronger case for taking such a course than that presented by either of the cases cited since in Indiviglio and Pinto a general objection had been raised to the evidence challenged on appeal. However, so far as concerns the basic principle of DeSisto, counsel could have considered objection to be futile so far as the district judge or this court were concerned, see United States v. Liquori, 438 F.2d 663, 665 (2 Cir. 1971), and cases there cited, and we shall therefore consider contentions going to the basic principle of DeSisto and even to its applicability to Vigo’s grand jury testimony. Failure to object to evidence not within DeSisto is another matter.

We can speedily dispose of Rivera’s claims that DeSisto is inapplicable to Vigo’s grand jury testimony under later decisions of this court. United States v. Cunningham, 446 F.2d 194 (2 Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 302, 30 L.Ed.2d 266 (1971); United States v. Briggs, 457 F.2d 908 (2 Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1973); and United States v. Pacelli, 470 F.2d 67 (2 Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973), are quite beside the point; we simply refused to extend DeSisto to out-of-court statements. Rivera attempts to make something of our remark in Cunningham, supra, 446 F.2d at 197—98, that admitting as substantive evidence an FBI agent’s testimony to an oral statement which the defendant denied making was improper since introducing “the issue whether the declarant ever made the statement requires resolution of a swearing contest between himself and the police.” Those remarks have no bearing whatsoever since the declarant here admitted he had given the testimony, which had been taken by a grand jury stenographer. Indeed, we made this very distinction in DeSisto itself, see 329 F.2d at 933-34. Likewise we find no retreat from DeSisto in United States v. Insana, 423 F.2d 1165, 1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970); when the court there spoke of “our qualification of the hearsay concept set forth in United States v. DeSisto . . .”, it was expressing a preference for the qualified form of that concept there announced as against the broader exception for all pri- or relevant statements, whether inconsistent or not and wherever made, in the Preliminary Draft of the Proposed Rules of Evidence for the United States District Courts and Magistrates to which the court referred, 423 F.2d at 1169; Proposed Rule 801(c)(2)(iv), March, 1969, reprinted in 46 F.R.D. 161, 331.

We likewise see no force in the argument that DeSisto is inapplicable where the witness, rather than disclaiming continued memory of the events to which he had earlier testified, asserts that his pri- or grand jury testimony was false. Indeed this in effect was the situation in DeSisto itself, 329 F.2d at 932, although the witness did not characterize his earlier testimony so pejoratively as here and did endeavor to explain it. See also United States v. Klein, 488 F.2d 481, 483 (2 Cir. 1973) (per curiam). If the change in testimony is due to fear, it is quite likely that a witness may go beyond disclaimer of continued memory of facts to which he had testified before. We would be all the more reluctant to depart from DeSisto since it vvill shortly rest on authority beyond the power of any federal court to alter, except on constitutional grounds. Rule 801(d)(1) of the Federal Rules of Evidence, Pub.L. No. 93-595, 88 Stat. 1926, signed by the President on January 2, 1975, provides the following exception to the hearsay rule:

Prior statement by witness. — The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive

Although the rules take effect on the ,180th day after the date of enactment, and apply to all cases brought thereafter, they also are to apply to further procedure in pending cases tried at an earlier date “except to the extent that application of the rules would not be feasible, or would work injustice . . . .” And any basis for constitutional attack seems to be removed by Part II of Mr. Justice White’s opinion, joined by four others of the seven participating Justices, in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). See also id. at 154, n. 5, 90 S.Ct. 1930.

The further contention is made that the defendant’s case was seriously prejudiced by the substantial evidence which was adduced to dispute Hector Vigo’s assertions of threats by the Government to induce him to testify falsely before the grand jury and to show that any threats came from elsewhere.

The first step along these lines was in continuing Vigo’s direct examination, where the prosecutor brought out that, prior to testifying before the grand jury, Vigo and his wife had told of threats, veiled or otherwise, that had been directed to them and which were contingent upon whether he did testify — culminating in Vigo’s telling the prosecutor “I don’t want to be a rat and you can’t protect me.” However, defense counsel went much further on cross-examination. He elicited testimony from Vigo that a federal agent, Ferrarone, and Detective Sierp of the New York City Police Department had come to see him in The Tombs, where he was confined on a state charge, and had told him that there were twelve people who had heard Rivera say something to him about the killing; that on a second visit they said they would “fix up” the state case if Vigo would “square with them”; that later they took him to then Assistant United States Attorney Phillips’ office in the Federal Courthouse and, with Phillips not present, asked him to testify that Rivera had admitted being at the hotel and threatened harm to his children and mother if he did not; and that the conversation with his wife and his statement about not wanting to be a rat came after the grand jury testimony, meant only that Vigo in fact did not want to be a rat, and that he understood “being a rat” to mean “being a liar”. The cross-examination concluded on the note that Rivera had never told Vigo anything about involvement with the crime, and that Vigo’s only reason for having said the contrary was the threats made by the federal agents to him and his family;

The Government naturally responded. Detective Sierp denied threatening Vigo. He further testified that Vigo changed his mind about testifying at trial directly after a conversation with his wife on February 25, 1974, eight months after his grand jury testimony, in which she told him that she had been asked by neighborhood people whether he was testifying, that she felt her life was in danger, and that she would divorce him unless he refused to testify. Agent Ferrar-one similarly denied threatening Vigo and also told of four statements by Vigo with respect to acts or utterances by Rivera shortly before or after the crime. Agent Silvestro, who had been present at a meeting with Phillips, Ferrarone, and Vigo before the latter’s grand jury testimony, described in much fuller detail Vigo’s four statements concerning Rivera, see n. 16 infra; that on that occasion Vigo said nothing about any threats by federal agents; and that it was only after his grand jury testimony and subsequent conversation with his wife that Vigo indicated he had decided not to testify because he did not want to be a rat and had made up everything because of threats by the agents. Finally former Assistant United States Attorney Phillips testified that at no time had Vigo ever indicated to him that he had been threatened.

In its effort to establish that Vigo’s recantation and denial of the truth of the statements he had made to the agents were motivated by his fear for his own life, the Government also called his brother, Robert Vigo, as a witness. He testified that in early January 1974, while he was a prisoner in a detention facility different from the one in which Hector was being held, he learned that some unknown individual was going to kill Hector for testifying and that he wrote a letter to his brother’s wife informing her of this; moreover, he said that approximately three weeks prior to the second trial he personally had told Hector about the threat to the latter’s life, but that Hector had told him not to worry since he had said nothing.

Rivera contends that admission of this testimony deprived him of a fair trial. But the Government could not be expected to remain silent in the face of a claim, vigorously developed by defense counsel in cross-examining Hector Vigo and presumably to be further exploited in summation, that it had procured false testimony by threats — a claim which, if credited by the jury, would have an effect far beyond the destruction of Vigo’s grand jury testimony. While greater restraint with respect to Agent Ferrarone’s and, particularly, Agent Silvestro’s testimony might have been desirable, the defense raised no specific objection to their reciting statements by Vigo of admissions by Rivera concerning his knowledge of and participation in the scheme to “rip off” the agents beyond those contained in Vigo’s grand jury testimony and made no request for an instruction that these not be considered as substantive evidence. It was competent for the Government not simply to deny that threats on its part had led to Vigo’s grand jury testimony but also to assert that it was his recantation rather than his grand jury testimony which was due to fear resulting from threats by unnamed third parties. It is immaterial that the Government was unable to prove that the alleged threats came from Rivera, United States v. Franzese, 392 F.2d 954, 961 (2 Cir. 1968), vac. & rem’d on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed. 297 (1969). Although the defense would have been entitled to an instruction that there was nothing in any of the evidence adduced to show that Rivera was responsible for the threats, cf. United States v. Scandifia, 390 F.2d 244, 251-52 & n. 6 (2 Cir. 1968), vac. & rem’d on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), Rivera’s counsel made no such request, which indeed would have been wholly inconsistent with his objective to convince the jury that the only threats to Vigo came from the Government. In any event, with respect to the testimony of Robert Vigo the court did specifically caution the jury that

it is not admitted as proof that anybody, in fact, had threatened Hector Vigo, least of all that this defendant, Rivera, or anybody connected with him, had, in fact, threatened Hector Vigo. But it was admitted solely for the consideration of the jury in determining what the frame of mind of Hector Vigo was when he gave testimony here in this courtroom. It was admitted for that purpose and that purpose alone.

III. Sufficiency of the Evidence.

Rivera’s principal argument is that the evidence of his guilt was insufficient to warrant submission to the jury — a question to be determined under the standard we adopted in United States v. Taylor, 464 F.2d 240 (2 Cir. 1972), namely, whether, as said in Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), “upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.”

Rivera would have us look at the case as if the evidence of his involvement began only when Agent Caffrey heard the sound of a car “peeling out” from the side of the hotel on the night of the shooting. But there was much more than this to connect Rivera with the interrelated series of events culminating in the murder of Agent Tumillo and the serious wounding of Agent Devine. He had participated in the scheme which began in late September to sell the agents ten kilos of cocaine, to be acquired through Robert Vigo, for $160,000. On several occasions he accompanied Nieves and Matta to meetings with Robert Vigo at which they unsuccessfully urged Vigo to procure the cocaine in exchange for a $20,000 commission; these negotiations terminated during the first or second week of October. Moreover, there was ample evidence from which the jury could conclude that he was aware of the change in the plan from sale to robbery. On the afternoon of October 11 Artemio Rosa went to Nieves’ apartment and saw Nieves and Rivera with a number of weapons; two of these were Rivera’s and Rosa testified that they had been brought to Nieves’ apartment by Rivera. One was a long-barreled .38 caliber revolver similar to the one later used by Matta to shoot the agents; the other was a pearl-handled .25 semi-automatic pistol wich Nieves exchanged on October 12 with Wilson Colon for the .38 caliber revolver he used to shoot Agent Tumillo. Defendant argues that sellers of large amounts of narcotics often arm themselves to protect their possession of the cash. But Rivera’s assistance in procurement of the weapons for the shooting afforded a basis for reasonable inference that more than this was in hand, and the inference became compelling in light of the evidence, referred to before and later, that Rivera very likely knew that the cocaine would not be produced.

Proceeding further, Rivera met with Nieves and Matta on the evening of October 12 at a club on West 6th Street. Only minutes before the shooting he was seen with them in a lounge on the 5th floor of the Sheraton Motor Inn. To be sure, Rivera’s identification was by a waitress who could not identify Nieves and Matta, and the latter were identified by the lounge bartender who could not identify Rivera, but this again goes simply to weight. Indeed, the jury could have been favorably impressed by the waitress’ refusal to identify Nieves and Matta as contrasted with her persistence in identifying Rivera. Certainly by this time Nieves and Matta knew they were planning a robbery and not a sale, and the jury could reasonably conclude this was discussed; indeed it is a bit hard to see how they could conclude anything else.

Next comes the swift departure of the get-away car, which the jury was abundantly justified in finding to have been Rivera’s. Defendant argues that no one would place his wife in a get-away car but that was for the jury to consider. So also was resolution of the conflicting testimony as to the physical possibility of Rivera’s making the 5.8 mile journey from the Sheraton Motor Inn near the 42nd Street entrance to the West Side Highway to the toll plaza at the Brooklyn Battery Tunnel late at night in about 10 minutes or less. Rivera’s collision with Police Officer Caporicci’s automobile, his assault on the officer, his dropping four .38 caliber bullets to the ground, his subsequent denial of ownership of them and his violent remarks to Caporicci clearly permitted an inference of consciousness of guilt. To be sure, this could have been only of participation in an aborted sale but, in light of the evidence that Rivera had known no cocaine was available and had been with Nieves and Matta only a few minutes before the attempted robbery, the jury could reasonably be convinced of a more sinister view beyond a reasonable doubt.

Going on, we find Rivera’s remark to Rosa that he was very lucky not to have been killed with Nieves and Matta, which means at least that he had planned to be with them about something, which the jury could have properly found to be a robbery, and his remark that federal agents were chasing him when he hit the police officer’s car in Brooklyn. There is also the conversation related by Hector Vigo before the grand jury, where Rivera allegedly admitted having been downstairs in a hotel waiting for Nieves and Matta, that he had fled the hotel when he heard the shooting, and that he intended to leave for Puerto Rico because he was involved in the shooting. About a month after Agent Ferrarone of the Drug Enforcement Administration started an investigation to ascertain whether Nieves and Matta had the assistance of any third party in the attempted robbery, Rivera borrowed $1,000 from Rosa saying that the police were after him and he had to leave town. Rivera, his wife and child left for Puerto Rico where they remained for three months under assumed names; they also gayé false addresses for their residences in New York. After his arrest, along with Frank Torres in September 1973, Rivera not only made the admission as to having been with Nieves and Matta early in the evening of the shooting but was heard to tell Torres, “It is a mistake to trust anybody. I told the wrong man”, meaning apparently either Hector Vigo or Rosa. Later, while in the Federal Detention Headquarters, Rivera attacked Rosa, subsequently telling another inmate that Rosa had “ratted” on him.

It can hardly be disputed that this evidence was ample to show that Rivera participated with Nieves and Matta in an unlawful scheme for dealing with the agents. Each one of the facts recited gave color to the others, United States v. Monica, 295 F.2d 400 (2 Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962); in cases of circumstantial evidence the whole is generally greater than the sum of the parts. See United States v. Bottone, 365 F.2d 389, 392-93 (2 Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966). True the evidence did not point with absolute certainty to knowledge by Rivera that the scheme was to rob rather than to sell. But it was sufficient for a reasonable juror, who had seen and heard the witnesses, to be convinced of this beyond a reasonable doubt.

IV. Alleged failure to produce Brady material.

Another point raised by Rivera is a claim that the Government failed to supply certain material, potentially relevant to his defense, required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Before the first trial the Government did turn over a report of Special Agent Ferrarone dated February 8, 1973, stating that he had received information that one Ardemeo Gonzalez was a possible co-conspirator in the shooting. The report said that Gonzalez through his own admission and that of “a close friend, William Silverbird [Silverberg],” who testified as a defense witness, had become involved in the planning stages but became frightened and backed out of the scheme prior to the actual shooting; he was said to have been awaiting the return of Nieves and Matta in an unknown Seventh Avenue address. It was further indicated that he lived at various intervals with his uncle at 245 E. 13 St.

The alleged default by the Government was in not telling the defense that Ardemeo Gonzalez and Rivera’s “partner”, Artemio Rosa, were one and the same person. The Government, answers this contention both procedurally and on the merits. Procedurally, it contends that the point was never properly raised below; even assuming that Rivera did not learn of the identity until after the end of the trial, which it disputes, the matter should have been raised by motion for a new trial rather than at sentencing and now on appeal. Moreover, it cites substantial evidence to show that Rivera knew of the identity all along — to which Rivera has made no answer. We think the Government is right on both grounds.

V. Applicability of 18 U.S.C. § 2114.

Subsequent to oral argument defense counsel for the first time has questioned whether 18 U.S.C. § 2114, although on its face clearly encompassing the crime for which Rivera was convicted under count II of the indictment, is limited in its applicability to robberies' and attempted robberies connected with the Postal Service. The Government has not objected to our considering this — soundly enough since the issue is solely one of law and failure on our part to consider it would simply result in further proceedings in the district court under 28 U.S.C. § 2255 or F.R.Cr.P. 35.

Based on an analysis of the statute’s legislative history the Ninth Circuit, in United States v. Fernandez, 497 F.2d 730 (9 Cir. 1974), held in accordance with counsel’s contention. See also United States v. Spears, 145 U.S.App. D.G. 284, 449 F.2d 946, 951-54 (D.C.Cir. 1971). Prior to Fernandez the Solicitor General of the United States in United States v. Hanahan, 442 F.2d 649 (7 Cir. 1971), vac. & rem’d, 414 U.S. 807, 94 S.Ct. 169, 38 L.Ed.2d 43 (1973) (for reconsideration in light of Solicitor General’s position), had conceded that the legislative history showed that the statute was intended to be limited to postal-related offenses. The Government in part counters that any resort to the legislative history is inappropriate since the words of the statute are unambiguous. However, the days when the “plain meaning” rule of Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917), was a vade mecum for the interpretation of criminal statutes have long since passed. Although there can here be no fair contention of lack of warning such as to make application of the statute offensive on due process grounds, courts should not extend criminal statutes to cases where Congress clearly did not intend them to apply but insufficiently expressed its intent. The “rule of lenity” in applying criminal statutes, see Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 99 L.Ed. 905 (1955), is an analogy. We thus agree with the Ninth Circuit in Fernandez and the position taken by the Solicitor General in Hanahan that § 2114 does not apply to the “robbery” of Government monies generally.

The question remains as to the appropriate remedy for this error. Unlike in Hanahan where the offense for which the defendant was charged and convicted was in fact covered by 18 U.S.C. § 2112, which does not require a postal nexus, neither that nor any other statute covers the situation here. Although Count II of the indictment charged an assault ‘in effecting and attempting to effect’ a robbery, thereby leaving open the possibility of conviction under § 2112, the Government concedes that the evidence at trial was limited to showing that an assault was committed during an attempted robbery, which is all that is required under § 2114. The trial court’s charge was similarly limited. The simple remedy available in Hanahan of remanding for sentencing under the correct statute is thus not available. In these circumstances, where defendant has already been sentenced to life imprisonment for another offense, it would serve little purpose to remand for a full trial on the question of whether the attempted robbery was completed for purposes of sustaining a conviction under § 2112. The conviction as to Count II is reversed and the cause remanded with instructions to dismiss that count of the indictment. The convictions are affirmed as to Counts I and III.

      . Under 18 U.S.C. § 1111, murder is in the first degree if “committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery.” While that section applies only to murder within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 1114 provides that whoever kills various officers or employees of the United States, including any officer or employee of the BNDD, shall be punished under §§ 1111 and 1112.

      . Also omitted, with the exception of that which is briefly alluded to in Section III, is most of the evidence upon which Rivera premised his defense — the major portion of which consisted of testimony by his wife and relatives concerning the whereabouts of the Riveras on the night of the shooting. Assessment of this testimony was for the jury under the correct instructions which it received. The many inconsistencies in the testimony of defense witnesses which the Government highlighted during the trial afforded ample ground for disbelief.

      . Nieves and Rivera were also accompanied on at least one occasion by Jose Matta — who along with Nieves was later killed by BNDD agents after the unsuccessful attempt at robbery — and certain other unidentified individuals.

      . Nieves’ apartment at 150 Seventh Street between Avenues A and B had formerly been occupied by Rosa, although the latter denied that there was any period of joint occupancy.

      . The Government argued that this inability to contact the alleged supplier was feigned, and was designed to set up the customers for the robbery attempt the following evening.

      . Earlier that day Silberberg’s roommate Pete Diaz had died from an overdose of drugs.

      . Hall had removed $10,000 from the flash roll used the previous evening in order to be “realistic” since a bona fide purchaser would have reduced the final payment because of delay in obtaining the cocaine.

      . Rivera was identified by the lounge cocktail waitress who, although testifying that he joined two other men at the bar, was unable to identify the other individuals as being Nieves and Matta. By contrast, the lounge bartender identified Nieves and Matta as having been at the bar, but was unable to identify Rivera as having been the third individual who joined them there. Study of the record has revealed an inconsistency between their testimony in that the waitress said that the three men had been in the bar before 9:00 p. m., while the bartender placed them there at some time shortly after 10:00 p. m. Again, the determination of whose version of the “facts” is correct was for the jury, at least where, as here, the version apparently accepted is not inherently unbelievable and acceptance of the alternate version, that of the waitress, would create time inconsistencies with other witnesses’ testimony.

      . During this period Rivera telephoned Rosa on a number of occasions to ask for additional money. As a result of these conversations, on one occasion Mrs. Rivera returned to New York where she received $10,000 from Rosa.

      . Torres was arrested for harboring a fugitive. This charge was eventually dismissed by the Government’s motion.

      . Thus, the court admitted into evidence the signed statement which Vigo had given Special Agent Ferrarone and Detective Robert Sierp of the New York City Police Department. No objection was made to the admission of this document and its use as substantive evidence, despite the fact that such affirmative use would clearly be invalid under prior decisions in this circuit. See, e. g., United States v. Briggs, 457 F.2d 908 (2 Cir. 1972), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1973). In such an instance, as in others discussed in n. 16, infra, it is appropriate to rely on defendant’s failure to object. Moreover, the information contained in this brief one page document does not go beyond that contained in Vigo’s grand jury testimony, and any error in admitting it thus was harmless beyond any reasonable doubt, cf. United States v. Pacelli, 470 F.2d 67, 70 (2 Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973).

      . See also note 11 supra.

      . See also note 8 supra.

      . Defendant contends that it would have been impossible for Rivera to have driven from the hotel to the toll plaza in the interval between the shooting and the accident. Defendant supported this by the testimony of two cab drivers, who stated that because of the extreme curves and bad surface condition of the West Side Highway, completion of such a journey would take at least 12 minutes. However, the Government offered as its expert a New York City police officer who had frequently been assigned to the area and who had driven the given distance in four to four and a half minutes without using a siren or police lights.

      . Other circumstantial evidence included the revolver which Officer Caporicci sighted through the car window and Mrs. Rivera’s driving away from the toll plaza in contravention of the officer’s orders.

      . This conclusion would become even stronger if we were to take into account certain evidence not heretofore discussed in detail: Some three to four weeks after the shooting Rivera returned to Hector Vigo’s bar and told him that just prior to the shooting Nieves and Matta had counted $150,000 — not $160,000— and that the exchange was to take place in a room that had been rented for them — facts otherwise known only to the agents, perhaps the informant Marful, and the two dead robbers; moreover, Rivera had indicated to Vigo that since they didn’t have the cocaine, they intended to “rip off” the potential buyers. This evidence was not in Vigo’s grand jury testimony but is derived from Agent Silves-tro’s summary, admitted in response to the defense “threat” contention, of the statements out of court Vigo allegedly made concerning his last encounter with Rivera. While this constituted proper impeachment, it would not be admissible, under our cases cited supra, as affirmative evidence that the statements were in fact made by Rivera to Vigo. However, for that very reason, there was no excuse for the failure to seek a limiting instruction. So far as concerns sufficiency, there was sufficient evidence without this testimony.

      . Section 2114 provides:
      § 2114. Mail, money or other property of United States
      Whoever assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United states, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.

      . Prior to the 1935 amendments the statute, then entitled 18 U.S.C. § 320, read:
      Whoever shall assault any person having lawful charge, control, or custody of any mail matter, with intent to rob, steal, or purloin such mail matter or any part thereof, or shall rob any such person of such mail or any part thereof, shall, for a first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery, he shall wound the person having custody of the mail, or put his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years.
      In 1935 the more encompassing phrase “money or other property of the United States” was added. Despite the breadth of the language the legislative history reveals that the amendment was simply designed to remedy an anomaly under the old statute, namely that it imposed a severe penalty on one who robbed mail matter from the Postal Office but none on one who robbed money or other valuable material. This change in the law had been advocated by the Post Office Department, and its purpose was succinctly described by Representative Donald C. Dobbins, a member of the House Committee on Post Office and Roads:
      Mr. Speaker, the gentleman from Ohio objects to the 25-year penalty provided in this bill. The penalty clause is not new legislation. If this bill is not passed, the statute will still contain the mandatory 25-year penalty.
      The only purpose of the pending bill is to extend the protection of the present law to property of the United States in the custody of its postal officials, the same as it now extends that protection to mail matter in the custody of postal officials. Aside from that, it makes no change in the law. It just includes property of the United States in addition to mail matter which is protected; and let me say there are many custodians of postal stations who have a great amount of money in their custody but little mail; for instance, in those substations where money orders are sold. If a bandit attacks those employees seeking that money, there is no way to prosecute the bandit under the present law, but if he is merely after a postal card or a letter he can be prosecuted.
      I think this makes a salutary change in the law. It is advocated by the Post Office Department and it seems to'me there ought to be no objection to it.
      79 Cong.Rec. 8205, 74th Cong., 1st Sess. (1935). We do not regard another statement in the floor debate, which the Government has called to our attention, 79 Cong.Rec. 8205, 74th Cong., 1st Sess. (1935) (remark of Rep. Wolcott in response to question by Rep. Truax), as supporting a contrary inference. See also H.R.Rep. No. 582, 74th Cong., 1st Sess. (1935); Sen.Rep. No. 1440, 74th Cong., 1st Sess. (1935).

      . Section 2112 provides:

        Personal property of United States. Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.

      . On or about the 12th day of October, 1972, in the Southern District of New York, Ismael Rivera, a/k/a “Pequilino”, the defendant, unlawfully, wilfully and knowingly, did assault a person, to wit, Thomas Devine, having lawful charge, control and custody of money and property, to wit $160,000, of the United States, with intent to rob, steal and purloin such money and property of the United States, and in effecting and attempting to effect such robbery, did wound and put in jeopardy the life of said Thomas Devine by the use of a dangerous weapon, to wit, a .38 caliber revolver.

      . It is settled law that citation of a wrong section of the penal code, not going to the substance of the crime charged, is not ground for dismissal of an indictment, at least where the defendant has not been misled to his prejudice. See Fed.R.Crim. p. 7(c); United States v. Cook, 412 F.2d 293 (3 Cir.), cert. denied, 396 U.S. 969, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969).


author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Elvin Lee BYNUM, et al., Appellants.
    No. 730, Dockets 72-1857, 72-1884, 72-2101, 72-1763, 72-1242 and 72-2143.
    United States Court of Appeals, Second Circuit.
    Submitted March 17, 1975.
    Decided March 26, 1975.

      Henry J. Boitel, New York City, for appellant Bynum.
    Patrick M. Wall, New York City, for appellants Cordovano, Wright, Small, Mitchell, Garnett and Dyson.
    H. Elliot Wales, New York City, for appellants Coniglio, Mele and Tuzzolino.
    Frank Lopez, Brooklyn, N. Y., for appellant Altamura.
    Amedeo Lauritano and Joel Winograd, New York City, for appellant Feroldi.
    Morrow D. Mushkin, Garden City, N. Y., for appellant Birnbaum.
    Levis Nedd, pro se.
    Paul J. Curran, U. S. Atty., Southern District of New York (W. Cullen MacDonald and Lawrence S. Feld, Asst. U. S. Attys., New York City, of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

The facts relevant to the convictions of these appellants, defendants in a far-ranging narcotics conspiracy, are set forth in United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), and thus need not be repeated here. Subsequent to its decisions in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), the Supreme Court vacated the judgment of this court and remanded for further consideration in light of those cases. On June 18, 1974, we remanded to the district court for appropriate reconsideration of the admissibility of wiretap interceptions introduced at trial, and after hearing evidence relevant to the procedures followed for authorization, Judge Pollack concluded that Gior-dano and Chavez did not require suppression. We affirm.

On this occasion, the appellants claim that Judge Travia’s extension order permitting interceptions to continue over telephone number 212-342 — 6203 until March 3, 1971 was improperly authorized, since neither Attorney General Mitchell nor an Assistant specially designated by him approved the application. We note at the outset that appellants Abraham Wright, Lance Small, Newbry Mitchell, Jacqueline Fuller Dyson, John Coniglio, Angelo Mele, Vincent Altamu-ra, Irving Birnbaum, John Feroldi, Charles Tuzzolino, and Levis Nedd did not participate in the four “extension” conversations here in dispute, nor did any of them have an interest in the premises at 655 Linden Blvd. They are, consequently, not “aggrieved persons” within the meaning of 18 U.S.C. §§ 2510(11) and 2518(10)(a), and have no standing to contest the admission of the evidence at their trial. United States v. Capra, 501 F.2d 267, 281 (2d Cir. 1974); United States v. Garcilaso de la Vega, 489 F.2d 761, 763 (2d Cir. 1974); 1968 U.S.Code Cong. & Admin.News, p. 2185.

Fannie Mae Barnett, as a resident at 855 Linden, would obviously have standing to object to introduction of the four conversations if they provided evidence against her. But none of the calls referred to her directly or indirectly, and it was never claimed that they constituted proof of her participation in the conspiracy. Thus any error as to Garnett was harmless.

Although we agree with Bynum’s and Cordovano’s contention that 18 U.S.C. § 2518(5) contemplates an authorization procedure for extensions similar to that required for initial applications, we conclude that the contents of the four extension recordings introduced were merely cumulative as to them. Little was added to the Government’s case against Cordovano by the introduction of calls # # 2312 and 2463 (Govt. Exhibits 75, 85) in which he participated. Both George Stewart and Charles Moody testified about direct narcotics dealings with Cordovano. Moreover, he was arrested in possession of cocaine, and a sub-machine gun described by Moody as belonging to him was found in a neighbor’s house. Finally, the recordings of ten other telephone conversations in which he participated between February 20 and March 6, 1971, all properly intercepted, provided both additional evidence and corroboration of Stewart’s testimony. It is clear to us from “our own reading of the record and what seems to us to have been the probable impact ... on the minds of an average jury,” Harrington, v. California, 395 U.S. 250, 254, 89 S.CT. 1726, 1728, 23 L.Ed.2d 284 (1969), that admission of the extension interceptions against Cordovano was at most harmless error. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

We reach a similar conclusion as to Bynum. Stewart not only testified about his own numerous dealings with Bynum, but provided a sample of cut cocaine received from Bynum on January 10, 1971, and the $65,000 in cash delivered to him at Bynum’s request on February 25, 1971. Moody testified concerning Bynum’s part in planning the aborted Washington, D. C. robbery. And By-num himself admitted having been at the places where he had been observed by agents Theodore Handoga and Richard Moser. Finally, an examination of the calls themselves shows that their direct evidentiary and corroborative value was at best minimal.

Affirmed. The judgment of this court vacated June 18, 1974 is reinstated.

      . See also United States v. Bynum, 475 F.2d 832 (2d Cir. 1,973), on remand, United States v. Bynum, 360 F.Supp. 400 (S.D.N.Y.1973).

      . 18 U.S.C. § 2516(1), for example, provides that the Attorney General may authorize an interception order “when such interception may provide or has provided evidence of [specified crimes].” [Emphasis added.] It is difficult to understand what the phrase “has provided evidence” refers to, unless it be that the phone for which a tap is requested has already been the subject of surveillance.
      Moreover, § 2518(5) provides that
      Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section.
      Subsection (1) of § 2518 states that each application shall include
      (a) the identity of . the officer authorizing the application ....
      Section 2516, however, makes clear that the only officers who can authorize applications are the Attorney General or an Assistant specially designated by him.